text:
    Reynolds v. Smith.
    5-2002
    331 S. W. 2d 112
    Opinion delivered January 25, 1960.

      Homer T. Rogers, Wright, Harrison, Lindsey & Upton, for appellant.

      Tompkins, McKensie S McRae, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action in which appellants sought to cancel a portion (120 acres only) of an oil and gas lease covering 200 acres of land, consisting of five contiguous 40-acre tracts. The lease was executed in March 1953, for the primary term of six months and as long thereafter as oil and gas is produced, and contained a special drilling provision that the lessee would, within thirty days, drill a well to a depth of 3,500 feet unless production in commercial quantities was found at a lesser depth. The lessee complied with this drilling provision and obtained production in the Travis Peak formation in the first well drilled at a depth of approximately 3,000 feet. This well proved to be the discovery well in this formation in the area. Jones-0’Brien, appellee Smith’s predecessor, had drilled seven wells upon this leased land and had contributed to the cost of drilling a test well on the adjoining lands to the north, which proved to be dry. These wells were all drilled to the Travis Peak formation, the deepest known horizon in the area and through October 1, 1958, the lessee had expended $239,623.97 in drilling and completing these wells, plus operating expenses of $130,024.95, making a total of $369,648.92 on the leased premises. Three of these wells are now producing commercially from the Travis Peak. The Reynolds family, appellants, own practically all of the royalty under the leased premises and have received $41,429.41 in royalties. Appellant, J. D. Reynolds, wrote three letters to Jones-0’Brien; the first on March 13, 1956, the second October 4, 1956 and the third on December 3, 1957, requesting a release of the non-producing acreage included in the lease. None of these letters contained a request or demand for additional drilling. It is undisputed that there is no production deeper than the Travis Peak in Nevada County, and the nearest deeper production is from the Smackover Lime at Stephens, Arkansas, nine miles southeast of the lands involved, and in the Midway field of Lafayette County which is sixteen miles southwest of the lands involved. A large number of dry Smackover Lime wells have been drilled in Nevada County, one immediately adjacent to the lands involved, and the testimony is in agreement that the drilling of such a well upon the leased premises would be a wildcat operation; that the drilling of such a well through testing point to the Smackover Lime would cost from $40,000.00 to $70,000.00, and to warrant drilling, 500 acres of land, as a minimum, would be required.

Appellants brought the present suit December 16, 1958, in which they sought to cancel the lease in question as to all the lands included therein except the 80 acres on which the three producing wells are located, alleging that appellees “— have failed to comply with the implied covenants of said oil and gas lease, have drilled and completed all the wells they intend to drill and complete on said land and merely would like to hold the same to speculate on same and should be required to release all portions of this lease except —” the 80 acres. When the case was tried below, the appellants conceded that the entire 200 acres included in the lease had been fully and adequately developed as to all known producing horizons in the area which includes formations through the Travis Peak. No drainage or offset obligations are involved.

Trial resulted in a decree in favor of appellees and this appeal followed. On this appeal, appellants argue that the lease should be cancelled as to all levels, all formations under the three 40-acre tracts below the Travis Peak (3,500 foot level) in which there is no present production, and rely on the following points for reversal: “(1) The appellees have breached their covenant to explore and develop the premises (2) The deeper horizons constitute separate estates that have never vested in the appellees (3) The appellees are holding the deep rights for purposes of speculation. ’ ’

After reviewing the testimony presented in this record, ive think the preponderance of the evidence supports the chancellor’s findings of facts and conclusions of law which contains these recitals: “This lawsuit poses the interesting and somewhat new question as to whether or not defendant, Guy Smith, as the present OAvner and operator of this lease, by reason of a somewhat stripper operation on one 80 acres only is justified in continuing to hold the remainder of the leased premise longer without definite plans to test the deeper strata under the lease which has favorable possibilities.

“This exact question has not been passed upon by the Arkansas Supreme Court, but previous opinions of that Court do assist in answering it. In Poindexter v. Lion Oil Refining Co., 205 Ark. 978 (at page 984), the Court . . . stated: ‘So it may be taken, as the well settled rule in this State, that there is an implied covenant on the part of the lessee in all oil and gas leases to proceed with reasonable diligence in the search for oil and gas, and also to continue the search with reasonable diligence, to the end that oil and gas may be produced in paying quantities throughout the whole of the leased premises.’ . . .

“The implied covenants or conditions also require the exploration and development of the entire lease and are continuing obligations upon the lessee and his assignees which are not satisfied by the development of a portion only of the leased property. . . .

“In the recent case of Nolan v. Thomas, opinion delivered on January 22,1958, 228 Ark. 572, 309 S. W. 2d 727, the Arkansas Supreme Court stated the law to be, and the principles of equity to be, as . . . follows: ‘The production of oil and gas on a'small portion of the leased tract cannot justify the lessees in holding the balance indefinitely and depriving the lessor not only of the expected royalty from production pursuant to the lease, but of the privilege of making some other arrangement for availing himself of the mineral content of the land.’

“It is admitted that the defendant, Guy Smith, and his assignors, have complied with the implied covenants and conditions of the lease with reference to the exploration and development of the leases to and in the Travis Peak formation. Underlying the Travis Peak you may encounter production from the Smackover lime formation.

“As applied to the type of case at bar, the law may be stated to be that the production of oil on a small portion of the leased premises from shallow horizons, even though the lease is fully developed as to such sands,cannot justify the lessee in holding the balance of the nonproducing acreage indefinitely and depriving the lessors of' any possible royalty from production pursuant to the lease at greater depths, and of the privilege of making some other arrangement for availing themselves of the mineral content, if any, of the land at lower levels.

“In determining whether plaintiffs here are entitled to relief sought, consideration must be given to the circumstances and conditions existing now and at the time the lease was executed. The question is what would be reasonably expected of an operator of ordinary prudence, having regard to the interest of both lessors and lessees. The lessees cannot act arbitrarily. They must use sound judgment and must deal with the leased premises (in regards to the deeper formations and in all other respects) so as to promote the interests of both parties.

“. . . Each case of this kind, therefore, has to be decided on its particular facts. The question here then is for the most part one of fact. Has the failure to date of Jones-0’Brien, Inc. and/or Guy Smith to test the deeper strata been such a breach of the implied covenant to develop as to entitle plaintiffs under the law to a cancellation of the lease? Or, to pose the question another way, is defendant, Guy Smith, as the owner and operator of this lease justified, under the circumstances here, in continuing to hold the same, except for the 80 acres ?

“At the time this lease was executed the parties were thinking of production at or above 3,500 feet. The drilling contract which is a part of the lease so shows. The parties evidently had the Travis Peak formation in mind at that time. Since that time information has been obtained which indicates that this léase may produce oil in paying quantities from greater dépth. However, caution must be exercised in drilling deep oil wells. The cost is very great and each well drilled must be protected with ample acreage. The testimony of witnesses introduced by both parties agree that a prudent operator would not be justified in drilling wells to deeper formations in the area of this lease without ample acreage to protect him. It would be folly for the defendant, Guy Smith, (or for plaintiffs, for that matter, if the lease is returned to them) to even consider drilling a deep test on one of these three forties alone, without other sufficient acreage to protect such an operation. No new lessee could be found by the lessors who would do that.

“. . . Ample acreage would be necessary to justify a prudent operator in spending a large sum of money in drilling a deep test well. The evidence does not disclose that the defendant Guy Smith, or his assignors, have in any way, as yet, failed to cooperate in such an effort or have delayed, hindered or prevented the formation of such a block necessary for a deep test.

‘ ‘ The plaintiffs allege that they could sell the lease on the 120 acres in question, and have the deeper formations tested, but there is no proof that other operators are willing to drill this or other leases in the vicinity thereof to deeper sands or formations without a large block of acreage. On the other hand, the testimony is undisputed that a prudent operator would not be justified in attempting to make a deep test at this time on this 120 acres alone.

‘ ‘ Therefore, the Court holds that defendants have not abandoned any of the tracts up to this time. The production of oil from this lease is gradually diminishing, but in the absence of proof of facts that would justify a reasonably prudent operator to make additional tests on this particular lease in the deeper strata, the defendant, Guy Smith, is entitled to retain possession of the lease in toto.

“If at any time in the future, in the opinion of the plaintiffs, the wells are not producing oil in paying quantities, or if they are able to produce testimony to show that a reasonably prudent operator would be justified in making the expenditure of money necessary for a deep test, plaintiffs may make demand on the defendants to do so, and in the event of the failure of the defendants to take such action, then the plaintiffs will be at liberty to take such action as may be necessary to protect their interest.

“Therefore, a decree dismissing plaintiffs’ complaint for want of equity will be entered, but without prejudice to their rights to take such further action as future developments may justify.”

In Saulsberry v. Siegel, 221 Ark. 152, 252 S. W. 2d 834, where the facts were similar, in effect, we said: “It is settled that the lessee: must act for the mutual advantage of both the lessor and lessee; must perform the contract so as to further the original purpose and intention of the parties; must use sound judgment in the matter and cannot act arbitrarily. Whether the lessee has acted in such manner is to be determined from all the facts and circumstances in the case. Here, after considering such facts and circumstances, the chancellor found in favor of the lessee; and we cannot say the decree is •contrary to the preponderance of the evidence.”

The primary and decisive question, therefore, is: did the lessee here exercise that degree of prudence as an •operator reasonably expected of him in the circum■stances? We hold that he had done so to date of trial. Wood v. Arkansas Fuel Oil Co., 40 F. Supp. 42 (1941).

In affirming this decree, we do so without prejudicing appellants’ right to take further action as future developments might justify.

Affirmed.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Robertson v. Robertson.
    5-2032
    331 S. W. 2d 102
    Opinion delivered January 25, 1960.

      Kenneth G of felt, for appellant.

      Ben M. McCray and John A. Hughes, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant was the plaintiff in the Trial Court and we will so refer to him in this opinion. He sued the administrator of his father’s estate seeking to foreclose a mortgage for an alleged balance due on a note. "When the plaintiff rested, the Trial Court dismissed the case on motion of the defendant; and from such dismissal there is this appeal. The case of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, is applicable here; so we give the plaintiff’s evidence its strongest probative force.

Plaintiff filed suit in 1959 seeking to foreclose a real estate mortgage. He testified that on December 7, 1936 his parents, Mr. and Mrs. J. B. Roberton, executed to him their negotiable promissory note for $1,435.00 due on or before five years after date and bearing interest at the rate of 8% per annum; and that said note was secured by a mortgage executed by Mr.- and Mrs. Robertson on certain real estate in Saline County. The mortgage was duly recorded on the same date it was executed. Plaintiff also testified that he borrowed $200.00 from Mrs. Earl Diemer and transferred the note and mortgage to her as security; that Mrs. Diemer later transferred the note and mortgage to plaintiff’s brother, Hugh Robertson ; that plaintiff had offered to repay Hugh Robertson the $200.00 and interest that plaintiff owed Mrs. Diemer, but that Hugh Robertson was somewhere in South America and had never received the money and never transferred or delivered the note and mortgage to the plaintiff. Plaintiff also testified that for many years he had been collecting rent from the tenant on the mortgaged land. The plaintiff offered to pay into the Court the amount of principal and interest that he said he might owe Hugh Robertson on plaintiff’s indebtedness to Mrs. Diemer. Neither the original note nor the mortgage, from J. B. Robertson and wife to plaintiff, was ever introduced in evidence; but the certified copy of the record, where the mortgage was recorded, was duly introduced ; and on the margin of the record of the mortgage there appeared these — and only these — endorsements:

“12/7/36 Assigned to Mrs. Earl Diemer without recourse for valuable consideration. C. B. Robertson.”
‘ ‘ The within mortgage and notes contained herein is this 10th day of November, 1937 assigned to Hugh Robertson without recourse, and all my right, title, and interest that I have in the within mortgage. Mrs. Earl Diemer.”

Did all of the plaintiff’s evidence, given its strongest probative force, make a case that would support a foreclosure decree in his favor! The Trial Court answered this question in the negative, and we agree with the Trial Court. Plaintiff, on December 7, 1936, received a note and mortgage from his parents, but the same day he assigned the note and mortgage to Mrs. Earl Diemer “without recourse for valuable consideration”. The transfer of the note carried with it the security — i. e., the mortgage lien. Lehman v. First National Bank, 189 Ark. 604, 74 S. W. 2d 773; Purcell v. Vincent, 211 Ark. 486, 200 S. W. 2d 970. Thus plaintiff divested himself of ownership of the note and mortgage; and until he reacquired ownership he had no title on which to base a suit for foreclosure of the mortgage under the facts shown in this case.

In the early case of Purdy v. Brown, 4 Ark. 535, this Court said: “. . . when an assignor assigns a note, all the legal interest vests in the assignee, and he alone is entitled to sue, unless the assignor is again invested with the legal interest by a new assignment or otherwise”. In 8 Am. Jur. p. 541, the holdings are summarized in this language:

“A person not in actual possession of a bill or note cannot maintain an action thereon as ‘holder’ under § 51 of the Uniform Act, in view of § 191 of that act, which defines the holder as the payee or indorsee of a bill or note who is in possession of it, or the bearer, and defines the bearer as the person in possession of a bill or note which is payable to bearer. The acquisition of possession of the instrument by one after he had commenced an action upon it does not give him the right to maintain the action as holder. This, of course, is aside from the question of the right to bring an action upon a bill or note which has been lost.”

There are instances where proof may be made that the assignment was made to an agent for collection, etc., and in such instances the assignor may still have right of action; but no such showing was made in this case. There was a complete assignment without recourse and the plaintiff herein has never redeemed the note in any way. Plaintiff’s offer, to pay into Court whatever he said he might owe Hugh Robertson, was without effect, because neither Mrs. Earl Diemer nor Hugh Robertson was a party to this case. Plaintiff, by showing the assignment of the note and mortgage, clearly established that he had no standing to foreclose because he had never reacquired the note and mortgage.

Affirmed.

       In McNeil v. Rowland, 198 Ark. 1094, 132 S. W. 2d 370, we had a situation wherein the assignor made proof of a conditional assignment. But the situation in that case is entirely different from the situation in the case at bar.


author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice,

text:
    Leggett v. Kirby, Judge.
    5-2100
    331 S. W. 2d 267
    Opinion delivered January 25, 1960.
    [Rehearing denied February 22, 1960]

      Kenneth G. Coffelt, for petitioner.

      Bruce Bennett, Atty. General, By: Thorp Thomas, Asst. Atty. General, for respondent.
   George Rose Smith, J.

On January 25, 1956, three informations against the petitioner were filed, one charging murder in the first degree and the other two charging separate offenses of rape. The murder case was tried in June, 1956. The jury found the defendant guilty and imposed the death sentence. Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59. Since then the petitioner has been confined to the death cell in the state penitentiary, his execution having been stayed by a series of legal proceedings by which he has sought to escape the punishment fixed by the jury. Leggett v. State, 228 Ark. 977, 311 S. W. 2d 521; Leggett v. Henslee, 230 Ark. 183, 321 S. W. 2d 764; Leggett v. State, 231 Ark. 13, 328 S. W. 2d 252.

In the two rape cases there was no activity by either side until July 14, 1959. On that date Leggett moved for a dismissal of the charges on the ground that more than two terms of court had elapsed without the cases having been brought to trial. Ark. Stats. 1947, § 43-1708. We upheld the trial court’s refusal to dismiss the informations, the statute being inapplicable to charges pending against a prisoner awaiting execution. Leggett v. State, 231 Ark. 7, 328 S. W. 2d 250.

Following our decision in the case just mentioned the petitioner filed in the circuit court a request that the rape cases be brought to trial. In this pleading Leggett asserts ‘ ‘ that he is entitled to an immediate trial in these cases, and to have a jury pass upon his guilt or innocence and the question of whether or not he is insane.” The circuit judge denied the request for trial, and Leggett then filed the present petition in this court for a writ of mandamus to compel the circuit court to bring the cases to trial. For our jurisdiction in the matter see Rodgers v. Howard, 215 Ark. 43, 219 S. W. 2d 240.

In demanding that the rape cases be heard the petitioner relies upon the federal and state constitutional guaranties of a speedy trial in criminal cases. U. S. Const., Amendment 6; Ark. Const., Art. 2, § 10. It may be doubted whether this provision in the federal bill of rights applies to proceedings in a state court, Gaines v. Washington, 277 U. S. 81, but since the two constitutions contain identical guaranties we find it unnecessary to distinguish between the two.

The petitioner is clearly in error in contending that the constitutional command is inflexibly mandatory, leaving the courts with no discretion in determining what satisfies the requirement of a speedy trial. It is settled hy decisions too numerous to cite that such a provision in a bill of rights does not apply rigidly to every instance of delay in a criminal case. What the constitution prohibits, as we observed in Stewart v. State, 13 Ark. 720, is “vexatious, capricious, and oppressive delays, manufactured by the ministers of justice.”

The point was well pnt in Beavers v. Haubert, 198 U. S. 77, where the court said: “The right of a speedy-trial is necessarily relative. It is consistent with delays and depends upon circumstances. It. secures rights to a defendant. It does not preclude the rights of public justice.” The same thought was expressed in State ex rel, Orcutt v. Simpson, 125 Wash. 665, 216 P. 874: “While it is the duty of the courts to give full force and effect to the spirit of this constitutional guaranty, it seems plain that what is a speedy trial must be determined in the light of the circumstances of each particular case as a matter of judicial discretion.” See also People v. Romero, 13 Calif. App. 2d 667, 57 P. 2d 557; People v. Maniatis, 297 Ill. 72, 130 N. E. 323.

. The mere fact that Leggett is confined to the penitentiary does not, of course, deprive him of the protection afforded by the constitution. Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777. Nevertheless we are firmly of the opinion that the bill of rights does not guarantee to a condemned prisoner the right to be tried upon pending charges while he is an occupant of the death cell, awaiting electrocution. It is not to be presumed, as the court observed in Mitchell v. Lowden, 288 Ill. 327, 123 N. E. 566, that the constitution was intended to produce a result “inconsistent with the judgment of men of common sense guided by reason.” Yet that would demonstrably be the consequence of granting the writ 'sought in the case at bar.

The judgment finding Leggett guilty of murder and sentencing him to death is conclusive of all questions within the issues in that proceeding. West Twelfth St. Rd. Imp. Dist. No. 30 v. Kinstley, 189 Ark. 126, 70 S. W. 2d 555. That judgment, therefore, conclusively settles every question pertaining to Leggett’s guilt and conclusively determines that justice requires the imposition of the death penalty. The execution of the sentence has been delayed, but it goes almost without saying that we, as members of the judiciary, must act upon the assumption that the solemn judgment of the court will in due course be put into effect. The judicial department of the government obviously cannot entertain any doubt whatever as to the ultimate effectiveness of its own judgments.

Our consideration of the present petition must thus rest upon the unconditional premise that Leggett is to be executed for the murder of Joe King. In these circumstances does the constitutional guaranty of a speedy trial entitle Leggett to demand that the rape cases be heard at once? We think it plain that this inquiry must be answered in the negative.

It is a familiar maxim, recognized by the common law for centuries, that the law never requires the performance of a vain and useless act. Broom’s Legal Maxims (9th Ed.), p. 178. It is difficult to imagine a proceeding more futile than that of bringing to, trial charges against a person already condemned to death. The purpose of a criminal trial is to determine the guilt or innocence of the accused and to impose punishment in the event of a conviction, but no useful purpose could be accomplished by a trial of the rape charges against Leggett. A finding of guilt or of innocence would be wholly without legal effect, a matter of academic interest only.

We are all aware that the proceedings against Leggett have been widely publicized. Judging by the record in the original case it might well be necessary to call hundreds of veniremen before an impartial jury could be impaneled. The proceedings could easily continue for days or even weeks, involving great expense to the county and serious inconvenience to many witnesses and prospective jurors. Yet the entire prosecution would really be a mock trial, a parody of justice, accomplishing nothing and indeed being continuously subject to termination by the electrocution of the defendant.

We can find no case holding that the guaranty of a speedy trial requires that the judicial system be exposed to ridicule as a result of a vain proceeding such as that now demanded by the petitioner. The case principally relied upon, State v. Stalnaker, 2 Brevard (S. C.) 44, does not decide the point now before us. There Stalnaker was indicted upon two capital offenses. Although he demanded a trial upon both indictments the state elected to try only one case, in which Stalnaker was sentenced to be hanged. He was later pardoned, however, and it was then held in the case cited that under the Habeas Corpus Act he was entitled to be discharged from the second indictment. The Habeas Corpus Act was an English statute, adopted by many states as part of the common law, which required a prisoner to be tried within two terms of court. See Cooley’s Constitutional Limitations (8th Ed.), p. 646. Thus the Act was a forerunner of, and similar to, our own statute on the subject. Ark. Stats., § 43-1708. We have already held that Leggett is not entitled to a dismissal of the rape charges by reason of this statute, Leggett v. State, 231 Ark. 7, 328 S. W. 2d 250, and consequently we have rejected the position adopted by the South Carolina court in the Stalnaker case.

It is our conclusion that the guaranty of a speedy trial cannot reasonably be construed to entitle the petitioner to a hearing upon the rape charges as long as he is under a sentence to death upon the conviction for murder.

Writ denied.

MoF addin and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

(dissenting). Two separate informations were filed on January 25, 1956 in the Pulaski Circuit Court, each charging the appellant Leggett with the crimes of rape (§ 41-3401 Ark. Stats.). He has been in custody ever since and has never been tried on the rape charges because he was tried and convicted on a first degree murder charge and is now awaiting execution on the murder charge. In Leggett v. State, 231 Ark. 7, 328 S. W. 2d 250 (decided on October 19,1959), we held that Leggett was not entitled to the benefit of § 43-1708 Ark. Stats, as regards the rape charges.

Leggett filed, on July 14, 1959, his pleading in the Pulaski Circuit Court entitled, “Bequest for Trial”, on the rape charges. When the Circuit Court refused to proceed with the trial of either of the rape cases, Leggett filed in this Court a petition for writ of mandamus to require the Circuit Court to proceed with the trial of the rape cases. It is clear that we have jurisdiction of such a petition, even though Leggett has mis-styled his pleading. In Pellegreni v. Wolf, 225 Ark. 459, 283 S. W. 2d 162, we issued a writ of procedendo ad judicum directing a Circuit Judge to proceed with the trial of a prisoner who was then incarcerated in another State. I maintain that if a prisoner incarcerated in another State is entitled to a trial on pending charges in Arkansas, then a man incarcerated in the death house'iii Arkansas is entitled to a trial on any pending charge in this State.

Article 2, Section 10 of the Arkansas Constitution says, “In all criminal prosecutions the accused shall enjoy a speedy and public trial____” I emphasize that the Constitution says “in all criminal prosecutions”. The Constitution does not make any exception as regards a man in the death house awaiting execution; and when one Court starts whittling away the Constitutional rights of one man, then another Court may come along in later years and extend the whittling away process to destroy the Constitutional rights of some other person in some other situation. It is a dangerous precedent for a court to create judge-made exceptions to Constitutional protections; and that is what the majority is doing in this case. We are embarking the Court on a career of “exceptions” to Constitutional protections. I think that the man in the death house is entitled to just as much Constitutional protection as the man incarcerated in the Texas penitentiary in the Pellegreni case.

By refusing to issue the writ of procedendo in the case at bar, the majority is bringing about a situation wherein the execution of the murder sentence will be further delayed. Leggett has raised a federal question in his petition in this case. He will undoubtedly carry this case to the United States Supreme Court; and further delay will result. If this Court now granted the writ of procedendo the Trial Court could require the Prosecuting Attorney to either proceed with the trial or dismiss the pending informations. The Prosecuting Attorney could safely dismiss both of the rape informations, because limitation does not run against a capital case (§ 43-1601 Ark. Stats.) and rape is a capital case (§ 41-3403 Ark. Stats.). So, should anything happen to prevent Leggett’s execution on the murder charge, the State could still refile the rape charges. Leggett could not plead former jeopardy against the refiling of the rape charges, because jeopardy does not attach until the trial jury is sworn in the case. See Jones v. State, 230 Ark. 18, 320 S. W. 2d 645.

It is self-evident that what Leggett’s attorney is trying to do is to get him tried on the rape charges so the attorney can have another trial jury before which to argue evidence about Leggett’s alleged insanity. Even if Leggett were tried on the rape charges and the jury should find that he was insane at the time of committing the rapes, such finding would have no bearing on the murder charge: because the rapes and the murder were different offenses, committed at different times, and the mental status of Leggett would be decided by different juries; and there does not have to be any consistency between verdicts of different juries. In Brown v. Parker, 217 Ark. 700, 233 S. W. 2d 64, we said:

‘ ‘ The answer to this argument must be that the law imposes no requirement of consistency upon jurors hearing separate cases which are consolidated for purposes of trial. If such separate cases were being tried separately, by different juries, there would be no assurance of consistency in the verdicts, and no greater assurance of consistency is insisted upon when one jury tries both cases together. ’ ’

So I earnestly submit that in order to keep our jurisprudence straight, we should issue the writ of procedendo in this case and thereby hold that the Constitutional guaranty of a speedy trial applies to all persons - convicted felons awaiting death sentence, as well as any other felon. We should not embark on a career of engrafting exceptions onto Constitutional guaranties.

For these reasons I respectfully dissent.

Johnson, J., joins in this dissent.


author: Sam Robinson, Associate Justice.

text:
    Farmers Union Mutual Insurance Company v. Ashmore.
    5-2037
    331 S. W. 2d 104
    Opinion delivered January 25, 1960.

      Charles W. Wade, for'appellant.

      Lasley •& Lovett, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Boyd Ashmore, filed this action against appellant, Farmers Union Mutual Insurance Company and Peoples Indemnity Insurance Company, alleging that Farmers had issued to Ashmore a fire insurance policy insuring a dwelling in the sum of $3,500 and $1,000 additional insurance on the furniture; that the Peoples Company had issued a policy in the sum of $3,500 on the same dwelling. Ashmore prayed for judgment on a pro rata basis, $1,750 against each insurance company, for loss of the house, and asked for judgment in the additional sum of $1,000 against Farmers for loss of the furniture, and further prayed that if for any reason the policy issued by Peoples was held to he invalid, that he he given judgment against Farmers for $3,500 for loss of the dwelling, the full amount of the policy issued by Farmers, plus 12% penalty and attorney’s fee. Farmers admitted liability for one-half the loss on the house, admitted the loss on the furniture, and deposited $2,750 in court. Peoples denied that it had any policy in force with Ashmore.

There was a judgment for Ashmore against Farmers for the full amount of $3,500 on the house, $1,000 on the furniture, 12% penalty thereon and a $500 attorney’s fee. Farmers has appealed from that judgment. There was a judgment in favor of Peoples, the court finding that Ashmore had no valid policy with that company.

Ashmore bought the dwelling from a Mr. Wynne. At that time Wynne had the property insured with Peoples. Ashmore had been doing business with Farmers and told Farmers’ agent that when the Peoples policy expired in April he would insure the property with Farmers. When that time arrived, a policy was issued to Ashmore by Farmers, but the Peoples Company was not notified, and its agent, Mr. W. W. Kelly, on his own initiative issued a renewal policy to Ashmore and placed it in the mail. However, Ashmore states that at the time of the fire he had not received this policy and had no knowledge that such a policy had been issued. In fact, he did not think he had a policy with Peoples. However, a neighbor informed him that such a policy had been issued and Mr. Ashmore went by to see Mr. Kelly, the Peoples’ agent, about the matter. Mr. Ashmore testified: “I started up here to report the fire and met Mr. Harper and he flagged me down, so I stopped, and he said he was sorry to hear of my house burning up but that he was glad I had a little insurance on it. Well, I just wondered how come him to know I had any and I said, ‘Yes, I got a little insurance with Farmers Union,’ and he said, ‘Well, you have some with Mr. Kelly too.’ I said, ‘Well, I am not supposed to have — if I have I don’t know it.’ So then, I went by Mr. Kelly’s office and sho’ enough he said he had paid it. Well, I gave him back his $35.00 but I have never asked for but the one policy. I figured his intent was good by paying it and I just gave him back his money.”

A jury was waived and the case was tried before the court. The evidence is that Ashmore did not apply for the Peoples policy and did not know that one had been issued. Whether he ratified the issuance of the policy was a question of fact. The court sitting as a jury could have found from the evidence in this case that Ashmore had no intention of ratifying the policy issued by Peoples. Certainly Ashmore would not be bound by a contract of insurance for which he had not applied and had no intention of ratifying. Pacific National Fire Ins. Co. v. Suit, 201 Ark. 767, 147 S. W. 2d 346.

Ashmore obtained judgment against Farmers for the full amount asked in the complaint. He is therefore entitled to recover attorney’s fee and penalty. We do not think the amount of the attorney’s fee fixed by the court is excessive, but we do think it is sufficient to take care of the appeal.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Duty v. Gunter.
    5-2009
    331 S. W. 2d 111
    Opinion delivered January 26, 1960.

      Bussell & Hurley, for appellant.

      Ben McCray, for appellee.
   Jim Johnson, Associate Justice.

This case involves an action for damages arising out of a truck and automobile collision.

Appellee, G. E. Gunter, brought suit in Circuit Court alleging that as he was driving his 1959 pickup truck in an easterly direction along U. S. Highway 64 between Russellville and Morrilton in a careful and prudent manner and at a reasonable rate of speed, the appellant, while trying to pass him traveling in the same direction, drove his automobile into appellee’s truck demolishing the truck and injuring appellee.

Appellant, W. B. Duty, and Mrs. Duty filed counterclaims alleging that Mr. Duty was proceeding along the highway in a careful and prudent manner and that appellee drove his truck from a side road or driveway onto said highway and into the appellant’s car, damaging-the car and injuring both counter-claimants.

The usual allegations of negligence were alleged on. complaint and counterclaims.

The cause was submitted to the jury upon two completely opposing theories of how the collision occurred: appellee’s theory that apepllant struck his truck while attempting to pass, and appellant’s theory that appellee came into the highway from a side road or driveway and. struck his car. The jury returned a verdict in favor of appellee Gunter in the sum of $2,000 for injuries and property damage. From this judgment comes this appeal.

For reversal, appellant relies on two points, the first of which is: " That the verdict of the jury is against the clear preponderance of the evidence. ’ ’ From a careful review of the record we concede that point one is well taken. However, in passing on oases on appeal from a jury verdict in Circuit Court, the test is not whether the verdict is against the preponderance of the evidence but whether there is any substantial evidence to support the verdict. See: West’s Arkansas Digest, Appeal & Error, Key, 989, Vol. 2, page 653. It is true that the legal sufficiency of evidence to support a jury finding is a question of law. Pine Bluff Heading Co. v. Bock, 163 Ark. 237, 259 S. W. 408. Even so, the facts presented in the case at bar relative to any negligence of appellant are so close that we are not here passing on this question since this case is being decided on other grounds.

Appellant’s second point relied on for reversal is: "That the court erred in allowing the introduction of photographs without first requiring the appellee to lay the foundation for the introduction of such photographs by showing that they were correct representations or reproductions of the conditions of the locus in quo at the time of the alleged injury and damage.”

The record reveals that the trial court allowed into evidence, over the proper objections of appellant, certain photographs taken by Warren Gunter, son of appellee. This witness admitted that the pictures of the locality which he introduced into evidence as pictures of the scene of the accident were taken upon information he had received from another person and not from his own knowledge and that his only knowledge concerning the location of the accident was from hearsay; the party from whom he had obtained his information not being present when the pictures were made. This witness was unable to testify that the pictures were correct representations or reproductions of the conditions at the scene of the accident at the time of the alleged injury and damage. Therefore, following our rule set out in Ford v. Missouri Pacific Railroad Co., 168 Ark. 884, 271 S. W. 967, wherein this Court said: “The admission of photographs of the alleged locality was improper in the absence of a showing that they were correct representations or reproductions of the locality at the time of the alleged injury,” the case will be reversed and the cause remanded for a new trial.

The Chief Justice and Justice George Rose Smith would reverse and dismiss.


author: J. Seaborn Holt, Associate Justice.

text:
    May v. National Bank of Eastern Ark.
    5-1994
    331 S. W. 2d 697
    Opinion delivered February 1, 1960.
    [Rehearing denied February 29, 1960]

      Brockman $ Brockman, for appellant.

      E. J. Butler, for Appellee, National Bank of Eastern Ark.; James R. Howard, for Appellees, John Collins, et al.

   J. Seaborn Holt, Associate Justice.

This is a foreclosure suit. We shall refer to appellants as May, and the appellee, National Bank of Eastern Arkansas, as Bank.

Appellee, Bank, filed suit against appellants, W. D. and Dorothy May, his wife, and others, to foreclose a chattel mortgage on certain saw mill and planer mill equipment, which mortgage May and wife had executed to secure payment of a note in the aggregate amount of $29,662.36 executed by them on June 23, 1954. This note of the Mays was a collateral note which was pledged as additional security along with certain invoices for lumber milled by May, and the proceeds of a life insurance policy. The note also provided that additional security would be given to the Bank at a later date and for “attorney’s fees as authorized by law if not paid when due and if placed in attorney’s hand for collection.” January 19, 1955, May assigned to Bank a note in the amount of $29,649.05 of American Radio and Television, Inc., to take the place of, and to be substituted for, the invoices (some 15 in number) set out in the above collateral note of June 23, 1954. The Bank also held a separate Guarantee Agreement signed by John Collins, Paul M. Leird, H. G. Galloway and C. Hamilton Moses, to the effect that these four guarantors would guarantee the payment of the May note above to Bank on condition that before any liability should attach to them on said guaranty, that Bank would first exhaust its security under the chattel mortgage from May to Bank and all other security that the Bank held on said note. On September 11, 1958, a default decree was rendered against May for $19,127.70, on constructive service. The Mays were residents of Dallas, Texas at the time.

Thereafter, May filed a motion asking for retrial, alleging fraud and collusion on the part of Bank and the four guarantors above and a general denial of any liability, and asked for $15,000 damages. It appears that the trial court granted May’s motion and the case was retried on December 19, 1958 and later, on February 9,1959, a decree was entered in favor of the Bank for the balance of the principal sum due on the note remaining unpaid, along with six percent (6%) interest thereon in the total sum of $17,363.82, and if not paid within ten (10) days from date of the decree, that said chattel mortgage be first foreclosed and if the proceeds therefrom be insufficient to pay the balance due, then that said American Radio and Television, Inc., note above be sold to apply on, or to satisfy, any deficiency, and that May was entitled to no damages. The record shows that sales were had in accordance with the decree and that there remained a deficiency left unpaid on the mortgage note and attorney’s fees of $1,-616.23 were also allowed. Following this decree the Mays appealed therefrom to this court and executed and filed a supersedeas bond in the amount of $22,-156.18 on March 12, 1959 which the court approved on May 19, 1959, and ordered the clerk to issue a supersedeas staying all other proceedings relative to the sale of chattels and pledged note pending this appeal.

(1)

For reversal, May first contends that “The decree of September 11, 1958, and the decree of February 9, 1959, are void for lack of jurisdiction of the defendants.” We hold that this contention is clearly untenable for two reasons: (1) The record in this case shows that at the first trial, September 11, 1958, summons was served on the Mays by constructive service in the manner provided by our statutes, § 27-354 and § 27-355 Ark. Stats. A warning order was properly issued and published, an attorney ad litem appointed who properly wrote separate letters to May and Dorothy May to their last known address in Dallas, Texas notifying each of the pending suit against them. His letter to May was returned but the letter to Dorothy May was not returned. The court found, and we hold correctly so, in its decree of September 11, 1958, (the first trial) that proper constructive service was had on the Mays. That decree recites: “That the Defendants, W. D. May, Dorothy May, * * * were served either personally or constructively for the time and in the manner required by law, and this Court has jurisdiction of the parties and the subject matter.” (2) We also hold that the Mays entered their appearance in the retrial action when they voluntarily filed their motion for retrial on the issues on October 15, 1958, in which they interposed their defenses. This motion of the Mays was granted and a retrial on the merits was had. Certainly we think, in the circumstances, as indicated, that they entered their appearance for all purposes. The court so found. The decree of February 9, 1959, on the retrial, recites: ‘ ‘ That the Defendants, W. D. May, d/b/a W. D. May Lumber Company, and Dorothy May, were first served constructively for the time and in the manner required by law, and have since entered their appearance on said Motion to Retry, and this Court has jurisdiction of them under personal entry of appearance and the subject matter of this litigation.”

We find no evidence in this record of any fraud or collusion between Bank and the four above guarantors. The court so found: “* * * there was no collusion between the Plaintiff Bank and the American Radio and Television, Inc., nor with any of its officers, trustees, or directors, to deprive defendant W. D. May of anything. ’ ’

(2)

May next argues that: “Plaintiff Bank demanded attorney’s fees, by reason of the note sued on, in a sum in excess of 10 percent of the principal sum plus accrued interest, and said demand is void: (1) Because it is an usurious demand; (2) there is no indemnity agreement expressed in the note sued on.” We do not agree. The collateral note here, which May executed in favor of the Bank on June 23, 1954, provides on its face for interest at six percent (6%) and also contains a provision for “* * * attorney’s fees as authorized by law if not paid when due and placed in the hands of an attorney for collection,”. It is undisputed that the chancellor allowed an attorney fee of ten percent (10%) in accordance with the maximum permitted under Act 350 of 1951 (Ark. Stats. § 68-910) which provides: “A provision in a promissory note for the payment of reasonable attorneys’ fees, not to exceed ten per cent (10%) of the amount of principal due, plus accrued interest, for services actually rendered in accordance -with its terms is enforceable as a contract of indemnity. ’ ’

The Bank produced evidence that, “As of November 18, 1957, the balance of principal and interest due the National Bank of Eastern Arkansas on the W. D. May note, without compounding interest, as permitted in the note, from year to year was $17,363.82. Ten percent (10%) of that amount equals $1,736.38 which was requested as attorney’s fees.” If, therefore, Act 350 of 1951 is constitutional and enforceable, appellants’ plea of usury must fall. We held this Act constitutional in the recent case of Holloway v. Pocahontas Federal Savings and Loan Association, 230 Ark. 310, 323 S. W. 2d 204. We there said: “It is true that for many years such a stipulation in a promissory note (that is, a stipulation that 10% may be added to the face of the note as an attorney fee) was held to be against public policy and therefore, unenforceable, Boozer v. Anderson, 42 Ark. 167, Arden Lbr. Co. v. Henderson, etc., Co., 83 Ark. 240, 103 S. W. 185; but in 1951 the legislature changed the rule by permitting the parties to a note to agree upon a reasonable attorney’s fee for the creditor. Ark. Stats. 1947, § 68-910. We have upheld other statutes authorizing the recovery of attorney’s fees, such as' the act applicable to insurance cases, Ark. Ins. Co. v. McManus, 86 Ark. 115, 110 S. W. 797, and there is even less reason for saying that the constitution prohibits the legislature from authorizing the parties to make a voluntary agreement for such a fee.”

(3)

May next contends: ££ There was a conspiracy or collusive agreement carried on among the plaintiff bank, American Radio and Television, Inc., and Paul M. Leird, John Collins, H. G. Galloway, and C. Hamilton Moses, to sell W. D. May’s pledged note, in the sum of $29,-649.05 illegally and for an inadequate price.” We also hold this contention to be without merit. This note of $29,649.05, which it is conceded American Radio and Television, Inc., had given to May in payment of the above invoices for materials sold by May to it, was, as indicated, part of the pledged collateral held by Bank and which it had a right to sell and did sell to the highest bidder at a public sale under the second decree above of February 9, 1959, and applied the proceeds of said sale on May’s note to the Bank. All of this was entirely proper. Without attempting to detail the testimony, it suffices to say that we find no evidence whatever of a conspiracy or collusion between Bank, the four guarantors above, the American Radio and Television, Inc., or any other party or parties to this suit.

(4)

May’s fourth contention is: “It was error to refuse to grant defendants’ motion to make Paul M. Leird, John Collins, H. G. Galloway, and C. Hamilton Moses parties to this action to retry.” The court did not err in denying May’s request to make Leird, Collins, Galloway and Moses parties to the action to retry. Simply stated, this suit was a suit by the Bank against May to collect on the note which May had given the Bank. When the note became due and May failed to pay, obviously the Bank was entitled to foreclose the chattel mortgage on May’s property, sell the property secured thereby and any other pledged security that might be necessary to discharge the obligation. The Bank was not concerned with May’s dealings or disagreements with other parties over questions completely foreign to the issues in the Bank’s foreclosure suit against May. Obviously then these four individuals were not necessary parties and should not have been made parties.

We have not overlooked other contentions made by appellants, but after careful consideration, we find all to be without merit.

In conclusion we point out that following the second decree of February 9, 1959, and before confirmation thereof, May appealed to this court and on March 12, 1959, executed a supersedeas bond in the amount of $22,156.18 and all proceedings were stayed pending decision on the appeal here. We hold, therefore, that the Bank is entitled to, and should have its relief out of the supersedeas bond, and when so relieved, by receiving the amount dne it on the May note, then May’s saw mill, equipment and all other collateral held by the Bank in security of his note, including said American Radio and Television, Inc., note in the amount of $29,-649.05, we order returned to him.

Accordingly, the decree is affirmed, the cause is remanded and the trial court reinvested with jurisdiction for further proceedings consistent with this opinion.

Johnson, J., dissents.


author: George Rose Smith, J. Paul Ward, Associate Justice,

text:
    Washington Standard Life Insurance Co. v. Agee.
    5-2046
    331 S. W. 2d 261
    Opinion delivered February 1, 1960.

      Pope, Pratt é Shamburger, by Richard L. Pratt, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   George Rose Smith, J.

The principal question is whether the circuit court erred in denying the motion of the appellant, the defendant below, to transfer this case to the chancery court.

In 1958 the appellant issued to the appellee a “Nine-payment Twenty-Five Year Endowment Policy” by which the life of the appellee’s infant daughter was insured for $5,000. The child died a month later, at the age of less than three months, and this action at law was brought by the appellee to recover the face amount of the policy.

By its combined answer and motion to transfer the defendant admitted the issuance of the policy, the death of the insured, and the plaintiff’s identity as the beneficiary. As its defense the insurer asserted that by mutual mistake the contract failed to provide that the face amount of the policy would be only $1,250 during the first year. The defendant admitted its liability in that amount and asked that the case be transferred to equity for a reformation of the contract. The plaintiff filed a response to the motion to transfer, denying that the mistake, if one occurred, was common to both parties.

The insurance contract contains at least an ambiguity, if not some indication of the asserted mistake. The face amount of the policy is plainly declared to be $5,-000, but farther on, beneath a statement that premiums are payable for nine years, there' is this typewritten insertion: “($1,250.00 First year).” Inasmuch as the first annual premium was only $442.50, instead of $1,-250.00, the appellant insists that the typewritten notation was put in the wrong place and should have been inserted as a limitation upon the face amount of the policy.

At the hearing upon the motion to transfer to equity the defendant contended that the circuit court should grant the motion upon the pleadings alone, without taking proof. Having thus preserved its objection to the evidence the defendant stipulated with the plaintiff what the testimony, if competent, would have been. The circuit court considered the stipulated evidence to be admissible and upon that basis denied the motion to transfer. The defendant in effect refused to proceed further, and the court awarded the plaintiff a judgment for $5,000, together with the statutory penalty and attorney’s fee.

The stipulated testimony is, very briefly, to this effect: Both the plaintiff and the insurance salesman with whom he dealt would testify that in their negotiations the matter of reducing the amount of protection during the first year was not mentioned. It is evident that neither of them understood that such a provision would be in the policy. When the contract was delivered the plaintiff inquired about the typewritten notation, and the salesman said it meant that Mr. Agee would receive $1,250 at the end of the first year after the nine-year premium paying period. Officers of the insurance company would testify that most life insurers reduce the coverage to one fourth of the. face amount during the first year of a child’s life, that the defendant intended to insert such a limitation in this policy, and that the premium was actuarially computed on that basis.

Counsel for the appellee suggest (and the circuit court apparently believed) that had the stipulated facts been presented to a court of equity a reformation of the contract would not have been justified; consequently the motion for a transfer was properly denied. This reasoning rests upon a mistaken conception of the circuit court’s function in a case of this kind. If the motion alleges facts which, if proved, entitle the movant to relief obtainable only in chancery, it is not the province of the circuit court to explore the equitable issue in its entirety with a view to transferring the case only if a preponderance of the evidence establishes the right to an equitable remedy. Such a holding would mean that many equitable issues would actually be heard in a court of law, that a transfer could be won only if the applicant was fairly certain to eventually obtain equitable relief, and that even in the event of a transfer the equitable issue would be tried in both courts, needlessly.

The power to reform a contract lies exclusively in the chancery court. Soderman v. Bell, 102 Ark. 83, 143 S. W. 595. Here the appellant’s assertion of equitable jurisdiction is not frivolous or fraudulent. In that situation our statement in Merchants Bank of Vandervoort v. Affholter, 140 Ark. 480, 215 S. W. 648, would be apropos: “The test of jurisdiction must be found in the allegations of the complaint [motion to transfer], but if those allegations are made merely for the purpose of giving jurisdiction in fraud of the rights of the parties, it may be reached by a special plea setting up the fraud.” Ñor is the case at bar like Haggart v. Banney, 73 Ark. 344, 84 S. W. 703, where the jurisdiction of equity hinged upon the single, narrow, essential question of fact, disputed in the pleadings, of whether the plaintiff was in possession of the property. Here the right to reformation is a mixed question of law and fact, to be fully developed and finally decided only in a court of equity.

The appellee does not, as we read his brief, seriously contend that the circuit court’s procedure was theoretically sound. Instead, the argument for an affirmance is largely a practical one, that it would be useless to remand the case merely to enable the chancellor to reach the same result that was attained in the law court. The merits of the case, as far as they can be determined from the stipulation alone, are fully argued in the briefs, and it is true that a mutual mistake has not been established by the quantum of proof necessary for a reformation. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. 668, 21 L. R. A. N. S. 508. But there are two sufficient answers to the appellee’s contention. First, to sustain the circuit court merely because its decision is not against the weight of the evidence would establish a precedent approving the very thing the law seeks to prevent — the trial of equitable issues in a court of law. Secondly, the stipulation of fact is not a complete development of the issue, for it recites that it is entered into solely for the hearing upon the motion and for no other purpose. There is thus the possibility that the appellant may adduce additional evidence when the case is heard on its merits in the chancery court.

Reversed and remanded with instructions that the cause be transferred to equity.

MoFaddin, Ward, and Johnson, JJ., dissent.

Paul Ward, Associate Justice,

dissenting. Set out hereafter are my reasons for dissenting to the majority opinion.

Very briefly stated, the issue here presented arose in the following manner. Appellee filed suit in the Circuit Court to recover $5,000.00, the face amount of the policy issued to him by the Washington Standard Life Insurance Company. Appellant, the insurance company, filed a motion to transfer to a court of equity, the essential portion of which reads as follows: “Said contract of insurance on its face does not clearly reflect the true agreement of the parties because of said scrivener’s error which is a mutual mistake between the parties(Emphasis supplied). Appellant thereupon prayed that the cause should be transferred to a court of equity for a'ref ormation of the insurance policy. To the above motion appellee filed a response in which it was stated in effect that if any mistake was made it was not a mutual mistake between the parties.

This court has held, and I take it the majority admit, that the mere allegation of a legal conclusion is non-effective. (See Mott v. First National Bank, 171 Ark. 7, 283 S. W. 3). Consequently, it must be conceded that the trial court was under no duty to transfer this cause of action to the Chancery Court merely on the allegation of the insurance company that a mutual mistake had been made.

It must follow, therefore, that the only way the insurance company could hope to have the case transferred was by introducing testimony showing that grounds for reformation existed, that is, that a mutual mistake was made. This fact was evidently recognized by the court and both parties because the parties entered into a Stipulation of Facts.

It is conceded by the majority, however, that the Stipulation reveals no mutual mistake was made. The last page of the majority opinion contains this statement: “... it is true that a mutual mistake has not been established by the quantum of proof necessary for a reformation”.

The available authorities seem to support the view I take. In the case of Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703, the plaintiff filed a suit in Chancery Court alleging that they were the owners and in possession of said lands. Appellees filed a motion to transfer the cause to the law court alleging that they were in possession of the land. The Court, as in the case under consideration, took proof on the motion and made its finding thereon to the effect that plaintiffs were not in possession of the land and proceeded to transfer the cause to the Circuit Court. We can certainly take it for granted that if the trial court had found otherwise it would have ruled otherwise. It seems that the cited case is exactly in point with the case under consideration except that in the former the motion was made in the Chancery Court and in the latter it was made in the Circuit Court. I have never understood that the Chancery Court has wider jurisdiction to pass on motions than the Circuit Court has. On the propriety of taking-proof on a motion to transfer it was said in the cited case that “. . . it was necessary for proof to be taken and presented to the Court upon that issue ’ ’.

A similar situation arose and a like result was reached in the case of Wade v. Goza, 78 Ark. 7, 96 S. W. 388. There appellee made a motion in the Chancery Court to transfer to the law court on the ground that the appellant was not in possession of the land. Again proof was taken on the issue showing the allegation to be true and this Court approved the Chancery Court’s action in transferring it to the Circuit Court.

Any other view than the one I have tried to express would seem to lead to some ridiculous situations. As pointed out this Court has repeatedly said that it was proper to take testimony on a motion to transfer. It would be an idle and useless thing for the Court to take testimony and then not be bound to act upon what the testimony showed. It seems unreasonable for this Court to hold that a Chancery Court can hear testimony and decide whether to retain jurisdiction or transfer it to the Circuit Court while at the same time holding that the Circuit Court can hear testimony but has no choice but to grant a transfer. Such a process of reasoning seems to point to this anomalous situation: The Trial Judge was right in refusing to transfer solely on the allegations made in the Motion. He was right in hearing the testimony on the Motion. The testimony did not sustain the Motion, but he was powerless to deny the Motion.

I have read the holding in the Merchants Bank of Vandervoort v. Affholter, 140 Ark. 480, 215 S. W. 648, relied on by the majority, but I find nothing to support the conclusion reached. In that case appellee brought suit in the Circuit Court to recover a bond alleged to be of the value of $100.00. It is obvious, of course, that the Circuit Court would not have jurisdiction if the bond was not valued at $100.00. Appellant offered a demurrer but no proof was offered to show that the bond was worth less than $100.00. The trial court and this Court held that under the allegation of the complaint the Circuit Court had jurisdiction. Any relevancy of the cited case to the question under consideration entirely escapes me.

Judges McF addin and Johnson join in this dissent.


author: Paul Ward, Associate Justice.

text:
    Lazenby v. Ark. State Highway Commission
    5-2063
    331 S. W. 2d 705
    Opinion delivered February 1, 1960.
    [Rehearing denied February 29, 1960]

      Binning & Binning, for appellant.

      Bowell Anders, William H. Bonham é George O. Green, for appellee.
   Paul Ward, Associate Justice.

This is an eminent domain proceeding by the Arkansas State Highway Commission to condemn an easement for a right-of-way to cross appellant’s lands, and the principal question involved relates to the competency of evidence.

The appellant-defendant, Emma Louise Lazenby, owned 14.2 acres of land adjacent to the corporate limits of the Town of Marvell. The Arkansas State Highway Commission, appellee, filed suit to condemn an easement for right-of-way purposes in 1.94 acres of land running in a curve across appellant’s lands in such a way as to leave approximately 9 acres on one side and approximately 3 acres on the other side of the right-of-way. Appellee’s appraisers had fixed the value of subject land at $950.00, which amount was accordingly deposited in the Court. Mr. Lazenby, husband of appellant, was the only witness who testified, regarding the value of the condemned land. At the conclusion of his testimony appellee moved for a directed verdict. Thereupon the court, in sustaining the Motion, made substantially the following statement: “The court is of the opinion that no substantial testimony was offered by the landowner upon which you could base a verdict and fix damages'in excess of $950.00 . . .” Under the instructions of the court the jury returned a verdict in that amount in favor of appellant. From such verdict and judgment appellant prosecutes this appeal.

Mr. Lazenby testified substantially as hereafter set out. Appellant owned 14.2 acres of land on Highway No. 20 adjacent to the Town of Marvell and suited particularly for industrial use; the Highway Department took a strip 120 feet wide through the property in a curved shape leaving 2.7 acres on one side and about 9 acres on the other side — the Highway Department figures show that 1.94 acres were taken. The witness testified that 20 years ago they sold 2 acres to a gin company for $1,000.00 per acre and that the value of the land had since increased more than 20% recently the Federal Compress Company bought twenty acres within 100 yards of the subject land and paid $1,000.00 per acre for it and in addition paid $5,280.00 to build up the ground where they could use it; subject lands are higher than the land purchased by the Federal Compress Company; there is a railroad track along the side of subject land but there was no track on the above mentioned Compress land. The witness further testified that he was familiar with the value of lands in that community; that he had tried to buy land but was unable to do so; that he and his wife had had opportunities to sell their land but wanted to hold it for industrial purposes; that in his opinion he could sell subject land for more than $1,000.00 per acre; and in his opinion the land was worth more than $1,000.00 per acre.

“Q. What do you value your land, that is, what do you value this land?”

In response to an objection by the Highway Department the Court made this statement: “The court will permit him to say what value he puts on the land, for whatever that is worth. The jury will be told that he has not yet qualified as an expert”.

It is our conclusion that the trial court was in error in'directing a verdict for appellant in the sum of $950.00. In fact, we are unable to harmonize the action of the trial court directing the verdict with its previous statement, as shown above, that “The court will permit him to say what value he puts on the land (referring to the witness) for whatever that is worth”. Likewise the trial court, in directing the verdict, stated: ‘ ‘ The court is of the opinion that no substantial evidence has been offered by the landowner upon which you could base a verdict and fix damages in excess of $950.00”.

It appears to us that appellee, and perhaps the trial court erroneously thought the proper way to fix the value of the condemned land was to show the market value of the entire tract of land before the taking and the market value of the remaining land after the taking. This rule would be correct if appellant was seeking severance damages to the remainder of the land because of having been divided by the right-of-way. It will be noted, however, that the witness did not attempt to establish this kind of damages but was only seeking to show the value of the land that was actually taken.

Mr. Lazenby, the husband of appellant, had a right to testify as to the value of the land even though he did not qualify as an expert witness in the matter of appraising lands. In numerous cases we have allowed non-expert witnesses, and even the owners of the land, to testify regarding the market value of land if the testimony shows that they are familiar with such matters. In the recent case of Arkansas State Highway Commission v. Muswick Cigar and Beverage Company, Inc., 231 Ark. 265, 329 S. W. 2d 173, this Court allowed a part-owner to testify regarding the market value of land condemned and there was no contention that the witness was an expert. In this case there is no question but that the witness, as shown by his testimony heretofore set out, was familiar with the market value of land in that immediate vicinity. Therefore, the trial court was correct in saying that it should go to the jury for what it was worth. See also Fort Smith & Van Buren District v. Scott, 103 Ark. 405 (at P. 409-410), 147 S. W. 441.

Neither do we agree with appellee’s contention, heretofore mentioned, that it was necessary for the witness to testify as to the value of the land before and after the taking. Since appellant was only seeking to recover the value of the land actually taken it was proper to show the market value per acre. This having been done it was only necessary to multiply that amount by the number of acres taken. There is a long line of cases in support of this rule.

In the case of Little Rock-Fort Smith Railway Company v. McGehee, 41 Ark. 202, appellee owned “the river front for a quarter of a mile on the eastern or northern bank of the river”. Appellant sought to take only three or four acres of this land, and the question was “the amount of compensation which the owner of the land condemned is entitled to receive”. There the Court approved testimony establishing the value of land actually taken, and no mention was made of the before and after rule. In the case of Little Rock Junction Railway v. Woodruff, 49 Ark. 381, 5 S. W. 792, appellant sought “to condemn a site for the landing and approaches of a railroad bridge across the Arkansas ¡River”. It appears that this was a partial taking of appellee’s land. The Court there said: “The market value of the property is the true criterion of damages in these eases”. Again no mention was made of the before and after rule. In the case of Fort Smith and Van Buren District v. Scott, supra, appellant sought to condemn 10 acres of land belonging to appellees for a bridge site. The complaint shows that appellees owned other lands which were not taken. One of the questions involved was the value of the 10 acres taken. The opinion states that: “The only issue was as to the value of the property taken”. In the opinion it is further stated that: “The estimates of the witnesses ranged all the way from $750.00 to $100,000.00”. The jury returned a verdict for $10,000.00. In affirming the case this Court, disregarding entirely the before and after rule, among other things, stated: “The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking. . . ” “The sole question here was the market value of the land and the witnesses gave their opinions as to that value, basing them on different facts and reasons in support thereof”. In the case of Drainage District No. 11 v. Stacey, 127 Ark. 549, 192 S. W. 904, appellee, instituted suit to recover for land taken by appellant for a drainage ditch across his lands. The jury returned a verdict in favor of appellee in the sum of $1,000.00 and appellant appealed. In affirming the case this Court approved the following instructions: “You,will take into consideration the fair and reasonable market value of the lands actually appropriated by the defendant for drainage purposes, and in determining such value you will be guided by the same consideration which would be regarded in the sale of property between private persons and what the land included in the drainage district and any additional land appropriated for the purpose of receiving the dirt excavated from the line of the ditch was worth in the market at the time of its taking ...” The Court also approved this statement: “The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking for all purposes ■. . .” Again no reference was made to the before and after rule. To the same effect is the case of Baucum v. Arkansas Power and Light Company, 179 Ark. 154, 15 S. W. 2d 399, where appellee sought “to condemn a right-of-way for an electric power transmission line across lands belonging to appellants”. There the Court did apply the before and after rule with reference only to the damage to other lands, saying: “If you find from the testimony that the construction of the line along the 80-foot right-of-way has damaged other lands of defendants, then you will determine from the testimony the difference, if any, between the fair market value of such other lands before the construction and the fair cash market value after the construction . . .” As to the value of the land actually taken the Court in that case said: “In determining what is full compensation for property, or right-of-way through property, this Court has several times defined the term ‘market value’ . . . the market value is what the land would be reasonably worth on the market for a cash price, allowing a reasonable time within which to effect a sale”. Likewise in the case of Yonts v. Public Service Company of Arkansas, 179 Ark. 695, 17 S. W. 2d 886, where appellee condemned a portion of appellant’s land for a dam site and reservoir, the opinion shows that several witnesses testified to the fair market value of the land and placed varying figures as a price per acre, and the jury returned a verdict “for $30.00 per acre for the land owned by Mrs. Bentley, and $25.00 per acre for the land owned by Mrs. Yonts”. The jury, however, allowed appellees nothing for the land taken for a pipe line across the property and for this reason the case was reversed. Otherwise the Court put its approval upon testimony showing the market value per acre of the land taken and also the jury’s verdict based thereon.

Although not argued by appellee it has been suggested that the action of the trial court could be affirmed on the ground that even though the testimony tended to show the subject land to be valued at approximately $2,000.00, the court had the right to deduct from that amount benefits which accrued to appellant by reason of bordering on a good highway. We see no merit in. such, a contention for two very good reasons. First, there is no testimony in the. record to show that the rest of appellant’s land was in any way benefited either generally or especially. In the second place, although it may be considered common knowledge that a good highway increases the value of the adjoining land yet the benefits which are deductible are the benefits which are peculiar and special to the land involved. Many decisions of this court sustain that view as shown below.

In the case of Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707, the Court considers this very question, stating: “The view which seems to hs to accord with reason, and which is supported by high authority, is that where the public use for which a portion of a man’s land is taken so enhances the value of the. remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits. And the benefits which will be thus considered must be those which are local, peculiar, and special to the owner’s land, who has been required to yield a portion pro bono publico” (Emphasis supplied). The above and exact quotation was approved in the case of City of Paragould v. Milner, 114 Ark. 334, 170 S. W. 78; Ross v. Clark County, 185 Ark. 1, 45 S. W. 2d 31; and Washington County v. Day, 196 Ark. 147, 116 S. W. 2d 1051. Also in the case of Washa v. Prairie County, 186 Ark. 530, 54 S. W. 2d 686, the Court in this case stated: “It is true also that, before the owner can be said to have been compensated by benefits derived from the appropriation of his property, such benefits must be, not those enjoyed by the public generally, but must be special benefits accruing to the particular owner of the land from which a part had been taken”.

Nor are we convinced by appellee’s argument that the trial court had the discretion to find Mr. Lazenby was not a competent witness. True he was not an expert witness but he did show that he was familiar with land values in that vicinity.

In view of the foregoing it is onr conclusion that the judgment of the trial court must be, and it is hereby, reversed and the cause remanded.

Reversed and remanded.

McFaddin, J., dissents.


author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice, Carleton Harris, Chief Justice,

text:
    McGuire v. Benton State Bank.
    5-2005
    331 S. W. 2d 258
    Opinion delivered February 1, 1960.

      J. B. Milham, for appellant.

      Fred E. Briner, for appellee.
   Sam Robinson, Associate Justice.

Appellant, J. W. McGuire, filed this suit against the Benton State Bank, alleging that he had $6,075 in the bank as a joint account with his wife; that he had attempted to withdraw the money and the bank would not permit such withdrawal. McGuire prayed judgment against the bank for the amount of the deposit. The bank answered, alleging that the money was in a savings account in the name of Mr. and Mrs. J. W. McGuire; that at the time said deposit was made a savings book was issued to the depositors, in which book it is provided that same must be presented when money is deposited or withdrawn from said account; that said book also provides that “payments may be made without production of the pass book, if the depositor shall prove to the satisfaction of the bank that his book has been lost, stolen, or destroyed.” The bank further alleged in its answer that it had reason to believe that “Mrs. J. W. McGuire holds the said pass book and under the terms of such account, would be a necessary party to this suit before any action could be taken”, and asked that Mrs. McGuire be made a party defendant. Mrs. McGuire filed an answer in which she admitted there was a joint account with her husband in the bank in the sum of $6,-075 and alleged she has the deposit book in her possession. She further alleged that she has not requested the Benton State Bank to pay over the said funds. She denied all the other allegations of the complaint.

Upon trial of the cause it appeared that there was $6,075 in the bank in the joint account of Mr. and Mrs. McGuire; that the bank had refused to cash Mr. McGuire’s check for the money; that Mrs. McGuire has the bank book, and that she and Mr. McGuire have separated. The bank book itself was not introduced in evidence; McGuire attempted to require Mrs. McGuire to put it in evidence, but the court overruled his motion to that effect. It does appear that there are photostatic copies of portions of the bank book in the record, and there is printed on the base of the bank book: “This book must be presented when money is deposited or withdrawn.” The bank offered to deposit the money in the registry of the court, but McGuire would not consent to this . He was contending that he should have judgment against the bank for the amount of the deposit and his costs. After McGuire had proved the deposit and the bank’s refusal to let him withdraw the money, he rested his case. Neither the bank nor Mrs. McGuire put on any evidence whatever. The bank demurred to the evidence. The court sustained the demurrer and dismissed the cause with prejudice.

Obviously the bank did not feel that it could safely pay the money to Mr. McGuire, knowing there was a controversy between him and Mrs. McGuire as to the ownership of the money, and that under the agreement between the parties when the deposit was made the bank could insist on the bank book being presented when a withdrawal was made, or that good reason be shown why the book could not be presented. It is self-evident that there is a controversy between Mr. and Mrs. McGuire as to the ownership of the money. All parties were in court, and the bank offered to deposit the money in court. The ownership of the money will have to be determined sometime, and there is no good reason why it cannot be done in this litigation. The decree is therefore reversed with directions to overrule the demurrer and proceed to a full development of the cause.

Reversed.

McFaddin, J., concurs; Harris, C. J., dissents.

Ed. F. McFaddin, Associate Justice,

(Concurring). At the close of the plaintiff’s case the Court sustained the Bank’s demurrer to Mr. McGuire’s evidence and dismissed the case insofar as concerned Mr. McGuire. If there had been- only the two parties to the suit (i.e., Mr. McGuire and the Bank), then the Court’s decision would have been correct, as I see the law and the facts. But a demurrer to the evidence should be sustained only when the court may “dismiss the cause of action”; and that means the entire cause of action of all the parties and not merely one angle to the controversy.

There was another party to this case of Mr. McGuire versus the Bank; and that third party was Mrs. McGuire. The Bank had, by its answer, caused Mrs. McGuire to be brought in as a defendant; Mrs. McGuire had answered and Mr. McGuire had filed a response to Mrs. McGuire’s answer. The Bank had offered to deposit the fund in Court, hut had not done so. With all of the above in the record, the Court should not have sustained the Bank’s demurrer to Mr. McGuire’s evidence because there still remained the dispute and controversy between Mr. McGuire and Mrs. McGuire as to who was entitled to the money.

A demurrer to the plaintiff’s evidence should not be sustained unless the sustaining of the demurrer permits the court to “dismiss the cause of action”. Those are the words contained in Act No. 470 of 1949 27-1729 Ark. Stats.). They mean the entire case and not merely part of it. In the case at bar, the sustaining of the Bank’s demurrer to Mr. McGuire’s evidence only disposed of one angle of the controversy, and, therefore, the demurrer should not have been sustained.

Carleton Harris, Chief Justice,

dissenting. Admittedly, appellant did not comply with regulations for withdrawing money from a joint savings account. Printed on the book is the requirement “this book must be presented when money is deposited or withdrawn.” Of course, such a requirement is not absolute, for one might show that he had actually lost a book, or for other bona fide reason could not present same, and no one would dispute that in such event, he would be entitled to receive his money. Here, as cited by the majority, “obviously the bank did not feel that it could safely pay the money to Mr. McGuire, knowing there was a controversy between him and Mrs. McGuire as to the ownership of the money, and that under the agreement between the parties when the deposit was made the bank could insist on the bank book being presented when a withdrawal was made, or that good reason be shown why the book could not be presented. It is self-evident that there is a controversy between Mr. and Mrs. McGuire as to the ownership of the money.” To my way of thinking, the bank -would have been foolish under those circumstances to have honored Mr. McGuire’s check, for Mrs. McGuire might have presented the book anytime thereafter, and demanded the money.

The bank was only interested in protecting itself from liability. In open court, counsel for the bank stated:

11 ###of course, the Bank has no desire to become involved in any litigation among two depositors and for that reason we are holding the money down there until the Court orders to whom the money goes to and for that reason I would like to request this Court to permit the Bank to deposit this money into the registry of the Court until the Court decides to whom the money goes and that the Bank be released from any further duty or obligations in this case, and let me add one other thing. I don’t think either Attorney would have any objections to this because it will make both cases more simple. ’ ’

Counsel for Mr. McGuire strenuously objected to this being done. It seems to me, that as a result of this reversal, in which a further hearing is directed, the bank is being subjected to possible liability, though it has acted in good faith at all times. Certainly the bank showed that good faith by offering to pay the money into the registry of the court.

At the conclusion of the testimony introduced by appellant, the bank, by written motion, moved for a verdict because of the insufficiency of the evidence against it. I find no evidence in the record that would justify a judgment against the bank, and am accordingly of the opinion that the court was correct in granting this motion.

I therefore respectfully dissent.

       The Bank’s answer contained this language: “Defendant further states that it has reason to believe that Mrs. J. W. McGuire holds the said pass books and under the terms of such account, would be a necessary party for this suit before any action could be taken upon. That under Ark. Stat. 27-814, the Court should require that Mrs. J. W. McGuire be made a party defendant in this cause.”

       She admitted that she had the deposit book and denied every allegation in Mr. McGuire’s complaint.

       He set up in the response that she had obtained an order against him for separate maintenance and that the money in the bank was his. We know from statements made in the oral argument of this cause before this Court that the separate maintenance suit is the same one that is now before us as Case No. 2006, with an opinion this day delivered.

       Depending on disposition of the money subsequent to the court’s decree.


text:
    McGuire v. McGuire.
    5-2006
    331 S. W. 2d 257
    Opinion delivered February 1, 1960.

      J. B. Milham, for appellant.

      G. M. Garden, for appellee.
   Jim Johnson, Associate Justice.

This appeal comes to us from a Chancery Court’s award of temporary support and attorney’s fee.

Appellant, J. W. McGuire, and appellee, Katie McGuire, are husband and wife. They have been married for the past 23 years. The parties were separated in April 1959 and on June 9, 1959, appellee filed a separate maintenance suit. Upon a hearing of the cause, appellant was ordered to pay $100 per month temporary support and $75 attorney’s fee, from which order comes this appeal.

The law relative to temporary support is well settled. Section 34-1210, Ark. Stats, provides:

“During the pendency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, . . .”

This Court has said many times that the granting • of support and attorney’s fee are within the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of this discretion. Lewis v. Lewis, 222 Ark. 743, 262 S. W. 2d 456; Aucoin v. Aucoin, 211 Ark. 205, 200 S. W. 2d 316.

On trial de novo we find that appellant is a war veteran and a retired railroad man; that from these sources he receives a monthly income of $210.36. Appellant left appellee in possession of the family home. There was no testimony in the record as to appellee’s need for current living expenses; on the other hand there was ample testimony as to appellant’s needs. His room, rent, food, insurance and other expenses total an amount in excess of $140 per month. Based on this testimony and the existence of other benefits enjoyed by the wife, we are of the opinion that the decree of the Chancellor should be modified to the extent of allowing the wife $75 per month as temporary support; that the attorney’s fee in the amount of $75 is reasonable. However, the prayer for an additional fee, made necessary in the prosecution of this appeal, is passed to be considered by the trial court when the case is heard on its merits.

Modified and affirmed.