author: P.A. Hollingsworth, Justice.

text:
    Mrs. H. C. WALKER, Alva Marie ROWBOTHAM and Jewell Belle PRESSON v. Earl HOOKER, Joy HOOKER, Dale Clyde WALKER, Joann WALKER, Bill WALKER, Betty WALKER and Dixie Retta DIXON
    83-263
    667 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered March 19, 1984

      Daily, West, Core, Coffman <kr Canfield, by: Stanley A. Le asure, for appellants.

      Maddox & Miller, for appellee.
   P.A. Hollingsworth, Justice.

During his lifetime, H. C, Walker, also known as Clyde Walker, now deceased, was in the construction and building supply business. He and his wife had six children, all of whom are now adults. As a corollary to his businesses and for other reasons, he acquired and sold real property. Usually, H. C. Walker provided the funds for the acquisition of the real property. Occasionally one of the children would also provide part of the purchase price. The same practice was followed regarding the purchase of personal property which is also involved in the present controversy.

When the real property was sold, and a promissory note and mortgage were taken from the purchasers, the general practice was that the mortgage and promissory note would be placed in the name of either one of the three children who had maintained a life-long, close relationship with their father. The incomes from the properties or promissory notes were paid to H. C. Walker and occasionally to the child in whose name the note or property was listed. Usually then the child, upon request, turned the payments over to H. C. Walker. However, sometimes that child would keep the income. At other times, H. C. Walker would give that child a small sum of money at the time of the transaction.

Also involved in this controversy are certain money market certificates and certificates of deposit, each of which H. C. Walker had purchased jointly in his name and the name of one of his children. In each case either the certificate itself and/or the signature card indicated that the named owners were joint tenants with the right of survivorship or that the account was payable to the survivor. In each case, H. C. Walker had signed either the duplicate certificate receipt itself and/or the signature card.

Following the death of H. C. Walker, Dale Clyde Walker, H. C. Walker’s son and the executor named in H. C. Walker’s will, commenced probate proceedings in the Polk County Probate Court.

H. C. Walker’s widow, Dixie Belle Walker, and two of their daughters, Jewel Belle Presson and Alva M. Rowbotham, all of whom are appellants herein, filed actions in the probate proceedings against the Executor, Dale Clyde Walker, and the other children of H. C. Walker and Dixie Belle Walker, namely Betty Wayne Walker, Joy Fern Hooker and Dixie Retta Dixon, together with their respective spouses, Appellees herein. These actions sought the removal of Dale Clyde Walker as Executor and an accounting of the properties and monies mentioned above. The probate judge denied the relief sought.

Appellees then filed complaints in four separate actions in Polk County Chancery court against the appellants, alleging that the Appellants possessed certain property and/or monies belonging to the Estate of H. C. Walker, deceased, and requesting that the appellants be compelled to turn over the property and/or monies to the Estate. The separate actions were consolidated for trial.

The Chancellor set the matter for hearing and after considering the testimony and exhibits thereto, entered an Order finding that the estate of H. C. Walker, deceased, had no interest in two money market certificates nor two certificates of deposit as these transactions were in substantial compliance with Ark. Stat. Ann. § 67-552 (a) (Repl. 1980) and other Arkansas law, which entitles the survivor of the named persons on such certificates to take the proceeds thereof; that the disputed real estate and all but one of the disputed promissory notes were funded by H. C. Walker and that he had no intention of making gifts to those persons in whose names the properties or promissory notes were placed, and that these properties became a resulting trust held for the benefit of the H. C. Walker estate; that with respect to the one promissory note, there was no resulting trust and Dale Clyde Walker, in whose name the note had been placed, had an actual interest in said note and participated in the transaction and therefore the estate of H. C. Walker had no interest in that note; that certain items of personal property were not the subject of a resulting trust and that the estate of H. C. Walker, deceased, had no interest therein; and that a $7,000.00 promissory note executed by Appellee Earl Hooker in favor of the Decedent, H. C. Walker, had been paid in full by Earl Hooker and was not a part of the estate of H. C. Walker, deceased. From this Order, the Appellants have filed this appeal and the Appellees/Cross-Appellants have filed their cross-appeal. Because of the multiple issues raised, we will discuss them in order.

MONEY MARKET CERTIFICATES

H. C. Walker purchased money market certificate No. 12564 for $20,000 at the Union Bank of Mena on March 19, 1980. On March 27, 1980, he purchased a second $20,000 certificate No. 12613 at the same bank. The certificate stated:

this certifies that Clyde Walker or Dale Clyde Walker, whose address is P.O. Box 77, Cove, Arkansas 71937, has deposited in this bank payable to depositor or if more than one, to either or any said depositors or the survivor or survivors . . .

The Chancellor found that H. C. Walker contributed all the funds for the purchase of the certificates and that he signed both certificates. After H. C. Walker’s death, his son, Dale Clyde Walker, cashed both certificates as survivor. The sole issue on appeal is whether there was compliance with § 67-552 (a). At the time the certificates were purchased, the bank prepared an original copy of each certificate and two duplicates, all of which bore the same reference to being payable to the survivor. The customer inspected the document and affixed his signature to one of the copies. The bank retained both copies. The appellants maintain that the statute requires that the depositor designate the survivor in a separate writing and that the inclusion of such a designation on the certificate is not enough. We disagree and uphold the chancellor.

We have held that there must be substantial compliance with the designation in writing requirement of the statute. Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969). We have also held that no survivorship interest is created when the decedent does not affix his signature to an instrument complying with the statutory requirement, in other words we have required a writing, signed by the purchaser, and an indication of intention. Carlton, Administrator v. Baker, Bank of Northeast Ark., 267 Ark. 949, 591 S.W.2d 696 (Ark. App. 1980). In Carlton, after summarizing our rules on the writing requirement, the Court of Appeals upheld the trial court’s decision that there was sufficient evidence of an intention on the part of the decedent that two certificates of deposit were to pass to her niece upon her death. Those certificates were worded very similarly to the money market certificates at issue here as they were in the name of the decedent, the niece, “either or the survivor of either.” Also as here, the decedent at the time of purchase signed a receipt for the certificate.

In Gibson v. Boling, 274 Ark. 53, 622 S.W.2d 180(1981), we held “[I]t is clear from the act and we have held that the depositor must designate the survivor in a separate writing, other than as payee, if the transaction is to be treated as one of joint tenancy with right of survivorship.” It is upon the use of the word “separate” that the appellants base their argument. In other cases, however, we have simply held that in order for an account to be payable on the depositor’s death to a third person, the depositor must designate in writing that the account is so payable. McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980). “The requirement of a written designation means that the depositor must affix his signature to an instrument stating his intention.” McDonald, supra. In Martin v. First Security Bank, 279 Ark. 273, 651 S.W.2d 70 (1983), we held that even when the language of the certificate makes a reference to survivorship, the statute requires that the purchaser of the certificate sign a writing stating her intention that the funds be paid to the alternative payee upon the purchaser’s death. The burden of proof in such a case is on the party claiming the property as a survivor. McDonald, supra. On appeal, we must decide whether the chancellor’s decision is clearly against the preponderance of the evidence. Id.

The statute has been substantially complied with in this case. Gibson’s reference to a separate writing simply means that the fact that one is named as payee on a certificate of deposit or a money market certificate does not entitle the payee to be treated to a survivorship interest. That takes a separate writing, not a separate instrument. Here, the instrument named Dale Clyde Walker as a survivor and a copy was signed by the decedent. That is enough. In the recent case of Morton v. McComb, 281 Ark. 125, 662 S.W.2d 471 (1983), we found substantial compliance with the statute where it was plainly typed on the signature cards that these were payable-on-death accounts, the individuals were named who would receive the accounts if they survived the purchaser, and the cards were signed. No less was done by the decedent on the money market certificates at issue in this case. Appellants argue in the alterntive that there is no evidence that H. C. Walker signed the certificates or that he was mentally competent at the time. The appellees correctly point out that such an argument would also defeat the interest of the estate in the certificates. Ruby Lunsford, an official with the bank, testified that H. C. Walker or Clyde Walker signed the receipts and that Clyde Walker and H. C. Walker are the same person. In the absence of any concrete challenge by the appellants to the validity of the signature or the competency of the decedent, and the presumption in favor of both competency and validity, we find no merit in this argument.

CERTIFICATES OF DEPOSIT

On June 14,1976 H. C. Walker purchased Certificate of Deposit No. 04-463.3 for $20,000.00 at Superior Federal Savings & Loan Association in Mena. On March 27, 1980, H. C. Walker purchased a second certificate No. 04-22782.6 for $20,000.00. The two applications for the certificates were signed by H. C. Walker and Betty W. Walker and contained the following language:

H. C. Walker and Betty W. Walker as joint tenants with right of survivorship and not as tenants in common, and not as tenants by the entirety, . . . You are directed to act pursuant to any one or more of the joint tenants’ signature shown below, in any manner in connection with this account and, without limiting the generality of the foregoing, to pay without any liability for such payment, to any one or the survivor or survivors at any time.

On August 2, 1976, H. C. Walker purchased Certificate of Deposit No. 04-554.3 for $20,000.00 at the same savings and loan. The application contained the same terms and was signed by the decedent and Joy Hooker. H. C. Walker also filled out three handwritten forms with respect to the applications. After Walker’s death, Joy Hooker and Betty Walker cashed the certificates. The appellants maintain that there is no evidence the actual certificates were issued as the exhibits introduced were merely application cards, and therefore, that there was no evidence the certificates actually indicated a right of survivorship. The bank did not retain copies of the original certificates and none were introduced at trial. However, the signature cards were introduced and the manager of the savings and loan testified that he was present when H. C. Walker came in to buy the certificates and that he, as was his usual practice, discussed with the decedent the right of survivorship aspect of the account. We affirm the chancellor and find that the evidence was sufficient that the certificates of deposit were issued in accordance with the applications signed by the decedent and his daughters and that, under the reasoning given supra as applied to money market certificates, § 67-552 (a) was substantially complied with, making the three certificates the property of the two daughters as survivors.

HOEK PROMISSORY NOTE

H. C. Walker sold two tracts of land to Bill and Carolyn Hoek. The Hoeks gave a $19,000 promissory note payable to Dale C. Walker and secured by a mortgage on the land. Dale Clyde Walker provided one-third of the funds for the original purchase of the land sold to the Hoeks and H. C. Walker provided the remaining two-thirds. During his life, H. C. Walker received two-thirds of the monthly payment from the Hoeks with Dale Clyde Walker receiving the other one-third. The appellants argue that a resulting trust arises in favor of H. C. Walker’s estate with respect to two-thirds of the promissory note and mortgage. The appellants claim there is no indication that H. C. Walker intended to make a gift to his son, as evidenced by the fact that he retained the right to collect two-thirds of the payment during his lifetime and in light of his longstanding practice of making land transactions in the names of his children. We have held that in order to constitute a resulting trust, “the purchase money or a specified part of it must have been paid by another or secured by another at the same time, or previously to the purchase, and must be a part of the transaction.” Kerby v. Feild, 183 Ark. 714, 38 S.W.2d 308 (1931). The trust results at the time the original transaction takes place and is founded upon the actual payment of money and no other ground. Id. To establish a resulting trust, the testimony must be clear, satisfactory and convincing. Id. A resulting trust arises by operation of law and may arise despite the fact that there is no manifestation of intention to create an express trust. Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977). The trust arises not out of an agreement but out of the circumstances surrounding the transaction which indicate that the beneficial interest is not to go with the legal title. Id. “It is presumed to arise in favor of one who pays or secures the purchase price for land at the time of the transaction when the deed is taken in the name of another.” Id. The party asserting a resulting trust has a heavy burden of proof, and when the parties involved are spouses or children of the one who pays the purchase price, the law presumes that the purchase and registration of legal title in the family members’ names were intended as gifts by him to them since they are the natural objects of his affection and largess. Festinger et al v. Kantor et al, 272 Ark. 411, 616 S.W.2d 455 (1981). That presumption, however, may be rebutted by evidence that the person who pays the purchase price did not intend for the transferee to have the beneficial interest in the property. Restatement (Second) Trusts § 443 (1959). Parol evidence of oral declarations or of the circumstances under which the transfer is made is admissible to show the payor’s intent. Id., comment a. Furthermore, § 443, comment a of the Restatement provides:

[T]he fact that the circumstances are such that the payor would have a reason for taking title in the name of another other than an intention to give him the beneficial interest is an indication that he did not intend to make a gift . . . [T]he fact that the payor managers the property, collects rents, pays taxes and insurance, pays for repairs and improvements, or otherwise asserts ownership, is evidence to rebut the inference of an intention by the payor to make a gift to the transferee.

The appellees point out that H. C. Walker paid no taxes on the income from the note prior to his death. Dale C. Walker, however, also paid no taxes on the income until after his father’s death. As to the circumstances surrounding the transaction, we feel there is sufficient evidence that H. C. Walker habitually bought and sold land in the names of his children, making the fact that title was in his son’s name not determinative of the ownership of the promissory note and mortgage. Dale C. Walker does have a one-third interest in the property since that is the amount of money he contributed towards the purchase price and the percentage of the Hoek’s payments he had been receiving. The remaining two-thirds constitutes a resulting trust in favor of H. C. Walker’s estate. “Where it is shown that the payor intended to have a partial interest in the property, a resulting trust arises in favor of the payor as to such interest.” Restatement (Second) Trusts § 443 comment b (1959). We recognized this rule in Clark v. Clark, 191 Ark. 461, 86 S.W.2d 937 (1935), where we stated that “where the payment of a child’s funds is only a part of the consideration, a resulting trust pro tanto arises in his favor, provided it is for some definite aliquot part of the whole consideration.” Therefore, we reverse the chancellor and hold that a resulting trust does arise in the amount of two-thirds of the Hoeks’ monthly payments.

TRAILER AND BOAT

The decedent purchased a travel-trailer with his own funds in the name of Dale Walker. Both men used the travel-trailer, but apparently they generally used it together. H. C. Walker also purchased a boat and boat trailer in which Dale Clyde Walker claims a one-third interest. The title reflects Dale C. Walker as the sole owner, however, H. C. Walker was the primary user of the boat. The Chancellor found that neither item was within the resulting trust since they were personal property. Dale Clyde Walker has since traded the travel-trailer in exchange for a two-acre tract of land. While resulting trusts generally arise with respect to transfers of the legal title to land, a resulting trust has been raised on a transfer of personal property, whether tangibles or intangibles, to one person on a consideration from another. 76 Am Jur 2d, Trusts, § 209 (1975). Here, the presumption of a gift was rebutted by the evidence at trial of the decedent’s practice of purchasing property and placing it in his children’s names. The appellants presented no additional evidence that would indicate that H. C. Walker intended the transactions involving the boat and trailer as any different from his numerous other transactions. Therefore, we reverse the chancellor’s holding as to this point and find that the travel-trailer is part of a resulting trust and that the tract of land Dale Clyde Walker received in exchange for it therefore belongs to the estate. Similarly, we hold that two-thirds interest in the boat and boat trailer is in the nature of a resulting trust for the estate with Dale Clyde Walker being sole owner of the remaining one-third interest.

HOOKER PROMISSORY NOTE

Earl Hooker borrowed $7,000 from H. C. Walker. The demand note, which was unsecured, was introduced at the trial. Although the note evinces no sign of payment, Hooker maintains that the note has been paid in full. The Chancellor agreed and we affirm. The trial judge heard all of the evidence and was in a better position to evaluate the demeanor of the witnesses. Festinger, supra. We cannot say that his decision was clearly erroneous and therefore, we affirm his holding that the Hooker note has been paid in full and is not a part of the Walker estate.

CROSS APPEAL

On cross-appeal, the appellees challenge the chancellor’s holding that the Griffith property, the Andrews promissory note, the Hobson/Woods promissory note, the Davis promissory note, and the one-half acre tract of road were the subject of a resulting trust for the benefit of the estate. The appellees rely on the presumption that a gift was intended when the purchaser of property places the title to the property in the name of a spouse or child of the purchaser. The appellees maintain that the proof falls short of the clear, cogent and convincing evidence that is required. The evidence cited by appellees includes the decedent’s declaration that the Hobson/Woods note was to belong solely to Dale Clyde Walker upon his death. This fact was testified to by Dale Clyde Walker who stated that his father told him he had some notes that would belong to Dale Clyde when he died. Dale Clyde Walker admitted however, that his father received the income from the notes during his lifetime. The rent money was placed in a bank account in Dale Clyde Walker’s name and he would write his father a check for the total amount when his father asked him to. As to the Griffith property, H. C. Walker paid the full purchase amount and placed it in his son’s name. H. C. Walker also received the full monthly rental payment and his son did not receive any money until after his father’s death. The appellees argue that Dale Clyde Walker exercised ownership over the property by finding a renter for it. The evidence however was merely that the people who babysat for Dale Clyde Walker needed somewhere to live and so H. C. Walker agreed to rent to them. The Davis note was placed in the name of Betty Walker, the decedent’s daughter. All of the money was provided by H. C. Walker. Betty Walker testified that during her father’s lifetime, she received the income from the notes every month, endorsed them, and turned them over to her father except for once or twice a year when she would keep the money. Before she kept the money, however, she would tell her father that she needed it. As to the other property, the appellees argue that the decedent’s intention that the properties and notes be gifts to his children was communicated to Dale Clyde Walker, his nominated executor, whom he allegedly told that he wanted his children’s debts forgiven. Further evidence of his intent is offered by his widow who testified that she knew her husband was putting property in various children’s names, but did not know to what extent. Mrs. Walker testified, “I never did know much about his business. I never discussed this with my husband or raised any objections to it during his lifetime except that I objected to him putting property in some of their names and not in others, not treating them all fairly.” The appellees maintain that this statement demonstrates that the children were intended to own the property since the question of fairness would not arise if the property were held in trust. This would be true if Mrs. Walker had claimed that she understood or participated in her husband’s business. Her statements that she knew little if anything about her husband’s business make her perception of his intent an uninformed one and therefore not persuasive. Other testimony was that H. C. Walker had not bought or sold any property in his own name since some time in the 1960’s. In all the transactions which are the subject of the cross-appeal, H. C. Walker provided all the funds and received all the income. The persons in whose names he placed the property sometimes did not know anything about the land transaction, but merely signed deeds when their father requested that they do so. They also all testified that they would have signed bills of sale on any of the property listed in their names by their father at their father’s request. We find that the evidence is clear, cogent, and convincing that the transactions which are the subject of this cross-appeal are but another example of H. C. Walker’s habit of buying land in the names of others but retaining the title and the beneficial interest in those lands. As to the cross-appeal, the chancellor’s decision is affirmed.

Affirmed in part; reversed in part.


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice. Darrell Hickman, Justice,

license: Public Domain

text:
    Sam Dean HORN and Roy Lee HORN v. STATE of Arkansas
    CR 84-21
    665 S.W.2d 880
    Supreme Court of Arkansas
    Opinion delivered March 19, 1984

      Murphy ir Carlisle, by: John Wm. Murphy, for appellant.

      Steve Clark, Atty. Gen., by: Velda West Vanderbilt, Asst. Atty. Gen., for appellee.
   P. A. Hollingsworth, Justice.

In June of 1981, Sam and Roy Horn were arrested in the City of Springdale. Roy Horn was charged with possession of a controlled substance, fictitious tags, possession of a prohibited weapon, and contributing to the delinquency of a minor. Sam Horn was charged with possession of a controlled substance and minor in possession. On July 1, 1981, both of the Horns were tried in the Municipal Court of Prairie Grove, Arkansas. Roy Horn was found guilty and fined $400.00. Sam Horn was found guilty and fined $300.00. Both appealed their convictions to the Circuit Court of Washington County, Arkansas. After a hearing on December 2, 1982, the Washington County Circuit Court affirmed the judgment of the Prairie Grove Municipal Court on April 28, 1983. On appeal, the appellants challenge the court’s finding that the law does not require the defendant to be charged and tried in the municipal court nearest the point of arrest.

Appellants assert that the legislative act is unconstitutional in that it violates their equal protection right guaranteed by the United States and Arkansas Constitutions.

Upon examining the record, it appears this issue is raised for the first time here. The pertinent part of the transcript of the December 2, 1982 hearing contains the following colloquy between counsel for appellants and the court:

The Court: Now, gentlemen, is there any stipulation as to the facts? Are you wanting this court to resolve jurisdiction?
Mr. Murphy: Venue, Your Honor.
The Court: Venue only?
Mr. Butler: Just venue, Your Honor.
The Court: Do you want to make any stipulation as to the facts involved? You are only wanting to challenge venue?
Mr. Murphy: I am only challenging venue. I will stipulate that one Horn boy was 20 years of age, actually he was 3 weeks under age 21, and that the license was not the proper license on the vehicle.
The Court: That’s what I’m getting at. Assuming for a minute that the Court finds venue was improper, then that would end the matter; . . .
Mr. Murphy: I’ll plead nolo. I’ll go ahead and stipulate the facts; I am not arguing on that. All I said I would fight was venue.

On appeal the appellants make an equal protection argument based on the inability of county residents to vote for a municipal judge who has countywide authority. The re.cord in the trial court does not indicate this objection was raised below or that the appellants stated their voting rights were denied. An objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6(1983). We will not consider matters raised for the first time on appeal. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366(1980).

We do not follow the plain error doctrine whereby we address plain errors affecting substantial rights which were not brought to the attention of the trial court. Cargo Carriers, Inc. v. Ragland, 278 Ark. 401, 646 S.W.2d 681 (1983); Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982).

Ark. Stat. Ann. § 22-709 (Repl. 1962) grants municipal courts county wide jurisdiction and does not provide an automatic right of removal or change of venue. Section 22-721 provides for change of venue for certain situations, none of which are pertinent to the facts in the case before us.

Affirmed.

Adkisson, C.J., Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. In effect the appellants challenge the power of the municipal court of Prairie Grove, a small community of 1,708 people located in Washington County, Arkansas, to adjudicate a criminal offense that occurred in the City of Springdale, Arkansas, a large community located in Washington County, Arkansas.

The problem of concurrent jurisdiction of municipal courts in Arkansas is a growing one, and the fact that there is no constitutional or statutory provision to regulate the proliferation of municipal courts in Arkansas will continue to cause us a problem. Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981). The municipal court in Prairie Grove was created by Act 1171 of 1975, and it grants that municipal court county wide jurisdiction. It does require that the judge be a qualified elector of the county and apparently permits a countywide election; but, if no qualified person files then the city council of Prairie Grove will select the municipal judge. By Act 1171 the annual salary of the Prairie Grove municipal judge is $2,400. Undoubtedly, the responsibilities and duties of that court have increased, because the salary was at least tripled in 1979 by Act 14 which authorized an annual salary of not less than $7,200 nor more than $12,000.

The appellants in this case have a valid claim. By what right does the City of Prairie Grove have to cause a person arrested in the City of Springdale, for an offense, to be subject to the judgment of Prairie Grove? The arresting officer, a deputy sheriff, took the case to the Prairie Grove Municipal Court and under the present scheme of things the arresting officer decides where a person will go. It is a ridiculous situation. In my judgment the Prairie Grove Municipal Court is not constitutionally valid and is nothing more than a city court with jurisdiction limited to the boundaries of the municipality; therefore, it had no jurisdiction to try this case, and it did not have venue over an offense committed in the City of Springdale. State ex rel. Reynolds v. Sande, 238 N.W. 504 (Wis. 1931); State ex rel. Wright v. Brown, 131 Neb. 239, 267 N.W. 466 (1936).

I can think of no legitimate reason that a police officer could have for arresting a person within the city limits of one city, which has a municipal court, and transporting that person across the county to a small town which also has a municipal court. Certainly, the motive cannot be the administration of justice and is probably nothing more complicated than assisting the city in raising revenue. The attention of the parties is directed to our recent decision in the case of Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984), which declared the Marked Tree Municipal Court illegal.

The majority may opt to resolve some of these problems by using Ark. Stat. Ann. § 43-601 (Repl. 1977), which provides one arrested without a warrant shall be taken before the most convenient magistrate.

I am authorized to say that Chief Justice Adkisson and Justice Purtle join in this dissent.


author: Per Curiam.

text:
    Mark EDMONDS v. STATE of Arkansas
    CR 84-23
    665 S.W.2d 882
    Supreme Court of Arkansas
    Opinion delivered March 19, 1984

      Henry N. Means, III, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Movant has filed a motion for a Writ of Certiorari to the Pulaski County Circuit Clerk commanding that the record of the trial be completed for appeal. The movant was convicted on December 8,1983. Notice of appeal was filed on January 11,1984. The judgment was entered on January 13, 1984. Notice of appeal may be given as a matter of right within 30 days from entry of the judgment, decree or order appealed from. Ark. R. App. P., Rule 4 (a); ARCrP, Rule 36.9. Notice of appeal must be filed within 30 days from entry of the judgment, decree or order appealed from. Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). Even if the appeal is filed before entry of judgment it is treated as being filed on the date the judgment was entered. Caskey v. Pickett, supra; Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W.2d 203 (1958). Therefore, the notice of appeal was timely and the trial court had no authority to deny the appeal. Time within which to file the record will commence to run on March 19, 1984.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Frances FRISBY v. STRONG SCHOOL DISTRICT
    83-254
    666 SW.2d 391
    Supreme Court of Arkansas
    Opinion Delivered March 26, 1984

      Cearley, Mitchell & Roachell, by: Richard W. Roachell and Marcia Barnes, for appellant.

      Compton, Prewett, Thomas it Hickey, P.A., by: William I. Prewett, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellee, Strong School District, was two days late in giving appellant, Frisby, a teacher for the District, notice of nonrenewal of her teaching contract for the 1982-83 school year pursuant to Ark. Stat. Ann. § 80-1304 (Repl. 1980). On July 23, 1982, appellant filed suit for a Writ of Mandamus to compel members of appellee school board to issue a teaching contract to her for the 1982-83 school year. On June 10, 1983, the trial court dismissed the case, finding that the 1982-83 school year was complete and, therefore, the request for mandamus was moot. The sole issue on appeal is whether the trial court erred in holding the request for mandamus was moot. We affirm.

A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. It is the duty of the courts to decide actual controversies which can be carried into effect. Burgess, Judge v. Four States Mem. Hosp., 250 Ark. 485, 465 S.W.2d 693 (1971); Kirk v. North Little Rock Sp. Sch. Dist., 174 Ark. 943, 298 S.W. 212 (1927). Since the 1982-1983 school year was over by the time of trial, appellant’s request for a Writ of Mandamus to compel the school board to hire her for the 1982-1983 school year was indeed a moot issue. Ark. Stat. Ann.§ 33-106 (Repl. 1979) states that a date for a hearing on a writ of mandamus must be fixed “no longer than seven (7) days” after “the written application of the petitioner.” Appellant, however, failed to request that a hearing be set within the statutory time period and thereby failed to preserve her issue from being rendered moot.

Appellant also argues that she had a continuing contract and that the untimely notice of nonrenewal for the 1982-1983 school year was not sufficient to operate as a notice of nonrenewal for the 1983-1984 school year and therefore she was entitled to mandamus on June 10,1983, for the 1983-1984 school year. This argument is without merit. The untimely notice of nonrenewal given for the 1982-1983 school year was, nevertheless, sufficient notice of non-renewal for the 1983-1984 school year. Marion Co. Rur. Sch. Dist. I v. Rastle, 265 Ark. 33, 576 S.W.2d 502 (1979).

Affirmed.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. I cannot agree with the majority opinion because it places the teacher in a “catch 22” position. She had a right to ask for a writ of mandamus because she was entitled to have her contract renewed. Although the petition for a writ of mandamus was filed on July 23, 1982, it was not ruled upon until June, 1983. The whole contract year started and ended while her petition was pending in the court. It is unconscionable to refuse to allow this teacher to recover on the grounds that her petition is moot. It is moot only because the court did not act upon it during the school year.

Arkansas Stat. Ann. § 33-104 (Repl. 1962) states: “Petitions for such writs shall have precedence over all other actions and proceedings and shall be heard and determined summarily.” Arkansas Stat. Ann. § 33-106 requires that the hearing on a petition for writ of mandamus be held within seven days. Furthermore, we stated in Rastle v. Marion Co. Rural Sch. Dist., 260 Ark. 740, 543 S.W.2d 923 (1976), wherein a school teacher had filed an action in chancery court for mandamus or alternatively for damages, “We think it clear that the two actions are so procedurally incompatible as to prevent their joinder.” The facts in Rastle are exactly the same as in the present case. The appellant had no right to join mandamus with any other action.

The court in the present case, due to technical rules of procedure, has denied the appellant the funds to which she was so clearly entitled. Article 2, Section 13, Constitution of Arkansas (1874) states:

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; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.

The appellant has been wronged, and with plenty of delay, she has been denied a remedy, all in violtion of our constitution.

I would reverse.

Hollingsworth, J. joins in this dissent.


text:
    Ronald TURNEY v. ALREAD PUBLIC SCHOOLS
    83-273
    666 S.W.2d 687
    Supreme Court of Arkansas
    Opinion delivered March 26, 1984
    [Rehearing denied April 30, 1984.]

      Cearley, Mitchell ir Roachell, by: Richard W. Roachell, for appellant. _

      G. Ross Smith, for appellee.

      Purtle, J., would grant rehearing.

   Richard B. Adkisson, Chief Justice.

Appellee, Alread Public Schools, terminated appellant, Ronald Turney, a provisional teacher, pursuant to The Teacher Fair Dismissal Act of 1979 (Ark. Stat. Ann. § 80-1264 (Repl. 1980). Appellee terminated appellant on August 18, 1982, for the contract year of 1982-83. On appeal the Circuit Court found that there existed a rational basis for the decision of the appellee School District. The sole issue on appeal to this Court is whether the trial court erred in finding a rational basis for the termination. We affirm.

Appellant, who had a degree in Business Education but no certification in that area, had been teaching business education four years on a “provisional certificate” issued by the State Department of Education. Yearly renewal of the “provisional certificate” required the acquisition of six hours college credit per year. For several years appellee had been concerned with raising the accreditation of its high school to an “A” rating which could not be obtained so long as a teacher was not fully certified in his teaching area and was teaching on a “provisional certificate.” Appellee renewed appellant’s contract for the 1980-81 school year with the following provision: “This contract is made on the basis of doing 12 more hours before August 20, 1981.” In regard to the 1982-83 school year, the Superintendent for appellee recommended that appellant teach for the 1982-83 school year “with the condition that he have his 1982-83 teacher’s certificate by August 1, 1982.” Appellee School Board then modified that offer stating appellant would be rehired “if you obtain 12 hours by August 1982 and complete all your requirements and be fully (not provisionally) certified by the end of the first semester of the 1982-83 year.” Appellant replied to this offer by letter stating “I have checked UCA’s summer sessions schedule and have confirmed that I can obtain credit for twelve (12) hours this summer by attending both sessions.” The agreement between the parties that appellant obtain twelve hours in the summer was reiterated in a subsequent letter of May 11,1982, from appellee stating “You will satisfactorily complete 12 hours during this summer session and must be enrolled the fall semester to complete your certification.” Appellee also requested written documentation establishing appellant’s registration for “two summer sessions at which you [appellant] will receive twelve hours toward certification.” By the middle of the summer of 1982, a letter from the Chairman of the Department of Administration and Secondary Education at University of Central Arkansas established that although appellant had enrolled for a three hour course in the first summer session, he had received an incomplete due to excessive absences. Appellant then informed appellee that he would be able to complete only seven hours during the summer and would take the final courses in the fall in order to be fully certified. After a hearing, appellee voted to terminate appellant with this declaration: “Because of your failure to meet requirements specified in letters dated 4-12-82 and 5-11-82, the board will not give you a contract for the 1982-83 school year.” Based on these facts, the trial court found that appellee had a rational basis for the termination.

Ark. Stat. Ann. § 80-1264.9(b) provides: “Any certified teacher who has been employed continuously by the school district [for] three (3) or more years may be terminated or the board may refuse to renew the contract of such teacher for any cause which is not arbitrary, capricious, or discriminatory ...” We have previously held that an action is “arbitrary” and “capricious” only if it is not supportable on any rational basis. Lamar School District No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982). We will not reverse the findings of the trial court sitting as trier of fact unless those findings are clearly erroneous. Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980). In the light of the school board’s attempt to raise the accreditation of its high school and appellant’s failure to meet the requirement that he obtain twelve hours in the summer of 1982, we cannot say the trial court clearly erred in finding a rational basis for appellant’s discharge.

Affirmed.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. I believe the trial court and the majority of this court have failed to recognize a most important fact in this case. The fact is the school board granted the teacher a reprieve from his deficiency until the second semester of the 1982-83 school year. It is true they expected him to complete 12 hours in the summer term of 1982 and the remainder in the fall semester. The teacher agreed to these terms. However, when he enrolled at UCA he found he could not get the full 12 hours credit because of changes in the program at the University. He did complete seven hours and was prepared to finish the required hours in the fall term of 1982. If he accomplished this goal he would be qualified and certified on the same date he would have under the mandate of the school board. The board appears to have flared up and acted contrary to the agreement when the teacher did not progress on the expected schedule.

If substantial compliance by the board is adequate then the same measure should apply to its teachers. We have held substantial compliance by the board is sufficient. Lamar School Dist. No. 39 v. Kinder and Wright, 278 Ark. 1, 642 S.W.2d 885 (1982); Lee v. Big Flat Public Schools, 280 Ark. 377, 658 S.W.2d 389 (1983). Sauce for the goose should be sauce for the gander.

Hollingsworth, J. joins in this dissent.

       To what extent, if any, The Teacher Fair Dismissal Act of 1979 applies to a “provisional teacher” was not raised in the trial court nor argued on appeal, and this opinion does not purport to decide that issue.


author: Richard B. Adkisson, Chief Justice.

text:
    Gladys BARNETT et al v. Robert ISABELL
    83-303
    666 S.W.2d 393
    Supreme Court of Arkansas
    Opinion delivered March 26, 1984
    [Rehearing denied April 30, 1984.]

      Highsmith, Gregg, Hart, Farris ir Rutledge, by: Linda Boone, for appellants.

      H. David Blair, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellants, the Barnett family, were involved in an automobile accident on June 17, 1982, when their vehicle was struck by a truck driven by appellee, Robert Isabell. Appellee was employed by the owner of the truck, Bradley Farm Supply, hereinafter employer. Appellants filed suit against the employer alleging negligence under the doctrine of respondeat superior. A judgment was entered in favor of appellants which was satisfied by the employer on June 8, 1983.

Appellants then filed a complaint on June 21, 1983, against appellee/employee claiming damages for the same injuries arising out of the same occurrence as that involved in the preceding suit against the employer. The trial court granted summary judgment for appellee.

The judgment in the first case was conclusive. The plaintiff had a fair opportunity to pursue his claim the first time. We stated in Ted Saum & Co. v. Swaffor, 237 Ark. 971, 377 S.W.2d 606 (1964):

. . . The true reason for holding an issue res judicata is not necessarily for the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issue.

The case of Davis, Administratrix v. Perryman, 225 Ark. 963, 286 S.W.2d 844 (1956), is also applicable here:

It is a prevailing rule that as regards actions growing out of an accident, in which liability is claimed on the ground of the alleged negligence of a servant or agent, a judgment in favor of either the master or principal on the one hand, or the servant or agent on the other, sued alone, is res judicata, or conclusive, as to such issue of negligence, in a subsequent action against the other, a derivative responsibility being present.

Appellant argues that the rule of Woodard v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971), should apply to the present facts. We disagree. In Woodard two separate and independent acts combined to produce the death of the decedent. There was no derivative liability between the two tortfeasors. However, in the present case the liability of the employer for the acts of his employee is wholly derivative based upon the theory of respondeat superior. Therefore, a judgment and satisfaction would bar any further proceedings based on the same tortious act.

Appellant argues that under The Uniform Contribution Among Joint Tortfeasors Act, Ark. Stat. Ann. §§ 34-1001—34-1009 (Repl. 1962), recovery and satisfaction of a judgment from one tortfeasor does not preclude a suit against the other tortfeasor [See, Smith v. Tipps Engineering & Supply Co., 231 Ark. 952, 333 S.W.2d 483 (I960)]. This is true but the act is inapplicable where, as here, there has been a judgment and satisfaction based on a purely derivative theory.

Affirmed.


author: George Rose Smith, Justice. P. A. Hollingsworth, Justice,

text:
    CNA INSURANCE COMPANY v. James Ralph McGINNIS, and Vicky Lynn HILLS
    84-17
    666 S.W.2d 689
    Supreme Court of Arkansas
    Opinion delivered March 26, 1984
    [Rehearing denied April 30, 1984.]

      Davis, Cox ir Wright, for appellant.

      Sexton, Nolan, ir Robb, P.A., and Jones, Gilbreath, ir Jones, by: Kendall B. Jones, for appellee.

      Hollingsworth, J., would grant rehearing.

   George Rose Smith, Justice.

In this case we granted a petition to review the decision of the Court of Appeals because that court had affirmed the chancellor’s decree by a 3-3 tie vote. Rule 29 (4). We find that the chancellor’s decree was clearly erroneous and accordingly reverse the decision of the Court of Appeals.

Vicky Lynn Hills brought suit in federal court against her former stepfather, James Ralph McGinnis, for injuries received as a result of sexual assaults and abuse inflicted by McGinnis upon Vicky Lynn. McGinnis hada homeowner’s insurance policy with the petitioner, CNA Insurance Company, which obligated CNA to defend personal injury suits against McGinnis and to pay any judgment against him, up to the $50,000 policy limit, with an exception excluding coverage for personal injury which is “expected or intended” by the insured. Relying upon that exception, CNA refused to defend the federal action and brought this suit in a state court for a decree declaring that CNA is not obligated under its policy to defend the action or to pay any judgment that may result. On cross motions for summary judgment the chancellor held that CNA is obligated under its policy, because although McGinnis’s acts were intentional, he did not expect or intend any injury to the child. In reaching that conclusion both the chancellor and the affirming appellate judges relied upon our decision in Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981), holding that under a similar exception the insurer was liable where an insured intentionally fired a shotgun in the direction of others but did not expect or intend to injure them.

Here CNA proved that McGinnis had had sexual relations with Vicky Lynn almost daily from the time she was six years old until she was sixteen. The relations stopped when McGinnis was arrested, convicted, and sent to the penitentiary. McGinnis had also had similar relations with Vicky Lynn’s older twin sisters until they ran away from home and the family began to receive counseling as a group.

McGinnis admitted that he intended to do what he did. He said that the twins used his conduct as an “excuse” for running away from home. He felt that none of the three children experienced any harm or injury or ill effects from his activities with them. Dr. Stephens, a psychologist with experience in similar cases, testified that males who are involved in such activities do not expect or intend that the females will sustain any injury. He admitted that in most instances such a sexual relationship does lead to emotional problems on the part of the recipients of such abuse.

The language in an insurance policy is to be construed in its plain, ordinary, popular sense. State Farm Mutual Automobile Ins. Co. v. Belshe, 195 Ark. 460, 112 S.W.2d 954 (1938). This means that the policy exception excludes coverage for injuries which the average run of reasonable people would expect or intend to inflict by engaging in the conduct in question. Hence we said in the Talley case that there would be no coverage if the insured intended to shoot the injured plaintiffs, but if it was mere negligence on the insured’s part there would be coverage.

In the present case McGinnis’s repeated intentional acts were felonies, prohibited by the criminal law. McGinnis says that nevertheless he did not mean any harm to Vicky Lynn, and Dr. Stephens says that other males holding the same peculiar notions of proper conduct do not intend any harm to their victims. There was a similar disclaimer of specific intent in an Arizona case in which a high school student struck a classmate in the face, causing serious injuries. Clark v. Allstate Ins. Co., 22 Ariz. App. 601, 529 P. 2d 1195 (1975). From the opinion: “However, the act of striking another in the face is one which we recognize as an act so certain to cause a particular kind of harm that we can say a person who performed the act intended the resulting harm, and his statement to the contrary does nothing to refute that rule of law.”

The test is what a plain ordinary person would expect and intend to result from a mature man’s deliberately debauching his six-year-old stepdaughter and continuing to do so for years. We agree with the view expressed by the dissent in the Court of Appeals in this case, that for a stepfather in such a situation “to claim that he did not expect or intend to cause injury, flies in the face of all reason, common sense and experience.” We need not belabor the point to express our conviction that the chancellor’s conclusion in this case was clearly erroneous.

Reversed, a declaratory decree to be entered in harmony with this opinion.

Hollingsworth, J., dissents.

P. A. Hollingsworth, Justice,

dissenting. I disagree with the majority that the chancellor’s decree was clearly erroneous. Our holding in Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d (1981) was that a fact issue existed where an insured intentionally fired a shotgun in the direction of others he intended to hit or injure.

In the case before us, the chancellor found that while McGinnis intended to commit the acts complained of, the appellant had not met its burden of proof in establishing that he either intended or expected any injury or damage to his stepdaughter. The chancellor viewed the evidence in the proceedings before him clearly showing that McGinnis did not intend or expect his stepdaughter to sustain injuries by reason of his acts.

In support of Mr. McGinnis’ testimony, Dr. Douglas A. Stevens, who has a Ph.D. in psychology and has encountered numerous cases of this type, testified that males who engage in this type of sexual activity generally perceive it as an intimate and affectional relationship, with positive emotions flowing in both directions. It was Dr. Stevens’ opinion that McGinnis perceived his relationship with his stepdaughter to be an intimate one where both received positive benefits.

I agree with the view expressed by the affirming judges in the Court of Appeals in this case that “the only way to find that he intended harm to result would be to find that harm was a natural and foreseeable consequence of his acts, and that approach was specifically rejected in Talley.” I think the chancellor correctly analyzed the evidence and the law, and that his decision was correct.

I would affirm.


author: George Rose Smith, Justice.

text:
    Patsie HUMKE v. Horace TAYLOR and Erma TAYLOR, His Wife
    84-26
    666 S.W.2d 394
    Supreme Court of Arkansas
    Opinion delivered March 26, 1984

      Lesly W. Mattingly, for appellant.
    No response filed by appellee.
   George Rose Smith, Justice.

This action in unlawful detainer was brought in the circuit court after the appellee Taylors, as the sellers of a mobile home and five-acre tract of land in Lonoke County, had elected to rescind the contract of sale and treat the appellant purchaser, Patsie Humke, as a tenant. The circuit judge refused to transfer the case to the chancery court. After a trial without a jury the court upheld the plaintiffs’ right to rescind the contract, treated the defendant as a tenant, permitted the plaintiffs to retain all purchase-money payments as rent, and directed the defendant to surrender possession of the property.

For reversal the appellant argues principally that the case should have been transferred to chancery. The Court of Appeals certified the case to us under Rule 29 (4) (b), as involving an important question about circuit and chancery court jurisdiction in a case of this kind.

The printed form of Purchaser’s Agreement recited a purchase price of $11,000, payable at $137 a month with initial extra payments for a “down payment,” and was signed by the sellers and by Mrs. Humke and her husband on January 23, 1976. The agreement contained this provision on which the sellers are relying:

Time is the essence of this Agreement, and if Buyer defaults in the payment of any installment of principal and interest for a period of 30 days, or fails to pay any taxes, assessments or insurance premiums when due, Seller, at its option, may either declare the entire debt with interest due and payable, or rescind this Agreement, and in the event of rescission all moneys paid by Buyer shall be taken and retained by Seller, not as penalty, but as rent of the property and the relation of the parties thereafter shall be that of landlord and tenant at the rental of $137.00 per month; and thereupon Seller, after notice, may demand possession of the property, and Buyer agrees to surrender immediately peaceable possession.

In March, 1982, the sellers elected to exercise their option to rescind, so notified Mrs. Humke, whose husband had moved off the property, and brought this action in unlawful detainer to recover possession and rent at the rate of $137 a month from July 2,1981 until the defendant vacates the property. The defendant filed a counterclaim asserting that all the principal debt except $2,000 had been paid, that she was the equitable owner, that a forfeiture would cause her irreparable damage and unjustly enrich the plaintiffs, and that the case should be transferred to equity.

The circuit judge denied the motion to transfer and heard the case on its merits. Both the plaintiff Horace Taylor, who lives in Chicago, and his sister, who lives near Austin in Lonoke County, testified that they had visited the Humkes from time to time in an effort to persuade them to make their payments promptly, but their efforts had failed. Taylor’s testimony was typical:

I went over there several times. Almost every time I would come home from Illinois I would go over and talk to them to see, would pick up their payments or whatever. They would always give me some kind of excuse. We will get some money. Maybe they would make a couple of pretty good payments, and after I got back home, that was it.

At the beginning of the trial the defense again moved for a transfer. The circuit judge denied the motion, for the reason that an unlawful-detainer action properly lies in circuit court. The testimony at the trial was in dispute about the amount of the defendant’s equity in the property, which was at least $6,000, and about the amount, if any, that she was in default. At the close of the plaintiffs’ case the defense for a third time moved for a transfer, which was denied.

The trial judge, still treating the action as one in unlawful detainer, found generally that the defendant had been in default in performing the agreement, without specifying in what respect except that she had not paid the property taxes (which appear to have been $4.03) and had not shown the sellers as loss payess in the insurance policy (an omission that had caused no loss to anyone). Final judgment was accordingly entered for the plaintiffs.

We have many cases holding that “a purchaser’s rights under an executory contract affecting real estate may be forfeited pursuant to the contract and without proceedings in law or equity.” White v. Page, 216 Ark. 632, 226 S.W.2d 973 (1950), where we discussed five of our earlier cases and concluded that the forfeiture should be enforced in that case. That case, like nearly all of our pertinent cases, was tried in chancery.

None of our decisions has held that a provision such as the one in the present Purchaser’s Agreement is unconscionable or unenforceable. On the other hand, a court of equity invariably avoids a harsh forfeiture if there is any basis for doing so. In fact, the White case is one of only a few which have permitted a forfeiture.

We conclude that the appellees’ complaint in unlawful detainer did state a cause of action in circuit court. Hence the trial court’s refusal to transfer the case to equity might be sustainable if no facts had been shown as a basis for a chancery court to avoid the forfeiture. But ample grounds appeared in the proof, even in the plaintiffs’ own testimony. The sellers never insisted upon strict compliance with the terms of the agreement and instead accepted delinquent payments over a period of six years. In those circumstances equity will not permit them suddenly to change their attitude and abruptly seek to rescind the contract. Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 33 (1964), where we discussed the law in some detail. Hence the motion to transfer should certainly have been granted when it was renewed at the close of the plaintiffs’ proof.

Reversed, the case to be transferred to the chancery court.


author: Darrell Hickman, Justice.

text:
    David Michael REYNOLDS v. STATE of Arkansas
    CR 83-148
    666 S.W.2d 396
    Supreme Court of Arkansas
    Opinion delivered March 26, 1984

      Erwin L. Davis, for appellant.

      Steve Clark, Atty. Gen., by : Velda West Vanderbilt, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

David Michael Reynolds was serving a four year suspended sentence when he was arrested for theft by receiving of a microwave oven and a window air conditioner. Reynolds was a long haul truck driver residing in Benton County, Arkansas. These charges arose out of an investigation by Reynolds’ employer which began when these items were missing from one of Reynolds’ loads. The employer recovered a microwave oven and a window air conditioner unit from a storage building rented by Reynolds. Charges were filed against Reynolds for this theft in November, 1982. A jury trial was scheduled for August 31, 1983. Six days before the trial, the deputy prosecuting attorney telephoned Reynolds’ counsel and told him that she intended to file a petition to revoke appellant’s suspended sentence. Appellant’s counsel received a copy of the petition two days before the day set for trial, and Reynolds himself received a copy of the petition one day before trial. No summons was issued in connection with this petition nor was Reynolds arrested in connection with this petition.

The trial court, over the written objections of Reynolds, had the hearing on the petition to revoke his suspended sentence and, after hearing the evidence, did revoke the suspended sentence. Objections made at the trial and on appeal were that the petition had to be dismissed because of irregularities. No motion was made at the trial court for a continuance nor is any argument made on appeal that the trial court was wrong in not granting a continuance to Reynolds. For that reason the judgment is affirmed.

The first argument on appeal is that because Reynolds was not arrested with a warrant for violation of his suspension nor given formal notice of the time and place of the revocation hearing, the trial court was without jurisdiction to hear the petition. Ark. Stat. Ann. § 41-1208 (Repl. 1977) provides that a summons may be issued to the defendant or that he be arrested, with or without a warrant, for violating conditions of his suspension. Reynolds was never arrested for such a violation. The fact that the statute was not strictly complied with would not deprive the trial court of jurisdiction to hear the petition nor void the trial court’s action. See Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981). Neither do we find error in the lack of written notice of the time and place of the revocation hearing, in light of the fact that Reynolds did receive actual notice of the time and place of the hearing and did not ask for a continuance.

Reynolds’ second argument is that a revocation hearing must be held within sixty days after an arrest, according to Ark. Stat. Ann. § 41-1209 (2) (Repl. 1977). That provision relates to an arrest for violation of the conditions of a suspended sentence and not an arrest on another charge. Walker v. State, 262 Ark. 215, 555 S.W.2d 228 (1977). In other words, Reynolds was brought to a hearing within sixty days from the time he was notified that the petition for revocation had been filed and that is all that is required.

The last argument of Reynolds is that there was not sufficient evidence to support the trial court’s finding that Reynolds had violated the conditions of his suspended sentence. This is purely a question which requires the resolution of the witnesses’ credibility and is one within the sound discretion of the trial court. The state produced witnesses from which the trial court could conclude that the microwave oven and the air conditioner were stolen property, that they were stolen from a truck in possession of Reynolds and that he possessed them knowing that they were stolen.

It may be that Reynolds and his counsel would have been entitled to a continuance in view of the late filing of the petition to revoke the suspended sentence and the lack of formal notice. However, that question was not preserved below nor is any argument made on appeal that the court was in error in not granting a continuance. The only arguments made on appeal are that the petition has to be dismissed or the trial court’s judgment reversed absolutely. Neither of these arguments is meritorious.

Affirmed.