text:
    Netherton v. Baldor Electric Co.
    5-2257
    341 S. W. 2d 57
    Opinion delivered December 19, 1960.

      Sam Sexton, Jr., and Edwin E. Dunaway, for appellant.

      Bethell é Pearce, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal must be dismissed because the case is now moot.

On July 25, 1960 the employees of Baldor Electric Company (represented by Local Union No. 700 IBEW) went on strike; and the Baldor plant was picketed. When Baldor rented office space in the First National Bank Building in Fort Smith and undertook an employment campaign, the bank building was picketed. On August 11, 1960 the First National Bank of Fort Smith applied to the Sebastian Chancery Court and obtained an injunction against the picketing of the bank building. On the same day Baldor Electric Company applied to the Sebastian Chancery Court and obtained an injunction which, under certain circumstances, enjoined picketing at the Baldor plant. The defendants in the two chancery cases were the officers and representatives of the Local Union whose members were on strike; and they are the appellants in this Court. From the order of the Sebastian Chancery Court granting a temporary injunction in each of the cases, there were immediate appeals to this Court; and on August 12, 1960, while the Court was in recess, one of the Justices made an order which stayed in whole or in part the Chancery Court injunctions until the cases could be heard by the entire Court. On September 12, 1960, this Court, being reconvened, entered an order continuing the temporary stay until the causes were reached on the merits; and that time has now arrived.

But since the appeal to this Court on August 12, 1960 events have transpired which render this appeal moot. On September 5, 1960, by stipulation of all parties, the appeal of the First National Bank was dismissed ; and now, upon submission of the Baldor Electric ease, it is conceded that the strike has been settled. The appellant’s brief contains the following paragraph:

“While this case was pending on appeal the labor dispute existing between Baldor Electric Company and the members of Local Union No. 700 terminated and the pickets have been voluntarily withdrawn from the employer’s premises.”

The quoted statement is not denied; so our holding in Local Union No. 656 v. Mo. Pac. R. R. Co., 221 Ark. 509, 254 S. W. 2d 62, is ruling here. In that case there was an injunction against picketing in a labor dispute and while the appeal was pending in this Court the strike was settled. In dismissing the appeal as moot, we said:

“It is alleged, and the appellants concede, that the strike against Dixie Cup has now been settled. Thus there is no longer any occasion for picketing or any controversy between the parties to this appeal. In these circumstances neither an affirmance nor a reversal of the decree would have any practical effect except as it might affect the matter of court costs, which is not alone a sufficient issue to call for a decision in an otherwise moot case. Quellmalz Lbr. & Mfg. Co. v. Day, 132 Ark. 469, 201 S. W. 125. We think the case at bar falls within the rule announced in Kays v. Boyd, 145 Ark. 303, 224 S. W. 617: ‘It is the duty of this court to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon abstract propositions or to declare principles of law which cannot affect the matter in issue in the case at bar.’ ”

It, therefore, follows that this case has become moot and the orders heretofore made are set aside, and the appeal is dismissed at the cost of the appellants.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Newton v. Calhoun County School District.
    5-2270
    341 S. W. 2d 30
    Opinion delivered December 19, 1960.

      B. H. Peace and James E. Stein, for appellant.

      W. C. Medley, for appellee.
   George Rose Smith, J.

This is an action by the appellant, a school teacher, to recover her salary of $1,811.70 for the 1955-1956 school year. Mrs. Newton had been employed by the appellee district during the preceding year, and her contract contained the statutory provision that it would be renewed for the succeeding year “unless within ten days after the date of the termination of said school term, the teacher shall be notified by the school board in writing delivered in person or mailed to him or her at last and usual known address by registered mail that such contract will not be renewed.” Ark. Stats. 1947, § 80-1304 (b). It is conceded that Mrs. Newton was not given the required written notice, but the circuit court, sitting without a jury, found that she was given oral notice and that the school board was justified in assuming that she had waived the requirement of written notice. The issue on appeal is the sufficiency of the evidence to support the court’s finding.

The principal witnesses were the plaintiff and Walter Eowland, the principal at the school in question. Mrs. Newton testified that during her last term as a teacher she was not given even an oral notice that her contract would not be renewed. She says that she did not learn of her discharge until she reported for work on the opening day of the fall term. She was then told that another teacher had been employed in her place and that she would not be needed. Mrs. Newton was unable to find other employment and lost a year’s work.

Eowland, the principal, was not aware of the requirement that written notice be given. He testified that soon after the school election in March he was instructed by W. J. Jones, the secretary of the school board, to tell Mrs. Newton that she had not been retained. “I went to Mrs. Newton’s room and talked to her and told her I wanted to tell her that she had had trouble in the election of the board and that since I had nothing to do with the hiring or discharging of teachers if she wanted to discuss it with anybody it would be necessary for her to talk to the board.” Later on the following appears:

“The Court: And will you state again for the Court’s benefit the notice that you gave her?
“The Witness: I didn’t say in so many words — I wanted to make it as easy as possible — I told Mrs. Newton that she had had trouble in the school election and advised her to talk to Mr. Jones about it if she wanted to clear it up and that any discussion would be better to be had with him.”

Rowland also testified that on the last day of the term in May he was making np a schedule of teachers for the fall. This schedule contained two blanks, one for Mrs. Newton’s name and the other for Mrs. Stanton, who was resigning. Mrs. Stanton remarked, according to Rowland, “that it made her feel bad to see the schedule without her name on it, and Mrs. Newton said, ‘Well, what do you think about me?’ ” The schedule was not put up for the teachers to see.

During the summer Rowland talked to Mrs. Newton by telephone. In that conversation ‘ ‘ she stated that she wasn’t going to be treated that way . . . and I told her that I could not tell her anything that had any bearing on the matter and that she would have to talk to the' Board about it.” Rowland denied that Mrs. Newton appeared for work on the first day of the fall term, but we think this to be immaterial, as he stated that she would not have been employed even if she had been present.

We are unable to find in the record substantial evidence to support the finding that Mrs. Newton waived the required written notice. In the absence of a waiver she is entitled to recover. Wabbaseka Sch. Dist. No. 7 v. Johnson, 225 Ark. 982, 286 S. W. 2d 841. A waiver was found to have occurred in Sirmon v. Roberts, 209 Ark. 586, 191 S. W. 2d 824, but in that case the teacher admitted that she had told a school board member that if “the board didn’t want me, I didn’t want the place.”

The statutory requirement of written notice is an important safeguard to the teacher’s standing and security. As we said in the Sirmon ease: ‘ ‘ One obvious purpose of the statute requiring written notice was elimination of uncertainty and possible controversy regarding the future status of a teacher and a school.” In the case at bar if the school board was misled into thinking that Mrs. Newton had been discharged it was doubtless because the board assumed that Rowland had carried out Jones’ instruction to inform Mrs. Newton that she had not been retained. But Rowland in substance admits that he did not so inform this teacher; he merely told her that she had had trouble in the school election and should see Jones if she wanted to clear the matter up. There is no indication that Mrs. Newton discussed the issue with Jones, who appears to have died before the trial. The proof indicates at most that Mrs. Newton was conscious of some uncertainty about her status in the coming year, but she was under no affirmative duty of bringing the matter to an issue. To the contrary, the statutory and contractual obligation of giving notice rested upon the school board. There is no evidence to show either that Mrs. Newton voluntarily relinquished her position or that she did or said anything to beguile the board into thinking that she regarded her contract as having been terminated.

If the district desired to mitigate the plaintiff’s damages it had the burden of proving that she could have obtained other employment. School Dist. No. 65 of Randolph County v. Wright, 184 Ark. 405, 42 S. W. 2d 555. As no such proof was offered the plaintiff was entitled to judgment for the full amount of her salary, and the cause will be remanded for the entry of such a judgment.

Reversed.

Harris, C. J., dissents.


author: Paul Ward, Associate Justice.

text:
    Branscum v. Drewery.
    5-2279
    341 S. W. 2d 6
    Opinion delivered December 19, 1960.

      N. J. Henley, for appellant.

      Virgil D. Willis, for appellee.
   Paul Ward, Associate Justice.

The trial court held that appellees had acquired title to the south one-half of an abandoned railroad right-of-way by adverse possession. Appellants, who claimed ownership of said land by record title, now proseeute this appeal for a reversal on the grounds that (a) appellees had no color of title because the deed relied on contained an indefinite description and (b) there is no substantial evidence of adverse possession.

The railroad right-of-way involved in this litigation runs in a northeasterly direction across the northwest corner of the Southeast Quarter of the Southeast Quarter of Section 26, Township 15 North, Bange 16 West, in Searcy County. That part of the right-of-way here involved is 100 feet wide and approximately 800 feet long. The centerline intersects the north line of the above described forty acres near the middle and it intersects the west line of said forty acres 240 feet south of the northwest corner of said forty acres, leaving about 7 acres north of the right-of-way and abutting thereon.

The entire forty acres was owned by one N. J. McBride in 1903, when he conveyed the right-of-way to the St. Louis and North Arkansas Railroad. McBride later sold the land to Lonzo Tilley, and in 1916 Tilley sold to James A. Sutterfield 13 acres lying south of the right-of-way and abutting thereon. The heirs of Sutterfield, on March 28, 1959, deeded to Mr. and Mrs. Branscum (appellants herein) a portion of this land lying south of the right-of-way and abutting thereon.

In 1928 Highway No. 65 was built along the south line of the right-of-way. The right-of-way was abandoned by the railroad company in 1946.

Appellees acquired title to the aforementioned 7 acres of land north of the right-of-way either in 1951 or sometime prior thereto, and on October 16, 1951, they procured a Quit Claim Deed from the Trustees of the railroad company purporting to convey the said railroad right-of-way. The description in this deed reads as follows:

“That part of the right-of-way of the old Missouri and Arkansas Railway commencing at the west line of the Southeast quarter of the Southeast Quarter of Section 26, Township 15 North, Range 16 West, and extending in an easterly direction approximately 806 feet, or from Engineering Station 9039/75 to Station 9047/81 at private road crossing, as more fully indicated by Railroad Map V2A-Ark. No. 26 on file with the Railway Company at Harrison, Arkansas, same being a strip 100 feet in width of the length of 806 feet as indicated above, containing 1.8 acres, more or less.”

This is the deed that appellants attack as containing an indefinite description.

In June, 1959, appellants filed a suit in ejectment against appellees in the Circuit Court, claiming to be the owners of the south one-half of said right-of-way; setting forth their chain of title; alleging that appellees had, without authority, entered upon the land and erected a fence thereon; and asking the court to declare them to be the true owners. Appellees claim that they were entitled to the land by reason of 7 years adverse possession under color of title.

After hearing the testimony the court, sitting as a jury by agreement, found that appellees had acquired title to said strip of land by reason of adverse possession, and rendered judgment accordingly.

It is our conclusion that the judgment of the Circuit Court must be sustained on the ground that appellees had adverse possession of the portion of the land in question for more than 7 years under color of title.

(a) DESCRIPTION IN THE DEED. While the description in the deed from the Trustees to appellees does not definitely describe, by metes and bounds, the strip of land in question, we think it' furnishes a sufficient “key” to make the description definite. Being a conveyance of a right-of-way in a definite forty acres of land it could not possibly refer to any other lands. The acreage is accurately described — being 1.8 acres. The width and length of the parcel of land is definitely stated. In addition to all of these, the deed itself makes reference to a map and tells where the map can be found. We think all these facts constitute a sufficient key to make the description definite under the decisions of this court. See: Tolle v. Curley, 159 Ark. 175, 251 S. W. 377; Turrentine v. Thompson, 193 Ark. 253, 99 S. W. 2d 585; Ketchum v. Cook, 220 Ark. 320, 247 S. W. 2d 1002, and Benny Rinke, gdn., et al v. Mark Weedman, 232 Ark. 900, 341 S. W. 2d 44.

(b) ADVERSE POSSESSION. Having concluded that appellees ’ deed from the Trustees constitutes color of title, it is necessary only that appellees show they had possession of a portion of the said strip for 7 years in order to acquire title to all of it. This court has uniformly and frequently held that adverse possession of a part of a parcel of land extends to all of the land claimed under color of title. See: Benjamin M. Ledbetter v. Jesse Fitzgerald, 1 Ark. 448; Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390; Flannigan v. Beavers, 172 Ark. 28, 287 S. W. 755 and Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900.

The record reflects that appellees cleared the strip of land in question more than once; that in 1951 they built a road from Highway No. 65 across the parcel of land to their home near by, and; that they had sawdust placed on the disputed parcel of land. It is not disputed that appellees built the road across the parcel of land in 1951 or that it has been in use ever since. Also, although the record is not clear on the point, there is evidence indicating appellees had built and maintained a fence on the land. In the Lollar case, supra, there appears this statement: “. . ., it has been well said that if the claimant ‘raises his flag and keeps it up’ continuously for the statutory period of time, knowledge of his hostile claim of title may be inferred as a matter of fact.”

It is our conclusion therefore that there is sufficient evidence to support the judgment of the trial judge, whose findings have the same force and effect as the findings of a jury in this case.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Edwards v. Martin.
    5-2275
    341 S. W. 2d 51
    Opinion delivered December 9, 1960.

      Paul K. Roberts, for appellant.

      L. B. Smead, for appellee.
   Jim Johnson, Associate Justice.

This is a child custody ease. It is a contest between the mother, Mrs. Grraydon Edwards, appellant, and the grandmother, Mrs. Larkin Martin, appellee, over the custody of a minor child, Eichard James Foord. This is the second appearance of this matter before this Court. The first appeal came to this Court from an order of the Ouachita County Probate Court granting custody of the child to the grandmother, appellee herein. On appeal, this Court in Edwards v. Martin, 231 Ark. 528, 331 S. W. 2d 97, held that probate courts are without power or authority to determine a contest over the care and custody of a minor and ordered the cause remanded with directions to transfer the case to the Chancery Court for further proceedings. The mandate of this Court was followed and a different judge in the same district presided. Eather than retry the entire case before the Chancery Court, the parties chose to stipulate that the record and evidence adduced at the trial of the case before the Probate Court be submitted to the Chancery Court as a base for its decision and opinion. The custody of the child was again awarded to the grandmother, Mrs. Larkin Martin. From such order comes this appeal.

For reversal, appellant relies only upon the contention that: “The Court erred in failing to grant custody of Eichard James Foord to appellant.”

The record reveals that appellant and her child were severely injured in an automobile accident October 22, 1952, in which her husband was killed. After considerable hospitalization appellant and her child went to the home of her parents, appellees here. Appellant bought a home in 1953 for her parents, using a large part of the insurance proceeds from her husband’s death. Appellee retained physical custody of the child and this was the situation when appellant remarried. The child’s aunt, Euby Mae Foord, was appointed his guardian in March of 1956, but this appointment was set aside because of failure to comply with the necessary statutory requisites of notice. On October 23, 1958, Mrs. Larkin Martin petitioned for custody of the child. Appellant resisted this petition, hence the controversy here.

The evidence is undisputed that appellee from the time the child was eight months old in 1952, until the date of trial, November 28, 1958, cared for, loved, protected, and reared the child in a good Christian home; that she carried him to church and Sunday School; that he is being reared in a proper environment and is happy and healthy and knows no other home than that of appellees. On the other hand, the record reflects that appellant, from the time of her accident until some fifteen or sixteen months before the filing of the present action, lived a life which, to say the least, was not conducive to that of a worthy mother. It would serve no useful purpose to here review the testimony against appellant other than to say it was established that appellant suffered from a disease, drunkenness, and spells of depression. She attempted suicide a number of times and left home with a truck driver and was away over a year before she married him.

To appellant’s credit, however, it is uncontradicted that since her marriage to Graydon Edwards in 1957 and for more than a year prior to this trial, appellant has conducted herself in an exemplary manner, both as a wife and as a stepmother to her present husband’s children. The testimony as to appellant’s present conduct shows a remarkable change for the good.

From these facts we must agree with the following excerpts from the learned Chancellor’s opinion, who also had only the cold written record before him:

‘ ‘ This is a case which presents a great responsibility on the Court. It arises out of a multitude of most unfortunate circumstances. It involves, the future welfare of a small boy whom fate has deprived of the care, love and protection of his own father, who was killed in an automobile accident when the child was about eight (8) months of age.”

As we review the Chancellor’s findings and the record before us, certainly the child’s welfare is paramount in our minds. It is obvious tbat tbe Chancellor cbose the course that it is better to be safe than sorry. He must have concluded that the mother’s exemplary conduct immediately preceding the trial was not of sufficient duration to show any permanent improvement in her character since, as the testimony reflected, there was much to overcome. It is well settled, of course, that in a child custody case the present conditions are those on which the decree will rest. Willis v. Bell, 86 Ark. 473, 111 S. W. 808. Therefore, if other circumstances remain the same, we conclude that a continued course of conduct of the sort here established to have existed within one year preceding this trial would show such a permanent change in appellant’s character as would obviously merit favorable consideration of a reinstituted custody petition by the mother.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Davis v. Jackson.
    5-2186
    341 S. W. 2d 762
    Opinion delivered January 9, 1961.

      Carl L. Hunter, Kirsch, Cathey & Brown, for appellant.

      Gus B. Camp, for appellee.
   Carleton Harris, Chief Justice.

Don L. Davis, a widower, on February 7, 1957, deposited $10,000 with the Piggott Federal Savings and Loan Association, receiving a Savings Share Account certificate. This certificate was issued in the name “Don L. Davis or Patricia Jackson (a granddaughter).” In October, 1957, Davis married Lucy Copeland Davis, appellant herein. On January 3, 1958, Davis presented his savings book to the Association, stated that he had married, and would like to change the account to show his wife’s name, Lucy Copeland Davis, rather than the name of the granddaughter. In compliance therewith, the certificate was changed by striking the words “Patricia Jackson (a granddaughter)”, and inserting in lieu thereof, the words, “Lucy Copeland Davis.” Davis died in June, 1958, leaving a will, in which appellant was named executrix. No withdrawals were ever made from the account after it was originally opened in 1957. Davis retained possession of the deposit book at all times. Subsequent to his death, appellee instituted suit against the widow (both individually and in her capacity as executrix), and against the Association, seeking to have the account declared her sole and absolute property. On hearing, the court held that a joint tenancy had been created in the first instance, and that same “cannot be revoked at the pleasure of either of the depositors * * that it was the intention of Davis at the time of making the deposit, to create a joint tenancy with right of survivorship, and further, “That the testimony is insufficient to show that there was not a completed gift.” In accordance with these findings, the court declared and held appellee to he entitled to the entire deposit, directed the Piggott Federal Savings and Loan Association to pay the deposit, together with all accruals thereto, to Patricia Jackson, and ordered appellant to deliver the pass book to appellee. From such decree, comes this appeal. For reversal, appellant asserts four points, hut we think point three is controlling. Accordingly, we will only discuss that point, together with the two contentions relied upon hy appellee to sustain the Chancellor’s holding.

The pertinent provisions of Section 67-820, subsection (b), Ark. Stats. Anno. (1957 Replacement), are as follows:

“Any Building and Loan Association or Federal Savings and Loan Association may issue shares, share accounts, or accounts in the joint names of two (2) or more persons or their survivor, in which event any of such persons who shall first act shall have power to act in all matters related to such shares, share accounts, or accounts whether the other person or persons named in such shares, share accounts, or accounts he living or not. Such a joint account shall create a single membership in any such association. No shares, share accounts, or accounts shall he issued to tenants in common. The repurchase or redemption value of shares, share accounts, or accounts issued in joint names, and dividends thereon, or other rights relating thereto, may he paid or delivered, in whole or in part, to any of such persons who shall first act, whether the other person or persons he living or not. The payment or delivery to any such person, or a receipt or acquittance signed hy any such person, to whom any such payment or any such delivery of rights is made, shall he a valid and sufficient release and discharge of any such association for the payment or delivery so made.”

Appellee asserts that this section is applicable to accounts of the nature here involved, and that the case of Ferrell, Administratrix v. Holland, 205 Ark. 523, 169 S. W. 2d 643, wherein this Court held a joint tenancy to have been created, is controlling in the present litigation. We agree that the section applies, but we do not agree that the Ferrell case has any application. The holding in that case was predicated upon the aforementioned statute, and the provisions of the certificate issued, 2together with the intent, as shown by the evidence, to create a joint tenancy. As this Court stated:

“The above statute applies here; and from the evidence in this case we hold that Mr. S. I. Ferrell and Dr. D. T. Holland intended to, and did, create a joint tenancy with right of survivorship when they applied for and received the certificate here involved.”

Further, from the Opinion:

“We hold that there was created a joint tenancy with right of survivorship when Mr. S. I. Ferrell and Dr. D. T. Holland signed the application card to the loan association and received the certificate, and, the certificate never having been changed it goes to Dr. Holland as the survivor.”

A substantial difference in that case, and the present one, is at once apparent, for here, the certificate was changed. Appellee takes the view that once Mrs. Jackson’s name was placed on the certificate, she had a vested interest in the property. This position cannot be maintained, for the statute itself precludes such a result. Very clearly, such statute provides:

“ * * * any of such persons who shall first act shall have power to act in all matters related to such shares, share accounts, or accounts whether the other person or persons named in such shares, share accounts, or accounts he living or not.”

Mr. Davis did act, and he had every legal right to do so.

It is also contended, to make any sort of a change, it would have been necessary for Davis to draw the money out and re-open another account, rather than merely have the name changed on the certificate. This, we think, would have been superfluous. Equity regards substance rather than form. The circumstances clearly reflect the end result that Davis desired. It might also be added that the evidence clearly establishes that Davis had no intention of creating a joint tenancy when opening his account. According to Mrs. Wilma Underwood and John Ed Lingle, employees of the Federal Savings and Loan Association who were present when the account was originally opened, the following facts were shown: Davis desired to open an account in his own name, but was advised by one of the corporation directors that it was customary to have two names on the account. According to Lingle, Davis mentioned the name of one of his neighbors, a Mr. Montgomery, but it was suggested that would be asking a neighbor to assume a considerable amount of responsibility. The director inquired about relatives, and Davis mentioned his granddaughter. According to Mrs. Underwood, Davis was assured it would not be possible for the person whose name appeared on the account with him to draw on it except after his death, and only if she had possession of the pass book. After some discussion, he decided to place his granddaughter’s name on the account, and was assured that if he desired to make any change, it would only be necessary that he return with the hook, and give the Association the necessary information. We are not here concerned with the correctness of the advice given to Davis, but mention this evidence only for its pertinency to the question of intent.

Appellee asserts, “In any event, there was certainly a completed gift to the granddaughter.” We feel there is but little need to add to what has already been said. A gift is a voluntary transfer of property, without valuable consideration, to another. In the very nature of a gift, the donor ceases to exercise control over it. The testimony, heretofore referred to, establishes that Davis had no intention of giving the money, represented by the share, to anyone, and he likewise retained possession of the pass book. Appellee calls attention to a letter sent to Mrs. Jackson, by Davis, and enclosing an application card for her signature, following the original opening of the account with the Savings and Loan Association. The letter directs that appellee sign the card, “so then when you come down here they would know you”; however, the opening line of the letter is, “I wish yon would sign this card to identify you just in case anything happens to me.” We think it clear that the first statement referred to Mrs. Jackson’s “coming down” after his death. The evidence falls far short of establishing a gift.

For the purposes of this appeal, it is not necessary that we determine whether the fund, evidenced by the certificate, belongs to appellant individually or in her capacity as executrix. The decree is reversed, and the cause remanded with directions to enter a decree not inconsistent with this opinion.

Reversed and remanded.

       The applications for the share account in both the Ferrell case, and the present case, were the same, but the certificates issued were vastly different. In the former case, the certificate reads as follows: “This is to certify that S. I. Ferrell, Desha, Ark., and Dr. D. T. Holland, Newbern, Tenn., as joint tenants with right of survivorship, and not as tenants in common, is a member of the Batesville Federal Savings & Loan Association and holds a five thousand dollars investment share account of said association, subject to its charter and by-laws and to the laws of the United States of America.” In the present case, the original certificate reads: “This certifies that Don L. Davis or Patricia Jackson (a granddaughter) is a member of Piggott Federal Savings and Loan Association and holds a Savings Share Account of said Association, subject to its charter and by-laws and to the Laws of the United States of America.”

       Emphasis supplied.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice. Jim Johnson, Associate Justice,

text:
    Perry and Coggins v. State.
    4980 and 4986
    342 S. W. 2d 95
    Opinion delivered January 9, 1961.

      Robinson, Sullivan S Rostech, for appellant.

      Bruce Bennett, Atty. General, by Bill J. Davis, Asst. Atty. General, for appellee.
   J. Seaborn Holt, Associate Justice.

Tbe appellants, Jesse Baymond Perry and Jobn Taylor Coggins, were charged with the crime of unlawfully and feloniously injuring property with dynamite in violation of Arkansas Statutes (1947) § 41-4237. Separate trials were held for each of the named defendants and a jury returned a verdict of guilty against each. Punishment for Perry was assessed at three years in the State Penitentiary. Punishment for Coggins was assessed at three years in the State Penitentiary and a $500.00 fine levied. A synopsis of the material facts shows that the appellants were part of the “confidential squad” of an organization known as the Ku Klux Klan who planned and carried out acts of violence directed against the Little Bock Public School Board and certain city officials of the City of Little Bock. The violence was designed to harass the School Board and city officials for their role in the integration of Negro pupils into the Little Bock school system. On the afternoon of September 6, 1959, Perry and Coggins, in the company of another person, drove to the places that had been selected as targets for bombing in order to acquaint themselves with the nature and location of the targets. On the night of September 7, 1959, the appellants proceeded to carryout the plan of dynamiting the school board offices at Eighth and Louisiana Streets, Mayor Werner Knoop’s office on Gaines Street, and the bombing of Little Rock Fire Chief Gann Nalley’s station wagon. Perry and Coggins were arrested on September 10, 1959, and charged the following day with willfully and feloniously destroying property with dynamite.

Although the appellants assigned numerous alleged errors in the trial court proceedings, they argue but three on this appeal. (I) That the trial court erred in refusing to grant a change of venue, (II) that the trial court erred in refusing to quash the jury panel, and (III) that the trial court erred in permitting statements of other offenses with which the defendant, Jesse Raymond Perry, was charged to be admitted in evidence.

I

It is first contended that the trial court erred in refusing to grant a change of venue to the defendants because widespread coverage of the crime by local newspapers and other news media created a situation where public sentiment was so aroused and inflamed that it would be impossible for the defendants to obtain a fair and impartial trial in Pulaski County. A petition for change of venue was filed under Arkansas Statutes (1947) § 43-1501 and supporting affidavits were signed by thirteen persons, nine of whom testified at the hearing. The State filed counter-affidavits from twenty-seven persons and twenty-one of these testified. Unless the trial court abused its discretion in denying appellant’s motion for a change of venue, then we must affirm the court’s order. See Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141, Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996. In the present case, our review of the facts does not show an abuse of discretion. Numerous witnesses testified for both the defendants and the State. Their testimony was contradictory. However, in Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59, this court held no abuse of discretion existed where there was presented a situation where hundreds of veniremen were searchingly examined under oath over a three-day period. Here, as in the Leggett case, supra, there is evidence that many veniremen may have reached positive conclusions as to the guilt or innocence of the defendants, but the lower court reached the conclusion after hearing all the testimony firsthand that the defendants could receive a fair trial and we cannot say under the facts of this case there was an abuse of discretion. We said in the Leggett case:

“It cannot be said that the court abused its discretion in refusing to order a change of venue. What the statute requires is a showing that the minds of the inhabitants of the county are so prejudiced against the accused that a fair trial cannot be had. Arkansas Statutes (1947) § 43-1501. Formerly the court was restricted to determining the credibility of the affiants supporting the motion, but the 1936 revision of the statute permits the court to ascertain whether the allegations of prejudice are well founded. Robertson v. State, 212 Ark. 301, 206 S. W. 2d 748. Here the trial judge had listened for more than three days while hundreds of veniremen were searchingly examined under oath. In deciding whether the appellant’s two witnesses had correctly estimated the local sentiment the court was entitled to consider the views of scores of citizens already heard. Although many veniremen had reached positive conclusions from what they had read or heard, there is no indication that the news reports were biased or represented a studied effort to inflame the public. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996. Despite the defendant’s theory that it was impossible to obtain a fairminded jury within the county, the court was convinced by testimony heard at firsthand that this goal had almost been reached. In these circumstances the conclusion that the asserted prejudice did not exist lay well within the limits of the court’s discretionary authority.”

II

It is next contended that the trial court erred in refusing to quash the jury panel. The court appointed three jury commissioners for the September 1959 term of court. The jury commissioners selected the jury panel for the September term of court and the respective jurors were summoned to appear on the first day of the new term, September 28, 1959. On this same date the court felt that one of the Commissioners, Marion Ward, was disqualified to serve as a jury commissioner and removed him. The jury was dismissed and each was paid for one day’s jury service. A new jury commissioner, Jack Pickens, was selected by the court to replace Mr. Ward. The new commissioners selected a panel of jurors by which Perry and Coggins were ultimately tried and convicted. The appellants rely upon Arkansas Statutes (1917) § 39-222 which provides if the panel of jurors selected is set aside that the court shall order the sheriff to summon a petit jury who shall attend and perform the duties of jurymen as if they had been regularly selected. It is argued that in the present case, since the regular panel of jurors was set aside, that the sheriff should have summoned a panel of jurymen to try the defendants. We do not agree. Act 205 of Acts of 1951, compiled as Ark. Stats. 39-220.1 and 39-221.1, provides:

“Deficiencies in the regular panel of the petit jury shall be filled by selecting jurors from the special panel provided for in section 3 [§ 39-220] of this act and when in the trial of any case the regular panel is exhausted the court shall direct the summoning of a sufficient number of jurors from the special panel to complete a jury for the trial of said cause. In no event, except by consent of the parties, shall bystanders be summoned.
“In the event it becomes evident to the court that the special panel should be supplemented with additional names of petit jurors the court may recall the jury commissioners which selected such panel for the purpose of supplementing said special panel with such number of petit jurors as the court deems necessary. In the event of disqualification or unavailability of one or more of such jury commissioners the court may appoint one or more jury commissioners in lieu thereof.”

In the present case both the regular and the special panels of petit jurors were quashed, therefore it was necessary for the court to recall the jury commissioners to supplement the panels selected. It will be noted that this section of the statute, § 39-221.1, provides that the court may appoint other jury commissioners if one or more of the jury commissioners is disqualified. This was done in the present case. We think that the court followed the proper procedure in the present case and no error was committed as urged by the appellants.

The appellants also argue that the jury panel should have been quashed because two of the jury commissioners, Jack Pickens and Milton Anderson, were members of business firms which had subscribed to a reward fund sponsored by the Little Eock Chamber of Commerce to be paid for information leading to the arrest and conviction of individuals responsible for the aforementioned crimes. We think this is without merit.

In Arnold v. State, 148 Tex. Cr. R. 310, 186 S. W. 2d 995, 158 A.L.R. 1356, the defendants were indicted by a grand jury for cattle thefts and convicted by a petit jury. Both the grand jury and the petit jury contained persons who were members of an association whose purpose was to help investigate and prosecute cattle thefts. The Court of Criminal Appeals of Texas held that such members were not disqualified. And in Corley v. State, 162 Ark. 178, 257 S. W. 750, the citizens of Newport had contributed money to promote a law and order league, and several of the veniremen had contributed money to this association. These veniremen testified that their contributions had been made for the purpose of suppressing lawlessness generally, and no juror held competent was shown to have made a contribution for the purpose of prosecuting the appellant personally. The court in commenting upon this noted:

‘ ‘ The veniremen were not disqualified by this bias. The rule is that a juror is not disqualified from trying a person accused of a particular crime because he has a prejudice against the crime charged, if such prejudice against a particular crime would not prevent the juror from impartially considering the question of the guilt of the accused.”

"While the above cases deal with either grand or petit jurymen we can see no reason to apply a different rule of disqualification for jury commissioners who are even further removed from the case than a petit juror. The bias, if any, of jury commissioners, Pickens and Anderson, was not toward the particular defendants in this case, but toward the crime committed. It was their desire to see the offenders punished, whoever they might be. It is certainly no disqualification that a jury commissioner or juror be prejudiced against lawlessness. “. . . (G-)ood citizenship implies a respect for and obedience to all laws, so long as they are laws, and a willingness and desire to see them effectively administered.” Remer v. State, 3 Okla. Crim. 706, 109 P. 247.

in

Finally the appellant, Perry, contends that the court erred in allowing the prosecution to offer proof of an offense in addition to the one for which he was being tried. The record shows that Perry and the other members of the confidential squad met on several occasions to plan the dynamiting of three different places. All three bombings were part of a single scheme and were carried out in rapid succession on the same night. In the case at bar Perry was being tried on the charge of dynamiting the School Board office. The court allowed the prosecution to introduce proof of the entire plan and its execution, and this evidence showed that Perry was also implicated in the bombing of Nalley’s car. The jury was instructed that the proof concerning the other offense was not to be considered with reference to the defendant’s guilt of the charge on trial.

The court’s ruling was correct. “If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.” Underhill’s Criminal Evidence (5th Ed.), § 207.

The principle has often been recognized by this court. In the early case of Baker v. State, 4 Ark. 56, we stated the rule as follows: “Generally speaking, it is not competent for a prosecutor to prove a man guilty of one felony, by proving him guilty of another; but where several felonies are connected together, and form part of one entire transaction, then the one is evidence to prove the character of the other. . . . All the authorities concur, that the intention and design of the party are best explained by a complete view of every part of his conduct at the time, and not merely from the proof of a single and isolated act or declaration ; and it may so happen, that, from the nature of the offense charged, it is impossible to confine the evidence to proof of a single transaction.” Again, in Banks v. State, 187 Ark. 962, 63 S. W. 2d 518, we said: “Moreover, the testimony of Mrs. May was competent for another reason, that is to say, if several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense, which is itself a detail of the whole criminal scheme. Thus, where two or more persons are assaulted at or about the same time and place, it will be permitted to prove all the assaults on the trial of one indictment for any one of them. For the reason that all the assaults are merely parts of one transaction and to prove one necessitates proof of all of them.” Other cases to the same effect include Johnson v. State, 152 Ark. 218, 238 S. W. 23, and Mayfield v. State, 160 Ark. 474, 254 S. W. 841.

We have examined the other numerous assignments of error hut find no error as alleged.

The judgment is affirmed in both cases.

Robinson, J., not participating.

Johnson, J., concurring.

Jim Johnson, Associate Justice,

concurring.

I concur in the result reached by the majority but for entirely different reasons than those advanced in the majority opinion as to the appellants’ contentions on (1) Petition for Change of Venue, and (2) The alleged reception of statements as to other offenses charged against the appellant Perry. I am in full accord with the majority as to its reasoning on appellants ’ contentions as to the refusal of the trial court to quash the jury panel.

My basic difference with the majority is that I feel that the case should be affirmed, not because no error was committed on denial of the Petition for Change of Venue, but because the error was harmless in the cases of these two appellants. The same thing may be said with reference to the statements made by the Prosecuting Attorney and one witness with reference to the fact that there were other charges pending against the appellant Perry. On this latter point, I cannot agree with the approach of the majority because, as I view it, the point raised by appellant is not that any improper evidence was received but rather that even though the trial court cautioned the jury to disregard such statements, it was impossible to erase the prejudice which their utterance in the presence of the jury had created.

As to appellants’ Petition for Change of Venue, I firmly believe that the trial court erred in denying the petition. The majority cites Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59, to sustain the trial court’s action. It should be remembered that in the Leggett case the trial court had heard the testimony of “hundreds of veniremen” and jurors had actually been selected at the time of the presentation of the petition. Further, the court found that in the Leggett case there was no indication: “... that the news reports were biased or represented a studied effort to inflame the public. . .” [emphasis added]. In the case now before us, no jurors had been examined before the Court passed upon the Petition for Change of Yenue. Without detailing the testimony of the witnesses called by the State or the appellants on this petition, I am of the opinion that when all of such testimony is considered, the overwhelming preponderance of the evidence showed that a fair and impartial jury could not be selected in Pulaski County to try these cases. The second point of distinction between the cases now before us and the Leggett case is that in the present cases the record clearly shows that the news articles, editorials and cartoons were “biased” and did represent ‘ ‘ a studied effort to inflame the public. ’ ’

Space will not permit a detailed recitation of the text, prominence, size of headlines, number of stories and slanted emphasis of the news articles. It is sufficient to say that no fair minded person could read the same without coming to the conclusion that the news editors were magnifying the crimes and deliberately attempting to create hostility toward the defendants. Surely, no reasonable person would say that the editorials appearing in the Arkansas Gazette, wherein it was stated that the editors trusted that the Federal Bureau of Investigation had investigated whether or not the defendants were communists, were not a “studied effort to inflame the public.” This example could be multiplied but this is a fair sample of the editorial treatment of the defendants. It is possible that fair minded men might differ as to the deliberate intent of the editors in news treatment of the matter if this were all that appeared in the record, but, when the editorials are considered it is clear, beyond the shadow of a doubt, that these editors not only attempted to prejudice the public against the defendants before trial but also that these efforts were undoubtedly successful. It is shameful that any responsible newspaper editor would attempt to pervert justice by preventing a defendant from being tried by fair and impartial jurors. It matters not how guilty the defendants may have been and undoubtedly were; this did not give license to deprive them of their constitutional right to trial by an unbiased jury. If we ever come to the point that we reason that “the end justifies the means” we will have destroyed our government of law and will have substituted a ‘ ‘ government by men ’ ’ which will surely lead to the doom and destruction of our great nation.

Having stated my reasons for disagreeing with the treatment of the issue by the majority, I advert to my reason for concurring in the result, i.e., that the error was harmless. In Sullins v. State, 79 Ark. 127, 95 S. W. 159, in discussing an error of the trial court in refusing to sustain a challenge for cause against one of the trial jurors, we said:

“For instance, if the undisputed evidence, not only on the part of the state, but also the testimony of the defendant himself, clearly shows the facts which make out the crime, then we think this Court would not be justified in sitting the conviction aside for such an error, for under such a state of facts the verdict would have been the same had the case been tried by any other unbiased and impartial jury. Now that is the case here, so far as the guilt of the defendant is concerned; for his own testimony shows that the killing of Eadcliff was neither necessary nor excusable on his part.” [Emphasis added.]

In Anderson v. State, 197 Ark. 600, 124 S. W. 2d 216, we upheld a first degree murder conviction where confessions of conspirators had been improperly admitted against him saying:

“They could not have been prejudicial in this case because the appellant, Joe Anderson, testified and admitted the conspiracy, the robbery and the hilling of Cooley. It is true he said that Cooley was shot when he was a few feet away and that he had nothing to do with the shooting, but it was done in furtherance of the conspiracy and all the conspirators were guilty the same as the one that actually did the shooting.” [Emphasis added.]

In Malone v. State, 202 Ark. 796, 152 S. W. 2d 1019, in discussing an alleged improper argument of the prosecuting attorney, we said:

‘ ‘ Moreover, no prejudice could have resulted by that statement of the prosecuting attorney, and even where error is shown, if it is manifest from the record that no prejudice resulted, this Court will not reverse[Emphasis added.]

Turning now to the record in the cases here, I find that the appellant Coggins testified in open court and admitted his guilt, seeking only to minimize his turpitude by statements that he thought the bomb would only cause slight damage and did not realize the havoc which it would wreak.

The appellant Perry testified in Chambers that the second of two confessions he made to the Prosecuting Attorney was true and he did not make the confession because of coercion, threats, duress or promises of reward. This confession was read in evidence against him and constitutes an unqualified admission of guilt as an accessory before the fact. This justified and demanded his conviction as a principal and based on the record before us, no fair minded jury could have come to any other conclusion, the distinction between accessory before the fact and principal having been abolished. Ark. Stats., § 41-118.

By virtue of both appellants own testimony, they would have been convicted by any fair minded jury and the convictions should stand because the error in denying the Petition for Change of Yenue was harmless.

The contention of appellant Perry as to error in refusing to grant a mistrial because of statements of the prosecutor and a witness to the effect that other charges were pending against him is without merit because the error, if any, was harmless in view of his testimony — which, in effect, confessed guilt.

On this last point, the opinion of the majority goes to a point which I don’t understand from the briefs to be raised by appellant and which, as I see it, could not properly be raised since the record shows that the Court did not admit evidence of similar offenses on the part of the defendant but instead charged the jury to disregard the improper statements. The appellant only contends that the admonitions of the Court were insufficient to remove the alleged prejudice created by these utterances. This contention is untenable for two reasons: (1) The appellant’s admittedly true confession related his participation in and guilt of another crime, as well as guilt of the crime for which he was being tried. In this state of the record, it cannot be said that any prejudice resulted to the appellant because of the excluded statements of the Prosecuting Attorney and a witness. No objection was made to the reading of appellant’s confession on the ground that it showed his guilt in another crime, and, indeed, none could have been properly made. (2) The admonition was ample to remove any possible prejudice. Smith v. State, 222 Ark. 650, 262 S. W. 2d 272.


author: Ed. F. McFaddin, Associate Justice.

text:
    Ebbert v. Hubbell Metals, Inc.
    5-2208
    341 S. W. 2d 768
    Opinion delivered January 9, 1961.

      Howard é McDaniel, for appellant.

      Marcus Fiets and James B. Roleson, for appellee.
   Ed. F. McFaddin, Associate Justice.

The judgment in this action on account must be reversed because of an erroneous ruling in regard to the admission of evidence.

Appellee, Hubbell Metals, Inc., filed action against Appellant Bill Ebbert for $458.82 and interest alleged to be due on an open account for merchandise. The defense, inter alia, was that appellant neither ordered nor received the merchandise for his own use. Trial to a jury resulted in a judgment for appellee for the full amount; and appellant brings this appeal, urging two points, the first of which is:

“The Court erred in the admission in evidence of plaintiff’s Exhibit No. 1 because said exhibit was a photostatic copy and it was not admissible under the best evidence rule and the governing statute. ’ ’

We find it unnecessary to consider the second point urged by the appellant because the first point requires a reversal of the judgment rendered. Hubbell Metals shipped the merchandise to Arkansas Aluminum Awning Company via Superior Forwarding Company, a motor carrier. Ebbert’s defense was, that even though he was the owner of Arkansas Aluminum Awning Company, nevertheless he had previously informed the salesman of Hubbell Metals that W. A. Kernodle was operating the Arkansas Aluminum Awning Company and that Ebbert would not be liable for any merchandise sold to the Company while Kernodle was operating the business. In the course of the trial, and to show delivery of the merchandise to appellant, appellee offered what purported to be a photostatic copy of a bill of lading issued by Superior Forwarding Company and claimed to contain the signature of appellant as having received the shipment. The Court permitted the photostat to be introduced in evidence, and that ruling is the point at issue.

Ebbert insisted that the photostat was a mere copy and not the best evidence, and that no foundation was laid for the admission of the copy. The best evidence rule, as applied to the situation here, is stated in 20 Am. Jur. 379, “Evidence”, § 426:

“The original of a writing, document, or record, is the primary evidence of the matter contained in such writing, document, or record. Copies are mere secondary evidence, and, under the general rule requiring the production of the best evidence which the nature of the case admits, are not admissible in evidence over the objection of the adverse party unless a basis is laid for their reception by showing that the original cannot be produced.”

In Union Central Life Ins. Co. v. Mendenhall, 183 Ark. 25, 34 S. W. 2d 1078, there was an effort made to introduce a photo static copy of a premium card and, in holding the copy to be inadmissible, this Court said:

“The original premium card was the best evidence, and there was no proper foundation laid for the introduction of a copy. . . . The court correctly held the photostatic copy inadmissible. That it was a photograph and less liable to imperfectly depict the original than a copy transcribed ordinarily would, does not alter the general rule.”

In the case at bar there was no testimony to show that the original bill of lading was not available to the plaintiff instead of a mere photographic copy; and so the copy offends against the best evidence rule. But the appellee insisted in the Lower Court, and claims here, that the copy was admissible because of Act No. 64 of 1953, which makes admissible in some instances the photographic copies of business records, and it was on this theory that the Lower Court admitted the photostat in evidence. The germane portion of this Act No. 64 (§ 28-932, Ark. Stats.) reads:

“If any business ... in the regular course of business or activity has kept or recorded any memorandum ... of any act . . . and in the regular course of business has caused any or all of the same to be recorded ... by any . . . photostatic . . . or other process which accurately reproduces or forms a durable medium for so reproducing the original, . . . Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial . . . proceeding.”

Even though this Act No. 64 of 1953 is Section 1 of the Uniform Act entitled: “Photographic Copies of Business and Public Records as Evidence Act” (see Uniform Laws Anno. Yol. 9-A, p. 338, printing of 1957), still there is a paucity of authorities regarding the Act. But it is clear that the photostat copy is admissible only “when satisfactorily identified.” There is no evidence in this case that the photostat offered in evidence was from a record kept in the regular course of business, or that the photostat was made in the regular course of business. Tbe only witness' wbo testified about tbe matter was the District Manager of appellee; and be said that tbe proffered exhibit was a copy oí a bill of lading issued by Superior Forwarding Company:

“Q. Do you know bow many copies of a bill of lading were made by Superior Forwarding when tbis was shipped out?
A. No, I do not know what number.
Q. Do you know where tbe original of tbis is?
A. Tbe original, I imagine, would be at Superior Forwarding Company.
Q. Does your company have a copy?
A. Yes, sir.
Q. Where is it?
A. It would be in St. Louis, sir.
Q. Where did you obtain tbis?
A. Sir, I do not have a copy of that in my file. Tbis was obtained from St. Louis.”

Tbe foregoing is tbe only testimony that was offered as to why tbe photostat should be introduced, rather than tbe original produced; and so we bold that there was no proper foundation made for tbe admission of a copy; and that under tbe best evidence rule or under tbe statute, the copy cannot be introduced until a proper foundation is made.

For tbe error indicated, tbe judgment is reversed and tbe cause is remanded.

       In some current dictionaries the word “photostat” is listed only as “A trademark applied to a device. . .”; but Funk & Wagnall’s New Standard Dictionary of the English Language, published in 1956, says that “photostat”, as a noun, is “A positive obtained by a camera designed to reproduce documents, as deeds for record, checks, policies, drawings, etc., on bromide paper; also, the instrument itself; a protected trade name.” The same dictionary says that “photostat” is also a transitive verb as well as an intransitive verb; and “photostatic” is an adjective.

       Although not involved here, we call attention to the statute on business records, which is Act No. 293 of 1949 (§ 28-928 Ark. Stats.), and which permits the introduction of any writing, “. . . made as a memorandum or record of any . . . transaction ... if made in the regular course of business, and if it was the regular course of such business to make such memorandum ... at the time of such Act . . .” For a study of this Act see article in Vol. 3 Ark. Law Review p. 359, and see also U. S. v. Bartholomew, 137 Fed. Supp. 700.

       The appellant has cited us to the case of Toho Bussan Kaisha v. American President Lines, 265 F. 2d 418; and we have found no better case than the one cited. There is a note on the Act in Ark. Law Review, Vol. 7, page 332. Those interested may also consult the following: People v. Wells, 380 Ill. 347, 44 N. E. 2d 32; 142 A.L.R. 1262; 48 Michigan Law Review p. 489 et seq.; and 57 Commercial Law Journal p. 83 et seq. (April 1952).


text:
    Manhattan Credit Co., Inc. v. Brewer.
    5-2278
    341 S. W. 2d 765
    Opinion delivered January 9, 1961.

      James B. Howard of Moses, McClellan, Arnold, Owen do McDermott, for appellant.

      W. M. Herndon, for appellee.
   Paul Ward, Associate Justice.

Appellant, Manhattan Credit Co., Inc., repossessed a Ford automobile belonging to appellee, Mrs. Pat Brewer, under the provision of a chattel mortgage because of delinquent payments. Appellee sued for conversion, and the trial court, sitting as a jury, gave her judgment in the sum of $200. Appellant here seeks a reversal on the ground that there is no substantial evidence to show a wrongful taking of the automobile.

The chattel mortgage executed by appellee, dated April 22, 1959, shows that appellee was to pay $919.65 in fifteen equal monthly installments of $61.31. Pertinent language in the chattel mortgage reads as follows:.

“In case default be made in the payment of said debt ... or any of the payments above scheduled . . . said Mortgagee at his option, without notice, is hereby authorized to enter upon the premises of the Mortgagor or other places where said property might be, and take possession of and remove said property, . . . and without legal procedure, sell the same and all equity of redemption of the Mortgagor therein . . . and out of the proceeds of said sale pay all costs . . .; and apply the residue thereof toward the payment of said indebtedness . . . rendering the surplus, if any, unto said Mortgagor. . . .”

It is not denied that appellee was delinquent in her payments at the time of the taking, and she does not challenge the right of appellant to repossess the automobile under the above provisions of the chattel mortgage provided the repossession had been made in a proper manner. She does insist however that the retaking in this instance was not proper but that it was wrongful, and that the evidence so shows. Appellant takes the opposite view, and that constitutes the prime issue presented on this appeal.

Before reaching the prime issue it is necessary to dispose of two other questions that have arisen.

FIRST. It is stated by appellant that a mortgagee (in a chattel mortgage such as this) has the same right under our decisions to repossess without legal process that the seller has under a conditional sales contract, citing White River Production Credit Association v. Fears, 213 Ark. 75, 209 S. W. 2d 294, and Starling v. Hamner, 185 Ark. 930, 50 S. W. 2d 612. We find that most of our decisions in this connection have dealt with conditional sales contracts, and we do not find that the above cited cases are sufficiently clear and in point to fully sustain appellant’s contention. However, we deem it unnecessary to decide this particular issue one way or the other in view of the conclusions hereafter reached. Bather than to do so, without the benefit of proper briefing, we choose to give appellant the benefit of any doubt and treat the chattel mortgage as if it were a conditional sales contract.

SECOND. Appellee first takes the position that this court should not re-examine the sufficiency of the evidence to sustain the judgment of the trial court because appellant did not make a motion for a directed verdict at the close of all of the testimony. To sustain this point appellee cites Hot Springs Street Railway Company v. Hill, 198 Ark. 319, 128 S. W. 2d 369 and Dinet v. Rapid City, 222 F. 497. Again we by-pass a full discussion and definite determination of this rule as it applies to our procedure for the reason that we think it would have no application in this particular case where the trial court acted both as judge and jury. In arguing the case before the trial court it would have been a useless gesture for appellant to have filed a motion asking the judge to direct himself to direct a verdict in its favor. The question of the sufficiency of the evidence was squarely before the trial judge and he could have in no way been misled.

The prime issue is whether there is substantial evidence to support the trial court’s finding to the effect that appellant’s acts in repossessing the automobile amounted to conversion. The applicable rule (briefly stated) as set forth in many of our decisions, appears to be that there is a conversion if force or threats of force are used to secure possession of the automobile.

In this case the act of taking the automobile is conceded. The circumstances of the taking are not materially in dispute, and in setting them out we view them in the light most favorable to sustain the judgment. Appellant’s agent went to appellee’s home and found the automobile in the driveway at a time when appellee was in the bathtub. "While the agent was attempting to attach a towbar to the car appellee called her attorney who told her the agent had no right to take the ear without legal process. She so informed her husband and he in turn told the agent that they objected to him taking the car. The agent disregarded these objections and, without consulting appellee, towed the automobile to a service station to pick up a spare tire (belonging to the car) left for repair. While the agent was in the process of obtaining the spare tire appellee and her husband drove up to the filling station and demanded the agent to unhook the automobile. This the agent refused to do. Then appellee went to the right side of the agent’s car and told him he couldn’t take it, but this warning was ignored. At about this time appellee’s husband went to the other side of the car and, while the agent was getting into the car, turned off the ignition. Thereupon the agent turned the ignition back on starting the motor, and started backing out of the filling station, causing Mr. Brewer to have to get out of the way. Thereupon the agent drove away with the automobile.

The ease of Kensinger Acceptance Corp. v. Davis, 223 Ark. 942, 269 S. W. 2d 792, presented a factual situation somewhat similar to the situation in this case. Davis had left his Ford truck with the finance company barring some kind of a settlement, and the company refused to let him remove the truck. The question appeared to be whether or not the company had threatened force to prevent Davis from removing his truck. As set out in the opinion the branch manager, Mr. Enochs, testified: “Q. Did you at any time touch Mr. Davis or threaten any bodily harm to him? A. No, sir. Q. You told him he couldn’t drive it off? A. I told him he wasn’t going to leave in the truck.” Following this the court said: "This was at a time when Davis was sitting in the truck with the key in his hand. It was not shown just how Enochs was going to prevent Davis from leaving in the truck except through violence. The evidence justifies a finding' that Enochs ’ statement was a threat of violence, was so intended by him and so understood by Davis.” (Emphasis supplied.) It appears to us that the court, in the above cited case, was saying that Davis could not have driven the truck away without using force himself. Likewise in the case under consideration, it appears equally clear that Mrs. Brewer could not have prevented appellant’s agent from driving her automobile away without her having to exercise force to prevent it.

The purpose of the rule against the use of threats of violence in these kind of cases appears to be that the conditional vendors may retake possession without legal procedure where and when they can do so peaceably and without incurring the risk of invoking violence. In the case of Ellis v. Smithers, 206 Ark. 247, 174 S. W. 2d 568, the court approved the following statement: “The conditional seller’s right to possession of the goods sold on default of the buyer may be exercised without recourse to the courts by retaking possession provided this can be done peaceably; and this is especially true where the contract expressly so provides.” In support of its right to take the automobile in this instance without legal process appellant relies upon our holdings in Barham v. Standridge, 201 Ark. 1143, 148 S. W. 2d 648; Ellis v. Smithers, supra, and Rutledge v. Universal C. I. T. Credit Corporation, 218 Ark. 510, 237 S. W. 2d 469. We find however that these cases are not in conflict with what we have heretofore said. In the Barham case the opinion states that there was evidence “that after the collision Mrs. Standridge brought the car to the motor company’s garage and surrendered it, stating at the time that she was unable to pay for it.” This testimony was contradicted by Mrs. Standridge, thus presenting a factual question for the jury. In the Ellis case the opinion states that: “Possession was obtained by appellees peaceably and without fraud. ’ ’ In the Rutledge case the opinion contained this statement: “Appellant did not give his permission, but he did not object. Massey then drove the car to appellant’s house where Mrs. Rutledge removed some personal effects from the car.”

From what we have heretofore said, it follows therefore that the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.

McFaddin, J., concurs.


author: Sam Robinson, Associate Justice.

text:
    Taylor v. The Aetna Casualty & Surety Co.
    5-2264
    341 S. W. 2d 770
    Opinion delivered January 9, 1961.

      Amis Guthridge, Moses, McClellan, Arnold, Owen S McDermott and E. M. Arnold, for appellant.

      Owens, McHaney <& McHaney, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Merrill B. Taylor, was the owner of a house in Little Rock on which he purchased from appellee, The Aetna Casualty and Surety Company, a fire insurance policy in the face amount of $8,000. While the policy was in force, on March 28, 1959, a fire occurred which appellant contends resulted in a total loss, Appellee, however, tendered as settlement an amount less than the face amount of the policy.

Appellant filed suit, alleging that under the provisions of the policy he had suffered a total loss and further alleging that the City of Little Rock had made a determination under the provisions of Ordinance 10907 that the house should be razed and had given appellant, by proper notice, sixty days within which to do so. Trial resulted in a jury verdict for appellant in the amount of $5,000.

During the course of the trial appellant offered in evidence the notice from the City directing him to raze the building and a certified copy of a resolution passed by the City Board of Directors finding that the building was so heavily damaged by fire that it was uninhabitable and should be razed for the health and safety of the citizens of Little Rock. Appellant also offered to testify that he had complied with the resolution, but the court refused to allow him to do so, and further refused to admit in evidence the notice and the copy of the resolution. The sole question involved in this appeal is whether the court’s refusal to admit this evidence and to give its instruction based thereon was proper.

Although we find no case where this Court has been called on to so state, the general rule governing cases involving the question of total or partial loss wherein condemnation is concerned is set out in 45 C. J. 8., % 913,1008, as follows: ‘ ‘ The rule ... is that if, by reason of public regulations rebuilding is prohibited, the loss is total, although some portion of the building remains which might otherwise have been available in rebuilding; also, if the insured building is so injured by the fire as to be unsafe and is condemned by the municipal authorities the loss is total. It has been held that such an order of condemnation is not conclusive on either insurer or insured, and that, if the condemnation was caused by conditions having no connection with the fire, insurer is liable only for the part destroyed by the fire, although it has also been held that a fire, which, combined with antecedent defects, renders a building incapable of repair under building ordinances creates a total loss.”

Both appellant and appellee presented other evidence to support their respective contentions of total and partial loss. "We see no reason why the evidence drawn in question should not also be considered by the jury in deciding if the loss was total. We have examined a number of cases where the facts are almost identical with those here and in each case similar evidence was admitted and allowed to be considered by the jury. Feinbloom v. Camden Fire Insurance Assn., 54 N. J. Super. 541, 149 A. 2d 616; Firemen’s Ins. Co. v. Houle, 96 N. H. 30, 69 A. 2d 696, 13 A.L.R. 2d 612; Fidelity & Guaranty Ins. Corp v. Mondzelewski, 49 Del. 306, 115 A. 2d 697; A. H. Jacobson Co. v. Commercial Union Assur. Co., 83 F. Supp. 674; Scanlan v. Home Ins. Co., Tex. Civ. App., 79 S. W. 2d 186; Security Ins. Co. v. Rosenberg, 227 Ky. 314, 12 S. W. 2d 688.

Reversed and remanded.


text:
    Lewis v. Brown.
    5-2252
    341 S. W. 2d 772
    Opinion delivered January 9, 1961.

      William H. Drew, for appellant.
    No brief filed for appellee.
   Jim Johnson, Associate Justice.

This is a second review by this Court of matters arising out of the same litigation between appellant Elza Lewis and appellees W. G. Brown, et ux.

Elza Lewis commenced action against W. Gr. Brown and wife to be declared equitable owner of certain lands in Chicot County. Summons was served on November 17, 1958, and demurrer was filed by W. G. Brown and wife on December 6, 1958. On January 12, 1959, the regular Chancellor disqualified himself and a Special Chancellor was duly elected. On April 3, 1959, the demurrer was overruled and the defendants were given ten days to answer. On April 23, the defendants having not answered, the Special Chancellor vacated his order of April 3, 1959, and granted defendants until April 25, 1959, to answer and ordered the cause tried on May 18, 1959. On May 18, 1959, the defendants failed to appear and after a trial a default decree was entered in favor of plaintiff.

On July 18, 1959, W. G. Brown and wife filed complaint to vacate decree of May 18, 1959, and on July 18, 1959, filed petition for injunction restraining execution on decree of May 18, 1959. On August 8, 1959, after trial, the Chancellor denied the petition for injunction. On August 27, 1959, after trial, the complaint to vacate decree of May 18, 1959, was denied. Appeal was then taken to this Court on denial of complaint to vacate, Brown v. Lewis, 231 Ark. 976, 334 S. W. 2d 225, wherein the action of the Chancellor in denying the Complaint to Vacate Decree of May 18, 1959, was affirmed, and rehearing denied on May 9, 1960, on which date the mandate of this Court was issued.

On June 1, 1960, W. C. Brown filed a Petition for Bill of Review. On the same date, Elza Lewis filed a demurrer to this petition which was treated as a Motion to make more Definite and Certain by the Chancellor, and plaintiff was “granted 20 days in which to comply with said Motion, in default the action be dismissed.”

On June 22, 1960, two days beyond the granted time to comply with the motion, the appellant filed a petition to dismiss with prejudice the Petition for Bill of Review.

On June 29, 1960, appellant’s petition to dismiss reached regular call on the docket. The Chancellor, upon inspecting his docket, found a notation thereon dated June 28, 1960, written by Solicitor for appellee. The notation is as follows: “The Chicot Chancery Court being in vacation, the Petitioners, by their attorney hereby take a non-suit in this action (case No. 9194) and the cost having been fully paid, Petitioners petition in this case is hereby dismissed without prejudice to Petitioners.” The Chancellor thereupon dismissed appellant’s petition for dismissal with prejudice thereby sustaining appellees’ action in taking a non-suit. From such order comes this appeal.

For reversal appellant urges two points. The first point contended that: “The Chancellor erred in treating appellant’s demurrer as a motion to make more definite and certain.” This order of the Chancellor, treating the demurrer as a motion, was not final and appealable; it was a matter clearly within the Chancellor’s discretion and here, contrary to appellant’s eloquent argument, we cannot say that the trial court abused this discretion.

Appellant’s second point contended that “The Court erred in dismissing appellant’s petition for dismissal with prejudice.”

Ark. Stats., § 27-1406 is as follows:

“The plaintiff or his attorney may dismiss any suit pending in any of the courts of this State, except actions of replevin, in vacation, in the office of the clerk, on- the payment of all costs that may have accrued therein.”

This statute has been construed by this Court many times and upon compliance with its terms the Court has never departed from the rule that “The plaintiff has an absolute right to dismiss his case at any time before submission to the Court.” St. Louis, I. M. & S. R. Co. v. Ingram, 118 Ark. 377, 176 S. W. 692. While it is true, as appellant argues, the dismissal notation was made by the solicitor for appellee on the court’s docket some seven days in default of a prior order of the court, yet it isn’t contended that the court was not in vacation at the time, nor is it contended that all costs had not been paid, and since we do not find that the motion to dismiss with prejudice filed by appellant constituted a cross-complaint [See Ark. Stats., § 27-1407] we have no choice but to affirm the order of the Chancellor thereby concluding that there was no appealable order before this Court.

Affirmed.


author: Carleton Harris, Chief Justice. Robinson, J.,

text:
    Carroll v. Carroll.
    5-2277
    342 S. W. 2d 79
    Opinion delivered January 16, 1961.

      C. Van Kayes and J. B. Milham, for appellant.

      B.en M. McCray, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a decree of the Saline County Chancery Court, wherein the court found that appellant, Benjamin Carroll, by reason of threats, intimidation, and duress, caused appellee, Peeda Carroll, to procure a divorce decree on June 19, 1950, against her wishes, and without her consent, the court cancelling, setting aside, and holding for naught, the June 19th decree.

The parties were married in South Carolina on July 3,1942, and at the time of the decree in June, 1950, were residents of the state of New York. On June 21, 1948, after appellee had consulted an attorney friend of New York City, Martha Duff, the parties entered into an agreement in the nature of a property settlement, in which, inter alia, appellee acknowledged receipt of $5,000. The agreement further provided:

“6. That, while both parties hereto shall remain alive, and so long as the Second Party remains unmarried, in the event that the parties hereto are divorced by a valid decree of divorce, the First Party shall pay to the Second Party the sum of Nine Thousand Three Hundred ($9,300.00) Dollars, in monthly equal installments on the first day of each and every month beginning with August 1st, 1948, said installments to be in the sum of Eighty-five ($85.00) Dollars, however, in the event of the Second Party’s remarriage, this sum shall be no less than One Thousand ($1,000.00) Dollars.”

Two years later (June 3, 1950), the complaint for divorce was instituted in the name of appellee in the Saline County Chancery Court, appellant waiving service of summons, and entering his appearance. The decree was granted on June 19th 2on the deposition of appellee and Larry Drews, a witness on her behalf. From the evidence of these two persons, the court found that appellant willfully, and without cause, deserted appellee on August 1, 1948, and “had absented himself from her since that time.” On June 5, 1952, the decree was amended to incorporate the provisions of the property settlement entered into by the parties in 1948 On October 9, 1958, appellee filed the petition to vacate the decree of divorce, alleging that appellant, through threats and duress, had induced her to consent to being made the plaintiff in the divorce action. Following a hearing, in which both parties testified orally before the court, the decree was entered from which this appeal is taken.

Appellant, in seeking to uphold the divorce decree, asserts several alleged errors by the Chancellor, but, under the view that we take, a discussion of these alleged errors is unnecessary.

According to appellee, the parties, off and on, continued to live together in the same apartment. Mrs. Carroll stated that he would leave for a few weeks, and go to a hotel or to the home of his mother, but would come back after a period of time. Likewise, she would be gone for a few weeks, but would return to the apartment. She stated that this relationship continued until sometime in 1956, and they did not live in the apartment together after that time. Dr. Carroll testified that, following the divorce, since his wife would not move out of the apartment, he moved, and remained away for the balance of the year 1950, and “for many years thereafter.” He did state that he used the apartment as an office when his wife was not present.

It is apparent to this Court that the parties colluded together, practiced fraud upon the Saline Chancery Court, and through such collusion and fraud obtained the divorce decree of June, 1950. We proceed to a discussion of the evidence that reflects the attitude, actions, and intent of each of the parties.

Mrs. Carroll contends that she acted under duress in consenting to the divorce action. Though she stated that Dr. Carroll did not mistreat her physically, appellee testified that he would criticize and ridicule her; would say “nice” things one day, and then ignore her and treat her as a stranger for three or four days. The witness stated that her husband told her to “get out” in 1948, which occasioned the property settlement. However, both parties admitted living together until after the divorce decree was obtained some two years later. Mrs. Carroll testified that she went to attorney Duff in 1948 of her own accord, and subsequently, Dr. Carroll went to the attorney’s office with her. Appellee stated that Mrs. Duff was acting for both parties. She also testified that it was understood at the time of the agreement that the monthly payments were not to be made unless the divorce was granted. Appellee stated, that pursuant to this agreement, the divorce was granted in Arkansas in 1950. Mrs. Carroll testified that she did not come to Arkansas, denied that she signed the deposition (stating that it was a forgery), and denied knowing anyone by the name of Larry Drews (the witness in her behalf). Admittedly, however, Mrs. Duff mailed to the parties two copies of the divorce decree, in which there is a definite finding that Dr. Carroll had deserted Mrs. Carroll on August 1, 1948, and had been away from her since that time. Admittedly, appellee directed a letter to her New York attorney, several years subsequent to the decree, in which she asked the attorney to “complete the matter of the court decree regarding the financial arrangement.” Admittedly, Mrs. Carroll accepted benefits under the provisions of the decree, not only during the period in which, according to her testimony, the parties were still living together, but also for about eight months after the parties were living separate and apart. In fact, from her evidence, Mrs. Carroll did not institute her action to set aside the divorce decree until over two years after she had last lived with Dr. Carroll, and approximately eighteen months after he had ceased making the payments. The record reflects that he paid to her something over $1,300 after they ceased living together.

We are accordingly unimpressed with the assertion by appellee that she acted “under duress”. For that matter, irrespective of whether she voluntarily instituted the original divorce action (or instituted it at all), Mrs. Carroll was cognizant of the fact that fraud had been practiced upon the court, for she had the divorce decree in her possession, and was certainly aware that it had been rendered on false grounds and false testimony (even if she was not familiar with the residence requirements in Arkansas). We have concluded that the Chancellor’s finding that Mrs. Carroll acted under duress was against the weight of the evidence. No citation, of course, is required to the effect that we try Chancery cases de novo, since this has been established by a long line of decisions.

Dr. Carroll testified that he took no part in obtaining the divorce, other than signing the waiver and entry of appearance; that he did not know whether his wife came to Arkansas; he denied any collusion, and the rendering of any aid in practicing fraud upon the court. The record disputes this testimony. In the first place, the entry of appearance, admittedly signed by appellant, states: “My name is Benjamin Carroll, and I am the husband of Peeda Carroll; I have read a copy of the complaint filed herein and fully understand the contents thereof.” The complaint charged that Dr. Carroll had deserted his wife on August 1, 1948, and had “absented himself from her since that time.” Dr. Carroll admitted that he was living with his wife until the divorce decree in 1950. The record also reveals a letter in which Dr. Carroll stated that he had made an initial payment to Mrs. Duff on the divorce proceedings. Of course, he, like his wife, had a copy of the fraudulent decree throughout the years.

We think the evidence reflects that these parties conspired and colluded to obtain a divorce decree in Arkansas in a court that had no jurisdiction, and we are of the opinion that this case is controlled by Oberstein v. Oberstein, 217 Ark. 80, 228 S. W. 2d 615. The circumstances there were quite similar to the circumstances in the present litigation. Mrs. Oberstein received payments under the decree from November, 1947, until May, 1948, and did not file a motion to vacate the decree until December 20th of the latter year. This Court said:

“In the case at bar Mrs. Oberstein’s receipt of the weekly payments from November 6, 1947, to May, 1948, and her further delay until December 20, 1948, before filing the motion to vacate the Arkansas divorce decree— these facts together with others in the record — convince us that her Arkansas divorce proceedings were not caused by any duress exerted on her; but that she willingly traded her husband an Arkansas divorce decree for a property settlement.”

The quoted reasoning is equally applicable here. In the present case, of course, Mrs. Carroll received payments for a much longer period, and delayed the institution of her action to set aside the decree for a considerably longer time.

In the Oberstein case, this Court likewise found that the husband had conspired and colluded to obtain the Arkansas divorce. From the Opinion:

“From the facts previously detailed, it is clear that both of the parties are culpable in this case. We do not want any Court of any sister State, or of the Federal system, to afford full faith and credit to the void divorce decree rendered in the Oberstein case by the Garland Chancery Court. Neither do we want either of these parties to profit to the slightest extent by reason of their trifling with the Arkansas Courts. Such is the problem confronting this Court. * * *
Thus, if we affirm the Chancery Court, we would be allowing Mrs. Oberstein relief to which she is not entitled because of her fraud; and if we reverse the Chancellor’s decree, we would be allowing Mr. Oberstein to have relief to which he is not entitled because of his fraud. Each of them is estopped, because of collusion and fraud, from obtaining the sought relief.”

This reasoning expresses completely our views in the instant cause, and in accordance therewith, we render the same holding that was rendered in the Oberstein case; in fact, we use the identical language, except for the substitution of names and the proper court.

“ (1) — We hold that the divorce decree rendered in this cause by the Saline Chancery Court on June 19, 1950, was and is void; and this adjudication of invalidity prevents the divorce decree from being entitled to full faith and credit in this, or any other State.
(2) —We hold that each of the parties — Dr. and Mrs. Carroll — is precluded from any relief of any kind involving the said decree: she from having it vacated, and he from having it recognized.
(3) —We refuse to adjudge costs in favor of either party, since both are culpable; and, without reversing or affirming, we direct that a mandate issue remanding this cause to the Saline Chancery Court so that the holding here will be entered as the decree of that Court.”

It is so ordered.

Robinson, J., dissents.

Robinson, J.,

dissenting. Of course, the parties in this ease knew nothing about the law regarding residence requirements and jurisdiction of courts. It is perfectly obvious that if a fraud was perpetrated on the court it was the act of the lawyers and not of the litigants. For this reason I would not leave these people in the predicament in which the decision of the majority puts them. Undoubtedly Mrs. Peeda Carroll is estopped from questioning the validity of the decree because of the large benefits she has accepted under the decree, and I would dispose of the case in that manner. Therefore I dissent.

       The Arkansas attorney who filed this complaint and obtained this decree apparently subsequently left the state.

       On April 17, 1954, Mrs. Carroll wrote her New York attorney asking that this agreement be incorporated in the decree. Since the decree had already been so amended, it is not clear why the letter was written, unless it be that the parties did not know that the attorney had already taken such action.

       Dr. Carroll testified that he had paid Mrs. Carroll somewhere between $15,000 and $20,000 since the divorce. Mrs. Carroll testified that he had paid about $6,000 during that period. Neither party married again.


author: J. Seaborn Holt, Associate Justice.

text:
    Pettit v. Kilby.
    5-2286
    342 S. W. 2d 93
    Opinion delivered January 16, 1961.

      James B. Male and Bex W. Perkins, for appellant.

      Eli Leflar, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit in replevin for a diamond ring, a diamond stud pin, certain other diamonds, a wrist watch, and a number of items of household furniture and other personal property.' The relevant facts on this appeal show that L. Ñ. Pettit was an elderly traveling salesman whose principal line of goods was selling caskets and as a sideline he dealt in diamonds. During February of 1957, Mr. Pettit employed Flossie Thurman to care for his invalid and mentally incompetent wife, Marie I. Pettit. In November of 1957, his wife was removed from the home to a hospital in Bentonville; however, Flossie Thurman continued to reside in the home of L. N. Pettit. On January 16, 1958, L. N. Pettit, under the name of Lewis Pettit, giving his address as Springfield, Missouri, and the appellant, Flossie Thurman, giving her address as Fayetteville, Arkansas, were married at Enid, Oklahoma. Shortly thereafter, while on a trip to Tulsa, Oklahoma, Mr. Pettit was stricken with a heart attack and taken to a Tulsa hospital where he died on November 23, 1958.

In certain litigation in the Probate Court of Benton County, Arkansas, it was adjudged that Marie I. Pettit was the lawful wife and widow of L. N. Pettit, deceased. An adopted daughter of that union, Roberta Pettit Kilby, was appointed-administratrix of the estate. The administratrix filed the present suit to replevin certain diamonds and other named articles which were in her father’s possession at the time of death and which are now in the possession of Flossie Thurman Pettit and which she refused to deliver [upon demand] to the administratrix. A trial was had in the cause and a judgment returned by the jury for the administratrix, Roberta Pettit Kilby. Flossie Thurman Pettit has appealed.

The first three points urged for reversal by the appellant deal with whether there was evidence to sustain the value of certain property. This argument overlooks the fact that the administratrix desires the return of the property itself and not its value. The recovery of possession is the primary object of a suit in replevin and the owner cannot be required to accept its dollar value. Ark. Stats. (1947) § 34-2116; Schwantz v. Pillow, 50 Ark. 300, 7 S. W. 167. We point out also that there was competent evidence as to the value of the jewelry. The administratrix of the estate, and as sole heir of her father, is the present owner. The testimony of an owner or former owner concerning the value of an object is competent evidence as to its worth. Phillips v. Graves, 219 Ark. 806, 245 S. W. 2d 394. The appellant does not question the competency of the witness’ testimony, but merely complains of the quality of it. A verdict will not be overturned if there is any substantial evidence to support it. Elkins v. Nelson, 196 Ark. 209, 118 S. W. 2d 287. Here the jury had before it two witnesses as to the value; one a local jeweler and the other the administratrix. Weighing the testimony of these two witnesses was for the jury.

The appellant also complains of certain remarks of the trial judge during the trial of the cause about the introduction and identification of certain exhibits. We have examined these remarks and fail to find they went beyond the bounds of the trial court’s discretion, nor do we think they sustain appellant’s charge that the trial judge was helping the appellee try her suit.

The appellant also contends that the court erred in refusing to consider and allow a counterclaim of $2,012.63 against the appellee, administratrix, for funeral expenses which the appellant had assertedly paid. In the course of the trial it was stated without contradiction, if indeed it was not actually stipulated, that the appellant’s claim for these funeral expenses had been filed in the probate court. The appellant insists, however, that she was also required to assert the claim in the circuit court, since the statute requires that the defendant “must” set out in his answer any grounds of counterclaim or set-off that he may have. Ark. Stats. (1947) § 27-1121.

The court’s ruling was correct. The probate court is ordinarily the proper forum for the assertion of a claim for reasonable funeral expenses paid on behalf of the estate. Ark. Stats., § 62-2606. The probate court therefore had jurisdiction to act upon the claim filed therein by the appellant. In these circumstances it was not mandatory that the appellant also assert the claim as a set-off in the circuit court case, and the circuit court properly avoided a conflict of jurisdiction with the probate court. Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S. W. 2d 557. It is quite apparent, of course, that the circuit court’s refusal to consider the claim is without prejudice to the appellant’s right to proceed in the probate court.

Finally, it is urged that the court erred in refusing to allow the appellant to inquire about certain conversations with the decedent. Again we do not agree. The attorney for the appellee did not waive the dead man’s statute, Schedule to the Constitution of Arkansas § 2, which provides: “In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, that in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. * * *” At no time did appellee’s attorney inquire about conversations and transactions with the deceased. However, the witness did volunteer conversations and the lower court sustained objections to them as not being responsive to the questions asked. In the words of the lower cou;rt, “There is a difference in injecting them when a question is asked, and being responsive to the question.”

Finding no error, the judgment is affirmed.