text:
    Julia Griggs SWINSON v. Denny JARRATT and Phillip HICKY II
    78-195
    278 S.W. 2d 197
    Opinion delivered March 5, 1979
    (In Banc)
    [Rehearing denied April 9, 1979.]

      Bill W. Bristow, of: Seay & Bristow, for appellant.

      Butler, Hicky <2? Hicky, by: Preston G. Hicky, for appellees.
   Darrell Hickman, Justice.

This is an appeal from a decision in a partition suit before the St. Francis County Chancery Court. The court, finding that the appellees had an undivided one-fourth interest in some 380 acres, appointed commissioners and ordered a sale; the property was sold to Capital Growth Corporation for $180,000.00. The appellant, a ninety year old woman whose family had owned the land for several generations, appeals alleging five errors. We find no merit in three of those allegations which relate to the partition decree and order of sale because no appeal was taken from such decree and order.

The other two allegations of error contain merit requiring us to reverse a portion of the order of confirmation and remand the case for another hearing. One of the allegations of error is that a commissioner and a guardian ad litem serving in the case were interested parties in the purchase of the land and, therefore, the sale was void under Ark. Stat. Ann. § 34-1830 (Repl. 1962). The other allegation of error is that the court improperly awarded one of the appellees an attorney’s fee for representing himself.

The appellees, Denny Jarratt, a banker, and Phillip Hicky II, a lawyer, bought a one-fourth interest in this land from several heirs. They knew their title would be questionable but decided the endeavor was worth an investment of some $20,000.00. They made the purchase in October of 1976, with each buying an undivided one-eighth interest. Two months later they filed a partition suit which was resisted by the appellant. After the parties had filed several pleadings, the appellees, on July 11, 1977, filed a request for 128 admissions. The request was not answered nor was an extension of time requested by the appellant’s lawyer within ten days. On August 1, 1977, a petition was filed by the appellant’s attorney to withdraw citing that he had a failure of communication with the appellant. This was granted after a hearing on the 18th day of August. On August 25, a new attorney for the appellant filed a request for an extension of time in which to answer the request for admissions. (Later, proposed answers to the request for admissions were offered.) The court, after a hearing, denied the motion because no extension was obtained prior to the expiration of time in which to answer.

The testimony taken at the hearing on the motion indicated that the appellant did not receive the request for admissions within the time allowed for answers. According to the appellant’s former attorney the request which was mailed to her was returned; sometime later, the request was remailed. No reason was given by the attorney for not obtaining an extension of time.

The court granted the appellees an undivided one-fourth interest in the property on the basis of the pleadings and the unanswered request for admissions. In other words, essentially there was a default on the question of appellees’ title.

Three commissioners, appointed by the court, filed a brief statement asserting that the land could not, without prejudice, be partitioned and recommended a sale.

At the court-ordered sale, the land was purchased by Capital Growth Corporation for $180,000.00. After the sale, but before confirmation, Troy Glaspar, Jr., a relative of the appellant, filed a petition to intervene in the matter stating that he had a power of attorney from the appellant. He objected to the granting of the partition decree and the procedure used by the commissioners. He also pointed out that one of the commissioners had a conflict of interest because he worked for the buyer. He asked for a reconsideration of the matter.

The court entered an order confirming the sale, and, apparently in reference to the numerous allegations of irregularities raised in the petition of Troy Glaspar, Jr., found that there were no procedural defects. However, the court did not address the problem of conflict of interest.

On appeal, the appellant argues that the sale and confirmation are void because of a violation of Ark. Stat. Ann. § 34-1830 (Repl. 1962), which provides:

No commissioner, nor any person for his benefit, shall purchase or be directly or indirectly interested in the purchase of any of the premises sold, nor shall any guardian of any minor or person of unsound mind, party to the proceedings, purchase or be interested in the purchase of any of the lands, the subject of the proceedings, except for the benefit or in behalf of his wards; and all sales contrary to the provisions of this section shall be void.

The appellant argues that there is evidence that Edward Harris, one of the three commissioners, was an original incorporator and stockholder of Capital Growth Corporation. The appellees virtually concede that there may have been such a conflict of interest and that the sale may be void because Edward Harris is an incorporator and stockholder in Capital Growth Corporation.

Certainly, if that is the case, the sale ought to be set aside and a new sale ordered. A commissioner is a trustee and it is his duty and obligation not only to avoid, in every way, participating in the purchase of property, the sale of which is under his supervision, but also to report to the court any possible conflict of interese Harris owed this duty to the parties and the court.

The trial judge had before him an allegation that should have been addressed and answered and we remand the case for a hearing on this issue. If it is determined that Edward Harris has an interest in the corporation, of course the sale should be set aside. A new sale may be ordered if the appellant tenders into the court the consideration she had already received from the first sale. We do not go back beyond the sale because those issues were not properly preserved for appeal.

The other allegation of error we address is regarding an attorney’s fee awarded to Philip Hicky, II. He asked for $9,-000.00 and the court awarded him a $4,500.00 fee. There was a hearing and it was Hicky’s testimony that essentially his law firm represented him in the matter, and although he had done much of the work, the firm would have to be paid for the services. The record indicates that all court appearances were by Phillip Hicky, II. He concedes he did a lot of preliminary work that might not be strictly characterized as “legal.” We do not feel that Arkansas law permits an attorney to receive an attorney’s fee when he is also a petitioner in a partition suit.

Ark. Stat. Ann. § 34-1825 (Supp. 1977), which permits an attorney to obtain a fee in a partition suit, provides:

Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition in kind, or a sale and a partition of the proceeds, the court rendering such judgment or decree shall allow a reasonable fee to the attorney bringing such suit, which attorney’s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.

We have held that an award of attorney’s fees under that statute is unconstitutional. Cole v. Scott, 264 Ark. 800, 575 S.W. 2d 149 (1979). However, under circumstances where a lawyer is entitled to an attorney’s fee because he files a petition and partition is granted, the fee should be set carefully by the court after deliberation and then only for an amount that is fair and justified. While we have approved fees for as much as 5% of the sale price, we recently limited the fee to about 3% of the sale price. Fortuna v. Achor, 254 Ark. 1035, 497 S.W. 2d 251 (1973); Cole v. Scott, supra.

We adopt the view in regard to attorney’s fees for parties who represent themselves that they are improper. Compare Muller v. Martin, 116 Cal. App. 2d 431, 253 P. 2d 686 (1953).

We do not mean to imply that the trial court or the appellees acted improperly in any way. We have never had these questions before us heretofore. However, this action was resisted by the appellant from the beginning and the appellees as much as conceded that they bought the property with the intention of having it partitioned and making a profit. The evidence indicates that their profit has been at least $10,000.00; they have doubled their money. Aside from the legal issues raise .», it would, in our judgment, be unfair to penalize the appellant by adding to the costs of the proceeding an attorney’s fee, when, in fact, one of the petitioners was simply representing himself.

Therefore, the case is remanded for a hearing to determine whether the sale is void under Ark. Stat. Ann. § 34-1830 (Repl. 1962). We reverse the trial court’s decision on the matter of the attorney’s fee and affirm the judgment in all other respects.

Affirmed in part.

Reversed and remanded in part.

Fogleman and Holt, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I would affirm the decree of cohfirmation.

In the first place the majority has ignored the rule, heretofore uniformly applied, that one who accepts the benefits of a decree or judgment cannot question its validity on appeal and cannot escape its burdens. DeLaughter v. Britt, 243 Ark. 40, 418 S.W. 2d 638; Mason v. Urban Renewal of North Little Rock, 245 Ark. 837, 434 S.W. 2d 614; Baker v. Adams, 198 Ark. 482, 129 S.W. 2d 597; Stanley v. Dishough, 50 Ark. 201, 6 S.W. 896. See also, Anderson v. Anderson, 223 Ark. 571, 267 S.W. 2d 316. This rule applies where sales for partition are the subject of the decree. Dodds v. Dodds, 246 Ark. 313, 438 S.W. 2d 54. It cannot be said that acceptance of the proceeds of the sale is independent of appellant’s challenge of the validity of the sale. Nor can it be said that the amount withdrawn by appellant would be hers in any event. Certainly her acceptance of her portion of the proceeds of the sale is inconsistent with her appeal. Apparently the majority has carved out a new exception to the general rule without defining it or without specifying whether it applies to this case only. Obviously, a requirement that the benefits accepted be restored could have been utilized in nearly every case in which the rule has been applied, as a means of avoiding its impact. The principle followed in all cases is well stated in Bolen v. Cumby, 53 Ark. 514, 14 S.W. 926, viz:

*** Again, a party may prosecute his appeal from a judgment, partly in his favor and partly against him, even after accepting the benefit awarded by the judgment, provided the record discloses that what he recovers is his in any event — that is, whether the judgment be reversed or affirmed. But he waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal. “A party cannot ratify and yet repudiate the same transaction in one breath. He must make his election at the outset to repudiate it in toto or take it cum onere, and, when once made and acted upon, he is estopped from assuming an attitude inconsistent with his first position and detrimental to the rights of others.” Dismukes v. Halpern, 47 Ark. 320.

The evidence appellant has injected into the record on appeal was not presented to the chancery court, as appellant’s attorney says that it was not discovered until after the transcript had been lodged here. It is quite novel for this court to reverse the trial court on evidence that was not before that court. See Harvey v. Castleberry, 258 Ark. 722, 529 S.W. 2d 324; Becker v. Rogers, 235 Ark. 603, 361 S.W. 2d 262. For the first time, this court is reversing the trial court on matters not before the trial court and not properly in the record at all. See Winfrey v. People’s Savings Bank, 176 Ark. 941, 5 S.W. 2d 360; Gill v. Burks, 207 Ark. 329, 180 S.W. 2d 578; Jernigan v. Pfeifer Bros., 177 Ark. 145, 5 S.W. 2d 941.

Newly discovered evidence is not a basis for reversal on appeal. Osborne v. State, 96 Ark. 400, 132 S.W. 210. It is only a ground for a bill of review in the trial court. Richardson v. Sallee, 207 Ark. 915, 183 S.W. 2d 508; Robertson v. Chronister, 199 Ark. 373, 134 S.W. 2d 517, cert. den. 309 U.S. 658, 60 S. Ct. 516, 84 L. Ed. 1007 (1940). Newly discovered evidence presented for the first time to this court dehors the record simply cannot be the basis for a reversal of a decree.

Furthermore, I cannot agree that the award of attorney’s fees was erroneous. There is no valid reason for adopting the view that an attorney who represents his own interest is not entitled to have attorney’s fees allowed under our statute. In my opinion, it is absurd to say that a lawyer in such a situation must either employ another attorney (in this case outside his own firm) or render his services in a partition suit to all interested parties without compensation.

The statute applies to “all suits” without exception. Its application is mandatory. Johnston v. Smith, 248 Ark. 929, 454 S.W. 2d 649. The fee is allowed to the “attorney bringing such suit.” It is to be paid “pro rata as the other costs are paid.” The preamble to the act now in effect premised Act 518 of 1963, which amended the previous act on these premises:

“Whereas, the attorney for the petitioners in partition suits prepares the papers, including decrees, distribution, and deeds, etc., in the partition proceedings, and
“Whereas, pretended defenses have been set up by which the courts have not set fees against all interested parties, and
“Whereas, many tracts in this state are not being utilized due to the fact that the movant may have to pay the fees while those who are stifling the property will go free of costs; ...”

Prior to the act of 1963, the act which provided for attorney’s fees was not applicable to an adversary proceeding. Hendrickson v. Duncan, 236 Ark. 722, 370 S.W. 2d 131.

We pointed out the justification for a mandatory allowance in Johnston v. Smith, supra, saying:

Justification for these statutes has been found in the importance of painstaking preparation before filing of the suit and the necessity for meticulous compliance with procedural requirements thereafter in order to assure that all parties in interest are before the court and that there are no unnecessary impediments to a proper conclusion of the proceeding. These measures obviously inure to the benefit of those owning any share of the property. To require the cotenant who institutes the action to bear more than his proportionate share of this burden is inequitable. The preamble to Act 518 of 1963 clearly indicates our General Assembly’s awareness of the inequitable burden risked by one initiating a partition suit and its intention to remedy the situation by amendment of the existing law. Dissatisfaction with the discretionary latitude of the trial courts in allowance of these expenses was expressed in the emergency clause. If there remains, after reading the text of the act, the slightest doubt of the legislative intention to make allowance of attorney’s fees in a partition suit mandatory, it is quickly dissipated by reading the introduction and conclusion of this legislative record.

The fact that the services are rendered by one having an interest in the land should not make a whit of difference. To deny compensation on this basis is grossly inequitable. This fee is allowed as costs incident to the action and should be assessed and taxed proportionately against all parties. See McElhaney v. Cox, 257 Ark. 934, 521 S.W. 2d 66; Crouch v. Crouch, 251 Ark. 1047, 476 S.W. 2d 248. To hold that the other litigants are entitled to the benefit of an attorney’s services just because he happens to be one of the plaintiffs is a windfall, which could be characterized as a “free ride,” if not unjust enrichment.

More should be said, however, as sustaining the chancellor’s actions in this matter, injustice to all the parties. In his letter opinion, the chancellor stated that, in arriving at the amount of the award for attorney’s fees, he had taken into consideration the fact that Philip Hicky was one of the owners of the land being partitioned, and that he had acted partially in his own behalf in some of the actions. The chancellor found that the fact that Hicky was one of the owners should not deprive him of a reasonable fee,, but that he was not entitled to as large a fee as he otherwise would be. The fee was awarded to Hicky’s firm — Butler, Hicky & Jones.

Hicky had requested a fee of $9,000. Mr. Preston Hicky was the attorney of record. Phil Hicky testified that there was a serious question in his mind as to who should be made parties and that he spent considerable time researching deed records and marriage records to ascertain the identity of the proper parties and spent numerous hours discussing the title with various people. He went to the property and made an investigation as to the location of the boundaries. Either he or Preston Hicky prepared the orders entered in the case. Phil Hicky did the major part of the work. A work sheet of the firm showed 88 hours devoted to the case, of which 58.3 were documented and 30 hours estimated. Twenty to twenty-five hours were spent investigating family backgrounds and identifying heirs. Phil Hicky estimated that the total time he devoted to all matters pertaining to the land totalled 150 hours. Phil Hicky testified that he spent the firm’s time in the matter and was “going to have to pay for this time through our firm.” In Muller v. Martin, 116 Cal. App. 2d 431, 253 P. 2d 686 (1953), the statute was quite different from ours. It provided for allowance of reasonable counsel fees expended by the plaintiff for the common benefit of the parties. The basis for this construction of the statute was that it provided for reimbursement of the parties for fees paid or incurred. To reach this result in this case requires a misreading of our statute. In Oklahoma, the statute is more like our own. The Supreme Court of Oklahoma has held that an attorney who represents himself in a partition action is entitled to compensation, but has adopted the following safeguards, in Weaver v. Laub, 574 P. 2d 609 (Okla., 1977):

In order to allow attorneys to collect and be awarded fees for representing themselves, and at the same time minimize the dangers inherent in such a practice, we adopt the following safeguards. Before attorneys can be awarded fees for representing themselves, they must prove the following, through clear and convincing evidence:
1. Attorneys must show that all actions taken by them, for which they seek a fee, were performed in good faith.
2. Attorneys must prove that all work performed, for which they seek a fee, was necessary work. In proving necessity, attorneys must present a written itemization of all services performed which must include an indication of the time spent to perform each service and an explanation, of why each itemized service was necessary. The itemization presented for the court’s scrutiny must be specific and attested to under oath.
3. Attorneys must prove the reasonableness of the fees they seek.
4. In the case of a partition action, attorneys must show that all work for which they seek fees was beneficial to others in the litigation, and not merely beneficial to their own interests.
By placing the above burden upon attorneys seeking fees for representing themselves, we allow attorneys who have acted in good faith and performed necessary services to be compensated for their work, and at the same time establish safeguards to protect the general public against possible abuses.

I submit that the action of the chancellor followed the proper guidelines in the matter.

I am authorized to state that Mr. Justice Holt joins in this opinion.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Paul MOONEY v. Wanda MOONEY
    78-285
    578 S.W. 2d 195
    Opinion delivered March 5, 1979
    (Division II)
    [Rehearing denied April 9, 1979.]

      Ted Boswell, P.A., for appellant.

      W. J. Walker, for appellee.
   Darrell Hickman, Justice.

Wanda Mooney, the appellee, sued her husband, Paul Mooney, for divorce in the Pulaski County Chancery Court. He counterclaimed, also seeking a divorce. She amended her complaint requesting only separate maintenance; at trial, she dismissed all of her complaints. The case went to trial on the appellant’s counterclaim for divorce.

The main allegation for grounds by the appellant was that the appellee had, by fraud, deceit and breach of trust, converted certain of the appellant’s property, in which she had only a dower interest, to her own use. The chancellor found that the appellant had failed to prove his case and on appeal we cannot say the finding of the chancellor was clearly against the preponderance of the evidence. Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978).

These parties were married in December of 1972. Both had been previously married and divorced. The appellant, who was 64 at the time they were married, had been a successful businessman and at the time of the marriage claimed that he had a net worth of over half a million dollars. The appellee testified that she had a good paying job with the state and brought some $86,000.00 in cash into the marriage.

The parties had a stormy marriage. She testified that he drank to excess and beat her about every six or seven weeks. She said that on three separate occasions he kicked or knocked the door down in her home. He testified that they both drank to excess at times and admitted that he had kicked a door down once. He denied that he beat her and, in fact, said at one timé she took a board to him. She admitted that once she did strike him with a board.

Although the appellant offered some testimony regarding these personal indignities, it was the circumstances of two of their financial transactions that the appellant relies upon as the basis for his suit for divorce.

After they had been married he went back into the business in which he had been successful, the manufacture of veneer. He said he went into business so that Mrs. Mooney’s son would have something to do. She said that she tried to dissuade him from going back into business. Paul Mooney was a director of the Union Bank of Benton and one of its largest stockholders. The first transaction occurred in July 1973;- they commingled some of their funds and purchased a $160,000.00 certificate of deposit through the Union Bank of Benton which was placed in Mrs. Mooney’s name only. Mrs. Mooney testified that on the day that the money was commingled so that this certificate of deposit could be purchased, she delivered to Paul Mooney her liquid assets which consisted of some $77,000.00 in cash and checks. As far as she knew the money was used to buy the certificate. Paul Mooney offered testimony that her contribution was less than $30,-000.00 and called two witnesses, both bank officers, to verify his side of the story. The deal was complex as were all of their financial dealings.

The second transaction, the one most heavily relied upon by Mr. Mooney, was an assignment of most of Paul Mooney’s Union Bank of Benton stock in August, 1974, to Mrs. Mooney. The assignment was executed before the president of the bank. However, the stock was not transferred until April, 1976, at the request of Mrs. Mooney.

Paul Mooney did not dispute that he signed the assignment nor did he object to the certificate of deposit being placed in Mrs. Mooney’s name. In fact, the president of the bank at the time, who was a friend of Paul Mooney’s and a business associate, testified that he tried to talk to Mr. Mooney about both transactions and was rebuffed on both occasions by Mr. Mooney who simply said that he and his wife had an “agreement.” It was at the trial that Mr. Mooney offered testimony that his wife had asked him several times to transfer the stock to her name and her subsequent actions amounted to fraud.

The parties have considerable other assets, one of which is a residence located in Pleasant Valley, an expensive subdivision in Little Rock, which is held by the entirety. Mrs. Mooney resides there and apparently makes the house payments. Since she had dismissed her complaint for relief, she was awarded no money as support. She still has the stock in the bank and remaining proceeds from the $160,000.00 certificate of deposit. She gave or loaned some of the proceeds to her son to start a business.

The major point of contention and argument of the appellant is that a handwritten note on the assignment to the effect that the assignment was in consideration of a $50,-000.00 loan from Mrs. Mooney to Mr. Mooney was not on the assignment when it was made. Mrs. Mooney denied that. Also, there was a dispute regarding the source of the money that went to make up the $160,000.00 certificate of deposit. Mr. Mooney called two witnesses, the bank president at the time of the transactions and the bank preside nt at the time of the trial, who testified in detail regarding the bank records and corroborated Mr. Mooney’s testimony that Mrs. Mooney did not provide $77,000.00 as she claimed. Also, a witness was called to testify that Mrs. Mooney had spent about $8,000.00 on furnishings through a furniture store, contrary to her contention that the expenditure was more like $2,500.00. All of these, of course, go to the credibility of Mrs. Mooney.

Mr. Mooney claimed in his complaint that the parties were separated in February of 1975. However, he admitted in his testimony that he spent the night at their home in July, 1976, and that was the last time they had stayed together as husband and wife. He said that night he slept on the couch. She alleged that they were separated in December, 1976. She filed the complaint for divorce in January, 1977. It was before either claimed to have been the last date they lived together, that is, July, 1976, or December, 1976, when Mrs. Mooney called the bank and asked that the shares be transferred to her name. The stock was reissued in her name.

What the appellant’s argument amounts to is that, while he does not deny that all of these transactions took place with his full knowledge and consent, the transfers were made to protect his assets from his creditors or for other purposes and her subsequent dealings were conversion and breach of trust; he ought to have it back. Appellant acknowledges “that no testimony ... of a scheme to defraud” was presented, and such intent must be found in circumstantial evidence.

However, the issue, and the only issue to us on appeal, is whether the chancellor was wrong in not granting the appellant a divorce. The grounds for divorce, as alleged, were fraud, deceit and breach of trust in handling his assets which rendered his life intolerable. The parties testified differently and we cannot say, on the basis of the record alone, that Mrs. Mooney clearly intended at the time to fraudulently convert the property to her own use. It was in her name with the consent of the appellant and at the time the transfers were made there is no evidence she was guilty of fraud in inducing Mr. Mooney to cause the transfers to be made. Husbands and wives often transfer their property to each other and later have a falling out. The fact that one of them keeps that property is not alone grounds for divorce.

The appellant asked the trial court to grant him a divorce and divide the property according to law. On appeal, the appellant asks us to do the same. The property, of course, cannot be divided unless a divorce is granted. Our review is limited to the sole issue of whether the chancellor’s finding in dismissing the complaint was clearly erroneous. Since there is no other issue raised on appeal, we simply answer the argument by saying we cannot say the chancellor’s decree was against the preponderance of the evidence.

The decree rendered by the chancellor is affirmed and the appellee is denied any attorney’s fee on appeal.

Affirmed.

We agree. Harris, C J., and Fogleman and Holt, JJ.


text:
    Clyde Lee MACK v. STATE of Arkansas
    CR 78-206
    577 S.W. 2d 595
    Opinion delivered March 5, 1979
    (Division II)

      William H. Patterson, Jr., for appellee.

      Steve Clark, Atty. Gen., by: E. Alvin Schay, Dep. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The only issue on appeal of this criminal case is whether the trial judge committed error by letting the jury rehear testimony of one witness after it began deliberation.

The trial judge correctly followed our decision in Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978), and we affirm the judgment.

Clyde Lee Mack was convicted of theft of property and aggravated robbery of Walker’s Cleaners located on Base Line Road in Little Rock on the testimony of two witnesses: Doris Walker, an employee, and Huey Walker, the owner. Huey identified Mack as the robber; Doris could not.

After the jury retired to deliberate, it returned and asked in open court for permission to rehear the testimony of Huey Walker. The defense counsel for Mack was present and objected. After the testimony was repeated and the jury retired again, the trial judge made the following remark:

I don’t see but how the defendant could fail to be prejudiced by playing this, singling out the testimony of this particular witness. I am merely following what is the stated position of the Arkansas Supreme Court.

We find no error. First, the jury’s request was made in the presence of all jurors. Williams v. State, 264 Ark. 77, 568 S.W. 2d 30 (1970). It was made in open court. Golf v. State, 261 Ark. 885, 552 S.W. 2d 236 (1977). The defense counsel was present and had an opportunity to object. The jury wanted to hear the testimony of the only witness who identified Mack, evidence essential to a determination of Mack’s guilt or innocence. There was no effort by the jury to spotlight a small bit of fact which might work to the prejudice of the defendant. U.S. v. Rabb, 453 F. 2d 1012 (3d Cir. 1971). Finally, the court’s decision was made just sixteen days after our decision in the case of Gardner v. State, supra, in which we defined the standard to be used when a jury requests to rehear evidence.

The appellant argues that our decision in Gardner is unclear in that it may force a trial judge to do something he feels would prejudice a defendant.

After reviewing the cases and statutes relative to this problem, we concluded in the Gardner case by stating:

... It seems to us that the better approach is for the trial court to honor any request of a jury to hear specific evidence, in the absence of some compelling reason why it should not be granted, and that the action of the trial court in doing so should not be reversed in the absence of a manifest abuse of discretion. . . .

It is obvious that a trial judge has a clear standard to apply from Gardner. Since the trial judge found no compelling reason in this case to refuse the jury’s request, we find no error and affirm the judgment.

Affirmed.

We agree. Harris, C.J., and Fogleman and Holt, JJ.


author: John I. Purtle, Justice.

text:
    Mary McENTIRE v. Jimmy McENTIRE, Administrator
    78-278
    577 S.W. 2d 607
    Opinion delivered March 5, 1979
    (Division I)

      Priddy & Hardin, for appellant.

      Jim Burnett, for appellee.
   John I. Purtle, Justice.

M. A. McEntire died intestate in Van Burén County, Arkansas, on May 9, 1978. Mary McEntire, his widow, petitioned the probate court for appointment of her nominee, J. E. Godfrey, as administrator of the decedent’s estate and the court appointed Godfrey without notice but stated he would set it aside if there were any objections. May 26, 1978, Jimmy McEntire, son of decedent, and other heirs of decedent, filed their objections to the appointment of Godfrey. On July 11, 1978, the court set aside the Godfrey appointment and conducted a hearing resulting in the appointment of Jimmy McEntire as administrator of the estate. Notice of appeal from this order was timely filed.

Appointment of personal representatives of decedents’ estates is governed by Ark. Stat. Ann. § 62-2201, which gives priorities as follows: (1) Those nominated in the will. (2) Surviving spouse, or his or her nominee, if appointment is sought within 30 days. (3) Other persons who are entitled to share in the estate, at the discretion of the court, if application is sought within 40 days, in case there is a surviving spouse.

The findings of the court are set out as follows:

This is one of those cases where each side is attempting to get their administrator in office. The best thing would be to get some disinterested third party to serve. The reluctance of people to get involved in family squabbles makes it difficult to find an impartial, disinterested administrator. The next best thing the court can do is to appoint one side or the other and attempt to keep a close eye on the activities of the estate. An administrator should be fair to all of the beneficiaries and not favor one side or the other. Under the facts of this case, I’m going to appoint Mr. Jimmy McEntire as administrator.

We have previously held that the court is not bound to appoint from the highest priority nominees if he finds sufficient cause or unusual circumstances. Knight v. Worthen Bank and Trust Co., 233 Ark. 465, 345 S.W. 2d 361 (1961); Brod v. Brod, 227 Ark. 723, 301 S.W. 2d 448 (1957). In the absence of unusual circumstances or sufficient cause it is the duty of the courts to follow the statutes as set out by the General Assembly. We do not find anywhere in the record where circumstances in this case require the appointment of anyone other than the nominee of the widow. Since there was no will, the widow was in the first priority; therefore she, or her nominee, should be appointed as administrator of the estate.

Appellant exercised her statutory authority and nominated J. E. Godfrey as administrator of decedent’s estate. Mr. Godfrey is 54 years of age, a native of the area, an accountant by profession, and operated a store and farm from 1970 until about nine months prior to the trial of the contest. He had proceeded in what appeared to be a business like approach to handling the estate until he was stopped by Jimmy McEntire.

On the other hand, Jimmy McEntire rejected the orders granting letters of administration to Godfrey; ran him off the decedent’s property; boarded up the store, including some of appellant’s perishable personal property in the deep freeze; informed the legally appointed administrator he did not consider the letters of administration to be legal; took charge of decedent’s property in general; and prevented Mr. Godfrey from making an inventory of the estate. He further stated he felt part or all the merchandise in the store belonged to the children of decedent. Also, he took charge of the accounts receivable which were owed to his father and appellant.

Reversed and remanded with directions to appoint the nominee of Mary McEntire to serve as administrator of the estate of M. A. McEntire.

Reversed and remanded.

We agree. Harris, G.J., and George Rose Smith and Byrd, JJ.


text:
    Robert Dennis CANTRELL v. STATE of Arkansas
    CR 78-201
    577 S.W. 2d 605
    Opinion delivered March 5, 1979
    (In Banc)

      DeLoss McKnight, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of theft of property and aggravated robbery in the Craighead Circuit Court on September 20, 1978. He was sentenced to two years on the theft of property and 25 years on aggravated robbery with the sentences to run concurrently. During the trial an alternate juror was seated but at the close of the trial twelve were selected to decide the case. After the jury had deliberated for about an hour and a half they reported to the court that one member held religious beliefs which prevented her from voting to find anyone guilty and inflicting punishment. The court then determined the alternate juror was still present in the courtroom and had not discussed the case with anyone although she had been talking to the members of the victim’s family and friends. The court then relieved the juror who had religious objections to punishment and substituted the alternate juror, Evelyn Cloinger. Thereupon the court instructed the then twelve jurors to commence deliberations from the beginning as though the case had not been previously discussed. Also, during an earlier trial of appellant which resulted in a mistrial, a witness named Tim Ray happened to appear with a civics class during the trial and claimed to recognize the appellant as a person he had observed near the scene of the crime on the date it was committed. The rule had been in effect during the first trial and obviously Tim Ray had not been excluded from the courtroom because it was not known at the time that he was a possible witness. After the trial, Ray informed the state he had recognized the appellant as the person he observed on the date of the robbery and theft. At the second trial Tim Ray was permitted to testify over the objection of appellant that Ray was in violation of the rule in that he had previously heard the testimony.

For his appeal appellant contends it was reversible error to allow Tim Ray to testify and that the seating of the alternate juror after the others had been in deliberation was prejudicial error. We note the statement of the case as set out by appellant is much too lengthy. [See Ark. Supreme Court Rules, Rule 9(b)].

First, we will discuss the testimony of Tim Ray which was in violation of the rule. Whether a witness is placed under the rule is a matter of sound discretion by the court. Oakes v. State, 135 Ark. 221, 205 S.W. 2d 305 (1918). Also, when a witness violates the rule through no fault of, or complicity with, the party calling him, his testimony may be allowed and the violation of the rule goes only to credibility rather than competency. Norris v. State, 259 Ark. 755, 536 S.W. 2d 298 (1976). The trial court’s exercise of discretion in such matters is not generally disturbed. McCoy Farms, Inc. v. J & M Mckee, 263 Ark. 20, 563 S.W. 2d 409 (1978). We have held it was error not to permit a witness to testify in violation of the rule under circumstances similar to those presented here. Mobley v. State, 251 Ark. 448, 473 S.W. 2d 176 (1971) and Harris v. State, 171 Ark. 658, 285 S.W. 2d 367 (1926).

In view of prior discussions and the facts in this case, we do not feel the court abused its discretion in allowing the testimony of Tim Ray, who was not under the rule at the first trial because no one, including Ray, knew he would be a witness. Appellant knew in advance Ray was to be called and therefore had an opportunity to prepare to test his credibility.

We turn now to the matter of allowing the alternate jur- or to be seated after the matter had been under consideration for an hour and a half. The answer to this question is plainly visible upon the face of Ark. Stat. Ann. § 39-233 (Repl. 1962) which reads as follows:

Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examinations and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.

The General Assembly could not have chosen words to make it more clear that the alternate juror(s) are discharged when the regular panel retires to consider its verdict. The statute states the alternate(s) shall be discharged when the regular panel retires to deliberate its verdict. When the jury retired to deliberate, there was then no alternate juror. Whether Evelyn Cloinger had discussed the case with others is of no concern for she was already severed from the case. At this point a mistrial should have been declared by the court because it was no longer possible to have twelve jurors reach a verdict one way or the other, since only eleven jurors remained.

Appellant contends he was placed in jeopardy twice for the same offense. We do not agree. The Fifth Amendment to the Constitution prevents double jeopardy. It has been explained that the Fifth Amendment prohibits a second trial after a judgment of guilt or acquittal and the imposition of multiple sentences. Benton v. Maryland, 395 U.S. 784 (1969). In view of our holding in this case, appellant has not been found guilty nor has he been acquitted; neither has he been sentenced more than once for the same offense. Appellant now stands in the position he was in before he was tried the first time. He stands innocent until proven guilty beyond a reasonable doubt.

Reversed and remanded.


author: George Rose Smith, Justice.

text:
    Floyd ORRELL and Thurman ABERNATHY v. CITY OF HOT SPRINGS et al
    78-293
    578 S.W. 2d 18
    Opinion delivered March 12, 1979
    (Division I)

      Gary R. Gibbs of Gibbs & Henry, for appellants.

      Curtis L. Ridgway, Jr., for appellees.
   George Rose Smith, Justice.

The two appellants were sergeants on the Hot Springs police force when they brought this action for a writ of mandamus to compel the city and its Board of Civil Service Commissioners to promote them to the rank of lieutenant and to award them increased pay from the date they passed a civil service examination and became eligible for promotion. The issue of promotion immediately became moot, because the plaintiffs were promoted to lieutenant on the day after the suit was filed. This appeal is from a judgment denying the claim for back pay, ^mounting to $913.87 for Abernathy and to $808.93 for Grrell.

It was stipulated that the plaintiffs became eligible for promotion when the results of the examination were posted on August 26, 1975, that three vacancies in the rank of lieutenant then existed, and that the plaintiffs were not promoted until August 26, 1976. No testimony was introduced. The trial judge, sitting without a jury, gave the following reasons for his decision, with which we agree:

An eligibility list does nothing more than to establish the eligibility of officers available for promotion and a priority to be given them when the promotions are made. Despite any language in the statutes, ordinances, and civil service regulations, the Civil Service Commission has management responsibilities for the police department and has discretion as to when vacancies are to be filled from the eligibility list. If the Civil Service Commission determines that it will fill existing vacancies, the Civil Service Commission must accept those at the top of the eligibility list unless those are disqualified for reasons permissible under the law. These two officers did not assume the responsibilities of lieutenant until they were appointed on August 20, 1976.
As far as the record is concerned, nothing prevented these officers from pursuing their administrative remedy before the Civil Service Commission on August 26, 1975, and to appeal to this court if the Civil Service Commission declined to advance them without good cause when they were eligible to fill existing vacancies. The record does not disclose that the plaintiffs pursued any administrative remedy.
Since the plaintiffs did not serve in the rank of lieutenant nor fill the existing vacancies prior to August 20, 1976, this Court concludes that they are not entitled to back pay for services not rendered.

Counsel for the appellants concede their inability to cite any authority for their contention that, regardless of the date of actual promotion, the right to increased pay accrues as soon as the results of the examination are posted, if vacancies then exist. The statute plainly rebuts the notion that promotion is automatic, for the appointing authority makes the selection from among the three persons standing highest on the eligibility list. Ark. Stat. Ann. § 19-1603 (6) (Repl. 1968). Moreover, the eligibility list remains in force for one year, which also indicates that promotions need not be made at once. § 19-1603 (4).

Counsel rely, however, upon the following provision, which is said to be a part of the Hot Springs civil service regulations, approved by the city council:

In the event a vacancy occurs in any rank regardless of the reason of the existence said vacancy occurs, to fill such vacancy immediately, calling to active duty in the rank in which the vacancy has occurred the man highest on the eligible list for that rank.

There are two objections to this argument. First, the quoted section of the regulations was not introduced in evidence and appears in the record only in a trial brief. The courts do not take judicial notice of municipal ordinances. Lowe v. Ivy, 204 Ark. 623, 164 S.W. 2d 429 (1942).

Second, the quoted provision, actually an incomplete sentence, is submitted to us with no indication of its context in the regulations; we really have no idea to whom it applies or what it means. It rather clearly refers not to the matter of immediate promotions but to that of calling a person to active duty when some sort of vacancy occurs. We certainly cannot say that the provision, read in complete isolation from its context, demonstrates that the trial judge’s opinion is wrong.

Affirmed.

We agree. Harris, C.J., and Purtle, J.

Byrd, J., concurs in the result.


author: John A. Fogleman, Justice.

text:
    Vernon Lee CANNON v. STATE of Arkansas
    CR 78-180
    578 S.W. 2d 20
    Opinion delivered March 12, 1979
    (Division II)

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by. Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Vernon Lee Cannon was found guilty of theft by receiving under Ark. Stat. Ann. § 41-2206 (Repl. 1977) by receiving and retaining a 1955 Chevrolet automobile, the property of Ethel Mae Tanner. The offense was alleged to have occurred on January 30, 1978. It was alleged in the information that the value of the property was in excess of $100. In the trial before the circuit judge, without a jury, Cannon was found guilty and sentenced to five years’ imprisonment. Cannon asserts that the trial court erred in refusing to reduce the charge to a misdemeanor, because the evidence was insufficient to support a felony conviction.

We agree that there was no substantial evidence to show that the automobile had a value in excess of $100.00 at the time of the offense. The only witness who testified was the owner. She stated that she paid $148 for the 1955 model car in 1966. She testified that she did not know what its value was or how much it would cost to replace it.

Theft by receiving is a Class B felony if the value of the property is $2,500 or more and a Class C felony if its value is less than $2,500.00 but more than $100.00; otherwise, the offense is a misdemeanor. Ark. Stat. Ann. § 41-2206. In this statute, value means the market value of the property at the time and place of the offense, but if the market value cannot be ascertained, value is the cost of replacing the property within a reasonable time. Ark. Stat. Ann. § 41-2201 (11) (a) and (b) (Repl. 1977).

There is no substantial evidence of either market value or replacement cost in this case. The cost to the owner 12 years prior to the offense cannot be substantial evidence that a 1955 model automobile had a market value of more than $100.00 in January, 1978.

Market value of an automobile is what it will bring on the open market when sold by a willing seller to a willing and able buyer. Southern Bus Co. v. Simpson, 214 Ark. 323, 215 S.W. 2d 699. It was not necessary, however, that market value be shown by expert testimony. Boston Insurance Co. v. Farmer, 234 Ark. 1007, 356 S.W. 2d 434. Opinion testimony of the owner would have been admissible and would have constituted substantial evidence if she had known the value of the property. Phillips v. Graves, 219 Ark. 806, 245 S.W. 2d 394; Caldwell v. State, 255 Ark. 95, 498 S.W. 2d 858. See also, Garrett v. Trimune, 254 Ark. 79, 491 S.W. 2d 586; Arkansas State Highway Com’n. v. Covert, 232 Ark. 463, 338 S.W. 2d 196. Evidence of the purchase price recently paid for the property may be evidence of market value when admitted without objection. Boone v. State, 264 Ark. 169, 568 S.W. 2d 229 (1978). But see, Addington v. Jones, 149 Ark. 669, 234 S.W. 24. Original cost, however, is not substantial evidence of market value when, as here, present market value in no way reflects that cost. U.S. v. Toronto, H. & B. N. Co., 338 U.S. 396, 70 S. Ct. 217, 94 L. Ed. 195 (1949). Cf. Arkansas State Highway Com’n. v. Hubach, 257 Ark. 117, 514 S.W. 2d 386.

We do not agree with the state’s contention that there was no error because the trial judge applied his own common knowledge and experience in concluding that the requisite value had been shown. A fact finder may apply its common knowledge in weighing the evidence and drawing inferences therefrom in the light of its own observations and experience in everyday life. Polk v. State, 252 Ark. 320, 478 S.W. 2d 738; Graysonia-Nashville Lumber Co. v. Carroll, 102 Ark. 460, 144 S.W. 519; Kroger Grocery & Baking Co. v. Woods, 205 Ark. 131, 167 S.W. 2d 869. Experience and common knowledge are only to be applied to evidence adduced. Missouri Pacific R. Co. v. Benham, 192 Ark. 35, 89 S.W. 2d 928. This is what we said was proper in Polk v. State, supra, where there was testimony by an owner as to the value of an automobile. See also, Rouse v. Weston, 243 Ark. 396, 420 S.W. 2d 83. It is not proper to leave a jury to the individual ideas of the jurors to determine value. See Kansas City Southern Ry. Co. v. Biggs, 181 Ark. 818, 28 S.W. 2d 68.

We have heretofore rejected the idea that common knowledge and experience could serve as a substitute for evidence of value which is a necessary element of a crime, insofar as the grade of the offense is concerned, holding that it was as incumbent upon the state in a larceny case to establish a value in excess of the diacritical amount as it was to prove the identity of the thief and the ownership of the property. Rogers v. State, 248 Ark. 696, 453 S.W. 2d 393. Adoption of the Arkansas Criminal Code has not effected a change in the rules governing evidence of value in theft cases, so our holding in Rogers is still applicable.

The state relies not only upon the owner’s testimony about the purchase price of her vehicle but upon her unresponsive answer to the question, “You don’t know the value of the car today, do you?” Her answer to that question was, “No, but it’s worth a thousand dollars to me.” Value to the owner is not substantial evidence of market value. See Arkansas State Highway Com’n. v. Perryman, 247 Ark. 120, 444 S.W. 2d 564; Motor Mill Co. v. Wilson, 128 Wash. 592, 223 P. 1041 (1924).

There was substantial evidence that the automobile had some value. The punishment for theft by receiving property of a value of $100.00 or less is a term of imprisonment, not exceeding one year in the county jail or other authorized institution designated by the trial court, or a fine not exceeding $1,000.00, or both fine and imprisonment. Ark. Stat. Ann. §§ 41-2206(5)(c), -901, -902(2), -1101 (2)(a) (Repl. 1977). There is no contention that the evidence did not warrant a finding that the appellant was guilty of theft by receiving. Any error in the denial of appellant’s motion may be corrected by modifying the judgment to reduce it to a term of imprisonment of one year, to be served in the Pulaski County jail (unless the circuit court shall designate another authorized place of imprisonment). All time spent by appellant in custody after the date of his arrest on this charge shall be credited against the sentence as modified. Ark. Stat. Ann. § 41-904 (Repl. 1977).

The judgment is affirmed as modified.

We agree. Harris, C.J., and Holt and Hickman, JJ.


author: Frank Holt, Justice.

text:
    WALKER FORD SALES and FORD MOTOR COMPANY v. William GAITHER et ux
    78-150
    578 S.W. 2d 23
    Opinion delivered March 12, 1979
    (In Banc)

      Griffin Smith and W. R. Nixon, Jr., for appellants.

      John Belew, of: Harkey, Walmsley & Belew, for appellees.
   Frank Holt, Justice.

The trial court, sitting as a jury, awarded appellees damages of $1,000 against appellant Walker Ford Sales and $1,000 against appellant Ford Motor Company for breach of warranty. Appellants first assert for reversal that the court erred in ruling that appellants breached an implied warranty of merchantability because such warranty had been conspicuously excluded by the express warranty and because appellees had examined the car and were aware of its alleged defect at the time of the sale.

Appellees bought a 1974 Ford Thunderbird on July 13, 1974, from appellant Walker Ford Sales, an authorized dealer. The car was a demonstrator and had been driven 4,~ 250 miles. Appellees test drove the car and agreed to pay $6,-300 for it. They paid $1,400 down and signed a $4,900 note plus interest for the balance. After making payments, the appellees refused to pay the $2,000 balance. On May 17, 1976, appellant Walker Ford filed a replevin action. Appellees counterclaimed against Walker Ford and cross-complained against appellant Ford Motor Company, alleging that the car was defective in that it had a persistent and intolerable vibration when driven at highway speeds; that the defective condition had existed since the appellees purchased it; that notice of the defect was given to appellants) that at the time of purchase, appellants jointly gave an extension of a new car warranty on the automobile to the appellee purchasers to the effect that the selling dealer would replace or repair, free of charge, any part, except tires, found to be defective in factory materials or workmanship under normal use up to a maximum of 12 months or 12,000 miles from the date of sale of the demonstrator; and that appellants had not complied with the warranty by failing and refusing to correct the vibration by replacing parts or repairing the automobile. The appellants denied that the car was defective and that the warranty had been breached by them. The trial court found that Ford Motor Company had breached the express and implied warranties with respect to the merchantability of the car and Walker Ford Sales and Ford Motor Company were unable to diagnose the specific defective parts which caused the vibration. As indicated, appellants cnntend this was error.

An express warranty may exclude an implied warranty of merchantability if the exclusion mentions the word “merchantability” and, if written, is conspicuous. Ark. Stat. Ann. § 85-2-316 (2) (Add. 1961). See Mack Trucks v. Jet Asphalt, 246 Ark. 101, 437 S.W. 2d 459 (1969). Ark. Stat. Ann. § 85-1-201 (10) (Supp. 1977) defines “conspicuous” as being “so written that a reasonable person against whom it is to operate ought to have noticed it” and states that “language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type.” Here the express warranty given by appellants stated that “to the extent allowed by law, THIS WARRANTY IS IN PLACE OF all other warranties, express or implied, including ANY IMPLIED WARRANTY OF MERCHANTABILITY or fitness. Under this warranty, repair or replacement of parts is the only remedy.” This language clearly complies with the requirements for exclusion of implied warranty of merchantability. Further, it appears that the appellees never pleaded breach of implied warranty. The court was incorrect in ruling that appellant Ford Motor Company breached the implied warranty since it was effectively excluded. Appellees themselves recognize that the express warranty conspicuously excluded “any other warranties.”

As to the express warranty, the appellants argue that the evidence is insufficient to support a judgment for a breach of it. They insist that the appellees failed to prove the demonstrator car had defective factory materials and workmanship. Appellants correctly state that we have held that a party, seeking to establish a breach of warranty against a manufacturer, must show that the automobile was in a defective condition at the time it left the control of the manufacturer. Ford Motor Co. v. Gornatti, 253 Ark. 237, 486 S.W. 2d 10 (1972). There a defective carburetor was the cause of a mishap 11/2 years after the car had left the control of the manufacturer, the date of sale and warranty. No evidence was adduced that the malfunctioning carburetor was factory related or existed at the time of the car sale with the warranty. Consequently, we held there was insufficient evidence from which the jury could properly infer that a defective carburetor existed 11/2 years before or when the car left the control of the manufacturer and sale by the retailer.

However, in Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.W. 2d 80 (1971), a case we feel is more similar to the one at bar, we held that the court was correct in giving a jury instruction which required the appellees, who had sued the appellant manufacturer for breach of express warranty, to prove only that the car had been defective at the time the automobile was delivered to the appellee purchasers. There appellant argued the instruction was error because it did not limit its liability to defects existing prior to the time the car left Ford’s control or for which it had manufacturing responsibility. The warranty expressly provided that it ran from the date of delivery to the purchaser, or first use, whichever was first. In Gomatti, the warranty also expressly ran from the date of delivery. Here, as indicated, it ran from the date of sale to the first retail purchaser. To the extent that there is an apparent conflict in Gomatti and Reid, we hold that Reid was correct in assigning the burden of proof to the purchaser for showing that the defect existed at the time the car was first delivered to the retail purchaser. Although we think Gomatti’s decision was ultimately correct, the language stating the burden was upon the purchaser to establish a defect at the time the car left the manufacturer’s control was erroneous. Under the express warranties in Reid and Gomatti and here, the purchaser had the burden to show a defect at the date of sale or delivery, not at the time it left the manufacturer’s factory or control. The evidence in Gomatti was insufficient even as to that point in time.

Here the alleged vibration existed and persisted constantly from the very date of the sale and appellant’s joint extension of the new car warranty. It is not contended that the appellee purchas? s failed to properly maintain, operate and care for the vehicle. It appears there was normal use of it. True, the appellees were never able to tell appellants specifically what defective condition caused the vibration. However, they promptly complained and appellants’ mechanics repeatedly worked on the automobile to correct the vibration, described as a “rocking motion,” when driven at approximately 55 m.p.h. If you were sitting in the car with your legs crossed, “ [y]ou just sit there and rock your legs like that, back and forth.” “[Y]ou can feel it through the seats, the whole thing shakes.” Appellants’ mechanics and others, who worked on the automobile for appellees, were unable to locate a specific defective part. Appellees’ witnesses testified that the car retained the vibration even when mounted on blocks and run at highway speeds without the tires. During the three years appellees had the car, efforts by them to correct the vibration consisted of placing seven new sets of tires on the car (one being “ramp tested”), aligning the front end, switching wheels, replacing the drive shaft, turning the rear brake drums, and changing the rims three times.

A contract, as here, should be construed “in accordance with what the ordinary purchaser would understand from its language.” Vernon v. Lake Motors, 488 P. 2d 302 (Utah 1971). Here, as indicated, on the date of sale and delivery of the car, the manufacturer and the dealer jointly agreed, by the extension of a new car warranty, to correct any defects in material or workmanship. The fact that the car had 4,250 miles on it was recognized by the warranty, in the circumstances, the evidence is amply substantial to support the finding that the appellants breached the express warranty.

Appellants assert that, should we find that the express warranty was breached, there is insufficient evidence to support the award of $2,000 damages. We agree. The measure of damages for a breach of warranty is “the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted . . . . ” Ark. Stat. Ann. § 85-2-714 (2) (Add. 1961). See also Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S.W. 2d 784 (1969). Here appellees paid $6,300 for the automobile. They testified that it had “no value” at the time of the purchase. However, admittedly, they have driven the car 60,000 miles in the 3 years since their purchase. The car does not vibrate until it reaches speeds in excess of 50 m.p.h. Therefore, we cannot say that the car was of no value to the appellees. Even so, they argue that the testimony given by appellant Noil Walker, the retailer, indicating he was willing to give them $2,000 credit, was relied upon by the trial court in determining the correct amount of damages. The record shows, however, that Mr. Walker testified that at one time he offered to purchsse the automobile for its market value and deduct $2,000 still due him from appellees from that market value. There was no testimony as to what the market value on that date was. We hold there is no evidence to support the finding that the damages were $2,000. Upon remand, the actual market value of the car when sold in its defective condition can be determined and the appropriate figure for damages established. § 85-2-714 (2), supra, and Marion Power Shovel Co. v. Huntsman, supra.

Appellants did not seek to limit appellees’ remedy to repair or replace defective parts. Obviously, they recognize that the situation is controlled by Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555 (1974), where we stated:

It would seem that the evidence introduced on this trial conclusively showed that the attempted modification and limitation failed of its essential purpose, as a matter of law. It has been held, properly, we think, that when there is substantial evidence, as there is here, tending to show that a particular piece of machinery obviously cannot be repaired or its parts replaced so that the same is made free from defects, a jury verdict, which implicitly concludes that a limitation of the remedy to repair and replacement of nonconforming parts deprived the purchaser of the substantial value of the bargain, should be sustained ....

For the error indicated, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Byrd, J., would affirm.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    ARKANSAS SUPPLY, INC. v. James K. YOUNG et ux
    78-284
    580 S.W. 2d 174
    Opinion delivered March 12, 1979
    (Division II)
    [as amended on Denial of Rehearing May 21, 1979.]

      Spitzberg, Mitchell & Hays, by: Theodore C. Skokos and Beresford L. Church, Jr., for appellant.

      Luther B. Hardin, for appellees.
   Frank Holt, Justice.

The appellant contends that the chancellor erred in cancelling its mortgage. Appellant argues that its mortgage was and is valid, because the mortgagors (Curtis and Virginia Wright) were the equitable owners of the real property at the time they mortgaged the property to appellant. The court found that the Wrights had no mortgageable interest in the property. A personal judgment however was rendered in favor of the appellant against the Wrights.

On November 4, 1976, Vernon and Bertha Stewart, sellers, and Curtis and Virginia Wright, purchasers, entered into a written “Escrow Agreement,” which stated that the sellers, simultaneously with the execution of the agreement, delivered their warranty deed for 2.46 acres to a bank as escrow agent. The deed was to be delivered to the purchasers, the Wrights, only upon their payment of the $9,250 purchase price plus interest to the escrow agent. The initial payment of $150 was acknowledged. The balance was to be paid in $150 monthly installments. The escrow agreement further provided that the purchaser would not allow any lien on the property or do any act to lessen the sellers’ security. If the purchasers defaulted under the agreement by failing to make payments, time being of the essence, the full amount would become due after the sellers gave 30 days’ notice to the purchasers and the escrow agent of their intent to exercise the option to accelerate. If the full amount was not paid or the agreement made current within 30 days, the escrow agent was to deliver the deed to the sellers, any sums paid would be retained as liquidated damages, and the purchasers would lose all rights under the agreement. This agreement was recorded on April 8, 1977. A second agreement followed on April 15, 1977, which was substantially the same as the first except the purchase price was increased to $15,000. This agreement was not recorded. Pursuant to the terms of the agreement, the Wrights, as purchasers, went into possession of the property and began improvements. However, they made no payment on the purchase price other than the original $150. Consequently, by letter dated July 19, 1977, Stewart’s attorney notified the Wrights that, pursuant to the escrow agreement, if full payment of the $15,000 plus accrued interest was not paid within thirty days of their receipt of the letter, Stewart would recall the deed from the escrow agent and consider the transaction cancelled and the contract void. There was no compliance from the Wrights. To the contrary, on August 19, 1977, the Wrights executed a $37,889.04 mortgage (without a note) on the property in favor of appellant Arkansas Supply, Inc. It appears the Wrights were indebted to appellant for materials and supplies used on various building projects. Appellant agreed to accept this mortgage in lieu of filing a lien on an apartment project which the Wrights said they had sold. The Wrights continued their default in payments to the Stewarts. On October 13, 1977, appellee James K. Young prepared a release and disclaimer which Mr. and Mrs. Wright signed relinquishing any interest they had in the property and authorizing delivery of all documents by the escrow agent to the Stewarts. On that same day, Young paid the Stewarts $15,770 for a deed to the property and also paid the Wrights $3,000 for a release of any claim they might have on the property.

Appellant now contends that the Wrights were, on the date of the execution of the mortgage, the equitable owners of the property, that the “mortgage at that time was valid, and remained so attached as a lien on the land and improvements despite the attempted cancellation on October 13, 1977, engineered by the Appellee.” They argue that this court has invariably held that a purchaser under an executory contract for the sale of land has an equitable interest in that property. Appellee responds that a long line of Arkansas cases stand for the proposition that escrow agreements, as here, whereby the deed is to be returned to the grantor if the purchase price is not paid, do not provide the purchaser with sufficient title to give a mortgagee an in rem mortgage against the property, although the purchaser was in possession of the property. In Mansfield Lumber Co. v. Gravette, 177 Ark. 31, 5 S.W. 2d 726 (1928), in discussing whether a materialman’s lien had attached to certain property, we said:

It is earnestly contended by counsel for appellant that Mrs. A. L. Beason had an equitable interest in the lots . . . . We cannot agree with counsel in this contention. It is true that Miss Gravette executed a deed to Mrs. Beason to the lots in question, but the deed was placed in escrow .... to be turned over to the grantee in the deed when the payments of purchase money were made; but, in case the payments of the purchase money were not made as expressed in the deed, the deed was to be returned to the grantor and become inoperative. When a deed is delivered merely as an escrow to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed . . . However, if we are correct in holding that the deed was placed in escrow upon the condition that it did not become operative until the balance of the purchase price was paid, the grantee acquired no interest of any kind in the property, because she did not pay any of the balance of the purchase price, and her rights under the contract became forfeited for failure to make such payments.

Where the grantee performs the required conditions, he may compel the grantor to deliver the deed, held in escrow, to him. Tombler v. Sumpter, 97 Ark. 480, 134 S.W. 967 (1911).

Here, however, the purchasers, the Wrights, only paid $150 on the agreed purchase price of $15,000. The Wrights, as grantees, acquired no interest in the property until the conditions of the escrow agreement were met. Not having met them, the court correctly cancelled appellant’s mortgage.

In our view, Mansfield Lumber Co. v. Gravette, supra, has become a rule of property. Therefore, here we decline to modify or overrule it. However, we will reconsider its applicability to any escrow contract, similar to the one at bar, entered into after this opinion becomes final.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ-

Byrd and Purtle, JJ., would grant the rehearing.

Conley Byrd, Justice,

dissenting. In Mansfield Lumber Co. v. Gravette, 177 Ark. 31, 5 S.W. 2d 726 (1928), the decree which this court affirmed permitted the lien holder to remove the improvements from the lots. The judgment of the trial court here should be reversed to permit appellant Arkansas Supply, Inc. to remove from the lots the apartment house constructed upon the lots by the Wrights. Otherwise the appellees who placed the Wrights in possession, are unjustly enriched. I cannot agree with the majority that Mansfield Lumber Co. v. Gravette, supra, authorizes such unjust enrichment by a vendor who places a purchaser in possession under an escrow agreement.

Since appellees, or their predecessor in title, had placed the Wrights in possession for construction purposes, I would apply Restatement, Restitution § 52(2) which provides:

(2) A person who, because of mistake of law, reasonably but erroneously believing that he, or a third person, on whose account he acts is the owner:
(a) causes improvements to be made upon the land of another, is entitled to restitution for the value of the labor and materials used therein to the extent that the land is increased in value if the mistake is reasonable, ...”

For the reasons stated herein, I respectfully dissent from the denial of the petition for rehearing.

Purtle, J., joins in this dissent.


text:
    Lonnie KIRKPATRICK v. FIRST STATE BANK OF DeQUEEN
    78-247
    578 S.W. 2d 28
    Opinion delivered March 12, 1979
    (Division II)

      Tackett, Moore, Dowd & Harrelson, for appellant.

      Hardegree & Maddox, by: Joe H. Hardegree, for appellee.
   Darrell Hickman, Justice.

This is an appeal from a summary judgment entered by the Howard County Circuit Court against the appellant, Lonnie Kirkpatrick, for some $28,000.00, plus interest and attorney fees, on a note Kirkpatrick co-signed in favor of the appellee, the First State Bank of DeQueen.

We agree with the appellant that the court erred in entering summary judgment for which execution could issue.

The bank sued Kirkpatrick and Frank Ramsey for a debt evidenced by a promissory note they co-signed on October 14, 1976, in the amount of $28,000.00. The money was to be used as consideration for transfer of a half interest in Ramsey’s insurance agency to Kirkpatrick. Kirkpatrick, in his answer, did not deny that the note was executed nor that he and Ramsey received the money. Instead, each filed counterclaims and cross-complaints setting up defenses or claims against each other; in Kirkpatrick’s case, two other defendants were joined as third party defendants.

Kirkpatrick alleged in his counterclain that the bank, without authority, allowed Ramsey to withdraw money from a joint account, which was an asset of the insurance partnership formed with the use of the bank loan made to him and Ramsey; further, that Ramsey, with the knowledge and consent of the president of the bank, and, together with others who were named third party defendants, unlawfully deprived Kirkpatrick of his half interest in the insurance agency. Kirkpatrick asked for damages against the bank in the sum of $75,000.00, one-half the value of the insurance agency, and for the same amount against Ramsey and two other third party defendants.

The bank moved for summary judgment attaching to the motion' an affidavit of the president of the bank attesting to the authenticity of the note and stating that the loan was made. Kirkpatrick filed a general denial in response to the motion alleging that facts were disputed; he relied upon the existing pleadings, interrogatories and a lengthy deposition of Kirkpatrick’s in which Kirkpatrick testified substantially in accordance with the pleadings he had filed.

The judge, finding no defense to the note nor any genuine issues of material fact regarding the note, granted summary judgment. The judge did reserve the remaining issues for later adjudication.

We agree that the appellant did not allege any defenses to the debt on the promissory note. See Uniform Commercial Code, Ark. Stat. Ann. §§ 85-3-305 and 306 (Add. 1961). However, we have what appears to be a case of first impression: whether summary judgment should have been granted when there remains a counterclaim to be decided. The remaining issues had been set for trial for August of 1978, some three and a half months after the judge signed the summary judgment. The appellant’s attorney asked that execution on the judgment be delayed until the trial, but the appellee would not agree to this.

Our summary judgment law, Ark. Stat. Ann. § 29-211, is copied after Rule 56 of the Federal Rules of Civil Procedure. Part of that law deals with just such a case as we have before us and that section reads:

(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Ark. Stat. Ann. § 29-211 (d) (Repl. 1962). See also Comment, 15 Ark. L. Rev. 388 (1961).

Other jurisdictions have dealt with this problem in various ways. The majority rule seems to be that where a counterclaim is predicated upon a good and substantial cause justifying a trial, it may preclude summary judgment on a complaint or it may preclude the trial court from ordering execution of a judgment pending the determination of the counterclaim. See Annot., 8 ALR 3d 1961 (1966).

However, where the counterclaim is shown to be a sham, frivolous or without merit, it would not be a bar to summary judgment. Ford v. Luria Steel & Trading Corp., 192 F. 2d 880 (8th Cir. 1951). In some jurisdictions where a valid counterclaim is found to exist, the court has granted the motion for summary judgment on the claim but ordered a stay of execution in order to protect a defendant’s rights to his counterclaim. Elliott-Lewis Corp. v. Graeff, 11 N.J. Super. 567, 78 A. 2d 591 (1951). It has been held where the counterclaim is obviously without merit and is being used solely for the purpose of delaying the trial, then summary judgment will be granted. Seagram-Distillers Corp. v. Manos, 25 F. Supp. 233 (D.C.S.C. 1938).

We think the better practice is not to grant summary judgment on a complaint where there exists a legitimate counterclaim and where the defendant will obviously be prejudiced by the entry of such a judgment. This is especially true since Arkansas recognizes the procedure of compulsory counterclaims. May v. Exxon Corp., 256 Ark. 865, 512 S.W. 2d 11 (1974). In some instances such a judgment could actually bankrupt a litigant before a trial could be had upon a valid counterclaim which might ultimately result in a favorable determination of the counterclaim.

In this case we find no evidence that the counterclaim was frivolous or that it was being used as a way of delaying the lawsuit. We feel that the court should have followed that part of the statute which authorizes a finding that there was no material fact in dispute nor defense offered regarding the note. Such a finding would have been proper pursuant to Ark. Stat. Ann. § 29-211(d) and would have permitted the appellee to go to trial knowing that the appellant would offer no valid defense to the debt as evidenced by the note. This seems a better practice than ordering summary judgment and withholding execution.

Therefore, the judgment of the lower court is affirmed as to the findings that no genuine issues of material facts are disputed in connection with the appellee’s claim nor any valid defenses made. That part of the judgment which enters judgment for which execution may enter is stricken.

Affirmed as modified.

We agree. Harris, C.J., and Fogleman and Holt, JJ.

       It is obvious from thejudge’s letter of June 15, 1978, that the judge, on reconsideration of his granting the bank’s motion, had before him the deposition which was not filed of record until July 20, 1978.


text:
    STATE of Arkansas v. Herbert KIMBROUGH & Phillip BRYANT
    CR 78-171
    578 S.W. 2d 26
    Opinion delivered March 12, 1979
    (Division II)

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellant.
    No brief for appellees.
   Darrell Hickman, Justice.

The State appeals this criminal case, as it may by virtue of Ark. Stat. Ann. § 43-2720 (Repl. 1977), conceding that the appellees may not be retried on the charges. See State v. Stringfellow, 253 Ark. 390, 486 S.W. 2d 65 (1972).

Herbert Kimbrough and Phillip Bryant were convicted in the Little Rock Municipal Court of disrupting and disturbing the lawful assembly of the Liberty Hill Missionary Baptist Church in violation of Ark. Stat. Ann. § 41-2908 (Repl. 1977). Each was fined $50.00 and appealed to the circuit court.

During the circuit court trial, before the State finished examining the first witness, the judge dismissed the charges. This was done when the prosecuting attorney declined to offer further proof in view of the judge’s ruling on points of law.

The judge made two rulings which are the subject of this appeal. First, he ruled that membership of these appellees in the church was relevant; their membership was a fact in issue, disputed by the parties. Next, he ruled that the church body would have to “exhaust the remedies” of the organization before these appellees could be charged.

We cannot say on this record whether the appellees were guilty as charged because the trial was not concluded. In any event, there was a confrontation between Kimbrough and Bryant and the pastor in the Liberty Hill Missionary Baptist Church during services which resulted in the charges. The pastor, John Miles, was called as the State’s first witness and during his testimony it became an issue as to whether these appellees were, in fact, members of the organization. The attorney for the appellees made objections to the State’s proceeding, arguing that before the State could prosecute these individuals for the charges, the organization must exhaust its remedies, that is, hold a hearing and expel the appellees from the church before they could be charged with criminal misconduct. The trial judge agreed. No doubt the judge was prompted to do this because the testimony of the pastor regarding the misconduct of the appellees was unimpressive to the trial judge at that point.

We find that the judge was in error in his rulings. First, membership in a church or organization is not necessarily the controlling factor as to whether a person has committed a crime at a meeting. Neither would a church or organization have to “exhaust the remedies” of the organization, that is, conduct a hearing and discharge a person, if a member, before the State could prosecute an individual for criminal misconduct. Either a member of a stranger can be guilty of unlawfully disrupting a lawful assembly.

Such charges for disorderly conduct are not unprecedented. In two cases we have reviewed charges for disorderly conduct in a church meeting. In both instances these charges were brought under a statute which was a predecessor to our present law. State v. Wright, 41 Ark. 410, 48 Am. Rep. 43 (1883); Walker v. State, 103 Ark. 336, 146 S.W. 862 (1912).

Our holding in no way affects the right of an individual or a member of any organization to participate in any way in an organization or to voice disapproval of an organization in any way during a meeting. It is simply that a member’s conduct during church meetings or similar public meetings is not immune from prosecution if that conduct is criminal in nature. While caution should be exercised in bringing such charges against a member or a stranger accused of disrupting a public meeting, the fact remains that membership alone and the internal remedies of an organization are not, as a matter of law, determinative of one’s guilt for criminal misconduct.

For the orderly administration of justice, we declare that error was committed.

Error declared.

We agree. Harris, C.J., and Fogleman and Holt, JJ.


text:
    MISSOURI PACIFIC RAILROAD COMPANY et al v. Minnie Faye MERRILL, Individually and as Guardian, et al
    78-305
    578 S.W. 2d 35
    Opinion delivered March 12, 1979
    (Division I)

      Herschel H. Friday, Overton S. Anderson and Donald H. Bacon, by: Overton S. Anderson and Donald H. Bacon, for appellants.

      W. H. (“Dub”) Arnold, for appellees.
   John I. Purtle, Justice.

This case results from a railroad crossing accident in Whelan Springs, Arkansas, wherein a Missouri Pacific train struck a 1978 Ford truck driven by Gordon Gene Merrill, who was fatally injured. Minnie Faye Merrill, appellee, brought suit against Missouri Pacific Railroad and two of its employees on behalf of herself, the estate, and heirs of the decedent. The case was submitted to the jury on interrogatories as follows:

(1) Do you find from a preponderance of the evidence that Dean Davis was guilty of negligence which was a proximate cause of the occurrence?
(2) Do you find from a preponderance of the evidence that M. R. Evans was guilty of negligence which was a proximate cause of the occurrence?
(3) Answer this interrogatory only if you have answered “yes” to one or more of interrogatories 1 or 2: Do you find from a preponderance of the evidence that Gordon Gene Merrill was guilty of negligence which was a proximate cause of any damages he may have sustained?
(4) Do you find from a preponderance of the evidence that Gordon Merrill assumed the risk of his own injuries?
(5) This interrogatory instructed the jury to apportion responsibility in the event one or more of inerrogatories 1 through 4 were answered “yes.”

The jury answered interrogatories 1, 2, 3, and 4 “no.” Number 3 was not signed at all. The court then explained to the jury their answers to the interrogatories completed the case and the jury was discharged. Subsequently, the court discovered a note on the back of one of the interrogatories which was signed by eleven (11) jurors and reads as follows:

“It is the decision of the jury that the individuals named in this suit are not personally negligent in causing the accident resulting in the death of Mr. Merrill. However, we do find Missouri Pacific negligent in its failure to provide proper warning signals at this particular crossing and an unobstructed view of the approaching train. Because of the negligence on the part of the railroad, we also feel that Mrs. Merrill should be awarded some compensation to cover medical and burial expenses.”

The court also discovered it had inadvertently left out AMI Instruction 208 which had been agreed upon by the parties. Appellees moved for a new trial based upon the note from the jury and the failure to give AMI 208. The court entered the following order:

The Court grants a new trial because the verdict of the jury and the answers to the written interrogatories are inconsistent and since the jury has been discharged the Court finds that a new trial must be granted in order to provide Plaintiffs a fair trial. Furthermore, it has been discovered that an agreed jury instruction was inadvertently left out of the formal charge to the jury that was necessary for the jury to be properly instructed as to the law of negligence as between employer and employee.

Appellants argue on appeal that the court erred in granting a new trial.

We will first examine the grounds upon which the court may grant a new trial as set out in Ark. Stat. Ann. § 27-1901 (Repl. 1962) which are stated as follows:

A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury or a decision by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party:
First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.
Second. Misconduct of the jury or prevailing party.
Third. Accident or surprise which ordinary prudence could not have guarded against.
Fourth. Excessive damages appearing to have been given under the influence of passion or prejudice.
Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property.
Sixth. The verdict or decision is not sustained by sufficient evidence, or is contrary to law.
Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
Eighth. Error of law occurring at the trial, and excepted to by the party making the application.

AMI 208 provides as follows:

“At the time of the occurrence Missouri Pacific Railroad and Dean Davis and M. R. Evans were employer and employee. Therefore, any negligence on the part of Dean Davis and M. R. Evans is charged to Missouri Pacific Railroad Company.”

In the first place, AMI 208 should not be given when the case is presented to the jury on interrogatories. Argo v. Blackshear, 242 Ark. 817, 416 S.W. 2d 314 (1967). In any event, the instruction was argued to the jury by appellees at the close of the case. Further, it was stipulated that Dean Davis and M. R. Evans were employees of the Missouri Pacific Railroad Company and were in the course of their employment at the time of the occurrence. Therefore, we cannot see any error in the court failing to give an instruction which itself was not proper if objected to. The court gave AMI 203 which informed the jury that if Dean Davis and M. R. Evans were guilty of negligence which proximately caused appellees’ damages the jury could return a verdict for appellees. Since the specific answers to the interrogatories found Davis and Evans were not negligent, appellees were precluded from obtaining a favorable verdict. If the failure to give AMI 208 was error at all, it would obviously be harmless in view of the circumstances.

The question relating to the note written by the jury is of a more serious nature. For the purpose of this decision, we will treat it as a general verdict although it was couched in terms more in the nature of a recommendation. No evidence was presented to the jury upon which such a verdict could be supported. It was agreed that the only issues were whether the appellants sounded the whistle or kept a proper lookout. The answer by the jury of the first two interrogatories answered these issues in favor of appellants.

Ark. Stat. Ann. § 27-1901 (Repl. 1962) states the trial court may grant a new trial, upon application of the aggrieved party, if one of the causes listed materially affected the substantial rights of such party. We do not find any of the eight grounds listed in Ark. Stat Ann. § 27-1901 (Repl. 1962) to be present in this case. Since the irregularity did not materially affect any substantial rights of appellees, there was no basis for granting a new trial. Bridges v. Hemmer, 256 Ark. 312, 506 S.W. 2d 835 (1974).

The general verdict written by the jury is in conflict with the special verdict or interrogatories. The subject matter of this general verdict was not a matter which was presented to them by the court. Such situation has been discussed in 89 C.J.S. Trial, § 565, as follows:

“It is proper to disregard as surplusage certain matters contained in a special verdict or in special findings or answers to interrogatories, such as conclusions of law, evidentiary facts, a memorandum preceding the answers, findings on, or answers to, issues or interrogatories improperly submitted, a finding on the matter not submitted to the jury, findings of matters outside the issues, or findings of immaterial facts or on immaterial questions or issues. Also, it has been held that a general verdict may be ignored where, without any instructions from the Court, it was returned with answers to questions submitted.”

A case almost on all fours with the present case is reported in Chicago, Rock Island & Pacific Railroad Co. v. Davis, 239 Ark. 1059, 397 S.W. 2d 360 (1965), wherein the jury returned a verdict in favor of two railroad employees who were charged with lookout and sounding the whistle and against the employer railroad. We held in the last quoted case that the issue upon which the jury returned its verdict against the railroad was not presented for the jury to consider. We believe the same situation is present here. There were no issues upon which the jury could find as it did in the present case.

Finally, Ark. Stat. Ann. § 27-1741.3 (Repl. 1962) has been interpreted to hold that interrogatories have priority over a general verdict in the event they are inconsistent. Southwestern Electric Co. v. Camp, 253 Ark. 886, 489 S.W. 2d 498 (1973). Therefore, the trial court abused its discretion in granting the motion for a new trial.

Reversed and dismissed.

We agree. Harris, C.J., and George Rose Smith and Hickman, JJ.


text:
    Ronnie Dean MATTHEWS v. STATE of Arkansas
    CR 78-186
    578 S.W. 2d 30
    Opinion delivered March 12, 1979
    (In Banc)

      Seay & Bristow, by: Bill W. Bristow, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted in the Lawrence County Circuit Court on June 21, 1973, and sentenced to five years in the Department of Corrections with the last four years suspended on condition of good behavior. Appellant was released from the Department of Corrections with credit for one year served in December 1973. On January 31, 1978, after appellant had been released more than four years, the state filed a petition to revoke the suspended sentence for acts committed during the four years of the suspended sentence. The order of revocation was filed July 27, 1978. On appeal from the order of revocation held on July 6, 1978, appellant argues one point.

I.

THE TRIAL COURT ERRED IN NOT DISMISSING THE PROCEEDINGS BECAUSE THE PETITION WAS UNTIMELY FILED.

There is no dispute as to the facts or dates involved; therefore, it is simply a matter of law as to whether the petition for revocation was filed prior to the expiration of the part of the sentence which was suspended. The petition was filed within five years from the date of the sentence but more than four years after appellant’s release from the Department of Corrections.

The trial court very frankly stated:

“I will risk it that the formula is that a man is on a suspended sentence for a full five-year period of time .. .

It is understandable that the court was not more positive because we have been furnished no case directly in point; neither have we been able to find an Arkansas case in our research. The appellant relied upon Ark. Stat. Ann. § 41-1206 (3) (Repl. 1977) which clearly states the suspended part of a split sentence commences to run upon release from custody. Appellee relies upon Ark. Stat. Ann. § 43-2324 (Repl. 1977). Each concedes if he is wrong the other is right.

Ark. Stat. Ann. § 41-1206(3), part of the Arkansas Criminal Code, was effective January 1, 1976. Therefore, it was not in force at the time of the pronouncement of sentence. However, Ark. Stat. Ann. § 43-2324 (Repl. 1977) concerns suspended sentences and the power to revoke. We readily agree that had appellant been placed on a five-year suspended sentence pursuant to § 43-2324 the court would have been authorized to revoke the suspension at any time during the full five years, for good cause shown.

We note the case of Walker v. State, 263 Ark. 485, 565 S.W. 2d 605 (1978), and it is the closest case in point we have found in Arkansas. In Walker there was a 15-year sentence with 14 of it suspended. The petition therein was filed within six years of pronouncement of sentence. Therefore, under either theory advanced herein, the court still retained the right to revoke the suspended sentence of Walker. Ark. Stat. Ann. § 41-1208 (Repl. 1977) provides a revocation may be had at any time before the expiration of the period of suspension. This statute does not answer the question presented because it does not define the period of suspension which follows that portion of a sentence which has been actively served in the Department of Corrections. It is clear under Ark. Stat. Ann. § 41-1206(3) that after January 1, 1976, the suspended portion commences to run upon release of the prisoner. We agree with the Commentary that pre-Code authority was silent as to when the period of probation commenced to run but clearly stated a suspended sentence was to commence upon a plea of guilty or verdict of guilty.

We find no authority or cases cited which hold that Ark. Stat. Ann. § 43-2324 gives a court authority to impose a separated sentence with the suspended portion to commence at a date later than the prisoner’s release from active confinement. An article in 21 Ark. Law Review 255 indicates such sentence cannot be pronounced. Since there is no provision pursuant to § 43-2324 to determine the commencement of the suspended portion of a sentence following a period of confinement, we must look elsewhere. State v. Lewis, 226 N.C. 249, 37 S.E. 2d 691 (1946), held the court could not split the sentences in the manner so as to have the first part served and the second part suspended. In State v. Johnson, 220 La. 64, 55 So. 2d 782 (1951), it was held that a sentence could not be imposed in a manner to cause the second part of a sentence to be suspended. Admittedly, the statutes are not identical to § 43-2324 but are very similar. Applying the rationale of these cases and the lack of express statutory authority or precedent in Arkansas, we agree the suspended sentence commenced at the time appellant was released by the Department of Corrections.

An article in 147 ALR 656 addresses the question as it concerns the federal statute upon which the Arkansas law is predicated. Under probation or suspended sentences the federal courts cannot require the defendant to serve a part of the sentence and remain on suspension for the balance of the term pronounced.

Since the Department of Corrections had no control over appellant after he was released, he commenced serving the suspended sentence at the time of his release by them. Therefore, the four-year suspended sentence had expired prior to the filing of the Petition for Revocation in this case. Our decision is not that the new Code is controlling but that Ark. Stat. Ann. § 41-1206 (3) reduced the prior law to exactness in the matter of when a suspended sentence commences to run upon release from a period of confinement. Although it is included in the Arkansas Criminal Code, it is not a new manner of computing the running of time but clarifies the law as it existed prior to enactment of the Arkansas Criminal Code.

Reversed and dismissed.

Harris, C.J., dissents.