author: Carleton Harris, Chief Justice.

text:
    Kenneth BELL et ux v. MID-STATE HOMES, INC.
    5-5204
    453 S. W. 2d 57
    Opinion delivered April 27, 1970

      Joe Holmes, for appellants.

      Spencer & Spencer, for appellee.
   Carleton Harris, Chief Justice.

Kenneth Bell and Joan Bell, appellants herein, executed a note and mortgage to Jim Walter Corporation, covering certain property in Cleveland County, Arkansas. On February 24, 1964, a mistake in the description having been discovered a revised note and mortgage were executed, the description being as follows:

Starting at a point on the North right of way boundary of State Highway No. 212, 413 ft. South of the Northwest corner of the SWM, MEM of Sec. 12, Twp. 8 South, Range 12 West. Thence run North 88M degrees East 1320 ft. along the North right of way boundary of said highway No. 212 to a point of beginning. Thence North 210 ft. Thence North 88H degrees East 210 ft. parallel with said highway No. 212. Thence South 210 ft. to the North right of way boundary of said highway No. 212, thence South 8814 degrees, West 210 ft. along the North right of way boundary of said Highway No. 212 to the point of beg. Containing one acre more or less.

On March 7, 1964, Jim Walter Corporation executed an assignment of the note and mortgage to Mid-State Homes, Inc. The Bells became delinquent in their monthly payments, and on July 20, 1967, suit was instituted to foreclose the mortgage. Appellants answered with a general denial and request for admissions were filed and served on the Bells, the latter admitting that they had executed the note and mortgage heretofore mentioned; that they had been delinquent in making payments on the note since March 5, 1967, and that the balance owing on the note was $3,415.62. On February 10, 1969, a decree of foreclosure was entered, and Mid-State Homes, Inc., appellee herein, purchased the property. When appellants refused to surrender possession, a Writ of Assistance was obtained. The Bells filed a motion with the court setting out that appellee did not have a valid description to the property on which the home is located, and occupied by appellants and they desired to show they were not occupying any property for which appellee was seeking a Writ of Assistance.

Appellee filed a response praying that the motion be overruled; that the Writ of Assistance be specifically enforced, and that the erroneous distance be corrected in all papers material to the cause. On hearing, the court held that the motion should be overruled and that the Writ of Assistance should be enforced. From the order so entered, appellants bring this appeal.

The “control point” is shown as a point on the North right-of-way boundary of State Highway No. 212, 1733 ft. South of the Northwest corner of the SVJVi of the NEMof Section 12, Township 8 South, Range 12 West, and from the “control point” on Highway No. 212 the description correctly runs North 88/4 degrees East 1320 feet along the North right-of-way boundary of Highway No. 212 to a point of beginning. In comparing this with the description used in the mortgage, we note that the only error is the number of feet from the Northwest corner of the SWM of the NEM, to the North right-of-way of Highway No. 212. In other words, if the figure 413 feet were changed to 1733 feet, the description would cover the property foreclosed. We agree that the control point remains the same since it is fixed as a point on State Highway No. 212, regardless of its distance South of the Northwest corner of the SWM of the NEM. We agree with appellee that actually there would be no error if the distance were not stated at all. At any rate, the fact that the distance from the section corner to Highway No. 212 is incorrectly stated, does not render the description of the tract void. We have held that monuments control over courses and distances. Arkansas State Highway Commission v. Waddell, 239 Ark. 1103, 396 S. W. 2d 840. In Garrett v. Musgrave, 215 Ark. 835, 223 S. W. 2d 779, we said:

“The controlling consideration is that if buyer and seller, who are familiar with real property, deal with reference to particular things and places they have seen, it must be presumed that these natural objects were of paramount importance, otherwise they would not have contracted with reference to them.”

In the case before us, it will be observed that there are no less than five references to State Highway No. 212, and it would appear that the intention is made evident from the face of the instrument.

At any rate, we are firmly of the opinion that circumstances show that it was the intention of the parties to place the mortgage on the property upon which the home is located. The home tract does front on Highway No. 212. Appellants rely upon the testimony of Quenton Bell, the father of Kenneth, the elder Bell testifying that in deeding the acre to his son, he only had in mind “to give my son 1 acre of land wherever the county surveyor put it”. He said he did not care whether the one acre tract was on the highway or some other location. Of course, the father knew the son was living in the house on the highway. The error in the description was not discovered until an abstract was prepared, which was subsequent to the time that Quenton Bell executed the deed to his son.

Appellants also point out that the survey was made by appellee’s agent, and that appellee was thus responsible for the erroneous description. That is true, but we do not consider that fact as controlling. Rather, the question is what tract of land was intended by the parties to be mortgaged as security for the debt.

We think it clear that the answer to this question is that the parties fully intended that the property, upon which the house was located, be mortgaged to appellee’s assignor at the time the mortgage was given. In the first place, one would normally expect this defense, if the intention of the parties had been otherwise, to have been raised by appellants in their answer when the foreclosure suit was filed. Instead of raising this question, appellants simply filed a general denial. The note given to the corporation was in the amount of $6,710.40, and the mortgage was executed as security for that amount. While the record does not reflect the value of lands in Cleveland County, it would certainly be unusual if one acre of vacant property, with no highway frontage, could be valued at that amount.

Prior to the foreclosure, Kenneth Bell testified, but not at any place in his testimony do we find any statement that the intention was to mortgage vacant property rather than the land upon which the house was located. In fact, Bell was asked on cross-examination if he had not received a letter telling him that appellee would not “foreclose on your home if you paid $202.20”, which was the amount needed to make it current. Bell replied, “I am sure I did. I don’t remember you stating you would not foreclose. I remember receiving a couple of registered letters from you”.

When asked if he received three payments back from the company that he had sent in (but which would not bring the account current), Bell replied in the affirmative. The question was then asked as to what action he took. The witness answered:

“At that time I thought that you had the wrong property description and I thought that if I could talk with you people and get it paid off less attorney’s fee then I would borrow the money and pay the thing off and be done with Mid-State Homes but I haven’t got anything concrete on what the pay off is yet.”

It is thus apparent that Bell at least suspected that the description in the mortgage was erroneous, and that his home actually was not covered by the instrument, but still, there was no contention that the home property was not to be mortgaged. The Chancellor himself commented that he was reluctant to enter a foreclosure decree, stating that he had a “great deal of sympathy for a man who is trying to pay for his home”, and though rendering a judgment for appellee, gave appellants 30 days in which to refinance the property.

We have held, that to reform a mortgage, the proof must be clear, unequivocal, and convincing. Arkansas Bank & Trust Co. v. Bank of Poplar Bluff, 166 Ark. 538, 266 S. W. 977.

In Craig v. Pendleton, 89 Ark. 259, 116 S. W. 209, we held that where a mortgage, through mistake, incorrectly describes the land intended to be mortgaged, the mortgagee was entitled to reformadon against the mortgagor or any. subsequent purchaser with nonce of the mistake.

From what has been said, it is obvious that we consider the proof to be clear and convincing that it was the intention of all parties to mortgage that property upon which the house is located. We think it well, however, that the instrument be reformed to show the description as “1733 feet” instead of “413 feet”.

The decree is affirmed, but the case is remanded for the purpose set out in the preceding paragraph.

      For that matter the mistaken description could be corrected by changing Northwest corner of SWM of the NEM to read Northwest corner of NWM of the SEM. The point on Highway No. 212 lies 413 feet South of this point.


source: Caselaw Access Project

license: Public Domain

text:
    Grace V. PHILLIPS et al v. Irl E. SHERROD ESTATE
    5-5235
    453 S. W. 2d 60
    Opinion delivered April 27, 1970

      Harkness, Friedman & Kusin, for appellants.

      Gordon, Gordon & Eddy, for appellee.
   Carleton Harris, Chief Justice.

On May 9, 1969, Irl E. Sherrod died intestate in Bowie County, Texas. Sherrod, at the time of his death, owned certain real and personal property in Perry County, Arkansas, and also some personal property in Bowie County. Sherrod was living in Perry County, Arkansas on August 13, 1963, at which time he suffered a stroke and was rendered incompetent; on September 17 of that year, a daughter, Nancy Jo Treadway, petitioned the Perry Probate Court for appointment as guardian of the person and estate of her father, and on October 1, the court, acting upon the sworn statement of Dr. Peter Thomas, a member of the staff of Missouri Pacific Hospital, found that Sherrod was incompetent; that a guardian should be appointed for his person and estate, and Mrs. Treadway was named guardian. On October 30, 1963, Mrs. Ruth (Mrs. James) Miller, a resident of Texarkana, Texas, likewise a daughter of Sherrod and sister of Mrs. Treadway, petitioned the Perry County Probate Court asking that Mrs. Treadway be removed as guardian, asserting that the latter was keeping Sherrod in a place detrimental to his health and where he was unable to secure adequate medical attention, and further stating that she (Mrs. Miller) had adequate living facilities and was able to care for her father. The court held there was not sufficient evidence to justify removal of the guardian and denied Mrs. Miller’s petition. In December, 1963, Mrs. Treadway left Perry County, and went to Texarkana, Texas, taking Mr. Sherrod with her in order to care for, him. As previously stated, Sherrod died in Bowie County on May 9, 1969, still incompetent.

On July 30, 1969, the attorneys who represented Mrs. Treadway in the guardianship, petitioned the Perry County Probate Court to appoint a personal representative. On August 12, 1969, one of the attorneys who had filed the petition, appeared before the court, and Mr. Sherman A. Kusin, an attorney of Texarkana, appeared on behalf of his clients. Mr. Kusin objected to the appointment of a personal representative until notice had been given to the heirs at law, and it was agreed that a hearing on the appointment of a domiciliary personal representative would be held on September 1, 1969. However, on August 25, Billy Williford was appointed administrator of Sherrod’s estate in Bowie County, Texas, qualified on August 27, and on the same date, applied to the Perry County Probate Court for ancillary letters of administration, setting out in his petition that Sherrod had owned 250 acres of land in Perry County and had approximately $1,000 in cash in that county. The two petitioners were heard on September 1, and after introduction of exhibits, together with oral testimony, the Probate Court found that Sherrod was domiciled in Perry County, Arkansas, at the time of his death in Texas for the reason that he was removed from Arkansas by the guardian of his person and estate; that Sherrod was mentally incompetent at the time and was incapable of forming the necessary intention to abandon his domicile and establish a new one, and that his removal from the state was for the purpose of providing him with custodial care.

The court further found that it was not to the best interest of the estate that ancillary letters of administration be granted to Williford since Williford was a resident of Bowie County, Texas, while the principal estate of the deceased was located in Perry County, Arkansas, and the distance between the two locations was such that it would incur unnecessary travel expense, and would likewise cause undue inconvenience to local creditors as well as inconvenience in disposing of the estate assets located in Perry County. J. R. Paul, who had served several terms as chancery and circuit clerk of Perry County, had also worked in the bank, and presently operated an abstract and real estate office in Perryville, was named domiciliary administrator. From the order so entered, appellants bring this appeal.

For reversal, it is asserted first that the court erred in appointing Paul domiciliary administrator of Sherrod’s, estate “because such action constituted a denial of full faith and credit and was a collateral attack upon a prior Texas judgment.” It is also contended that the court erred in refusing to appoint Billy Williford ancillary administrator in accordance with § 62-3101 Ark. Stat. (1969 Supp.). We choose to first discuss the second point.

It is argued that Williford, as the Texas domiciliary administrator, should have been appointed under the provisions of Sub-section (3) of § 62-3101. It might first be stated that Sub-section (1) provides that a foreign personal representative, upon filing an authenticated copy of his domiciliary letters with the probate court of the county of proper venue, may be issued letters in this state. Subjection (3) provides as follows:

“Upon application by a foreign personal representative for the issuance of ancillary letters, preference shall be given thereto, unless the court finds that the appointment will not be for the best interest of the estate, in which event the court may order the issuance of ancillary letters to any person eligible under the provisions of Section 70 (§ 62-2201).”

It will be noted that the statute only provides that a foreign personal representative shall be given preference unless it is found that such an appointment would not be for the best interest of the estate. We are unable to say that the court abused its discretion in refusing to appoint Mr. Williford. While six of the seven children live in Texas, all of the assets of the estate, with exception of an apparent small amount of personal property in Bowie County, are located in Perry County, Arkansas. The testimony reflected that the distance from Texarkana to Perry County is approximately 200 miles (each way) and counsel for appellants mentioned that the property would likely have to be sold for the payment of debts. Of course, a person familiar with property values in Perry County and acquainted with persons who might be interested in purchasing realty or personalty, would be in a better position to handle a sale of such property than one who lived in Texas. It would also appear that only Mrs. Phillips and Mrs. Miller are particularly interested in having Mr. Williford appointed, since they are the only appellants. Whatever the status of Mr. Williford (which will be hereafter discussed) we are unable to say that the court was in error in holding that it would not be for the best interest of the estate that Williford be appointed.

As to appellants’ first point for reversal, we do not agree that the action of the court in appointing Mr. Paul domiciliary administrator constituted a denial of full faith and credit to the Texas judgment. In the first place, there is nothing in the record which shows that Williford was appointed domiciliary administrator by the County Court of Bowie County. While, in his application, for ancillary letters in Perry County, he states that he is attaching an authenticated copy of domiciliary letters, the authenticated copy of letters simply shows that Williford was granted letters of administration upon the estate of Sherrod on August 25 and qualified as required by law on August 27. The word “domiciliary” does not appear in the letters, nor is there anything in the record showing that there was a finding by the court that Sherrod was domiciled in Bowie County at the time of his death. No copy of the court’s order appears.

Counsel for appellee state that they agree with appellants that full faith and credit must be given to judicial proceedings of other states, but that no attack is being made upon the validity of the Texas appointment. It is simply asserted that the fact that Williford was appointed in Texas does not mean that he should likewise be appointed in Arkansas. Of course, if Mr. Paul had only been appointed ancillary administrator, there would be no need for further discussion. Since, however, the Perry Probate Court named him domiciliary administrator, further comment is necessary.

The mere fact that Williford was first named administrator does not mean that he was a domiciliary administrator.

V.A.T.S. Probate Code, § 6, deals with venue for the administration of estates of decedents. This section provides that letters testamentary or of administration shall be granted, inter alia, as follows:

“(b) If the deceased had no domicile or fixed place of residence in this State but died in this State, then either in the county where his principal property was at the time of his death, or in the county where he died.”

It is thus apparent that the mere naming of Williford as administrator of Sherrod’s Estate did not establish that Sherrod was domiciled in Bowie County — and the order of the Perry County Probate Court did not have the effect of denying full faith and credit to a prior Texas judgment.

Though the litigation is accordingly disposed of, it might be added that it has been held that the place of domicile at the time of death is a jurisdictional question of fact which is not conclusively established by appointment of an administrator. In the Florida case of Curtiss v. McCall, 224 So. 2d 354, the District Court of Appeal of Florida said:

“The issuance of the letters of administration is prima facie evidence that the court adjudicated its jurisdiction, but the full faith and credit clause of the Federal Constitution does not preclude a court in another state from investigating and determining the question of the decedent’s domicile at the time of death provided the party raising the issue is not estopped by the doctrine of res judicata by having previously unsuccessfully contested the issue in the court of another state. The record before this Court does not reflect any contest of the issue of residence or domicile ever raised in either state.”

In Lewis v. United Order of Good Samaritans, 182 Ark. 914, 33 S. W. 2d, 53, though not involving appointment of administrators, we made a similar comment relative to jurisdiction:

“There is no conflict in the authorities as to the above statement of the law. It will however be observed that the foreign judgment is placed on the same footing as domestic judgment as regards the merits of the claim, but ‘the clause of the Federal Constitution which requires full faith and credit to be given in each State to the records and judicial proceedings of every other State applies to the records and proceedings of courts only so far as they have jurisdiction, and the courts of one State are not required to regard as conclusive any judgment of the court of another State which had no jurisdiction of the subject or of the parties. It follows therefore that the jurisdiction of a court rendering a judgment or decree is always open to inquiry under proper averments, where its conclusiveness is questioned in a court of another State, and when a defendant is sued in the court of his domicile on a judgment obtained against him in another State he may show that the court of such other State did not have jurisdiction to render the judgment against him.’ ”

It will be remembered that the Perry County Probate Court entered an order on October 1, 1963, finding Sherrod incompetent, and this at a time when'no one questions but that Sherrod was a resident of, and domiciled, in this state. We know that Sherrod was still incompetent at the time of his death and this fact was testified to by Mrs. Miller; the guardianship was also still in effect, and in fact, as previously mentioned, the final settlement of the guardian, Mrs. Tread-way, was approved on September 1, 1969, the court directing that the assets of the estate then be turned over to Mr. Paul.

We have held that to effect a change of domicile from one locality or state to another, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it and there must be a new domicile acquired by actual residence in another place or jurisdiction, with intent of making the last acquired residence a permanent home. Weaver v. Weaver, 231 Ark. 341, 329 S. W. 2d, 422, and cases cited therein. Here, there is no showing that there was any intention on the part of Sherrod to establish a domicile in Texas; to the contrary, Sherrod had been held incompetent before he was taken to Texas in 1963 and the record reveals no change in that condition prior to his death in 1969.

Affirmed.

      The Court also found that Sherrod was neither mentally or physically able to be present in Court.

      Two live at Texarkana, Texas, one at Dallas, one at San Antonio, one at Eagle Pass, one at Randolph Air Force Base, and the seventh lives at Texarkana, Arkansas, according to the petition filed by the Treadway attorneys. Mrs. Miller said that none of the heirs lived in Arkansas.

      Mrs. Treadway’s final accounting as guardian was also approved on September 1, 1969. Appellants were, of course, present with their attorney, and counsel and parties agreed that the accounting fairly and substantially accounted for all personal property passing through the hands of the guardian. The inventory reflects the real property to be valued at $12,500; that there is $588.21 in the Perry County Bank; and personal equipment (cattle, mules, trucks, jeep, tractor, tools) amount to $3,205.40; household furniture and furnishings are valued at $100. Apparently, all of this property was in Perry County with the possible exception of the furnishings and tools. Mrs. Miller testified that there was personal property of the estate at the home of Mrs. Treadway in Bowie County.

      The term “County Court” and “Probate Court” are synonymous and denote county courts in the exercise of their probate jurisdiction. V.A.T.S. Probate Code, § 3, Sub-Section (e).

      In 3.4 C. J. S. Executors and Administrators § 989, we find:
      “Where different administrations are granted in different jurisdictions, that which is granted in the jurisdiction of decedent’s last domicile is termed the principal or domiciliary administration and any other administration in any other state or country is termed ancillary.
      “The right of granting administration is not confined to the state or country in which decedent last dwelt, but it is very common and often necessary for administration to be taken out elsewhere. Where different administrations are granted in different jurisdictions, that which is granted in the jurisdiction of decedent’s last domicile is termed the principal or domiciliary administration, and any other administration granted in any other state or country is termed ‘ancillary,’ and this without regard to which is granted first.”
      Of course the petition for administration was first filed by counsel for appellee in the Perry Probate Court, but this fact has no legal significance.

      Vernon’s Annotated Texas Statutes.


author: George Rose Smith, Justice.

text:
    Clyde M. YOUNG v. FARMERS BANK & TRUST CO. et al
    5-5175
    453 S. W. 2d 47
    Opinion delivered April 27, 1970

      Mitchell Moore and Eugene Reeves, for appellant.

      Reid, Burge, Prevallet & Brewer, for appellees.
   George Rose Smith, Justice.

This case, now a three-party controversy, began as a simple action at law brought by one of the appellees, Farmers Bank & Trust Company of Blytheville, upon a $13,000 promissory note executed in 1963 by the sole defendant, the appellant Clyde M. Young, and co-signed by Clyde’s brother Johnny as an accommodation maker. The bank, upon filing the suit, attached Clyde’s interest in certain land. The validity of the attachment depends upon whether Clyde is still liable on the note, which is the main issue in this court.

Clyde defends the suit on the theory that the bank released him from liability on the original note by accepting in its place a substitute note for $13,000, plus $850 interest, executed solely by Clyde’s brother Johnny. Before this action was filed Johnny Young went bankrupt. His trustee in bankruptcy, the appellee Frye, intervened in the case, asserting that Johnny paid Clyde’s debt to the plaintiff bank and that Frye as trustee is therefore entitled to judgment against Clyde. Such a judgment would presumably become a prior lien against Clyde’s land if the bank’s attachment fails.

The circuit judge heard the case without jury. The court sustained the Youngs’ theory of the case, holding that Johnny’s trustee is entitled to judgment against Clyde for the amount of the debt and that the bank no longer has any claim against Clyde. The court dismissed the bank’s writ of attachment, but the court denied Clyde’s claim for damages resulting from the assertédly wrongful attachment. Clyde appeals from the latter ruling, and the bank brings up the main issue by cross appeal.

We take up the cross appeal first. The bank contends that there is no substantial evidence to support the trial court’s finding that the bank effectively discharged Clyde from liability to the bank by accepting Johnny as its sole debtor. In making that argument the bank insists that there was no consideration for its asserted release of Clyde’s liability.

Upon the proof the trial court’s judgment must be sustained. We need not go into nice distinctions about payment, accord and satisfaction, and novation. It is enough to say that as a matter of substantive law a creditor is at liberty to accept one debtor in place of another if the creditor chooses to do so. As Corbin puts it: “When two persons are jointly indebted to a third, the creditor may accept the note of one of them either as a mere collateral security or as a substituted contract and satisfaction. If the latter is found to be the fact, the co-obligor is at once discharged by novation. ... If a promissory note is given and accepted as immediate discharge of a prior claim and in substitution for it, there is no revival of the original right even though the note is never paid.” Corbin on Contracts, § 1293 (1962).

The basic question is one of intention. “There seems to be no doubt that an accord agreement may itself operate as a satisfaction of or substitute for the original obligation if it can clearly be shown that it was intended and accepted as such.” Davis, “The Executory Accord: Effect of New Agreement on Original Obligation,” 12 Ark: L. Rev. 160, 165 (1958). That was the effect of our holding in Mama v. Rout, 144 Ark. 641 (mem.), 215 S. W. 610 (1919). See also Restatement, Contracts, §§ 418, 419, and 428 (1932).

There is ample proof to show that the bank accepted Johnny Young as its sole debtor. This suit was brought upon a $13,000 note dated June 27, 1963, signed by Clyde and Johnny. On July 29, 1961, the bank, having reason to regard Johnny as the sounder financial risk, accepted Johnny’s note for $13,850 as evidence of the debt plus interest. On the following day the bank entered that $13,850 payment as a credit to Clyde’s ledger account, reducing that account to exactly zero. Clyde is not shown to have been carried ever again on the bank’s ledgers as a debtor of the bank.

The bank put the original $13,000 note in a file along with Johnny’s $13,850 note and now insists that the former stood as collateral for the latter. Even so, the bank’s action in allowing Johnny to pledge the older note as collateral indicates the bank’s recognition of Johnny as the owner of the older instrument. Moreover, when Clyde later sold some equipment in 1966 and sent the bank a cashier’s check for $3,000, payable jointly to the bank and to Johnny, the bank credited the payment to Johnny’s account only and made no notation of a part payment upon the old $13,000 note.

We cannot accept the bank’s insistence that Johnny’s series of renewal notes were mere paper transactions, having no substantive effect. When the bank accepted Johnny’s note for $13,850, it reported the $850 in interest as income on its federal tax return. When that note was in turn superseded by the acceptance of a check for $14,378.60, the bank again reported the difference of $528.60 as taxable income. Finally, the entire accumulated debt was included by the bank in 1965 in a consolidated note executed by Johnny for $190,000, to secure which Johnny gave a real estate mortgage in which his wife joined. In a case of this kind the presence of a valuable consideration is a factor tending to stiow that the transactions had substantive effect rather than being mere exchanges of pieces of paper. Our narration of the events is sufficient to show an abundance of substantial evidence to support the trial judge’s finding that the bank released Clyde from liability. On cross appeal the judgment is affirmed.

By direct appeal Clyde questions the trial court’s denial of his claim for damages for wrongful attachment, He does not, however, ask for compensatory damages. Instead, he seeks to recover his travel expenses in attending the trial and, primarily, an attorney’s fee. Counsel candidly concede that our prior decisions disallow such costs of litigation in suits involving a wrongful attachment. Romer v. Leyner, 224 Ark. 884, 277 S. W. 2d 66 (1955); Ark. Nat. Bank v. Stuckey, 121 Ark. 302, 181 S. W. 913 (1915); Patton v. Garrett, 37 Ark. 605 (1881). We are asked to overrule those decisions.

There is much to be said in favor of the allowance of attorneys’ fees incurred in the defense of attachments that prove to have been wrongful. The states are divided about thirty to four .in favor of the allowance. See annotations, 25 A. L. R. 579 (1923) and 65 A. L. R. 2d 1426 (1959), where the cases are cited. We are not averse to re-examining the question should it be raised in a case involving an attachment issued after this opinion becomes final.

This, however, is not an appropriate occasion for such a re-examination of the law. From the outset of this litigation it has been clear that Clyde is liable either to the bank or to the trustee in bankruptcy. As a nonresident of this state Clyde has been subject from the beginning to having his property attached by one claimant or the other. Hence Clyde was destined all along to suffer the loss of his property to one of the claimants, so that the employment of an attorney was never likely to bring the case to a successful conclusion from Clyde’s point of view. Consequently we do not regard this case as one calling for a reconsideration of our prior decisions upon the point at issue.

We should add that we have not considered certain matter in the appellant’s reply brief, to which the bank has objected by a motion to strike. The inclusion of the objectionable matter was contrary to our rules, not only because it is not in the record but also because, even if it were, a deficiency in the appellant’s abstract cannot be corrected in his reply brief. Reeves v. Miles, 236 Ark. 261, 365 S. W. 2d 460 (1963).

Affirmed.


author: Lyle Brown, Justice.

text:
    Wells R. (Bob) McCALL, Jr. v. Curtis G. LIBERTY et al
    5-5240
    453 S. W. 2d 24
    Opinion delivered April 27, 1970

      Little &r Lawrence and Duty & Duty, for appellant.

      Paul Jackson and Lewis Epley, for appellees.
   Lyle Brown, Justice.

The appellee, Curtis Liberty, obtained judgment for injuries received when a pickup truck driven by appellant, Wells R. (Bob) McCall, Jr., overturned in a sharp curve. The court found that the relationship of host-guest existed between the parties and submitted - the case on the issue of willful and wanton misconduct. Ark. Stat. Ann. § 75-9IB (Repl. 1957). The sole point of error here advanced is that there was no substantial evidence of such conduct on appellant’s part.

The accident occurred a few miles east of Eureka Springs on State Highway 62. These grown young men were life-long friends and resided not far from the scene of the mishap. In driving by appellee’s home that afternoon, appellant noticed appellee was building a fence and stopped to visit. The two men worked together on the project until well after dark and then decided to obtain some beer at a tavern a few miles away. They left the tavern about midnight, the first mission being to take appellee home. Appellee did not reach his destination because of the mishap. He did not testify to any of the incidents we shall shortly summarize because severe brain damage obliterated his memory of the events. The abruptness of the curve, the tremendous speed of the vehicle, the midnight hour, appellant’s drinking, and his familiarity with the curve — those were the evidentiary factors relied upon by appellee. We shall list and interpret them in the light most favorable to appellee:

(a) The posted maximum speed for the curve was 20 mph. Appellant’s home was not far from the scene of the accident and he testified that he traveled this particular stretch of highway approximately five times per week. He should certainly have been familiar with the curve.

(b) There was testimony that in the general area of the scene of the accident there were other highway markers indicating numerous curves in the road. That fact should have alerted even a tourist that caution would be required in the area.

(c) The truck left 186 feet of skid marks on the pavement and 82 feet on the shoulder of the road. It knocked down a highway curb pole, turned over twice, slid on its top 51 feet, landed on its wheels, skidded 36 feet, and went through a fence to its final resting place. The truck traveled 355 feet from the point where the skid marks originated. A state policeman testified that the evidence indicated appellant was driving a minimum speed of 70 miles per hour. Under the above facts a jury could have found he was traveling considerably in excess of that speed.

(d) A state policeman. testified that later in the morning he smelled alcohol on appellant’s breath when the officer was driving him home from the hospital. The policeman did not know how much appellant had drunk prior to the accident. However the fact that he had been drinking could be considered by the jury along with the other facts which indicated recklessness on the part of appellant.

(e) Appellant told the patrolman that he wished the patrolman had stopped him earlier because then the accident would not have occurred. Appellant, in making that statement, was referring to the fact that the policeman had seen him driving on the wrong side of the road at a high rate of speed on the way to the tavern. However, after McCall pulled in at the tavern the officer decided to overlook the incident.

From a review of the recited evidence and the inferences reasonably deducible therefrom, we conclude that the trial court acted properly in submitting the question of willful and wanton misconduct to the jury. It is only when fair minded men could not differ as to the conclusions to be drawn from the evidence that a plaintiff is entitled to an instructed verdict. Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 (1959). We have been cited to no host-guest case wherein'the facts are patently similar to the facts in the case at bar. That is the reason we have many times said that the issue of willful and wanton disregard has to be resolved from the facts and circumstances of each individual case. McAllister . v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40 (1947). However, we think the general test is met in the case before us, in that there was sufficient evidence of “a conscious failure to perform a manifest duty in reckless disregard of natural or probable consequences to the life or property of another.” Carden v. Evans, 243 Ark. 233, 419 S. W. 2d 295 (1967); Lee v. Watkins, 246 Ark. 15, 436 S. W. 2d 479 (1969).

Affirmed.


author: John A. Fogleman, Justice.

text:
    Gean LEWIS v. J. C. LEWIS
    5-5216
    453 S. W. 2d 22
    Opinion delivered April 27, 1970

      G. E. Snuggs, for appellant.

      Berl Anthony, for appellee.
   John A. Fogleman, Justice.

Appellant, the wife of appellee, filed a petition in chancery court for support and maintenance and for an order restraining appellee from harming her. Appellee answered and filed a counterclaim for divorce on the grounds of personal indignities.

The immediate impetus for these actions was an occurrence on August 3, 1969, when, according to appellant, appellee became drunk and tried to kill her. She testified that the neighbors called the police who arrested appellee and that appellee was subsequently fined $170 for drunkenness and disturbing the peace and sentenced to 30 days in jail for assault upon her. Appellee states that he was falsely arrested (urging this as one of the causes for divorce) but admits that “he was arrested and fined $175 and put in jail.”

In support of her petition appellant testified that appellee frequently drank intoxicating liquors and became drunk and cursed her and her daughter, spent most of his earnings on liquor, failed to support appellant and her daughter, and that as a result of his assaults upon her, occurring over the last year and a half, she was bruised and sore all over her body. She also stated that after appellee got out of jail he had left her and was living away from her. While appellee denied all of these accusations except that he was now living away from her, he stated that he had “quit drinking, but before he quit he bought liquor from nearly every liquor store in El Dorado, but principally from ‘Guy’s’ . . . and from ‘Michael’s’ . . ,”

Appellee, in supporting his complaint for divorce, testified that appellant cursed and fussed at him constantly, bought things without his consent, incurred indebtedness which she did not pay and checked on him at work. He also said that she had assaulted him. Appellee’s fellow employees corroborated his testimony that appellant had checked on him at work and had fussed at him and cursed when she came to a job at which he was employed. Billy Martin, a co-worker and friend of appellee, testified that he had been to the parties’ home on three occasions and each time had heard appellant cursing and fussing with appellee. He further testified that appellant was a jealous person and “has a very great interest in the defendant, and would do anything to help him out.”

Appellant denied the accusations of appellee and then offered the testimony of a television repairman who testified that he had been called to the home of the parties two or three times to make repairs, that each time appellee was drunk or drinking and used “vile and indecent language” towards and about the appellant and her daughter in their presence.

The court’s final decree granted appellee an absolute divorce on the grounds of personal indignities and dismissed appellant’s petition for want of equity.

Although appellant urges several points for reversal, it is only necessary that we consider the issue of recrimination since this appeal is determined by our disposition of this point. Assuming that the conduct of appellant was such as to warrant granting appellee a divorce, the question arises as to the circumstances under which the doctrine of recrimination is to be applicable. It seems that it is not necessary for the court to reach the issue whether each party has proved a right to a divorce. The rule as applied in Arkansas is stated in Cate v. Cate, 53 Ark. 484, 14 S. W. 675, thusly: “But when the parties are in pari delicto — the conduct of each being a constant aggravation to further offense by the other — the courts ought not to interfere at the instance of either. * * * It is not necessary to recapitulate the evidence and determine whether the conduct of either would be sufficient to warrant a divorce, provided the other was less guilty. It is immaterial, for we find them about equally in fault, and an application of the legal principle above set forth to the facts of the case, which we have examined with care, leaves neither in a position to demand the interposition of the court.” See Narisi v. Narisi, 229 Ark. 1059, 320 S. W. 2d 757; Widders v.Widders, 207 Ark. 596, 182 S. W. 2d 209.

The rule stated above seems at first blush somewhat inconsistent with the doctrine of comparative rectitude applied in Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41; and Ayers v. Ayers, 226 Ark. 394, 290 S. W. 2d 24. In both Ayers and Longinotti, the fault of each party was examined and the party less at fault was granted a divorce even though both parties had established a right to a divorce. However, the rule in Arkansas is that recrimination is applied only where the parties are equally at fault. When the parties are found to be equally at fault, it is not thereafter necessary to determine whether either or both have proved a right to a divorce.

If, indeed, appellee produced evidence sufficient to show that he had grounds for divorce, the doctrine of recrimination is applicable, because evidence that his fault was at least equal to appellant’s culpability preponderates. As we view the evidence, it discloses that even though appellant did not ask a divorce, grounds equal in degree and validity to those of appellee are shown at least as clearly as are his grounds. Upon this state of the record, appellee is not entitled to a divorce.

The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

George Rose Smith, J., not participating.

      This testimony was apparently given a “little over a week” after apoellee was arrested.


author: John A. Fogleman, Jusdce.

text:
    Leroy THOMPSON, Jr. v. STATE of Arkansas
    5457
    453 S. W. 2d 41
    Opinion delivered April 27, 1970

      Philip Kaplan, for appellant.

      Joe Purcell, Attorney General, for appellee.
   John A. Fogleman, Jusdce.

Appellant’s sentence to four years’ imprisonment for burglary and grand larceny, fixed on November 11, 1967, was suspended on the same date. Appellant was placed on probation for a period of two years. On July 8, 1969, the suspension was revoked and appellant was ordered committed to the Department of Corrections for two years for burglary and two years for grand larceny. He appeals from this judgment.

Appellant’s contentions are that the revocation was based solely upon his failure to report to the circuit court’s probation officer for a period of five or six months and that the reasons given by the court for its action constituted an arbitrary and capricious abuse of discretion.

We have said that suspension of a sentence is a privilege extended, in the exercise of judicial discretion by the trial court, upon appropriate conditions to one found guilty of a criminal offense. We have also said that revocation of a suspension for failure of the offender to comply with the conditions imposed is in the nature of revocation of this privilege lying within the sound judicial discretion of the court that granted it. Smith v. State, 241 Ark. 958, 411 S. W. 2d 510.

The probation officer, Jeff Davis, testified that appellant had failed to make required monthly reports for a period of six months beginning January 13, 1969. During that period, the officer received no communication from appellant or any member of his family. Mr. Davis enlisted the aid of a deputy sheriff, who reported that appellant had removed from his previous address, and efforts to locate him had proved unavailing. Appellant’s mother brought him to Davis’ office only after six months had elapsed, all efforts to locate appellant had been unsuccessful, and a warrant for him had been issued. The mother promised that her son would thereafter report regularly if placed under her supervision. She repeated this promise to the court at the hearing upon the petition to revoke the suspension, stating that she had enough control over appellant to assure that he would do so. She professed ignorance of his failure to report, although he was living in her home during the entire period of his delinquency.

Appellant offered no justifiable excuse for his failure to report. He stated that he had been injured in an automobile wreck. He admitted that he did not come to the probation officer because he had been shot in his elbow and hip on a date he could not recall. He admitted ability to use a telephone, but claimed ignorance of Davis’ telephone number.

We find no arbitrary or capricious action or abuse of discretion on the part of the circuit judge. He stated his concern about the matter and his reluctance to send appellant to prison. Yet, recalling that 200 persons were on probation, he felt that failure to do sp would establish a precedent which would effectively undermine his entire probation system. Such deliberate weighing of the factors is the antithesis of abuse of judicial discretion.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Georgea Black McKINLEY v. John H. HILLIARD et al
    5-5185
    454 S. W. 2d 67
    Opinion delivered April 27, 1970
    [Rehearing denied June 22, 1970.]

      H. B. Stubblefield, for appellant.

      John Moncrief, for appellees.
   Conley Byrd, Justice.

Appellant Georgea Black McKinley, as the owner of E)A Sec. 26, T. 7 S, R. 3 W, brought this action against appellees John H. and Nell E. Hilliard, together with their tenants and contractees, to prevent an alleged encroachment along appellant’s eastern boundary. Appellees, as the owners of WJÍ NWM and NH SWM of Sec. 25, T. 7 S, R. 3 W, defended on the basis that the former owners of the two tracts had recognized and had acquiesced in a painted yellow line surveyed and marked by a former county surveyor, F. M. Quertermous, for appellant’s father and predecessor in title. At issue between the parties is a triangular three acre piece of property commencing at zero at the northern terminus of the common boundary and increasing in size until it reaches some 80 feet in width at the southern terminus of appellees’ property.

The Chancellor found the issues for appellees and dismissed appellant’s complaint. For reversal appellant contends:

1. The lower Court’s decree does not locate or identify the line in dispute; and
2. The evidence shows the true dividing line to be as established by L. C. Keefe.

The record shows that L. C. -Keefe, appellant’s surveyor, made his survey using a transit and plumb bob on his chaining. He commenced his survey on the range line between township two and three and surveyed 5361.1 feet west to an iron stob at the northeast corner of section 26 and the northwest corner of section 25. This was 17.7 feet over the 80.96 chains shown on the original government plat. Mr. Keefe found no monument at the southeast corner of section 26 so he measured west a distance of 5336.8 feet from the range line, being the distance shown on the U. S. Government plat as the distance across the southern boundary of section 25, to find the southwest corner of the N)4 SWÁ of section 25. When Mr. Keefe con-, nected his two points, he determined that the common boundary between sections 25 and 26 from north to south ran 15 minutes east of south in reference to the range line.

Appellee John H. Hilliard and a number of other witnesses testified that appellant’s father caused F. M. Quertermous, the County Surveyor, to survey the lands in 1934 and to mark the boundary lines with yellow paint. Charles F. Mattmiller testified that a copy of the Quertermous survey now in his possession had been delivered to his father in 1935 by appellant’s father and that prior to World War II he assisted his father in maintaining and repainting the yellow line. The copy of the plat certifies that Quertermous established the corners shown on the plat and that the lines were painted yellow.

We agree with the trial court that the Keefe survey leaves much to be desired. He readily admitted that his survey of the boundary between sections 25 and 26 did not line up with his survey of the common boundary between sections 23 and 24 immediately to the north. His explanation of the variation between the two lines was that it is not accepted land surveying practices to determine lines and points in a section to the south by a line run from a point in a section to the north. If Mr. Keefe had corroborated his testimony in this respect as to the particular boundary in controversy by reference to field notes in the County Court House, the State Land Office in Little Rock or the General Land Office in Washington, D. C., his testimony would be much more persuasive. Otherwise the probative value of Mr. Keefe’s testimony is somewhat destroyed by his admission that his plumb bob method of chaining was of such accuracy that he found overages on every measurement made. The question arises as to why he found no overage on the south line across section 25.

In Clark on Surveying and Boundaries, 3rd § 9, the surveyor’s function is stated in this language:

“As has been pointed out heretofore it is not the surveyor’s responsibility to set up new lines except where he is surveying heretofore unplatted land or subdividing a new tract. Where title to land has been established under a previous survey, the surveyor’s duty is to solely locate the lines of the original survey. He cannot establish a new corner, nor can he even correct erroneous surveys of earlier surveyors. He must track the. footsteps of the first.”

Prior sections in Clark refer the reader to the Bible, Deuteronomy 19:14 and 27:17.

The order of importance of guides to the location of boundaries is stated in Ewart v. Squire, (4th Cir. 1916), 259 F. 34, in this language:

“In ascertaining location the guides in the order of importance are: (1) Natural objects; (2) artificial objects; (3) adjacent boundaries; (4) courses; (5) distances; (6) quantity. But the rule is flexible, and it does not control against the intention of the parties as shown by the description taken as a whole. . . . The order of the importance of the guides is manifestly the more flexible when the description of subdivisions of a tract is ascertained by protraction and not by actual survey.”

Under the circumstances here involved, it appears that appellant’s surveyor not only disregarded the evidence of earlier surveys, but also gave no importance at all to courses over distances in trying to retrace the steps of the original surveyors. Therefore upon the whole record, we cannot say that the Chancellor’s refusal to follow the Keefe survey is contrary to the weight of the evidence.

Neither do we find any merit in appellant’s argument that the trial court erred in fixing the boundary along the line of the Quertermous survey. Contrary to appellant’s argument, the Quertermous survey shows that the boundary is tied to adjacent boundaries and other artificial monuments sufficient to locate the common boundaries between sections 25 and 26 — i. e., assuming that such boundaries and monuments still exist and there is nothing in the record to show the contrary.

Affirmed.


text:
    Samuel T. FREEMAN v. Ralph ROBERTS
    5495
    453 S. W. 2d 21
    Opinion delivered April 27, 1970

      L. W. Rosteck, for appellant.

      Joe Purcell, Attorney General for appellee.
   Conley Byrd, Justice.

Appellant Samuel T. Freeman’s life conviction of the murder of one Dorothy Lee Owens was affirmed by this court (Freeman v. State, 240 Ark. 915, 403 S. W. 2d 61) in 1966.

For reversal of the trial court’s denial of post conviction relief appellant urges that his constitutional rights under the 14th amendment were violated (1) “in that the purported confession was illegally obtained due to his physical and mental state,” and (2) the alleged confession was neither free nor voluntary, and defendant was not advised of his constitutional rights before making or signing same.

Review of the record convinces us that there is no merit in appellant’s contentions. Testimony at the hearing includes a lengthy examination of appellant, the three Little Rock police officers to whom the confession was made and the two attorneys who represented appellant at the murder trial.

Briefly, the chronology of December 3, 1964, the date of his arrest is as follows: about 1:00 P.M., appellant delivered himself into the hands of the White County sheriff at Searcy, who telephoned the Little Rock police to come get appellant. Two Little Rock officers went for him about 5:00, and interrogation at Little Rock started somewhere between 7:00 P.M. and 8:00 P.M. and ended before 1:00 A.M. During that tíme a four-page handwritten statement was taken by the officers as appellant talked, (written in part by one officer who got writer’s cramp, and completed by a second officer) and a visit was made by appellant and the officers to the murder scene where appellant reenacted the murder. Appellant does not deny signing the statement, nor signing a comprehensive waiver, also handwritten, on the back page of his statement.

Appellant’s principal complaint is that he was denied food and water. The officers all testified that he didn’t ask for food, and that water and other liquids were available. The gist of appellant’s and the officers’ testimony is that appellant, wanted to get his story told, and, as one officer stated, “1 never met a more cooperative prisoner under the conditions that he was under than Sam Freeman was.”

We find nothing in the record to indicate that appellant’s confession was anything other than freely and voluntarily given or that he was not fully advised of his constitutional rights, even though this occurred prior to Miranda v. Arizona, 384 U. S. 436, 16 L. ed. 2d 694, 86 S. Ct. 1602, 10 ALR 3rd 974 (1966).

Affirmed.


author: Frank Holt, Justice.

text:
    Arch FAUCETT v. CITY OF ATKINS
    5-5193
    453 S. W. 2d 64
    Opinion delivered April 27, 1970

      Williams if Gardner, for appellant.

      Laws if Schultze, for appellee.
   Frank Holt, Justice.

On November 5, 1968, a special election was conducted by the appellee, in conjunction with the general election, at which the issues of annexing a contiguous 720-acre tract of land to the appelleé city was submitted. The election resulted in a vote favorable to annexation. The county court, after a hearing, caused an order to be entered on December 31, 1968, granting the petition for annexation. From this order appellant appealed to the Pope Circuit Court where the cause was tried de novo on August 27, 1969, resulting in an affirmation of the order for annexation. From this latter ruling comes the present appeal.

Appellant asserts two points for reversal: (1) The circuit court erred in finding that the lands sought to be annexed are a natural extension to the City of Atkins necessary for the proper and orderly growth of said city; and (2) the circuit court erred in ordering the annexation because the city council’s method of submitting the question to the voters was void.

I

The rules controlling our appellate determination have been firmly and precisely delineated on many prior occasions. Since the vote of the city makes a prima facie case as to the propriety of annexation [Dodson v. Mayor and Town Council, Fort Smith, 33 Ark. 508 (1878)], the burden of proof in showing that the territory should not be annexed is upon the remonstrant at both the county court hearing and the circuit court trial de novo. Planque v. City of Eureka Springs, 243 Ark. 361, 419 S. W. 2d 788 (1967); Walker v. City of Pine Bluff, 214 Ark. 127, 214 S. W. 2d 510 (1948). By the very nature of this type of litigation, there is wide latitude for a divergence of opinion; consequently, a high degree of reliance must be placed upon the findings of the trial judge. See Louallen v. Miller, 229 Ark. 679, 317 S. W. 2d 710 (1958). Our task, as specified in our cases, is solely and simply to ascertain whether any substantial evidence justifies these findings which, on appeal, must be given the same weight and verity as a jury verdict. Louallen v. Miller., supra, and Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317 (1961). Thus, we do not here decide the case by determining the preponderance of the evidence [Walker v. City of Pine Bluff, supra], but rather we must affirm if there was any substantial evidence presented which supports the judgment of the trial court, even though there might be convincing evidence from which the trial court could have found contra — in which case we would have likewise been bound to affirm. It is therefore unnecessary to compare the testimony of each witness; it is sufficient to simply state the finding of the trial court and note that evidence which substantially supports it.

In its “Findings of Fact and Conclusion of Law,” the trial court states:

“3. That the territory sought to be annexed is contiguous to the present city limits of the City of Atkins, and is a natural extension of the city limits of the City of Atkins; that there are presently certain parts of the area which are platted and developed as urban homesites; that the persons in the area are presently receiving all the benefits and utilities available to the residents of the City of Atkins with the exception of sewer service which is not presently available to the major portion of that part of the City of Atkins south of the Missouri Pacific Railroad tracks; that the annexation of the described area to the City of Atkins will benefit both the City of Atkins and the residents of the annexed lands; that the lands are a natural extension of the City of Atkins and are necessary for the proper and orderly growth of the city and represent the actual growth of the town beyond its present legal boundaries; and that the described areas should be annexed to the City of Atkins, Arkansas.”

There is ample and substantial evidence to support this finding and to comply with the often reiterated conditions for annexation enunciated in Vestal v. Little Rock, 54 Ark. 321, 16 S. W. 291 (1890):

City limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be bought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents, or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear such value was enhanced on account of their adaptability to town use.
“* * * City limits should not be so extended as to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses.”

These examples or conditions are in the disjunctive. Louallen v. Miller, supra. There we said annexation of land is proper when the proof sufficiently complies with any one of these conditions.

It is not disputed that the territory to be annexed is contiguous to the City of Atkins. Testimony was adduced that the city has furnished the area proposed to be annexed with services afforded to the city’s residents, such as fire protection and water, with the exception of a sewage system. Plans for an extension of this latter service have been tentatively designed. The city maintains a park and two streets in this contiguous territory. It appears there is presently a small part of the area platted and developed as urban home-sites. In fact, some new homes have been built in this territory during the past four or five years. From the testimony it appears that upon annexation fire insurance rates would significantly be decreased; power and telephone rates would also be lowered. There was evidence that the annexation of this contiguous area is susceptible and necessary to the orderly growth of the appellee city^

Appellant insists that City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 438 (1948), constitutes a precedent for, and is decisive in, the present case. With this we agree; however, we disagree as to the interpretation and application of that precedent to this case. In Newport the trial court concluded that the facts presented warranted a denial of the petition for annexation. On appeal, we affirmed holding that there was substantial evidence to support this finding. However, we also noted that if the circuit court had found to the contrary, there would have been substantial evidence to support such holding. In that event, as in the case presently before us, we would have likewise affirmed.

Testimony was adduced by the appellant, the only remonstrant, to the effect that the lands sought to be annexed are presently used primarily for agricultural purposes. However, these lands were “not shown to be valuable for that purpose only” so as to bring them within the conditions precluding annexation as specified in Vestal v. Little Rock, supra. See Louallen v. Miller, supra, and Vogel v. Little Rock, 55 Ark. 609, 19 S. W. 13 (1892). In the case at bar most of appellant’s 140 acres of farmlands were excluded from the annexation; however, his home, barn, and headquarters were within the area to be annexed. As to benefits appellant receives from the city prior to annexation, he testified: “I said we had everything they had in the city but sewer. That’s what I said.”

Appellant argues that the territory to be annexed is mostly vacant since it has only approximately 55 houses and 200 inhabitants. In Walker v. City of Pine Bluff, supra, we noted that no particular weight is to be given to the consideration that the territory to be annexed is primarily vacant since “a growing city * * * could hardly be expected to expand into territory already covered by houses.” There was testimony by the mayor that Atkins is a growing city, although at a slow rate, while most small towns in Arkansas have experienced a decrease in population. Appellant contends there is considerable vacant property within the city limits of Atkins which has a population of 1,695. As to vacant property within city limits, in Louallen v. Miller, supra, we held that “[ajlthough the existence of these vacant lots is a circumstance which might have been weighed by the trial judge, it has never been considered controlling by this court.” In the case at bar there appears no reason why it is not feasible and practicable for the contiguous area and the present City of Atkins to become a unity.

II

In his second point for reversal, appellant urges that the city council’s method of submitting the question of annexation to the voters of the City of Atkins was improper and void. This contention is premised primarily upon two considerations: (1) There was neither a resolution nor an ordinance prepared for, read to, or voted upon by the council, nor even a motion properly adopted by the council to submit the question of annexation to the voters of Atkins; and (2) the minutes of the city council reflect that Ordinance No. 280 related to the reorganization of voting wards; whereas, when placed on the ballot, Ordinance No. 280 referred to the question of annexation.

Again we must reiterate that, since these issues substantially involve determinations of fact, reliance will be placed on the judgment of the trial court. In arguing the first enumerated aspect of this contention of error, appellant invites our attention to Batesville v. Ball, 100 Ark. 496, 140 S. W. 712 (1911). Conceding that Batesville holds that a formal ordinance is not necessary to submit the question to a vote by the people, appellant would distinguish it from the instant case by arguing that here the council minutes, coupled with the confused testimony of various councilmen, establish that nothing more than a motion to prepare an ordinance for annexation was ever passed by the council. We cannot agree. There was testimony that the ordinance was drafted and properly acted upon. Furthermore, the minutes reflect that the annexation ordinance was read three times and a unanimous vote of approval was recorded. We hold there was substantial evidence that an ordinance, constituting the city council’s consent to annexation, was properly enacted.

The second aspect of this contention of error is likewise without merit. The trial court found that:

“The error in the numbering of the ordinance of the City Council calling the election was not a material error and did not cause any confusion in the minds of the voters since the notice of the election and the ballot title both referred to the same ordinance number.”

The evidence supports this conclusion. There was no testimony adduced, either from the councilmen regarding the passing of the ordinance or from any residents of the City of Atkins with respect to casting their votes, that this misstatement of the ordinance number was confusing or gave rise to the impression that a reorganization of the wards within the city, instead of the proposed annexation, was being voted upon. In fact, Mr. Dallas Swain, City Recorder, testified that he was probably the only person conscious of this particular error. Each of the councilmen called as a witness testified that he was aware of the substance of the ordinance when voted upon despite whatever number may have been assigned to it. As to the voters, there could not have been any confusion since the ballot presented to them fully specified the nature of the issue and was not identified simply by number.

Affirmed.

Brown and Byrd, JJ., dissent.


text:
    CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. v. Laverne GRAY, Adm’x
    5-5230
    453 S. W. 2d 54
    Opinion delivered April 27, 1970
    [Rehearing denied May 18, 1970.]

      Wright, Lindsey ir Jennings, for appellant.

      Bill Davis and Brown, Crumpton, Prewett ir Dickens, for appellee.
   Frank Holt, Justice.

This is a railroad crossing accident case in which appellee’s husband, the decedent, was fatally injured. A jury assessed damages at $782.37 for decedent’s estate, $21,000 for his next of kin, and $1,200 for the appellee individually. From that judgment comes this appeal.

The case was submitted to the jury principally upon two theories of liability by the appellant: one, that appellant’s employee and co-defendant, Dennis Chadwick, was negligent in failing to maintain a proper lookout as fireman on the train involved in this accident; two, that the railroad crossing was abnormally dangerous as defined in AMI No. 1805 and, therefore, the appellant was negligent in failing to provide motorists with special warnings of approaching trains.

The accident occurred on South Jackson Road which is a curving, hard surface, twenty-foot-wide double lane road running south from El Dorado for approximately five miles where it intersects U. S. Highway No. 167. It crosses the appellant’s tracks at two points. The accident occurred at the southernmost point which was approximately one mile from the highway intersection. There the road crosses appellant’s single track at a right angle with the track running generally east and west. The appellee’s decedent approached the crossing from the north. From this direction the road is straight and level to the crossing for a distance of three-tenths of a mile. At the crossing was a single double-faced crossbuck sign, 10 to 12 feet high, with the lettering “Railroad Crossing” on the crossarms. A motorist approaching from the north could see this sign continuously for three-tenths of a mile. There was evidence that due to underbrush and trees, the driver of a southbound automobile (as was the decedent) would be within 70 feet of the crossing when the driver could first see an eastbound train (as here) 100 feet to his right. Members of the train crew ' testified that the car driven by the decedent first came into their view as it was about to enter the north end of a highway bridge approximately 226 feet from the crossing and at a time when the train was about 150 to 200 feet from the crossing. At that time the train’s warning devices, the whistle, bell, and running lights, were activated and the emergency brakes applied to stop the train which was traveling at the standard speed of approximately 35 miles per hour as it approached the crossing. It was estimated that the driver of the car was traveling at a speed of 60 to 65 miles per hour as it approached the train crossing. The car made a sudden dip as it approached, indicating a momentary application of the brakes, and then the driver accelerated his speed and veered to his left until the collision with the train at the crossing. There was evidence by the state policeman who investigated the accident that fresh and heavy skid marks existed but stopped 20 to 30 feet in front of the crossing. According to him, on the day of the accident the road was dry and vision was unimpaired by weather conditions.

The jury found no negligence on the part of Chadwick, appellant’s employee and co-defendant. On appeal the appellant contends for reversal that since Chadwick was exonerated, the trial court should have entered judgment for appellant notwithstanding the verdict and that the issue of an abnormally dangerous crossing, as defined by AMI No. 1805, was improperly submitted.

Appellee correctly states that since Chadwick was exonerated, the judgment against the appellant must stand, if permitted, upon its alleged independent negligence in failing to provide special warnings calculated to assure the traveling public the use of the crossing with reasonable safety. Chicago, R. I. & P. R. R. Co. v. Davis, Adm’r., 239 Ark. 1059, 397 S. W. 2d 360 (1965).

The appellee included in her complaint the allegation that appellant’s railroad crossing was abnorbally dangerous and, therefore, required special warnings to the public. As previously indicated, the court told the jury that the appellee “contends that the railroad grade crossing in this case was abnormally dangerous, and they have the burden of proving this proposition.” The court then proceeded to give AMI No. 1805. According to this instruction, the appellee had the burden of proving three concurrent propositions: (1) that the railroad grade crossing is frequently used by the traveling public, (2) that trains pass over it frequently, and (3) that special circumstances render the crossing so dangerous that a person could not use it with reasonable safety in the absence of special warning. In our view the appellee failed to meet the burden of proof necessary to justify this instruction.

In the instant case the direct evidence adduced as to the volume of daily automobile traffic using the crossing consisted of testimony by a state policeman and two railroad employees involved in this particular accident. The state policeman testified only that he had traveled the road several times. One of the appellant’s employees stated that he had, in the past, observed a few cars on the road and had seen traffic stopped waiting for a train. The other employee testified that after the collision he returned to the crossing to flag down passing motorists for help. He waited fifteen minutes for the ambulance without a single car coming by. This was in midafternoon.

As to the amount of train traffic, it is undisputed that a total of three trains pass this intersection daily, only one of which approaches from the same direction as the train involved here. Appellee urges that in this situation “frequent” can be taken to mean “regular.” But these three trains are not run on a set schedule and, therefore, do not cross the intersection with any particular regularity. The only “regular” occurrence is the passing of three trains per day, and this clearly is not “frequent.” The state policeman testified: “Well, I’ve been across it several times at this crossing. I think maybe I’ve seen a train on it two or three times. I didn’t have any trouble.” There was evidence that the decedent was familiar with this crossing. About two months before the accident he was observed at this crossing where he had parked his vehicle and was walking in the vicinity. This testimony by the investigating officer was undisputed.

The appellant maintained a crossbuck sign, although deficient as to the lettering and size of the lettering as required by Ark. Stat. Ann. § 73-717 (Repl. 1957), which was plainly visible continuously for three-tenths of a mile from the direction in which the decedent was traveling. The purpose of a crossbuck sign is simply to give notice of an upcoming crossing. With regard to the sign, statutory deficiency is merely evidence of negligence which must be shown to be a proximate cause of the alleged injuries. Russell v. Missouri Pac. R. R. Co., 237 Ark. 812, 376 S. W. 2d 545 (1964). Such proximate cause was not demonstrated in the case at bar.

However, here we are concerned with whether conditions at the crossing required “special warnings,” the purpose of which is to alert motorists to approaching trains when an abnormally dangerous crossing exists as defined by AMI No. 1805. It appears that in three cases we have approved the “abnormally dangerous crossing” issue as presently defined in AMI No. 1805. In Hawkins v. Missouri Pac. R. R. Co., 217 Ark. 42, 228 S. W. 2d 642 (1950), it was noted that the accident occurred “on a principal street in the business section of a good-sized city.” In both St. Louis Southwestern Ry. Co. v. Farrell, Adm’x., 242 Ark. 757, 416 S. W. 2d 334 (1967), and St. Louis Southwestern Ry. Co. v. Jackson, Adm’r., 242 Ark. 858, 416 S. W. 2d 273 (1967), traffic counts established that between one and two thousand automobiles, and more than sixteen trains passed the respective intersection each day. There was other evidence in each of these three cases which combined to create an abnormally dangerous crossing situation. See, also, Chicago, R. I. & P. R. R. Co. v. Kinard, 299 F. 2d 829 (8th Cir. 1962).

In applying these cases to the. case at bar, the appellee’s evidence, when viewed most favorably, was insubstantial and insufficient to meet the burden of proof to establish the required elements that constitute an “abnormally dangerous crossing” as defined by AMI No. 1805. It follows that appellant’s motion for a judgment notwithstanding the verdict should have been granted when the jury absolved Dennis Chadwick, appellant’s employee and co-defendant, of any negligence.

Reversed and dismissed.


text:
    J. W. McCARTY et ux v. Robert E. BLAYLOCK et al
    5-5241
    453 S. W. 2d 35
    Opinion delivered May 4, 1970

      Phil H. Loh and Cambiano & Cree, for appellants.

      Felver A. Rowell Jr., for appellees and pro se.
   Carleton Harris, Chief Justice.

Appellants, J. W. McCarty and Lucy McCarty, his wife, on December 24, 1958, sold and deeded certain property to Robert Earl Blaylock and wife. On May 19, 1959, appellees, Blaylock and Felver A. Rowell, Jr., were the grantees of another deed wherein appellants purportedly conveyed certain lands abutting and adjacent to the lands conveyed in the first deed. This latter conveyance is in question in this litigation, appellants contending that they did not execute same, and that the deed is a forgery. The McCartys instituted suit on August 26, 1968 asking that title to the lands (conveyed in the second deed) be quieted and confirmed in them. After the filing of an answer, a reply, and amendment to answer, the case proceeded to trial and after the taking of testimony, the court dismissed appellants’ complaint for want of equity. From the decree so entered, the McCartys bring this appeal.

Only four witnesses testified before the court, Mr. and Mrs. McCarty and Leo Denton testifying on behalf of appellants, and Robert Blaylock testifying on behalf of appellees.

Both McCarty and his wife stated that they executed only the one deed to Blaylock, the deed of December 24, 1958. Mr. McCarty, a truck driver, testified that his log book showed that he arrived in Sallisaw, Oklahoma at 4 A. M. on May 19, 1959 (date of the questioned deed), and remained there for at least eight hours. He said he did not appear before Carroll W. Johnston, the notary who reportedly acknowledged the deed, on May 19, and Mrs. McCarty likewise stated that she did not sign the deed, and did not appear before Johnston to have any papers notarized. She said that she was at home in West Memphis on that date.

Blaylock testified that he met the McCartys at Johnston’s office where the deed was prepared, and that both McCartys signed the deed. Blaylock further stated that the agreed purchase price for the property, $800.00, was paid at that time. McCarty admitted that he had been paid $800.00 as total consideration for property to be deeded to Blaylock, but he contended that the property purchased was other than that described in the deed.

We agree with the chancellor when he said, "It is found that the deed is not a forgery. No other conclusion is possible under the admitted facts in this case”.

The evidence reflects that the McCartys had deeded the property here in litigation to Frank E. Hampton and wife on December 7, 1956. McCarty admitted that Blaylock had come to him and asked to buy the property, but McCarty advised he had already sold it to Frank Hampton.

“And he wanted to know if I could get the lot from Frank. In the meantime he had made several calls to Frank to buy the lot, and Frank told him he couldn’t sell that lot back to it [him] because I hadn’t put a road down through there. And he just let me have it back. And I told Blaylock, I couldn’t sell him a full sized lot because there had to be a BO foot road put down through there. * * * *

“So then after I got the lot back from Frank, I told him I would have a wide strip down through here which would have been 40 feet width.”

Blaylock testified that McCarty told him that the land had been sold to Hampton with the understanding that Hampton would sell it back to him if the latter did not decide to build on it. “He told me about this thing of Mr. Hampton and he said that Mr. Hampton hadn’t built on. Been quite a while. Which evidently he did. And he told me one day he was ready to sell it and we met down here at Carroll Johnston’s office and fixed it up.”

The circumstances support appellees. Hampton and wife deeded the property they had purchased earlier from the McCartys back to appellants on May 19, 1959, which is the exact date of the McCarty deed to appellees. This certainly adds weight to the contention of appellees. Then we find an unusual occurrence. Though McCarty stated that he was given the $800.00 (at his home), he did not give Blaylock a deed to the 40 foot strip that he contends he was selling to appellees. Appellant said that Blaylock “caught me the morning I started to work and I told him I did not have time to draw him up a deed.” He said that he subsequently gave Blaylock the deed wherein the Hamptons had conveyed the property back to the Mc-Cartvs, for them to “hold”, apparently as security. This was, of course, a little unusual, but not as much so as the fact that, though receiving the $800.00 in 1959, the McCartys, according to their testimony, have never yet deeded the strip that appellants say appellees were to receive from the $800.00 consideration. If this is correct, Blaylock was both extremely patient and extremely careless.

McCarty admitted that the signature on the deed acknowledged by Johnston “resembles my signature”, and we agree that there is a close resemblance in McCarty’s signatures on the various deeds and also a signature specimen offered as evidence in the case. It is also noteworthy that, though McCarty testified that he learned in 1963 of the deed herein questioned, no action was taken for about five years. This is hardly the normal way a person acts when he has lost land through a forgery.

Be that as it may, we think the proof heavily preponderates in favor of appellees and we cannot agree that the court erred in dismissing the complaint.

Affirmed.

      Denton had been interested in buying some land from McCarty but on examining the tax books, went back to McCarty and, “told him he did not have as much land as he told me he had according to the tax books”. The witness knew nothing about the alleged forgery.

      This strip was roughly something over 200 feet long and according to the witness, was the only part of the so-called Hampton property that was to be sold to Blaylock.

      "I told him I couldn’t sell him the lot, but he still insisted he wanted the 40-foot strip so his land would be on one side and mine would be on the opposite side. So I told him he could have it and he paid me for it. Then after that, I told him I didn’t have time to make him up a deed. Then he came over one morning when I started to Russellville and that was the time I handed him the deed that I got from Frank Hampton. And I told him, I says you can hold this deed dll I get down and draw you up a deed.”


text:
    Lonnie Deane BARKER, Clayton Barker v. STATE of Arkansas
    5464
    453 S. W. 2d 413
    Opinion delivered May 4, 1970
    [Rehearing denied June 8, 1970]

      Virgil R. Moncrief and John W. Moncrief, for appellants.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee,
   Carleton Harris, Chief Justice.

Appellants, Lonnie Deane Barker and Clayton Barker, were charged by information on February 17, 1969, with the crime of cattle stealing, it being alleged that they feloniously killed with intent to steal an Angus heifer calf, the property of’Max Trice. The alleged crime occurred on February 6, 1969. On trial, appellants were convicted by a jury and each was sentenced to one year imprisonment in the state penitentiary. From the judgment so entered, appellants bring this appeal. For reversal, it is contended that the court erred in refusing to give appellants’ requested Instruction No. 1, and that appellants were prejudiced by the testimony of the sheriff when he testified that appellants refused to talk with him about the alleged crime, saying that they had rather not tell him anything.

Appellants’ requested Instruction No. 1 was as follows:

“The court instructs you the jury that larceny is the felonious taking of the property of another with the felonious intention of depriving the owner of his property and converting same to his own use and the burden is on the prosecution to prove beyond a reasonable doubt that the defendants intentionally and feloniously took the property with the intention of depriving the owner thereof.”

The court refused this instruction but gave it in a modified form, leaving out the phrase, “and converting same to his own use.”

The court had already, in its Instruction No. 2, instructed the jury:

“Larceny is the felonious stealing, taking and carrying, riding or driving away the personal property of another with the intent to deprive the true owner of his property. The statute upon which this prosecution is based is as follows:

“ ‘Every person who shall mark, steal or kill, or wound, with intent to steal, any kind of cattle, pigs, hogs, sheep, or goats, shall be guilty of a felony and, upon conviction thereof shall be imprisoned in the penitentiary for any time not less than one nor more than five years.’

“The value of the cow is immaterial. If he is guilty of stealing this man’s cow, he is guilty of a felony.

“The defendants start out with the presumption of innocence in their favor, and that presumption of innocence follows them throughout the trial, or until the evidence convinces you of their guilt beyond a reasonable doubt and that the offense occurred in this county and state within three years next before the filing of the information.”

As mentioned, appellants’ requested Instruction No. 1 differs from the modified form of the instruction only in that the version given leaves out the words “and converting same to his own use”. This omission, says appellants, constituted reversible error.

The evidence reflected that Lonnie Barker, his brother Clayton Barker, and Clayton’s wife, Betty, were travelling in an Oldsmobile on Highway 146 towards Stuttgart when Lonnie Barker got out of the car and killed the calf owned by Trice which, with other cattle, was being pastured adjacent to Highway 146. Appellánts then put the dead calf in the trunk of the car, where it was, within a short time, found by the sheriff, who had received a call from a neighbor who witnessed the occurrence. At the trial, the Barkers all testified that they saw a wolf in the field, and that Lonnie Barker was shooting at the wolf, but missed it, and hit the calf. Lonnie testified that he went out into the field looking for the wolf but it “got away”; that the calf was quivering and kicking, with no chance to ■ live, and he shot it in the head. Appellants were aware that the cattle in the field belonged to Trice, and they both testified that they had no intention of depriving Trice of his calf but placed it in the trunk of the car for the purpose of taking it to the owner. They did not stop at Trice’s farm barn since, according to Clayton, Trice’s truck was not there, and they had in mind taking it to the owner’s home in the city of Stuttgart. Appellants were arrested by the sheriff while they were still driving on Highway 146, the officer testifying that the car was travelling 60 or 70 miles per hour, and that he forced them into the ditch. Within a few minutes, Mr. Trice arrived at the scene, and upon request of the sheriff, one of the appellants opened the trunk revealing the calf.

Appellants contend, that inasmuch as they testified that it was their intention to return the dead calf to Mr. Trice, the jury should have been instructed that they must find that appellants had the intent to deprive the owner of his property and to convert the same to their own use.

The objection to the modification of the instruction is tied in with the objections made to Instruction No. 2. The latter objections were as follows:

“To which said instructions the defendants, at the time objected, to the language that the defendants are accused of the crime of grand larceny, they are charged with killing of a cow, property of the prosecuting witness on the 6th of February, 1969. This leaves the jury who is not familiar with the law with the impression that the crime of grand larceny may be or is the killing of a cow, the property of another, or the prosecuting witness, and that it is the killing of the cow on the 6th day of February which is the property of the prosecuting witness [which] is grand larceny. The words ‘felonious stealing’ are not definite, they don’t have a definite meaning to someone who is unfamiliar as the jury is and then the quoting of the statute is objected to because the definition of larceny given by this instruction is not clear to the jury or is uncertain to the jury and the jury will have to make some conclusion as to what the law is and the jury is not versed in the law.”

We do not agree that error was committed in the giving of the instruction.

In Harrell v. State, 177 Ark. 505, 7 S. W. 2d 23, this same contention was made, but we said:

“Instruction 5 told the jury that, if they found from the evidence, beyond a reasonable doubt, that appellant did ‘unlawfully and feloniously take, steal and carry away one Remington automatic shotgun, of a value in excess of $10, the property of G. W. Barker’, they should find him guilty. It is said that the instruction fails to tell the jury that the felonious intent at the time the gun was taken, if taken, was of the essence of the offense, and that it does not tell the jury that the taking must be with the intent to deprive the true owner of his property. We think the words ‘unlawfully’ and ‘feloniously’, as used in the instruction, are sufficient to cover the matters complained of. If the taking was done unlawfully and feloniously, it necessarily follows that it was done with felonious intent at the time of the taking, and done with the intent to deprive the owner of his property.”

The court correctly instructed the jury on the appropriate statutes governing the offense here involved. The first part of the instruction quotes § 41-3901, 1964 Replacement, and the second paragraph quotes § 41-3917, 1964 Replacement. We have held that it is proper to instruct a jury in the terms of the statute. Gentry v. State, 201 Ark. 729, 147 S. W. 2d 1, and cases cited therein. The court very clearly told the jury that the question was whether appellants killed the calf, “with intent to steal”.

As to the assertion that the court erred in striking the clause “and converting same to his own use” in appellants’ requested Instruction No. 1, appellants mainly rely on Dove v. State, 37 Ark. 261 and Export Insurance Co. v. Royster, 177 Ark. 899, 88 S. W. 2d 468. We do not consider the Dove case as having any applicability to the present set of facts. In Dove, the question was whether one actually stole a mare, in taking her from the lot, or intended only to ride the mare for some miles (as he did) to escape a whipping and then abandon her. In other words, the question was whether the offense was a theft or a trespass. Export Insurance Co. v. Royster, supra, contains language supporting appellant’s contention, but it is pointed out in Sullivant v. The Pennsylvania Fire Insurance Co., 223 Ark. 721, 268 S. W. 2d 372, that this case cannot be relied upon. In fact, the last mentioned case is the only time that Export Insurance Co. has been mentioned since it was handed down. In Sullivant, we said:

“In support of the judgment, appellee relies on the case of Export Insurance Co. v. Royster, 177 Ark. 899, 8 S. W. 2d 468, where this court held that it is necessary to show that there was an intent to convert the property to the use of the taker to constitute larceny. This case was decided prior to the 1947 and 1953 amendments which resulted in § 41-3929, supra. At that time the statute provided that there exist an intent to convert to the taker’s use.”

Of course, sound logic dictates that there is no reason to expressly require an intent to convert property taken to one’s own use before it constitutes larceny. If one should be angry at his neighbor, and, as a matter of vengeance, steal a calf, kill it, and throw it in the Arkansas River, the owner would still be as much deprived of his property as though the neighbor had taken it to his own farm and claimed it as his own. The question of whether appellants intended to steal the calf was a matter for jury determination, and the evidence was more than ample to sustain this finding.

As to the second point, the testimony complained of is as follows:

“Q. You did advise them of their rights at the time you put them in jail?
“A. I didn’t at the time. I went back and talked to Lonnie first and he advised he didn’t want to tell me anything and I talked to Clayton second and he didn’t want to tell me anything and Betty she didn’t want to say.
“Q. Then you made no effort to question them further?
“A. No sir. I did not.
“Q. They did refuse to talk to you?
“A. They said they had rather not tell me anything.”

It is argued that this testimony constituted reversible error because the jury was told that the appellants had invoked the protection of the Fifth Amendment to the Federal Constitution, and this fact prejudiced the jury against appellants. We find no merit in this assertion and need say no more than that no objection was made to this evidence. Counsel says that the “Prosecuting Attorney and the Trial Court had agreed with counsel for appellants that appellants were objecting and excepting to testimony that might be given by the sheriff, without appellants having the same noted as the testimony was given.”

We do not agree that the record reflects any such agreement. Prior to the sheriff appearing before the jury, his testimony was taken in chambers and a discussion between the court, prosecuting attorney, and defense counsel, related to whether appellants had been informed of their constitutional rights before being asked any questions. The testimony dealt with questions asked on the highway at the time appellants were arrested. There is no testimony at all before the court in chambers conforming to the testimony heretofore quoted, and which appellants say constituted reversible error. As to the questioning at the time of the arrest appellants’ counsel stated:

“I want to show a continuing objection and exceptions to each question and answer as being objected to and to save our exceptions and if he doesn’t make a statement in answer to a question why naturally there would not be an objection.”

The Prosecuting Attorney responded that he was “going to bring out matters not brought out in chambers.” The court stated, “That is perfectly all right. Show a continuing objection to matters discussed in chambers.” (our emphasis) The court further stated:

“The court has no wav of knowing the questions going to be asked and the competency or incompetency of the questions and if any new matter is brought out to which you object you should let the court have a chance to rule on it.”

The Prosecuting Attorney then said: “I have no objection to continuing objections to the testimony he gives if the court has no objection”, and the court responded that it had no objection but that “I was saying that it puts the court in the attitude of having to watch the testimony and say ‘You can’t say that’ that is point. Go ahead. I will handle it that way.”

As stated, the testimony now complained of was not given in chambers at all, and this means that there was never any objection to the evidence under discussion. It is really not clear from this record whether the “continuing objection” was to testimony only that was given in chambers, or whether there was supposed to be“a continuing objection” to all of the sheriff’s testimony. According to appellants’ argument, the court would actually have been required to act in the same capacity as appellants’ attorney.

The testimony here complained of raises an entirely different question from, the matters discussed in chambers. There, the question really was whether appellants had been adequately warned before questions were asked at the .time of the highway arrest under Miranda v. Arizona, 384 U. S. 436, and Escobedo v. Illinois, 378 U. S. 478. Here, the contention of error is based on the fact that the sheriff revealed that the defendants were taking advantage of the Fifth Amendment to the Constitution. The testimony of the sheriff imparting this knowledge to the jury, say appellants, was reversible error, but we need not discuss the authorities cited for the reason already given.

Finding no reversible error, the judgment is affirmed.

      A 1969 amendment by the General Assembly increased the maximum penalty from 5 to 21 years. This change has no application here for two reasons; first, because appellants only received the minimum sentence, and second, because the alleged offense was committed about a month prior to the effective date of the amendment.

      This section actually deals with persons who lawfully obtain possession of property but subsequently deprive the true owner thereof. Originally, there was a provision that there must exist an intent to convert to the taker’s use, but this provision was eliminated by a 1947 amendment.