author: Paul Ward, Justice. Ed. F. MoFaddin, Justice,

text:
    Earl, Trustee v. Ark. State Hwy. Comm.
    5-3926
    405 S. W. 2d 931
    Opinion delivered September 12, 1966

      Hotvell, Price & Worsham and Ted, Mayer; Gordon & Gordon; Moses, McClellan, Arnold, Owen & McDermott, for appellant.

      George 0. Green, Don Langston, for appellee.
   Paul Ward, Justice.

On June 19, 1964 Charles H. Earl (trustee for John Charles Earl) brought this suit against the Arkansas Highway Commission to enjoin the construction of a portion of Interstate Highway 40 (a controlled-access highway) across the eastern portion of “Earl’s Lakeside Subdivision” which adjoins Lake Conway and which lies a few miles south of' the City of Conway in Faulkner County. We may hereafter refer to the plaintiff as “Earl,” to the defendant as “Commission,” and to Earl’s Lakeside Subdivision-as “Subdivision.” For a better understanding of the issues here involved we set out below a brief summary of pertinent and undisputed facts.

The Subdivision was dedicated and the plat filed of record in 1962: In May 1964 the Commission filed a declaration to take several lots in the Subdivision over which the highway was to be constructed: The lots so taken are not involved in this litigation: Originally Earl owned all the lots in the Subdivision — approximately 200 — and he still owns them excepting the ones taken by' the Commission and excepting about twelve lots which he has sold, or contracted to sell, to certain individuals (hereafter referred to as “purchasers”): On April 8,1965 said purchasers intervened and joined Earl in asking the Chancery Court to enjoin the Commission from constructing said highway until it compensates them for divers elements of damages to their property.

After a hearing the trial court refused to enjoin the Commission, holding that neither Earl nor any of the purchasers Avas entitled to compensation. There was one modification of the court’s holding Avhich we will mention and discuss later.

After carefully considering the several grounds on which appellants base their claims and the reasons given by the learned Chancellor for denying the same, we have concluded that the trial court must be affirmed. We noAY discuss separately the several contentions presented by appellants.

One. We find no merit in appellants’ contention that they are entitled to recover damages for the loss of “rights in street-easements and the fee . . . taken by the State.” None of these appellants owned any lot that abutted on any street at the place Avhere the street was taken by the Commission. In fact it merely blocked off streets which intersected the new highway, acting in conformity with Ark. Stat. Ann. § 76-2207 (Supp. 1965). No land or lot belonging to any appellant Avas taken by the State, and any inconvenience suffered by appellants is likewise suffered by the general public. In the case of Ark. State Highway Comm. v. McNeill, 238 Ark. 244, 381 S. W. 2d 425 we find this statement:

“It is well settled in Arkansas that a landowner whose land is not being taken is not entitled to compensation for damage of the same kind as that suffered by the public in general, even though the inconvenience and injury to the particular landowner may be greater in degree than that to others.”

Two. This point raised by appellants relates to the “one modification” of the decree referred to previously. The court held that “the closing of Charles Street, Lakeside Drive, and -Conway Circle make it necessary that other access to Highway 65 be obtained.” It appears from the evidence that these streets had been left in such condition that they were unusable, and the court, in effect, ordered the Commission to place these streets “in the same condition as other streets in the addition” within thirty days. The court later found that this order had been fully complied with, and there is no contention here to the contrary. This was all the relief appellants were entitled to receive in this action which was not brought for damages but for injunctive relief.

Three. It is ably and vigorously contended by appellants that they should be compensated for loss of ingress and egress to Lake Conway. It is not denied that appellants may have been inconvenienced or that their lots may be less valuable because they can no longer travel certain streets leading directly to the lake. Likewise it is not denied that they still have access to the lake by traveling a less direct route. However, this inconvenience or loss is something that is also shared by the public in general and is not, under many decisions of this Court, compensable. See: Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949. It is possible that appellants' inconvenience or loss may be of a greater degree than that of others living in the addition or of the public in general, but this fact (if it is a fact) does not entitle appellants to compensation. See Wenderoth v. Baker, 238 Ark. 464, 382 S. W. 2d 578, and also the McNeil case, supra.

Four. It is here insisted by appellants that their view of the lake has been marred or destroyed. It is admitted by appellants that their claim for compensation in this instance is based on the same reasons advanced in support of point Three above. The trial court was correct in denying compensation for loss of airview for the reasons already set forth in said point Three. In Holden v. Carmean, 178 Ark. 375, 10 S. W. 2d 865 this Court said:

“The trial court held that the mere excavation of the Rogoski part of the lot conferred upon appellant no cause of action, and we concur in that view. Rogoski had the right to excavate his property to the grade line of the streets, and if appellant -was injured thereby it was, so far as Rogoski was concerned, damnum absque injuriad’

By the same token the Commission had the right to raise the grade line on its right-of-way even though, in doing so, it may have obstructed appellants’ view of the lake. No property owner has an absolute right to an unobstructed view from his premises so long as his property rights are not involved. To hold otherwise would seriously hamper the development of residential (and industrial) areas in cities and towns.

Five. Finally, appellants contend they suffered a loss because certain streets were blocked by the new highway. The answer to this contention is found in what we have already said in point Three above. Here it is not contended that any part of appellants ’ lots was taken or that they have been deprived of the right of ingress or egress to and from their property.

Finding no reversible error, the decree of the trial court is affirmed.

Affirmed.

McF addin, Bland & Amsler, JJ., dissent.

Ed. F. MoFaddin, Justice,

dissenting. I desire to preserve the views expressed in my dissenting opinion in Arkansas State Highway Comm. v. McNeill, 238 Ark. 244, 381 S. W. 2d 425, so I respectfully dissent in the present case; and I am authorized to state that Justices Amsler and Bland join me in this dissent.


source: Caselaw Access Project

author: Osro Cobb, Justice.

license: Public Domain

text:
    Spears v. Rich
    5-3943
    405 S. W. 2d 929
    Opinion delivered September 12, 1966

      James R. Hale, for appellant.

      Pearson & Pearson, for appellee.
   Osro Cobb, Justice.

On April 5, 1946, appellee Rich purchased some 14 lots located in the Braley Addition to the City of Lincoln, Washington County, Arkansas from the State of Arkansas, and received a tax deed thereto. This is an appeal from a decree of the trial court quieting title to the 14 lots in appellee.

Appellants claimed title to these lots under a Sheriff’s Deed dated November 8, 1946; also, by adverse possession. Appellants further contend that title should be quieted and confirmed in them. After hearing, the Chancellor found for appellee and entered a decree confirming title in appellee.

On appeal, appellants urged two points for our consideration :

(1) That the original suit was in fact a suit in ejectment brought by appellee, who was not then in possession, and that no equity jurisdiction existed as to the cause of action asserted.
(2) That the Chancellor erred in quieting and confirming title in appellee.

Appellants’ Point 1 — The question of equity jurisdiction.

When appellants answered appellee’s complaint and prayed for a decree quieting and confirming their title to the subject lands then in their possession, they themselves sought equitable relief and it gave the equity court jurisdiction as to the entire controversy between the parties. This precise question under identical facts was before this court in an early case, Goodrum v. Ayers, 56 Ark. 88-93, 19 S. W. 97, (1892) in which we said:

“Conceding that the plaintiff was not in possession of the land, and for that reason could not maintain a suit to quiet title, it cannot avail the appellant; for he filed a cross-bill seeking to quiet his own title, and it gave the court jurisdiction of the entire controversy. ’ ’

We' know of no decision of this court, and certainly appellants have failed to cite any such decision, wherein we have deviated from the rule announced in Goodrum v. Ayers, supra. Indeed in a considerable number of cases we have followed the rule. For example, see N.ot tingham v. Knight, 238 Ark. 307, 379 S. W. 2d 260 (1964); Thomason v. Abbott, 217 Ark. 281, 229 S. W. 2d 660 (1950); Spikes v. Ribbard, 225 Ark. 939, 286 S. W. 2d 477 (1956).

We therefore find no merit in appellants’ contentions as to Point 1.

Appellants’ Point 2 — The claim of title by adverse possession.

Appellants’ claim to title by adverse possession was not predicated upon their own possession, which was limited to a period of approximately four years, but upon the alleged possession of their predecessor in title, Alvin B. Brown, father of Barline Spears, one of the appellants. We test this factual issue in the light of the proof adduced as between the respective claims on behalf of Alvin B. Brown and appellee.

It is undisputed:

(a) that appellee obtained a tax deed from the State of Arkansas on April 5, 1946 conveying subject lots to him and that said deed was recorded by appellee on April 10, 1946, and that thereafter appellee has paid the annual taxes thereon.

(b) That Brown shortly after appellee recorded the deed and acting upon the advice of his attorney, went to see appellee in an effort to come to some settlement with appellee concerning the lots. Brown testified that appellee demanded $800.00 for the lots and no settlement was made.

(c) Brown testified that he tried to assess the lots but that the assessor refused same for the reason that they were already assessed in the name of appellee.

(d) When a sewer district was formed embracing lands in the vicinity of subject lots and including subject lots, Brown made no effort at any time to pay benefits assessed for the improvement district against the lots.

(e) Brown gave the sewer district contractor an easement across his farm bnt never undertook to execute any easement crossing the lots in issue.

(f) "When Brown traded with appellants in 1960, he conveyed 10 acres by a warranty deed and conveyed his interest in the lots in controversy by a separate quitclaim deed.

(g) Appellant, Alvia Spears, in the course of his testimony stated that Brown had told him about Mr. Rich’s (appellee’s) land.

(h) That Brown did not get his deed from the sheriff of Washington County until November 8, 1946, some seven months after the execution and delivery of the deed of the State of Arkansas to appellee, and Brown did not record his sheriff’s deed until February 26, 1965, which was after the filing of the instant suit.

(i) That Brown had the lots under fence and in use as a pasture for more than ten years prior to the transfer of his interest to appellants.

Appellee testified that shortly after he had acquired the deed from the State and had filed his deed of record in Washington County, that Brown had come to see him and had asked for his permission to pasture livestock on the land, and that he had given Brown such permission and that thereafter no change had been made in that relationship, the use of the land by Brown being at all times a permissive one. Appellee also testified that he made no charge for Brown’s use of the land nor did Brown offer to pay him anything for pasture purposes.

After hearing the evidence introduced, the Chancellor found against appellants on the fact question involving the alleged acquisition of title to subject lands by adverse possession. We have concluded that this finding against appellants on this issue was supported by a clear preponderance of the evidence and, under such circumstances, such finding will not be disturbed here on appeal. Orrell v. E. C. Barton & Co., 240 Ark. 211, 398 S. W. 2d 685 (1966); Williams v. Walker, 148 Ark. 49, 229 S. W. 28 (1921); Ellis v. Blankenship, 207 Ark. 739, 182 S. W. 2d 756 (1944).

We therefore find no merit in appellants’ contentions as to Point 2.

Having found no merit in any of the contentions of appellants, the decree of the trial court is affirmed.


author: Guy Amsler, Justice.

text:
    Busby v. Willform
    5-3932
    406 S. W. 2d 131
    Opinion delivered September 12, 1966

      Giles D earing and E. J. Butler, for appellant.

      Shaver & Shaver, for appellee.
   Guy Amsler, Justice.

During the year 1962, appellant A. G. Busby (referred to as “Busby” in the briefs) farmed some 500 or more acres of land in Cross County, Arkansas. Appellee Ossie Lee Willform, a twenty year old Negro boy, (referred to by the attorneys as “Willform”) was employed by Busby as a farm laborer during busy periods.

On September 5, 1964, Willform filed suit in the Cross County Circuit Court against Busby alleging that while in the employ of Busby on September 16,1962, (it was later shown that the correct date was July 16, 1962) and acting pursuant to his instructions and using his (Busby’s) tools a piece of steel penetrated his left eye, resulting in infection and removal of said eye.

There were also allegations to the effect that when appellee removed the plows from a cultivator and undertook to straighten them: “He used an old four pound hammer which was owned by Mr. Busby and which was defective in that it had been used for a long time and the steel would chip off of the hammer head. The appellee did not know of the defective condition of the hammer head and the softness of the steel, nor of the fact that the steel would chip off of the head of the hammer, and as he was using the hammer to straighten the plow a sliver of steel came off of the hammer, flew through the air and hit the appellee in the left eye; that the appellant did not warn him of the defective tool he used, although he knew that said tool was defective.” Furnishing defective tools, knowledge of such defects and failure to warn a minor were alleged as acts of negligence on the part of Busby.

Damages in the sum of $35,000.00 were sought for pain and suffering, medical expense and permanent disability.

Appellant’s answer was a general denial with, no affirmative defenses offered.

Trial to jury resulted in a verdict for $15,000.00. An appeal was perfected in apt time.

The first point relied on by Busby for a reversal is that there was no substantial evidence on the issues of employment and liability. Millbrook, a former employee of Busby and witness for appellee, testified that he usually worked under the direct supervision of Mr. Busby but that Mr. Busby had told him that if he (Busby) was not around he should get his work instructions from Mr. John Shaw, Busby’s son-in-law. He had been familiar with Busby’s shop tools since 1957, and they were still being used in 1962. He said that he and other employees used the tools in repairing farm machinery under directions from Busby or Shaw. He also stated that when a three pound ball peen hammer is used to beat on hot steel over a period of time it gets hard and starts to flake. On the questions of employment and liability appellee related that on the morning of the accident when he finished plowing about 10:00 o’clock he drove back to the shop and asked Mr. Shaw for further instructions. Shaw told him that Mr. Busby said for him (appellee) to take the shanks off both rear cultivators and set the “cultivator foots.” Then appellee was asked:

“Q. Now, did you do what Mr. Shaw told you to do?
A. Yes sir I straightened — I straightened— I think I straightened two shanks — two shank parts of the plow, and the third I started with the steel and it hit me in the eye. When I got straight to see what happened I looked on the plow and didn’t see no place broken off, and looked at the hammer, there was a fresh piece chipped off.”

Appellee also testified that he never received any warning from Busby regarding the hammer. He further stated that when he got out of the hospital he went to Mr. Busby’s house with his brother-in-law and that appellant told them that he (Busby) was using the hammer (sometime previously) and that “a piece sounded like it went through his hat or went through his hat again or something.”

Theodis Millbrook, John Wesley Willform and Jessie Willform (relatives of appellee) all testified that Mr. Busby in their presence or to them said that he knew that Ossie Lee was hurt because he (Mr. Busby) was using that hammer one day and a piece of steel or a piece flew off that hammer and went through his hat.

The testimony of appellee and his witnesses was controverted in every essential respect by Busby, Busby’s son-in-law and daughter. When the applicable yardstick created by this court many years ago, and which we are unwilling to override, is applied to the point under scrutiny it will be readily seen that appellant’s contention must fail. The governing rule (from which there has been no deviation) was succinctly stated in Baldwin v. Wingfield, 191 Ark. 129, 85 S. W. 2d 689:

“Under our system of jurisprudence it is the province of the jury to pass upon the facts. It is not only their privilege, but their right, to judge of the sufficiency of the evidence introduced, to establish any one or more facts in the case on trial. The credibility of the witnesses, the strength of their testimony, its tendency, and the proper weight to be given it, are matters peculiarly within their province. The law has constituted them the proper tribunal for the determination of such questions. To take from them this right is but usurping a power not given. * * * When there is a total defect of evidence as to any essential fact, or a spark, a 'scintilla,’ as it is termed, the case should be withdrawn from the jury.” * * * “The settled rule is that, if there is any substantial evidence to support the verdict of a jury, this court cannot disturb it, although we might think that it was clearly against the preponderance of the evidence, and, if we had to decide the facts, would decide differently.”

The triers of fact elected to accept the evidence of Willform and his witnesses over the proof offered by appellant and we are unwilling to override their conclusion.

Point 2 urged by appellant for reversal is that: “The trial court erred in permitting Willform to introduce into evidence the mortality table on his life expectancy without explaining to the jury that its use would be limited to future medical expenses.”

This point is argued rather perfunctorily and without citation of authority by either party. Appellee was a young man, twenty years of age, with a life expectancy of 49 years at the time he was injured. There is no question that he will throughout his life suffer some inconvenience, humiliation and discomfort from his permanent injury and disfigurement. Dr. Lewis, who removed Willform’s eye, testified: “It is obvious that he has this false eye.” There was no objection to this or any other testimony regarding the nature and degree of appellee’s injuries. In view of the elements of probable future damage revealed by the evidence the trial court did not commit error in refusing to restrict use of the mortality table to future medical expense.

A third point relied on by Busby for reversal is that: ‘ ‘ The trial court erred in not declaring a mistrial on the injection of the question of insurance into the trial by counsel for Willform.”

On voir dire counsel for Willform had questioned prospective jurors concerning their connection with liability insurance carriers. Counsel for appellee admits that this interrogation was “within bounds.”

In a reasonably short time after he was injured Willform visited the office of Dr. Thomas Price in Wynne, Arkansas, to obtain treatment for his injured eye. Dr. Price rendered first aid and concluded that Will-form’s injury was of such a serious nature as to require the attention of a specialist. So he referred appellee to Dr. Phillip Lewis, a noted eye surgeon of Memphis, Tennessee.

On direct examination, Busby testified that around 3:00 p.m. on the day Willform was injured Dr. Price called his home by telephone and talked with Mrs. Busby. Busby was present, heard his wife talking and learned of the accident in this way.

On cross-examination the following transpired:

“Q. Did they ask you for authority to send him!
A. Didn’t ask me nothing.
Q. Why did they call you?
A. Just told me.
Q. Did you authorize Mm to be sent to Memphis ?
A. No.
Q. Did you pay his doctor bill?
A. I didn’t.
Q. Did you pay part of it?
A. I never wrote my check to anyone for anything in connection with paying the hospital bill.
Q. Did you pay his doctor’s bill?
A. I didn’t, not with my check.
Q. “Not with my check”?
A. No.
Q. Do you know whose check paid it; authorized by who?
MR. DEARINGr: I think he is going too far.
MR. SHAVER: I just asked—
MR. DEARINGr: He has already gone too far in front of the jury.
COURT: As I understand, counsel asked if he knew who paid the bill. He can answer yes or no.
Q. The question is do you know who paid the check?
COURT: If you know yon can answer yes or no.
A. Could I ask one question?
COURT: No, sir, answer the question yes or no; do yon know who paid it?
A. This sure puts me on the spot.
COURT: He is not asking who. Just asking if you know.
A. I would have to say no, I don’t know who paid it.
COURT: That is the answer.
MR. SHAVER: That’s all I want to know.”

Since appellant referred to the call by Dr. Price in bis direct testimony counsel was justified in pursuing the matter further on cross-examination for determining if Busby had, through some act or statement, assumed responsibility for appellee’s injury.

During the development of appellee’s case in chief it was stipulated that there were unpaid balances on the hospital and doctors bills, amounting to $159.92. The jury could have reasoned that had Busby been protected by insurance the medical bills would have been paid in full.

It is our conclusion that the trial court did not abuse its discretion in denying appellant’s timely motion for a mistrial.

Finally appellant contends that the verdict is excessive. Able counsel for both parties have cited numerous cases dealing with our decisions relating to damages in tort cases. It would serve no useful purpose to undertake a comparison of the case at bar with all cited cases. Generally each case must be judged on its own facts and if a verdict is supported by substantial evidence it will not be disturbed.

Counsel for Busby fairly states the test to be “that the ultimate question in determining excessiveness of a verdict is whether it shocks the conscience of the court or demonstrates the jurors were motivated by passion or prejudice.”

In Breitenberg v. Parker, 237 Ark. 261, 372 S. W. 2d 828, this court quoted the applicable rule from Ark. Amusement Corp. v. Ward, 204 Ark. 130, 161 S. W. 2d 178, with this language:

“A verdict will be set aside by an appellate court as excessive where there is no evidence on which the amount allowed could properly have been awarded; where the verdict must of necessity be for a smaller sum than that awarded; where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion, prejudice * * * or of some error or mistake of principle, or to warrant conclusion that the jury were not goverened by the evidence * * * .”

Appellee is a young laborer with less than a high school education who has no training for skilled employment. His life expectancy is 49 more years. He will be forced to struggle through life as a "one-eyed” workman. No proof is required to establish the fact that two eyes are better than one in any undertaking or that a person with two reasonably good eyes would be chosen for employment over an applicant with only one eye. Appellee’s medical expense, past and future, amounts to some $1,500.00 if all goes well. He lost twelve weeks wages, amounting to approximately $840.00. He was in the hospital eleven days and Dr. Lewis testified that he had a "considerable wound” that was penetrating and "had gone through the cornea and sclera of his eye.” The doctor also said "he suffered extreme pain.” The doctor stated: "It is obvious he has this false eye. He was given antiseptic drops to put under the lid and was advised not to take it out except occasionally and when absolutely necessary. In most cases you have to clean the eye and secretion gets underneath it. Frequently these patients get an infection from wiping the eye with a soiled handkerchief or their hand.” The eye is removed, when necessary for cleaning or other purposes, with a little rubber suction and in addition to applying the drops the eye must be polished and cleaned every four months. In short Willform has a lifetime aggravating and troublesome problem on Iris hands for which he is entitled to be substantially compensated.

In view of the gravity of the injury sustained by appellee we are unwilling to say that the amount awarded by the jury for all elements of unliquidated damages was so grossly excessive (or even excessive for that matter) as to require that it be pared down by this court. The judgment is therefore affirmed.


author: Hugh M. Bland, Justice.

text:
    Farmers Cooperative Assn. v. Phillips
    5-3933
    405 S. W. 2d 939
    Opinion delivered September 12, 1966

      Bob Scott and E. Franklin Waters, for appellant.

      Little & Enfielcl, for appellee.
   Hugh M. Bland, Justice.

This is a suit for damages for breach of an alleged contract. The parties will be referred to as “Cooperative,” defendant below, and “Grower,” plaintiff below. The contract was attached to and made a part of the complaint as though written therein, word for word.

The contract was dated the 25th day of February, 1964, to continue until December 31st, 1964, a period of about 10 months. The pertinent parts of the contract are as follows:

Grower agrees to produce broilers during this period, and agrees to abide by this contract, but he understands it can be changed or cancelled by the Cooperative if the G-rower does not carry out recommendations made regarding proper management of flock, or if changes in poultry industry warrant a change in type of contract. * * &

It is expressly agreed and understood that this agreement does not create nor attempt to create a partnership, either general or limited, between the parties hereto, but is evidence of an independent contract, and an employer-employee relationship does not exist by reason of this agreement and neither party shall have authority to bind nor act on behalf of the other except as herein specifically provided.

The Grower agrees to furnish brooder house and brooder equipment, and to produce broilers for the Cooperative of the kind, weight, and quality necessary for market.

Grower agrees to produce broilers on a guarantee of one and one-half cents per pound on net weight for broilers sold.

The Cooperative demurred to the complaint which was overruled and answer was duly filed, reserving objections to the overruling of the demurrer.

The case came on for trial before a jury on November 17th, 1965. The testimony was that Grower had been a broiler producer for approximately 16 years. On a 12-month contract, Grower would normally plan to produce 4 bunches of broilers. After the contract was signed, Cooperative placed 3 bunches of broilers with Grower; one bunch on February 26th, 1964, which were in the houses until the 8th day of May, 1964. Another bunch was placed in the houses of Grower on May 5th, 1964 and marketed and sold on July 20th, 1964. The last bunch was placed in the houses on July 30th, 1964, and sold on October 2nd, 1964.

On September 26th, 1964, Cooperative wrote Grower as follows:

“Dear Sir: We regret that we are not putting any chickens in now. The way we see it, it will be the first of the year or more. We recommend that if you want to get chickens somewhere else it will be O. K. We want to thank you for your patronage and if we can be of any service, please feel free to call on us. Sincerely, Jack W. Deason.”

The testimony was undisputed that it was almost impossible to obtain chickens in the fall of 1964. Grower admitted that he tried in two places to obtain them but was unable to do so and did not obtain any chickens until mid-December, 1964. The only evidence as to damages was that Grower received $1,866.00 for the last bunch of broilers sold. According to the record, this was the gross amount and there was no testimony as to net profit.

At the conclusion of all of the testimony, the Cooperative moved for a directed verdict as follows:

‘ ‘ Comes now the defendant and moves the Court to direct a verdict for the defendant for the following-reasons: One, that the plaintiff’s case rests upon a contract which has been placed in evidence which says it can be changed or cancelled if the conditions in the poultry industry warrant a change. There is testimony that chickens became scarce in September. For the further reason, it does not specify the number of broilers to be grown and the witness testified that he grew broilers and was paid for it so there has been no breach of contract shown. For the further reason, that even assuming there were a breach, there has been no basis or foundation or evidence placed in the record which would sustain award of damages for any amount whatsoever.”

This motion was denied and the court, together with other instructions, gave Instruction No 7 as follows:

“You are further told that the contract is an instrument which is binding on both parties and is governed by its terms. If it is breached without grounds, then the party breaching the contract is liable in damages to the other. In this case, you are told that the measure of damages would be governed by the terms of the contract at the rate of one and a half cents per pound on any broilers that were denied, if you find that they were denied, to the grower by the defendant. In that connection, you cannot guess or speculate for it must be based on evidence to support it.”

Cooperative objected to this instruction on the grounds that the court had interpreted the contract and commented on the evidence.

After instructing the jury, the court submitted to them two interrogatories. Interrogatory No. 1:

“Do you find by a preponderance of the evidence that defendant breached the written contract with the plaintiff and that said breach damaged the plaintiff ? ’ ’

Interrogatory No. 2:

“What do you find by a preponderance of the evidence the damages of the plaintiff to be as a result of a breach of the contract by defendant. $..................”

The first was answered “yes” and the second by writing in “$777.50” as damages.

We hold the court was correct in overruling Cooperative’s demurrer to the complaint. The law is well settled in Arkansas that in determining the sufficiency of the complaint on demurrer, the allegations contained in the pleadings must be taken as true. Moore v. North College Avenue Improvement Dist. No. 1 of Fayetteville, 161 Ark. 323, 256 S. W. 70. A demurrer should be overruled when facts stated in the complaint, with every reasonable inference deducible therefrom, constitute a cause of action, U. S. Fidelity & Guaranty Co. v. Moore, 233 Ark. 703, 346 S. W. 2d 524 (1961).

Instruction No. 7 given by the court is clearly erroneous. The court states, “you are told that the measure of damages would be governed by the terms of the contract at the rate of one and a half cents per pound on any broilers that were denied * * * .” The only testimony as to damages was by Grower who testified that he received $1,866.00 for the broilers sold the latter part of August 1964.

We are committed to the rule in Black v. Hogsett, 145 Ark. 178, 224 S. W. 439 (1920) and subsequent cases, to the effect that where one party to a contract is prevented from performing by the fault of the other party, he is entitled to recover the profits which the evidence makes it reasonably certain he would have made had the other party carried out his contract. As a precedent for this rule the court cites Streudle v. Leroy, 122 Ark. 189, 182 S. W. 898 (1916) and Harmon v. Frye, 103 Ark. 584, 148 S. W. 269 (1912).

In Sumlin v. Woodson, 211 Ark. 214, 199 S. W. 2d 936 (1947) the holdings in Black v. Hogsett and Harmon v. Frye, supra, were cited with approval. In this case it was held:

“When a party embarks on the enterprise of recovering anticipated profits, he must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there would have been any profits.”

Grower failed to fulfill his burden in this regard and the verdict for $777.50 is based upon conjecture and speculation and cannot be allowed to stand.

The evidence is likewise uncertain as to breach of contract. The case was not fully developed. It is, therefore, evident ,that this case must be reversed. Cooperative requests that we reverse and dismiss. A similar situation was before the court in Hayes Brothers Flooring Co. v. Carter, Admnx., 240 Ark. 522, 401 S. W. 2d 6 (1966) and this court held that although the judgment was reversed for insufficiency of the evidence, where it appeared that the evidence might be more completely developed, circumstances were held to justify remanding the case for a new trial. We believe this should be done in the case at bar.

The judgment is reversed and the cause remanded for a new trial.


author: Carretón Harris, Chief Justice.

text:
    UPI v. Hernreich, d/b/a Station KFPW
    5-3889
    406 S. W. 2d 322
    Opinion delivered September 19, 1966

      Daily & Woods, for appellant.

      Harper, Harper, Young & Durden, for appellee.
   Carretón Harris, Chief Justice.

This appeal is a companion case to No. 3797, United Press International, Inc., v. G-eorge T. Hernreich d/b/a Radio Station KZNG, which is also being handed down this date. On October 15, 1957, Tulsa Broadcasting Company, an Oklahoma corporation, entered into a contract with appellant, similar to that in No. 3797, i. e., appellant agreed to furnish news service for broadcasting, and appellee agreed to pay certain amounts therefor. During the period of the contract, and while same was in full force and effect, Tulsa Broadcasting Company sold Radio Station KFPW to appellee, George T. Hernreich, and on May 9, 1958, the company assigned the aforementioned contract to Hernreich, who accepted same, and assumed all obligations, as well as privileges provided in the agreement. On May 25, 1964, appellant instituted suit against Hernreich for sums alleged to be due under the contract, that instrument being made a part of the complaint. In addition to denying the indebtedness, appellee raised two other defenses, first, that the agreement between the parties had been cancelled by mutual agreement, and second, that appellant, a foreign corporation, was engaged in doing business within this state in intrastate commerce without having first qualified itself to do business in Arkansas, as provided by statute, and was thus not entitled to maintain the action.

Thereafter, appellant filed a motion for summary judgment, supported by the affidavit of Roderick W. Beaton, Vice-President and General Business Manager of United Press International, the motion asserting that appellant was engaged only in interstate commerce, and there was no genuine issue as to any material fact relating to the defenses sought to be raised by Hernreich. Appellee responded to the motion for summary judgment, the response being supported by a counter affidavit, and affirmatively stated that the contract sued upon was not for services to be performed wholly in interstate commerce, but the services to be performed were both interstate and intrastate, and it was maintained that a question of fact existed on that issue. The motion also stated:

* * Defendant admits plaintiff’s failure to qualify would not make the contract void, but the statute in question does prohibit plaintiff from bringing suit on any contract if it is doing business in the state, and not qualified therein, so that a question of fact on this'point exists.”

The court overruled appellant’s motion for summary judgment, and thereafter appellee filed his own motion for summary judgment, contending that the deposition of James R. Campbell, Arkansas State Manager for United Press, established that appellant was engaged in doing business in this state in intrastate commerce, and Hernreich contended in his motion that this fact, together with appellant’s failure to qualify to do business in this state, entitled him to a summary judgment. Appellant responded to this motion by asserting that the deposition, relied upon by Hernreich, reflected that United Press was not doing any intrastate business in Arkansas during the term of the contract, and further asserted it had executed the contract in the state of New York. Further, the affidavit of James F. Darr, General Manager of Communications for United Press, was offered, the affidavit being to the effect that all news transmitted from the United Press Bureau in Little Rock crosses state lines, and appellant is thus engaged solely in interstate commerce. Upon submission, the court granted appellee’s motion for summary judgment, and dismissed appellant’s complaint. From the judgment so entered, appellant brings this appeal.

A discussion of the first point at issue in this appeal (whether a fact question exists as to the place where the contract was executed) is unnecessary, since the legal principle involved in this question is thoroughly discussed in Case No. 3797. The contract here involved, as in that case, reflects that it was entered into “at New York, N. Y.,” and there is no proof in the record that this is not true. Of course, the mere fact that an agreement sets out that it is executed in a particular state does not establish the authenticity of the fact, but the question of the locale of the execution of the instrument is certainly placed in question; since this fact is disputed, the granting of a summary judgment was erroneous.

Likewise, the question of -whether United Press was engaged solely in interstate commerce needs to he developed by the proof. The affidavits of Campbell and Darr assert that this is true, though some statements in Campbell’s affidavit might indicate that intrastate commerce is also engaged in. At any rate, we think clearly that these facts were disputed, and a summary judgment should not have been granted. Of course, the question of whether a motion for summary judgment must be countered by a response in opposition, or affidavits controverting the motion, is not at issue on this appeal, since appellant did file a response and counter affidavit to the motion.

Beversed and remanded.

       The denial of the indebtedness, and cancellation of the agreement, are not mentioned, or argued, by appellee, and are not at issue on this appeal.


author: Ed. F. McFaddin, Justice.

text:
    UPI v. Hernreich, d/b/a Station KZNG
    5-3797
    406 S. W. 2d 317
    Opinion delivered September 19, 1966

      R. Scott Campbell and Daily & Woods, for appellant. ■

      Harper, Harper, Young & Durclen, for appellee.
   Ed. F. McFaddin, Justice.

This appeal challenges the ruling of the Circuit Court in sustaining defendant’s motion for summary judgment and dismissing the plaintiff’s complaint.

Appellant, United Press International, Inc., was the plaintiff below. It is, and was at all times herein involved, a corporation not domesticated in Arkansas (see Ark. Stat. Ann. § 64-1201 [Repl. 1966]), and engaged in selling information to various news media. Appellee, at all times herein involved, was owning and operating a radio broadcasting station in Hot Springs, Arkansas, originally under the call letters KBLO, and later under the call letters KZNG.

In December 1961 appellant and appellee entered into a contract whereby appellant agreed to furnish news services for broadcasting, and appellee agreed to pay stipulated amounts therefor. In October 1963 appellant filed this action against the appellee, claiming unpaid amounts due on the contract, which contract was made an exhibit to the complaint. Appellee admitted that the contract had been signed, but claimed that plaintiff, as a non-domesticated foreign corporation, was barred from maintaining the action. The appellee then filed the deposition of Mr. James R. Campbell, State Manager of United Press International, Inc.; and, based entirely on that deposition, the appellee moved for summary judgment of dismissal of the complaint, saying:

“In his answer, defendant affirmatively alleged that at the time of the execution of the contract the plaintiff was a corporation organized and existing under the laws of the State of New York, which had not qualified to do business as a foreign corporation within the State of Arkansas, and that at the time of the execution of the contract plaintiff was engaged in doing business within the State of Arkansas, and that therefore under the'provisions of Section 64-1202, Arkansas Statutes, 1947, Annotated, the contract sued upon by plaintiff is unenforceable by plaintiff against defendant. Said affirmative allegation in defendant’s answer has not been denied by plaintiff and therefore must be taken as admitted to be true by the plaintiff.
“Defendant states that the foregoing constitutes a complete defense to plaintiff’s complaint and that on this issue alone defendant is entitled to a summary judgment of dismissal of plaintiff’s complaint, and that therefore there is no genuine issue of fact to be determined herein.
“Defendant attaches to this motion the deposition of plaintiff’s state regional manager, James R. Campbell, which affirmatively shows that plaintiff was engaged in doing business in the State of Arkansas in intrastate commerce at the time the contract in question was executed, even though it appears from the pleadings that this allegation has been admitted.”

The Circuit Court granted the motion for summary judgment, stating: “ ... plaintiff’s complaint should be' dismissed for the reasons stated in said motion.” From such judgment of dismissal, there is this appeal.

1. The Summary Judgment Issue. At the threshold of the appeal, the appellee insists that the appellant filed no pleading to counter the motion for summary-judgment, and filed no affidavits controverting the motion; and appellee claims that such failure on the part of the appellant ivas, in itself, sufficient grounds for the action of the Court in granting the summary judgment. We do not agree with the appellee in such position. In moving for summary judgment the appellee had the burden of establishing that there was no genuine material fact question, and that on the record as made the summary judgment should be granted. By Act No. 123 of 1961, Arkansas adopted Rule 56 of the Federal Rules of Civil Procedure regarding summary judgment. The Act may be found in Ark. Stat. Ann. § 29-211 (Repl. 1962). Sub-section (c) of § 29-211 reads in part: “The judgment sought shall be rendered forthwith, if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a/uy material fact, and that the moving party is entitled to judgment as a matter of law.” (Italics our own.)

So the Court examines the pleadings; and, under the pleadings in this case, we hold that summary judgment should not have been granted because there was a genuine issue as to the material fact of the place in which the contract sued on had been made. In the complaint it was stated that the “. . . plaintiff and defendant entered into a written contract, a copy of which is attached hereto, made a part hereof, and marked ‘Exhibit A’; . . .’’In the answer, the defendant “. . . 'admits the execution of the contract described in paragraph III of said complaint.” The opening sentence of the contract was this: “Made this 15th day of December, 1961, at New York, New York, between United Press International, Inc., a New York corporation, hereinafter called UPI, and George T. Hernreich, d/b/a Radio Station KBLO, Hot Springs, Arkansas, hereinafter called broadcaster.” It will be observed that the contract alleged that it was made “at New York, New York.”

Was it made at New York, New York? There is nothing in the deposition of Mr. Campbell (and that is all the defendant offered) to show that the contract was made in any other place except New York, New York. Before the defendant could bring himself within the purview of Ark. Stat. Ann. § 64-1202, he would have to show that intrastate commerce was involved, and that the contract was made in the State of Arkansas. This point will be developed in Topic II of this Opinion. Until the defendant made such proof he was not entitled to claim any benefits under Ark. Stat. Ann. § 64-1202, and the admission of the defendant in his answer, as previously copied, prevented the defendant from being entitled to any summary judgment. The defendant, as the moving party, had the burden to establish that he was entitled to summary judgment. Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646; Russell v. Rogers, 236 Ark. 713, 368 S. W. 2d 89; Young v. Dodson, 239 Ark. 143, 388 S. W. 2d 94. Such burden required the defendant to establish that there was no genuine issue as to the material fact that the contract was made in Arkansas, since only contracts made in Arkansas are in the prohibitory provision of the Foreign Corporation Statute, as we will now discuss. The defendant failed to discharge such burden so tbe summary judgment should not have been granted.

II. The Foreign Corporation Issue. The appellee claims that the appellant, as an admitted non-domesticated foreign corporation, is prohibited by Ark. Stat. Ann. § 64-1202 (Repl. 1966) from maintaining this action. To this claim appellant makes two answers: the first is that only interstate commerce is involved; and the second is that, even if intrastate commerce is involved, nevertheless the contract was not made in Arkansas and thus is not within the prohibitory provisions of the statute.

If all the transactions under the contract were in interstate commerce, then, of course, Ark. Stat. Ann. § 64-1202 has no application. Assuming, however, but not deciding, (a) that the deposition of Mr. Campbell established that some of the dealings under the contract were in intrastate commerce, and (b) that if any of the performance was in intrastate commerce, then any action on any part of the contract is within the prohibitory language of § 64-1202, we necessarily come to the question of whether a non-domesticated foreign corporation may use the courts of this State to obtain any relief under a contract made outside Arkansas. This brings us to a study of Ark. Stat. Ann. § 64-1202, which has many times been before this Court; but we find no Arkansas case directly in point on the issue here presented.

The statute 64-1202) has two distinct penalty provisions. The first provision is a fine to be collected against any non-domesticated foreign corporation that does business in this State. This fine provision applies regardless of where any contract may have been made, but the statute does not state that the assessment of the fine also makes the contract void. The second penalty provision in the statute is the one here in issue, and is contained in this statutory language: “. . . and as an additional penalty, any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make awy contract in the state which can he enforced hy it either in law or equity. . .” (Italics our own.) It will be observed that by the quoted language the courts of this State are closed to any non-domesticated foreign corporation only when seeking to enforce any contract made in this State. So the place of the making of the contract becomes most material in the case at bar, assuming any intrastate commerce is involved and that any such would taint the entire transaction.

The statute that is now Ark. Stat. Ann. § 64-1202 has been many times before this Court and the original statute has been several times amended. Judge Leñar, in his volume, “Conflict of Laws,” published in 1938, in §§ 50, 54 and 57 thereof, discussed the history of the statute and the many cases involving it. In § 54 there is this statement: “It has been said that the Arkansas statute cannot apply to prevent actions on contracts not made in 'Arkansas, even though interstate commerce be not involved. Brace v. Gauger-Korsmo Const. Co. (CCA 8th 1926), 36 F. 2d 661.” Cert. denied, 74 L. Ed. (U. S.) 1153.

The cited ease is directly in point. There, the non-domesticated. foreign corporation made a contract in Tennessee, to'-be.performedin Arkansas, and the' statute was Invoked against the action of such non-domesticated foreign corporation.• The- Circuit Court of Appeals Stated): “The lower'court held that this statute could ífot )bé Ihvoked'in'the instant case because'the contract wa's hot made in the State óf Arkansas. The correctness of this holding of the trial court is challenged by appellants, and it is urged that as the contract was one to be performed in the State of Arkansas it was within the inhibition of the statute.” In affirming the trial court, the Circuit Court of Appeals said: ‘ ‘ The ruling of the court finds support in State, etc. Ins. Assn. v. Brinkley, 61 Ark. 5, 31 S. W. 157, 29 L.R.A. 712, 54 A.S.R. 191, where the court says: ‘ Though the appellant company failed to comply with the statute by not doing those things required of foreign corporations before doing-business in this state, the contracts in this case were not void on that account, as they were Illinois contracts.’ ”

A case not going quite as far as the Brace case, supra, but shedding light on the foreign corporation issue, is Pratt Laboratories v. Teague, 160 F. Supp. 176, in which Judge John E. Miller, for the Western District of Arkansas, in his usual thorough manner, reviewed the various cases on the Arkansas statute concerning non-domesticated foreign corporations, and concluded: “The statute does not concern itself with the place of performance, but merely refers to the place of the making of the contract ...”

We have repeatedly held that § 64-1202 is a penal statute and must be strictly construed'in favor of those against whom the penalty is sought. Alexander Film Co. v. State, 201 Ark. 1052, 147 S. W. 2d 1011; Murray Tool Co. v. State, 203 Ark. 874, 159 S. W. 2d 71. In thus strictly construing the statute in favor of the appellant, we must conclude that the statute closes the doors of the State courts to a non-domesticated foreign corporation only on those actions involving contracts made in this State. The general rule in other jurisdictions involving-similar statutes supports our conclusion. In 23 Am. Jur. 331, “Foreign Corporations,” § 357, cases and texts are cited to sustain this statement: “A foreign corporation is ordinarily entitled to maintain an action in a' state-court on a contract made by it in another state, irrespective of whether it has complied with the state statute.”

We therefore conclude that the place of the making of the contract in this litigation is a material question and that the determination of that question presents a genuine issue as to a material fact; and therefore the trial court was in error in sustaining the defendant’s motion for summary judgment.

Reversed and remanded.

Bland, J., dissents from that portion of this Opinion which relates to summary judgment.

       The defendant’s answer said:
      “Further answering defendent states that at the time of the execution of said contract, to-wit: December 15, 1961, and at the time of the filing of plaintiff’s complaint and at the present time, plaintiff, a corporation organized and existing under the laws of the State of New York, had not qualified to do business as a foreign corporation within the State of Arkansas as provided by the laws of said state, although at all of said times plaintiff was engaged in doing business within the State of Arkansas, and defendant states that, therefore, under the provisions of Section 64-1202, Arkansas Statutes 1947, Annotated, said contract is unenforceable by plaintiff against defendant, and plaintiff has no right to maintain this action against defendant.”

       “Appellant urges these points:
      "I. The Court erred in sustaining the motion for summary judg-ment for the reason that the appellee failed to sustain his burden of demonstrating that there are no genuine issues of material fact.
      “II. There are genuine issues of material fact in this ease on which appellant is entitled to a trial.
      “A. This contract does not come within the prohibition of Section 64-1202 Arkansas Statutes (1947) Annotated because it is a New York contract; or, at the very least, an issue of fact exists on that point;
      “B. This contract arose out of interstate commerce and provides for transactions constituting interstate commerce and thus does not fall within Section 64-1202; or, at the very least, an issue of fact exists upon that point.”

       Some of the federal cases construing the Federal Rule 56, on the point here at issue, are: Poller v. Columbia Broadcasting System; 363 U. S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486; Durastell v. Great Lakes Corp., 205 F. 2d 438; Booth v. Barber Co., 256 F. 2d 927; Hiern v. St. Paul Co., 262 F. 2d 526; McHenry v. Ford Motor Co., 269 F. 2d 18.

       In the annotations following Ark. Stat. Ann. § 64-1202 (Repl. 1966), the case of Graysonia, N. & A. R. Co. v. Newberger Cotton Co., 170 Ark. 1039, 282 S. W. 2d 975, is cited as authority for this statement: “A foreign corporation may sue in the state to enforce contracts made in other states without complying with the statutory requirements for doing business.” But the reported case does not show that the non-domesticated foreign corporation was seeking to enforce an intrastate transaction resulting from a contract made outside Arkansas.

       There is an annotation in 81 A. L. E. 1134 entitled: “Applicability of provisions explicitly invalidating contracts made by foreign corporations not licensed to do business in state, to contracts made outside of the state,” and cases from various jurisdictions are cited in the annotation.


author: George Rose Smith, Justice.

text:
    Federal Factors, Inc. v. Wellbanke
    5-3942
    406 S. W. 2d 712
    Opinion delivered September 19, 1966
    [Rehearing denied October 24, 1966.]

      Files, Davidson & Plaster and Paul Henson, for appellant.

      Guy H. Jones, for appellee.
   George Rose Smith, Justice.

The appellant, claiming to be a holder in due course, brought this action to enforce three instruments, entitled Trade Acceptances, executed by the appellee Wellbanke and by Richard J. Martin. Wellbanke contended that the instruments were not negotiable and that he was therefore entitled to interpose in his defense certain breaches of contract on the part of the drawer, Chemical Products, Inc. The trial court, sitting without a jury, sustained Wellbanke’s contentions. Negotiability is now the main issue.

In October 1962 Wellbanke and Martin signed a contract by which they became exclusive local dealers for Chemical Products. In the contract they agreed to purchase a quantity of merchandise, which was to be shipped to them for resale. At the trial Wellbanke testified that Chemical Products violated certain oral assurances that its agent had given, sucli as a promise to prepay the freight on the shipment and a promise not to transfer or assign the Trade Acceptances to anyone else.

The three instruments, evidencing the unpaid purchase price, were alike except for serial numbers and dates of maturity. Apart from inessential matters such as the drawer’s telephone number, the instruments were in this form:

Chemical Products Incorporated Salt Lake City, Utah

No. 687 October 5, 1962.

On November 10, 1962 Pay to the order of Chemical Products Inc. Two Thousand Four Hundred Thirty-two and no/100 Dollars ($2,432.00).

The transaction which gives rise to this instrument is the purchase of goods by the acceptor from the drawer.

Chemical Products Inc.

By Bob Ghron

Accepted at Conway, Ark. on Oct. 5, 1962.

Payable at First National Bank

Bank Location Conway, Ark.

Buyer’s Signature Joe Wellbanke

& Richard J. Martin

Neither the trial court nor the appellee’s attorney has suggested any reason for holding the instruments to be nonnegotiable. To the contrary, they contain all the elements of negotiability specified by the Uniform Commercial Code. Ark. Stat. Ann. § 85-3-104 (Add. 1961). The mere reference to the transaction giving rise to the instruments does not affect negotiability. Trice v. People’s Loan & Inv. Co., 173 Ark. 1160, 293 S. W. 1037 (1927); Ark. Stat. Ann. § 85-3-119. In view of the undisputed proof that the plaintiff was a holder in due course it took the instruments free from the defenses relied upon by Wellbanke. Section 85-3-305.

Upon remand it is possible, although unlikely, that one other matter may arise. 'The appellant insists that ■the appellee’s failure to answer requests for admissions of fact within ten days, as requested, had the effect of admitting the truth of the requests. Counsel for the appellee states in his brief that he was given an extension of time -for answering the requests. No such extension, h'owey'e-r, appears in the record. Unless the asserted 'extension is proved the requests must be taken to have been admitted. Ark. Stat. Ann. § 28-358; see White River Limestone Products Co. v. Missouri-Pac. R. R., 228 Ark. 697, 310 S. W. 2d 3 (1958). In' all probability, however, the negotiability of the Trade Acceptances makes this matter immaterial.

Be versed.


author: Paul Ward, Justice. Ed. F. McF addin, Justice,

text:
    Housing Authority of NLR v. Green
    5-3961
    406 S. W. 2d 139
    Opinion delivered September 19, 1966

      Byron B. Bogará, and U. A. Gentry, for appellant.

      Catlett & Henderson, for appellee.
   Paul Ward, Justice.

This appeal is a continuation of the litigation involved in the case of The Housing Authority of the City of North Little Rock v. Amsler, Judge, 239 Ark. 592, 393 S. W. 2d 268 (decided May 31, 1965), to which reference may be made for fuller details. In that case the Housing Authority asked the trial court for permission to withdraw its suit after the july had returned a verdict favorable to the landowner. The trial court allowed the withdrawal, but held the Housing Authority’ must pay the landowner all reasonable expenses for defending the litigation. The trial court then set a hearing on November 13,1964 to determine the “amount, if any, to be awarded to'” . . . the owner.' •

Before the hearing could be held on NovembéíTT3) 1964, appellant filed a petition in this Court to prohibit the trial court from proceeding further, contending it had no jurisdiction to award appellee said expenses. On May 31, 1965 we denied the petition and held the trial court did have inherent jurisdiction to award expenses under the circumstances.

Following the decision of this Court, the trial court then found that appellee was entitled to the sum of $12,562.92- — hence this appeal.

One. We find no merit in appellant’s contention that the trial court had no authority to award expenses. Our decision in the prohibition proceeding is now the law in this case, and refutes appellant’s contention on this point.

Appellant makes the contention however that our previous decision is not conclusive here because there was evidence to show appellant acted in good faith in dismissing the original suit. Again, we find no merit in this contention. Even though it be conceded for the purpose of this opinion, that a showing of lack of good faith is a prerequisite to jurisdiction, still appellant cannot prevail. The trial court held that appellant failed to show g’ood faith and we think the trial court was correct, in so holding. Three witnesses testified for appellant on this point. Their testimony, in substance, was that .it did not have enough money to pay the amount of the jury verdict. We cannot be impressed with their reasoning, especially when this acute money situation was not revealed in advance to appellee or the court. Certainly, the situation cannot be attributed to any fault of appellee.

■Two. We have concluded the allowance of $12,-562.92 made by the trial court is excessive. Testimony on the part of appellee, to justify that amount, was that he had paid two appraisers the sum of $1,400; that he had paid $162.92 for maps, and that his attorney should have- $10,000 for his services. The testimony regarding the last item was far from convincing. It is true that a reputable attorney testified that, in his opinion, a fee of $10,000 was reasonable. However, that testimony appears to have been based on the fact that a verdict of $45,-000 was returned in favor of appellee. The fact, however, is that appellee was not allowed to collect anything. Appellee is entitled to he reimbursed only for all reasonable expense incidental to defending the suit.

We refrain from setting out in detail the testimony relative to the claimed expense because we have concluded the judgment is excessive by the amount of $5,-000.

Therefore, if appellee will, within seventeen calendar days, enter an acceptance of a judgment in the amount of $7,562.92 such judgment will be affirmed, otherwise the judgment will he reversed and the cause remanded for a new trial.

Harris, O. J. & McF addin, J., dissent.

Amsler, J., not participating.

Ed. F. McF addin, Justice,

dissenting. In this case I dissent from the affirmance of the Trial Court’s judgment for any amount; and here are my reasons:

I.

In the case of Housing Authority v. Amsler, Judge, 239 Ark. 592, 393 S. W. 2d 268, I stated in considerable detail why I was of the view that the landowner could not recover any damages in this case; and I am still of the view stated in that dissenting opinion.

II.

In the Majority opinion in the said case of Housing Authority v. Amsler, supra, the Trial Court was empowered to proceed to hear the damage claim; and these are the directions contained in the final paragraph of the said Majority opinion:

“Accordingly the writ is denied and, at the next hearing, the Trial Court can determine the question of good faith or lack thereof and also the amount of damages, if any, suffered by the condemnee.”

Thus, under the directions of the Majority, the first question that the Trial Court was to determine was that of good faith or lack thereof on the part of the Housing Authority in surrendering the property without a taking. I find absolutely nothing in the testimony in the trial from which comes this appeal which indicates any lack of good faith on the part of the Housing Authority in surrendering the property. The uncontradicted testimony shows that the Housing Authority took 102 parcels of land before this parcel, and had paid for the 102 parcels a total of $'517,706.65; that'the balance of funds left in the hands of the Housing Authority was a total of $20,418.35 with which to acquire this parcel of property ; that after the jury returned a verdict of $45,000.00 the Housing Authority did not have sufficient funds to acquire this property; and, therefore, the Housing Authority necessarily had to forego the acquisition of this property. The testimony is detailed, and there is none to contradict it. Where is the bad faith on the part of a person who cannot buy property because he does not have the money? The Trial Court had no evidence on which to predicate a finding of bad faith on the part of the Housing Authority.

Therefore I dissent from any affirmance of the judgment for any amount.

I am authorized to state that the Chief Justice joins in this dissent.


author: Oseo Cobb, Justice.

text:
    Spa Kennel Club v. Dunaway
    5-3967
    406 S. W. 2d 128
    Opinion delivered September 19, 1966

      Rose, Meek, House, Barron, Nash & Williamson, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee.
   Oseo Cobb, Justice.

The General Assembly passed Act 191 in 1957, same being an Act to legalize, under certain conditions, greyhound racing and parimutuel wagering thereon in all political subdivisions of the State and to regulate same. Section 6(A) of Act 191 provides as follows:

"Except as otherwise hereinafter provided, the (Arkansas Racing) Commission shall not be authorized to grant, nor shall it grant, a franchise to any county in this State unless and until the proposition of Greyhound Racing shall have been approved by a majority of the qualified electors of such county at a special election called for that purpose.” (Parenthesis supplied.)

The mechanics for holding such an election are set forth under the provisions of Section 9 of Act 191. Subsection (A) of Section 6 of the Act was amended by Act 56 of 1961. However, that amendment is irrelevant to the issues presented on this appeal.

In 1965 appellant obtained from appellee a temporary franchise under Act 191, applicable solely to Garland County; thereafter, acting pursuant to the provisions of Section 9 of Act 191, appellee notified the County Board of Election Commissioners to call a special election to submit the issue of Greyhound Racing in Garland County to the qualified electors of said County. The Election Commissioners of Garland County called the special election for November 23, 1965. Prior to that date, an Extraordinary Session of the General Assembly was called by Governor Orval E. Paubus, and Act No. 7 of the Extraordinary Session of 1965 was passed, including an emergency clause, and was duly approved by the Governor on November 6, 1965. The declared intent of Act 7 was to abolish local option elections by political subdivisions on the question of legalizing Greyhound Racing and to require approval of any such franchise by a majority of the qualified electors voting-in a Statewide Biennial General Election. See Section 1 (A) of said Act.

Appellee thereafter cancelled the temporary franchise of appellant solely because of the provisions of Act 7.

Appellant filed a petition for declaratory judgment seeking an order of reinstatement of their temporary franchise. The Attorney General, representing the Arkansas Racing Commission, filed a demurrer to appellant’s petition, which was sustained by the trial court, appellant’s petition being dismissed.

On appeal appellant raises three points, all relating to Act 7 of the Extraordinary Session of 1965. Appellant’s points:

No. 1. Act 7 should not be construed to retroactively apply to appellant.
No. 2. The emergency clause in Act 7 is special and local, and is void.
No. 3 Act 7 is void because introduced within the last three days of the session.

Appellant’s Point No. 1.

In support of this point appellant calls our attention to New York R. R. Co. v. Pennsylvania, 153 U. S. 628, and Houston & T. C. R. Co. v. Texas, 170 U. S. 243. These cases involved statutory and/or constitutional authority for construction of certain railroads, or specified segments thereof and subsequent operation of same. Furthermore, in these cases the construction had long since been completed and the rights of the respective parties were in no way conditioned upon a local or general election. The cases, therefore, are clearly distinguishable from the facts in the instant case. Moreover, appellant has not cited any case authority where the facts are comparable to those of the instant case.

Appellant was specifically prohibited by the provisions of Act 191 of 1957 from any dog racing operations until after the special election on that issue. Whether such racing proposal would have been approved or rejected at the special election called for November 23, 1965, and which was never held, is a matter of complete conjecture. It is, therefore, clear that appellant’s'rights at the time of cancellation of its temporary franchise, which occurred prior to the special election on November 23, 1965, were prospective in character. Furthermore, we have held in Arkansas Racing Commission v. Hot Springs Kennel Club, Inc., 232 Ark. 504, 399 S. W. 2d 126 (1960):

"* * * It is well recognized by all authorities that a franchise granted by the State to conduct dog racing, just as a franchise to sell liquor, is a privilege and not a property right. The State gives the. privilege and it can take away that privilege by the same token.* * *”

We find no merit in appellant’s contentions under Point No. 1.

Appellant’s Point No. 2 — The validity of the emergency clause as a part of Act 7.

We quote the entire emergency clause of Act 7 of the Extraordinary Session of the General Assembly of 1965:

"Section 6. The General Assembly has determined that: (1) the approval of pari-mutual wagering on Greyhound Racing in any county in this State is a matter of vital concern to the people of the entire State, (2) improvements already completed and now being made in means and methods of communication and transportation (particularly in the State and Interstate Highway Systems) render it impossible to confine the economic impact of such wagering to a single county, and (3) an election has been called to submit the question of parimutuel wagering on Greyhound Racing in Garland County to the electors of that county on November 23,1965. Therefore, the General Assembly finds and declares that because of the vital concern of the people of the entire State in the matter of pari-mutuel wagering on .Greyhound Racing an emergency exists and that this Act, being necessary for the preservation of the public peace, health and safety shall be in full force and effect on and after its passage and approval. ’ ’

Appellant invites our attention to Matthews v. Byrd, 187 Ark. 456, 60 S. W. 2d 909 (1933), wherein we clearly recognized that those portions of statutes found to be invalid could be severed from the remaining valid provisions of such enactments. "We do not recede from that view. However, while recognizing that the emergency clause is subject to separate attack as to its validity, we note that appellant has not cited any case authority in support of its contention that the emergency clause above quoted is special and local and thus invalid, and offensive to the provisions of Amendment 14 of our present Constitution. (1874).

We therefore find no merit in the contentions of appellant’s Point No. 2.

Appellant’s Point No. 3 — The alleged invalidity of Act 7 of the Extraordinary Session of the General Assembly, 1965.

Section 34 of Article 5 of our current Constitution (1874) provides as follows:

“No new bill shall be introduced in either House during the last three days of the session.”

It is conceded that the bill which became Act 7 of the Extraordinary' Session of 1965 was introduced during the last three days of the Extraordinary Session. If Section 34. of Article 5 of our Constitution were the only expression of the framers of that instrument as to sessions of the General Assembly, then this point by appellant could have unquestioned merit. However, the framers of our Constitution divided the powers — Article 5.. relating to the legislative department; Article 6 relating to the executive department, and Article 7 relating to the judicial department.

Section 2 of Article 6 reposes the supreme executive power of this State in the Governor, and Section 19 of Article 6 authorizes the Governor to summon the general assembly into extraordinary session when in his judgment an emergency exists requiring same. The extraordinary sessions of the general assembly are not to be confused with the regular 60-day sessions held every two years, as provided under Section 5 of Article 5. Louisiana has constitutional provisions virtually identical with those of Arkansas in relation to regular and extraordinary sessions of its general assembly. In State ex rel Saint v. Dowling, 167 La. 907, 120 Sou. 593 (1928), it was held that the special or extraordinary sessions are of such exceptional character and are so limited as to duration and to objects of legislation that they are not even included under the heading of “legislative department” in the present Constitution, but are placed under the heading of “executive department,” and within the control of the Governor. See Opinion of the Justices, 275 Ala. 102, 152 Sou. 2d 427 (1963). See also Discussion in Volume 81, C. J. S., Section 37, beginning at page 952.

While the action of the Governor in calling an extraordinary session is not reviewable, laws enacted during such extraordinary sessions are reviewable in the courts when properly challenged as to validity.

The question of the application of the time limitation referred to in Section 34 of Article 5 to bills introduced during extraordinary sessions of the general assembly is one of first impression here. Appellant has cited no case authority from any sister State having constitutional provisions similar to ours which limits or invalidates such emergency legislation because of any stated time element in processing' the emergency legislaon. It is conceivable that an emergency could develop which, in the judgment of the Governor and the members of tbe General Assembly, required legislative action in less than three days. While the General Assembly is a deliberative body using 60 days for its regular sessions, it can, in response to the call of the Governor, meet and pass emergency legislation as the conditions may require in the public interest.

We therefore find no merit in appellant’s Point No. 3, and having found no merit in any of appellant’s contentions, the dismissal of appellant’s petition in the trial court is affirmed.


text:
    Sharum v. Terbieten
    5-3953
    406 S. W. 2d 136
    Opinion delivered September 19, 1966

      Franklin Wilder, for appellant.

      Hardin, Barton, Hardin So Jesson, for appellee.
   Guy Amsler, Justice.

This unfortunate controversy involves a property line dispute between a brother and sister. It is the type litigation that members of our Christian society should zealously discourage. As best we can determine from the record the area in dispute is some 30 to 35 feet in width and 210 feet in length.

Appellant Lawrence Sharum is a son of U. G. Sharum and appellee Madalene Terbieten (nee Madalene Sharum) is appellant’s sister. In 1940 the father of these litigants owned considerable real property adjacent to the intersection of Massard Road and Highway 22 in the Greenwood District of Sebastian County. On May 13,1940, Father Sharum and his wife conveyed, as a gift, to his son Lawrence a plot of land described as follows:

“Beginning at the center line of State Highway 22 where the East Boundary line of said Massard Road crosses Highway 22 and running thence south along the East Boundary line of said Massard Road 210 feet, thence east 210 feet, thence north to center line of Highway 22, thence west along center line of Highway 22 to place of beginning, containing approximately one acre, and being a part of the NW quarter of the SE quarter of Sec. 30, T8N, R31W.”

On the same date the parents conveyed that part of the NW% SE14 of Sec. 30, South of Highway 22 as a gift to their daughter Madalene “except approximately one acre in the NW corner of said tract deeded to Lawrence Sharum, containing 28 acres more or less.” The grantors retained a life estate in this tract.

U. G. Sharum died in March of 1949 and his widow passed away in August of 1955. Appellee then took possession of her property. Thereafter according to some of the testimony there were efforts on the part of appellee’s husband, Leo Terbieten, and appellant Laivrence Sharum to determine the exact location of the line between the property of appellant and appellee. If Mrs. Terbieten had any part in these endeavors the record fails to reveal it. The contention of appellant is that it was intended that he should have a full acre exclusive of Highway 22 right of way. Appellee on the other hand contends that appellant is entitled to take according to the plain wording of his deed.

Appellant filed suit praying a reformation of the deeds executed to him and his sister by their parents and title to 1 acre exclusive of Highway 22 right of way be quieted in him. The trial judge very properly held that “one dollar and love and affection” conveyances are not subject to reformation under our decisions: Wells v. Smith, 198 Ark. 476, 129 S. W. 2d 251; Kaylor v. Lewis, 212 Ark. 785, 208 S. W. 2d 185; Ketchum v. Cook, 220 Ark. 320, 247 S. W. 2d 1002; and Lathrop v. Sandlin, 223 Ark. 774, 268 S. W. 2d 606.

The cause was dismissed for want of equity and this appeal was perfected in due course.

■Counsel for appellant concedes that he was not entitled to reformation of the deeds but contends that the chancellor erred in not passing on the question of adverse possession and granting appellant title to a full acre outside the right of way of Highway 22 under the 7 years statute. It is true that the trial judge did not mention “adverse possession” in his findings or decree, however under our well established rule we try chancery eases on the record and dispose, of them. Whether the chancellor makes a finding or bases his decision on an erroneous conclusion does not preclude our reviewing the case “de novo.” Culberhouse v. Hawthorne, 107 Ark. 462, 156 S. W. 421; Langley v. Reames, 210 Ark. 624, 197 S. W. 2d 291.

Adverse possession is a fact question and our holding requires a brief review of the evidence. Appellant says he took possession of one acre, exclusive of the Highway 22 right of way following the gift from his father; that he leased an acre for a billboard; executed a pipe line lease to the gas company; paid taxes on an acre (this was described as pt. 30-18-31); set up some corner posts and cut the sprouts and weeds from what he claimed as his one acre.

The descriptions nsed in the 2 leases executed by appellant were identical with the one contained in the deed from his father; the billboard was erected on land entirely within the-description contained in his deed; he made no effort during his father’s lifetime to get a correction deed and he never fenced the acre he now contends belongs to him.

A strong indication of the uncertainty in appellant’s mind regarding’ the correct boundary is the fact that in May of 1965 he employed a surveyor to establish the line. If he had through the years been claiming* up to a certain line he didn’t need an engineer to locate that boundary.

Of more than passing significance is the fact that the engineer employed by appellant first made a survey that conformed with the description contained in appellant’s deed from his father. Appellant was dissatisfied with that survey and had the surveyor tear it up and prepare one based on points and boundaries supplied by appellant. The surveyor testified that his survey did not conform with the description contained in the Lawrence Sharum deed.

The wife and son of appellant corroborated his testimony regarding what he claimed to be hostile acts of adverse possession in practically every detail.

Leo Terbieten, husband of appellee, who seems to have kept track of happenings connected with the boundary dispute testified that before Mr. U. Gr. Sharum (the father of litigants) died he (the father) laid off the acre that was deeded to Lawrence Sharum and “told me to stay off of it, and I did. ’ ’

Appellants claim that appellee’s husband constructed a line fence in 1952 and thereby fixed a boundary between the parties. The husband explains this by saying that he undertook to place the fence on the line pointed out to him by Mr. U. Gr. Sharum, (which line was confirmed by a survey made by H. A. Peck, a civil engineer) and that tbe men be bad doing tbe work were stopped by Lawrence Sbarum. He says be then bad a temporary fence constructed further to tbe south and left about 3 acres open on Lawrence Sharum’s side of tbe fence. Terbieten testified “I just built a temporary fence so we could use it and cut the hay — it is going to be there until I find out where to put a permanent fence.” He said they continued to cut bay on tbe north side (Lawrence Sharum’s side) of tbe fence several years after tbe fence was built.

Worthy of note is tbe fact that appellant does not claim title to all tbe land up to this fence nor does be contend that the fence marks tbe boundary line between tbe parties. Tbe implication appears to be that tbe construction of this temporary fence was some sort of an admission adverse to appellee’s contention. We accept tbe happening as a temporary measure designed for use until a troublesome problem could be resolved.

Appellant claims that sometime after bis father’s death in 1949 be erected posts at tbe corners of tbe one acre be claims. However, if these posts were erected (which is disputed) there is no evidence that bis sister or anyone else bad knowledge that appellant claimed them as marking tbe line between tbe adjoining ownerships. Regarding this boundary dispute appellant testified “I have never bad any words with him” (referring to bis brother-in-law) and as to his sister be said “I have bad no words with my sister at no time.” In Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900, we said:

“While, in such cases, to constitute an adverse possession, there need not be a fence or building, yet there must be such visible and notorious acts of ownership exercised over tbe premises continuously, for tbe time limited by tbe statute, that tbe owner of tbe paper title would have knowledge of tbe fact, or that his knowledge may be presumed as a fact. * * *”

Considering the testimony as a whole we are unwilling to say that the chancellor’s ruling on the case is not supported by a preponderance of the evidence. The decree is therefore in all respects affirmed.

Bland, J., disqualified.


text:
    Green Chev. Co. v. Kemp
    5-3954
    406 S. W. 2d 142
    Opinion delivered September 19, 1966

      Peter G. Estes, for appellant.

      Murphy & Burch, for appellee.
   Hugh M. Bland, Justice.

On June 25, 1964 appellant, herein called seller, and appellee, herein called buyer, entered into a conditional sales contract whereby seller sold a used 1963 Chevrolet to buyer and took buyer’s old car in trade leaving a balance due of $2,702.88 to be paid by buyer in monthly payments. Shortly thereafter seller assigned the contract to Motors Finance Company.

After buyer had become in default on his monthly payments Motors Finance Company brought suit against buyer on January 2, 1965 to recover for balance due on the contract. The buyer answered and filed a cross complaint against seller alleging breach of implied warranty and breach of express warranty of all mechanical parts for one year. Buyer alleged damages of $1,000.00 as a result of breach of these warranties.

At a trial before the court sitting as judge and jury, the only evidence of buyer’s damages was a bill from Stealdy Chevrolet, Dallas, Texas in the amount of $106.21. Over the timely objection of seller, the trial court allowed buyer to show that a Mr. Freeman, seller’s agent, had made oral guarantees of the mechanical parts of the car for a period of one year. Both the buyer and his wife testified, over objections, that seller’s agent had told them that the car was guaranteed for a year and that if they were not satisfied with the car to bring it back and the seller would make adjustments. The seller admitted signing the conditional sales contract which provided, among other things, that the buyer accepts the car, having first examined and tested same and found it in sound and first-class condition. It further provided that the contract covers all conditions and agreements between the parties. The buyer brought the car back and minor adjustments were made by seller. Buyer kept the car from June 25, 1964 until January 2, 1965, driving it in excess of 3,000 miles, at which time he refused to malee any further payments on the ear because the seller would not pay a bill he had incurred while attending the Cotton Bowl Game at Dallas, Texas wherein it became necessary to repair the power steering, brakes and fuel pump.

At the conclusion of the evidence the court granted Motors Finance Company’s motion for summary judgment against buyer. The trial court also found that seller had breached both implied and expressed warranties and awarded buyer $1,000.00 damages. Seller has perfected its appeal from this judgment and relies upon five points for reversal:

“I. The court erred in allowing appellee to introduce oral testimony to vary the terms of the ‘Conditional Sale Agreement.’
II. The court erred in awarding appellee any damages in excess of $106.21.
III. There was insufficient proof of an expressed warranty, of breach of expressed warranty, and of damages for breach of expressed warranty.
IY. There was no proof of breach of implied warranty.
Y. The appellee did not revoke his acceptance of the vehicle, as required by the Uniform Commercial Code, and if he did revoke his acceptance, he continued to exercise ownership over the vehicle contrary to said Code.”

The court was in error in admitting the testimony of the buyer and his wife with reference to representations made by seller’s agent as to these warranties. This testimony was contradictory and inconsistent with the terms of the conditional sales contract. Under the Uniform Commercial Code as found in Ark. Stat. Ann. § 85-2-202 (Add. 1961), the parol evidence rule is not changed. Under the circumstances of the instant case this evidence was inadmissible under our holdings in Hambrick v. Peoples Mercantile & Implement Co., 228 Ark. 1021, 311 S. W. 2d 785 and Federal Truck & Motors Co. v. Tompkins, 149 Ark. 664, 231 S. W. 553.

Buyer strongly contends that he is entitled to damages for breach of warranty. In this connection the undisputed testimony shows that he kept the car for a period of more than five months, put in excess of 3,000 miles on it, and exercised dominion and control over the car at all times during this period. Under the Code, § 85-2-601 — 602, he had a right to reject the car hut this must be done within a reasonable time after delivery. Under § 85-2-606, after failure to make an effective rejection, he was bound by his acceptance of the automobile and unless it was rejected within a reasonable time with notification to the seller of his decision, he waived any warranties of defective condition of the car. Hudspeth Motors v. Wilkinson, 238 Ark. 410, 382 S. W. 2d 191.

For the reasons above stated the judgment is reversed and the cause remanded with directions to enter judgment for the seller.


author: Paul Ward, Justice,

text:
    Swindle v. Bradley, Chancellor
    5-3941
    406 S. W. 2d 324
    Opinion delivered May 23, 1966
    Dissenting opinion filed September 19, 1966
    [Rehearing denied June 6, 1966.]

      Ray A. Goodtvin, Kirsch, Cathey & Broivn, for appellant.
    No brief filed for Respondent.
   Paul Ward, Justice,

dissenting. After much reflection I am voting- to grant the petition for a rehearing.

This mother is trying to regain possession of her four year old daughter who was taken away from her illegally and by force. Assistance is now being denied this mother by this Court, the trial court, and the law enforcement officers because of a legal technicality which does not, in my opinion, apply under the undisputed facts in this case.

Essential facts. It is undisputed that:

(a) On May 28, 1965 the chancery court gave Valerie (the mother) the custody of Sharon — her three year old daughter.
(b) On July 2, 1965 the term of said chancery court expired.
(c) On August 4, 1965 Gerald (the father) by force took Sharon from her mother in England and brought her to his home in Greene County, Arkansas.
(d) On August 9, 1965 the trial court (on application by Gerald), ivithout notice to Valerie, gave temporary custody of Sharon to Gerald. A hearing on the merits ivas set for November 1, 1965.
(e) Valerie came from England to be present for the hearing on November 1.
(f) On October 30, 1965 Gerald left the state with Sharon. He is still at large, he still has Sharon, and Valerie is still looking for help.

.The Only Point at Issue. Did the trial court have jurisdiction, after expiration of the court term, to give Gerald legal custody of Sharon 1

In our original opinion we held the trial court had jurisdiction, citing numerous cases in support. The essence of the citations is “. . . that minors are Avards of chancery court.” A careful reading of the cited cases reveals that in each of them the interested parties had been given notice. This Court has never held (and I trust never will hold) that a chancery court has jurisdiction over all the minor children within its district— even without notice to their parents. In my opinion the Order of August 9 was void.

It is my conclusion therefore that the trial court in this instance had no jurisdiction to change its decree of May 28, 1965 without notice to Valerie. This is because the term of court expired on July 2, 1965 and the temporary order was made on August 9, 1965.

(a) In Karoley v. A. R. & T. Electronics, 235 Ark. 609, 363 S. W. 2d 120, we held that chancery court has power to set aside its decree toithout notice before the term lapsed, but that after the term had lapsed, it had no such power. At page 615 (Ark. Reps.) we said:

“After the lapse of the April term, the Chancery Court did not have the power to set aside the judgment of June 29th, unless the Garnishee complied with § 29-506 et seq. Ark. Stats. ...”

These sections, of course, require notice.

(b) In 17 A Am. Jur. § 850, Divorce and Separation, there is this statement:

“In proceedings for the modification of decrees in divorce relative to the custody of minor children, proper notice to the adverse party and an opportunity to be heard are required, whether or not provided for by statute. An order changing custody, entered without notice, is void and cannot be enforced.” (Emphasis ours.)

As noted previously, there is a statute in this State which requires notices.

[See original opinion 240 Ark. 903, 403 S. W. 2d 63.]