author: Sam RobiNsoN, Associate Justice.

text:
    Runkle v. Fuess.
    5-970
    290 S. W. 2d 433
    Opinion delivered May 21, 1956.

      Willis & Walker, for appellant.

      Arnold M. Adams and A. F. House, for appellee.
   Sam RobiNsoN, Associate Justice.

This case grows out of an alleged breach of a contract of employment. Appellant Bunkle employed appellees Harry and Mazie Fuess to operate Bunmoor Lodge, in Boone County, beginning April 1,1953 for one year, at a salary of $400.00 per month, together with their living expenses. Bunkle discharged the appellees in December 1953; they did not obtain other employment until March 1, 1954. Later, they filed this suit against Bunkle, asking judgment in the sum of $2,098.30 for salary due at the time they were discharged and for damages they sustained by reason of Bunkle’s breach of the contract of employment. The jury returned a verdict for the amount sued for, and Bunkle has appealed.

First, it is contended that the amount of the judgment is not sustained by the evidence. The jury found for appellees on all issues. There is evidence that Bunkle owed appellees $400.00 per month, for eleven months — a total of $4,400.00 — less salary payments totalling $1,-661.70; Social Security, $170.00; and Withholding Tax of $470.00, making a total of $2,301.70 to he credited against the $4,400.00, leaving $2,098.30, the amount of the verdict. Hence, the verdict is fully sustained by the evidence.

The court gave appellees’ requested Instruction No. 8, as follows: “If you find that the contract was not amended and that there was no violation on the part of the plaintiffs, then you should return in their favor a verdict for the sum of $4,800.00 less salary actually paid to plaintiffs and less the sums of $170.00, $400.00, and the amount of withholding taxes paid by the defendant for the plaintiffs, and less any additional amounts the plaintiffs could have earned after December if by reasonable efforts they could have obtained other employment before they went to the Eldorado Golf Club in March of 1954.” Appellant objected on the ground that the undisputed evidence shows that appellees, upon being discharged by appellant, did not seek other employment until March 1954. Actually, appellees did not receive the notice of their discharge by Runkle until about January 25, 1953. Following the receipt of this notice, Fuess was ill for about thirty days, and then appellees found other employment and began work March 1. During the short time they were unemployed, they drew some Social Security payments so that appellant had to pay for only about 45 days that appellees were out of work. The rule is that a party in the circumstances of appellees must make a reasonable effort to obtain other employment. Here, there was no showing that appellees could have obtained other employment before March 1, and the burden was on the appellant to produce evidence that such employment could have been obtained before that time. In Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113, the court said: When a servant is wrongfully discharged by his employer, it is his duty to use ‘reasonable efforts to avoid loss by securing employment elsewhere.’ . . . The burden of proof is on the employer to show that the servant might have obtained similar employment; for the failure of the servant to obtain other employment does not affect the right of action, bnt only goes in reduction of damages, and, if nothing else is shown, ‘the servant is entitled to recover the contract price upon proving the employer’s violation of the contract, and his own willingness to perform.’ ”

‘ ‘ The burden of proof was on the- defendant to show’ that the plaintiff found or could have found employment elsewhere of the same or similar character for the balance of the term.” School District No. 65 of Randolph County v. Wright, 184 Ark. 405, 42 S. W. 2d 555.

Appellant complains of the court’s failure to give his Instruction No. 5, but this instruction limited appellees’ recovery to a time prior to December 11, 1953. The evidence was sufficient to sustain a recovery to March 1, hence the court correctly refused the instruction.

Affirmed.

G-eqbge Rose Smith not participating.


source: Caselaw Access Project

author: Lee Seamstee, Chief Justice. Ed. F. McFaddiN, Associate Justice

license: Public Domain

text:
    Strawn v. Campbell, County Judge.
    5-990
    291 S. W. 2d 508
    Opinion delivered May 28, 1956.
    [Substituted opinion delivered July 2, 1956.]
   Lee Seamstee, Chief Justice.

The appellants, as taxpayers, filed this suit in the Pulaski Chancery Court, First Division, to enjoin the County Judge and others from proceeding under the provisions of Act 351 of the 1949 Acts of the General Assembly of Arkansas. The appellees filed a general demurrer to the complaint and it was sustained by the trial court. The appellants have appealed.

On October 3, 1955, the assessor of Pulaski County, a majority of the members of the Equalization Board of Pulaski County, a majority of the members of each municipal council within Pulaski County, and a majority of the members of each school board within Pulaski County, acting under the provisions of said Act 351, petitioned the Pulaski County Court to employ professional appraisers for the purpose of appraising all real and personal property within the county, said appraisal to be furnished to the tax assessor as an aid in assessing said property for ad valorem taxes.

On November 10, 1955, a hearing was had on said petition, after publication of a notice of said hearing as provided by the act, at which time the County Court found that there was a need for the employment of professional appraisers to appraise all real and personal property within Pulaski County, and that the interest and welfare of the public would be promoted thereby. It was ordered that three property owners of Pulaski County named in the court’s order, enter into negotiations for the employment of qualified appraisers to appraise all real and personal property within the county for a sum certain, the terms and conditions of the contract to be stated in writing, signed by the contracting parties, and submitted to the County Court for final approval. The aforesaid order was amended by an order of December 29, 1955, designated as an order nunc pro tunc, in which the County Court directed the persons named in the original order to negotiate a contract for the appraisal of real estate only.

In compliance with the order of the County Court, the property owners named in said order proceeded to negotiate a contract with E. T. Wilkins and Associates providing for the appraisal of all the real estate in Pulaski County, which contract was approved by the County Court on February 2, 1956.

For reversal, the appellants cite the following points: (1) Act 351 of the Acts of the General Assembly of 1949 is in contravention of Section 28, Article 7, of the State Constitution, in that it inhibits the expenditure of county taxes by the County Court unless approved by a majority of the members of the city councils and a majority of the members of the school boards in the area affected; (2) said Act is in the contravention of Amendment 40 of the State Constitution; in that it authorizes the use of school funds for purposes other than “the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness” as limited in said Constitutional Amendment; (3) the order of the County Court is in excess of the court’s jurisdiction in that the petition asked for the appraisal of “real and personal” property, whereas the court ordered the appraisal of real property only; and, (4) said Act 351 constitutes an unlawful delegation of authority.

In regard to appellants’ first point, Act 351 does not compel the County Court to employ professional appraisers, nor does it prevent the court from employing professional appraisers. The exclusive original jurisdiction remains in the court to determine whether to employ said appraisers. This act simply sets up the machinery whereby a petition may be addressed to the discretion of the County Court to employ appraisers. If the court finds that there is a real need to employ professional appraisers, then it appoints a committee of property owners to negotiate a contract. That contract is not effective until it is approved by the County Court. If for any reason at all the court is dissatisfied with the terms of the contract, it may refuse to approve it.

The respective taxing units are required to approve the contract due to the fact that they share proportionately the expenses of the appraisal. The contract is without effect until approved by the County Court; since under the Constitution and laws the County Court has exclusive original jurisdiction in all matters relating to county taxes and the disbursement of money for county purposes. If the taxing units refuse to approve the contract, the County Court could employ the same appraisers. The only difference is that under these circumstances the county would have to pay the costs of the appraisal without contribution by the several taxing units. Section 28, Article 7, Constitution; Sec. 22-601 Ark. Stats., 1947; State Use of Prairie County v. E. F. Leathem and Company, 170 Ark. 1004, 282 S. W. 367.

Section 5 of the Act provides:

“Claims for costs of publication incurred and for appraisal services in accordance with the terms of the appraisal contract shall be filed with the clerk of the court as other claims against the county are filed, and .the county court shall promptly examine each such •claim, and if it finds same to be correct, enter an order directing the county clerk to issue a warrant upon the county treasury, payable from the general fund of the county, for the amount so found to be due.”

It can be readily seen that the County Court has exclusive jurisdiction over the expenditure of county funds in this instance.

The appellants’ second contention is to the effect that Act 351 contravenes Amendment No. 40 to the State Constitution in that the expenditure here contemplated would not be for (1) maintenance of schools, (2) the erection and equipment of school buildings, nor (3) the retirement of existing indebtedness. This amendment does not pertain to the assessment of property, nor does it prohibit the payment out of school funds such taxing unit’s pro rata share of the cost of assessing and collecting taxes.

Section 5, Article 16 of the State Constitution provides “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another.”

Section 46, Article 7 of the State Constitution provides that: “The qualified electors of each county shall elect one sheriff, who shall be ex-officio collector of taxes, unless otherwise provided by law; one assessor, one coroner, one treasurer, who shall be ex-officio treasurer of the common school fund of the county, and one county surveyor, for the term of two years, with such duties as are now or may be prescribed by law. Provided, that no per centum shall ever be paid to assess sors upon the valuation or assessment of property by them. ’ ’

The General Assembly has provided by Section 12-806, Ark. Stats. Anno., 1947, that: “It is hereby declared to be the policy of the state and local governments of Arkansas that from and after July 1, 1947, the State and every county, municipality, school district and other taxing unit,' excepting only special improvement districts to which the county assessor is not required by law to render service, receiving ad valorem or other tax funds collected by county collectors shall contribute funds for the payment of the salaries and the necessary expenses incurred in the performance of their official duties, of the county assessors and their deputies.

“For the purpose of carrying out the foregoing policy, the amount so to be contributed annually by each of said taxing units shall be in the proportion that the total of such taxes collected for the benefit of each such taxing unit bears to the total of such taxes collected for the benefit of all such taxing units. Provided, however, that the pro rata contribution of such salaries and expenses of any such taxing unit which receives taxes collected for the purpose of meeting debt service requirements of its issued and outstanding bonds shall be charged to and paid out of the said taxing unit’s general fund, and not to or out of any special fund it may maintain for such purpose, nor in such other manner as will diminish the amount necessary to meet such debt service requirements.”

The General Assembly has also provided by law that the several taxing units shall pay their pro rata share of the costs of the salaries of the county collectors and the county treasurers. In the case of Terry, County Judge v. Thornton, 207 Ark. 1019, 183 S. W. 2d 787, this court said, “Certainly the school fund should not be made to bear more than its just proportion of the salaries of the Collector and Treasurer” — thus requiring the schools, along with the other various taxing units, to pay their just proportion of the cost of collecting and disbursing tax funds. See also County Board of Education v. Austin, 169 Ark. 436, 276 S. W. 2.

The State Constitution clearly gives the General Assembly the authority to require the schools to pay their pro rata share of the costs of assessing property, a portion of which may be applied to the expenses of employing professional appraisers. This is a valid exercise of legislative power and is not prohibited by Amendment No. 40 to the State Constitution. The office of tax assessor must form a part of any valuation scheme erected by tbe General Assembly, but tbe General Assembly may, from time to time, prescribe tbe duties of that office and adopt sucb methods as may be deemed expedient to ascertain tbe values of taxable property. See Hutton v. King, 134 Ark. 463, 205 S. W. 296.

Since tbe school district bad assumed tbe obligation of paying its pro rata share of tbe cost of tbe appraisal, it was not improper for it to make an advancement to tbe Pulaski County General Fund, to be deducted from any amount found due tbe district to tbe Pulaski County General Fund in 1957.

Tbe appellants next contend that tbe order of tbe County Court is in excess of tbe court’s jurisdiction in that tbe petition asked for the appraisal of “real and personal” property, whereas tbe court ordered tbe appraisal of real property only. This point has no merit and has been settled by some of our earlier cases. Evans v. Perciful, 5 Ark. 424; Estes v. Martin, 34 Ark. 410. This court has held that once a court obtains jurisdiction of tbe parties and tbe subject matter, it has tbe right to decide every question arising in tbe case.

In tbe instant case, tbe appellants have made a collateral attack upon tbe order of tbe county court. A county court acting within tbe powers conferred by tbe Constitution and statutes is a court of superior jurisdiction, and, where by statute special powers have been conferred and sucb special powers exercised judicially, its judgment cannot be impeached collaterally except for want of jurisdiction or errors apparent on its face. Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S. W. 106; Bragg v. Thompson, 177 Ark. 870, 9 S. W. 2d 24; State ex rel, Attorney General v. Kent, and State ex rel, Attorney General v. Wilson, 181 Ark. 683, 27 S. W. 2d 106. In the instant case, tbe County Court bad jurisdiction of tbe parties and tbe subject matter and tbe court’s order is valid on its face, therefore it is good on collateral attack.

The appellants’ last point is based on the contention that the provisions of Act 351 constitutes an unlawful delegation of authority. Section 1 of. the act specifically provides that the appraisal shall be “for the purpose of making such appraisal available to the county assessor as an aid to such assessor in making his appraisals or assessments for ad valorem tax purposes.” This provision is not an unlawful delegation of authority — it can only make the appraisal available as an aid to the assessor. The assessor makes the final assessment under the act.

Finding no error, the decree is affirmed.

Justice Geoege Eose Smith not participating.

Justice Ed F. McFaddiN dissents.

Ed. F. McFaddiN, Associate Justice

(Dissenting). I respectfully dissent in this case because it is my studied conclusion that in affirming the Trial Court the majority has made mistakes both of omission and commission.

I. Omission. The majority — in considering the appeal only on the four points listed in the opinion— has omitted all mention of subsequent Legislative enactments that materially concern this matter of equalizing assessed values. Some of these Legislative enactments may — and I suspect, do — repeal the said Act 351 of 1949 here involved. At least, the majority should have mentioned the Acts, and decided whether any of them repealed Act No. 351 of 1949. Here are some of the Acts on the same general subject of increasing or equalizing assessed valuations: (a) Act. No. 10 of the Extraordinary Session of 1951 (involved in the case of Campbell v. Little Rock School Dist., 222 Ark. 615, 262 S. W. 2d 267); (b) Act 371 of 1955; and (e) Act 153 of 1955. This last mentioned Act — No. 153 of 1955 — provides in its caption, inter alia-. “An Act Providing for a Complete Appraisal and Assessment of All Property in this State that is Eequired by Law to Be Assessed By County Assessors: . . .” Section 1 of the Act says, in part: “There shall be a complete new appraisal and assessment as of January 1,1957, of all property in the State of Arkansas, both real and personal, that is required' by law to be assessed by County Assessors.” If this Act means what it says, then, as of January 1, 1957, all previous assessments will be discarded; and the assessment here involved can hardly be made effective before January 1, 1957. Certainly the majority opinion should have examined this Act 153 of 1955 to see if it repealed the Act 351 of 1949 here involved.

The Act 153 of 1955 is a comprehensive Act that seems to take up the entire matter of equalizing assessed valuations; and our cases hold, that when the Legislature takes up an entire subject and legislates at length on it then other laws on that subject are impliedly repealed. In Louisiana Oil Ref. Co. v. Rainwater, 183 Ark. 482, 37 S. W. 2d 96, this Court held that the provisions in the old corporation law (requiring the filing of annual statements with the County Clerk) were impliedly repealed by a 1927 Act which dealt with the subject of corporations generally, but which omitted any provision about the annual report. In other words, the old provision’s were impliedly repealed by a new law which omitted such details. Here is what the Court said in that ease:

“As above stated, the act of 1927 provides a new scheme or system for the organization and regulation of corporations. It takes up the whole subject-matter anew and sets up a new plan. It is in no sense amenda-tory to the old act, but it is a new enactment covering the same subject-matter. It runs through 40 pages of the printed acts, with 57 sections. As we said in Cordell v. Kent, 174 Ark. 503, 205 S. W. 404, cited with approval in State ex rel Atty. General v. Standard Oil Co., 179 Ark. 280, 16 S. W. 2d 581: ‘Where the Legislature takes up a whole subject anew, covering the whole ground, revising the whole subject-matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect’, and further, even though the old statute contains provisions not covered in the new.”

It seems to me that in the case at bar the majority-should have discussed this Act 153 of 1955 because, if Act 351 of 1949 is impliedly repealed by Act 153 of 1955, then that fact should have been stated in the majority opinion, even though neither side in this present litigation saw fit to raise the issue.

The failure of counsel to raise this question cannot excuse this Court, because, when the present opinion becomes final, every question that could have been raised — whether urged or not — is precluded from further consideration. In McCarroll v. Farrar, 199 Ark. 320, 134 S. W. 2d 561, this Court held, that where a citizen and taxpayer brings an action on behalf of himself and other taxpayers (just as is the situation in the case at bar), then such suit is a representative suit and every question that could have been raised in that suit— even though not raised — is barred in a subsequent suit.

In McCarroll v. Farrar there was the .question of whether Act 310 of 1939 was unconstitutional because of certain omissions in the Legislative procedure. There had been a former suit (Caldarera v. McCarroll, 198 Ark. 584, 129 S. W. 2d 615) challenging Act 310, but the question sought to be raised in the Farrar suit had not been raised in the Caldarera suit. Nevertheless, this Court held that the Caldarera suit was res judicata against the claims that Farrar sought to raise, even though the questions had never been considered in the Caldarera suit. So here, in the case at bar, the question is the constitutionality and present validity of the Act No. 351 of 1949. The majority is holding that the Act is constitutional and valid and now in existence; and such holding will be res judicata even when some suit may arise involving Act 153 of 1955. Thus the Court is ruling out of existence, in advance of consideration, any question about the validity and effect of Act 153 of 1955 on the Act 351 of 1949 here involved.

I most strenuously maintain that, in omitting any consideration of subsequent Legislative enactments on the Act 351 of 1949, the majority is guilty of the fault of omission. This Court is not excused merely because counsel for the parties in this suit did not see fit to raise the question. At least, such is my humble opinion. If the Court did not want to pass on the question without briefs, we should have asked counsel to rebrief the matter, rather than to close our eyes to the question of the effect of subsequent legislation.

II. Commission. But, entirely apart from the fault of omission, there is. the equally serious fault of commission, because the majority is holding in this case that a School District can lend school funds. The complaint alleged:

“8. The plaintiffs are informed and believe and, therefore, allege that the defendants, Dr. William G. Cooper, Jr., Mrs. Arthur E. McLain, Mrs. Edgar P. Dixon, R. A. Lile, Harold J. Engstrom, Jr., and Dr. Dale Alford, as Directors of Little Rock Special School District, have agreed to advance to the Pulaski County General Fund a sum of money prior to June 30,1956, within the 1955-1956 fiscal year of the Little Rock Special School District, and a sum of money after July 1, 1956, within the 1956-1957 fiscal year of the Little Rock Special School District, to be applied on the sum of $310,00*0.00 provided for professional services in the contract for appraisal, and to be deducted from the amount found to be due from the Little Rock Special School District to the General Fund of Pulaski County in the year 1957, as provided in Act 351 of the Acts of the General Assembly of 1949. The said payments by the Little Rock Special School District will constitute a diversion of school funds in violation of Amendment 40 to the Constitution of the State of Arkansas.”

• The demurrer filed by the appellees admits that the Little Rock School District is to “advance school money to the Pulaski County General Fund to apply on the cost of this appraisal business, and is to be repaid when Pulaski County gets increased revenues from this re-appraisal. That is a straight loan by the Little Rock School District to the General Fund of Pulaski County. In the oral argument before this Court, I asked the attorneys to cite me to some provision of law that allowed a school district to lend money; and, with becoming candor, the attorneys advised me that they could find no such law. If the Little Eock School District can lend any of its money to Pulaski County, then it can lend its money to any other corporation or individual. The money that the School District receives, either from taxes or any other source, is certainly a trust fund to be spent for school purposes and not to be loaned to a corporation or an individual. I cannot see how the majority can affirm this case in the face of a complaint that contained the allegations as herein quoted.

In the oral argument it was said that the School District was merely “advancing” the money to Pulaski County and was to be repaid. It is a mere quibble of words to say that the “advance” here alleged will not be a loan; because a loan is an advance to be repaid. Nor can the loan of the school funds to Pulaski County be defended by Section 6 of the Act 351 of 1949 here involved. That section says:

“Annually at the time of making the final settle-merit of taxes collected by the county tax collector, the funds of the one or more taxing units in which property has been appraised under the terms of this Act shall be charged with such unit’s respective pro rata share of such appraisal and publication costs and the amounts so charged shall be credited to the general fund of the county. ’ ’

That section means that the General Fund of Pulaski County shall be repaid — from the increased tax moneys collected — for the overhead expense that the County has been out, and thus satisfies the requirements of Hutton v. King, 134 Ark. 463, 205 S. W. 296, cited in the majority opinion. The Act clearly contemplates that the County shall bear the expense originally. But in the case at bar, the School District is to lend its money to the Pulaski County General Fund and then get the money back when, as, and if, the tax collector receives more money from this assessment procedure than he would have received without the assessment procedure. I urge the majority to show me any law in this state that allows (a) a school district to lend money, or (b) a county to borrow money from a school district. Until such a law can be found, I submit that this Court should not affirm this ease.

School funds are trust funds and cannot be diverted In 47 Am. Jur. 363, cases from this jurisdiction and many others are cited to sustain the following text:

‘ ‘ School funds are held to be trust funds for educational purposes which the courts will not permit to be diverted to other even though closely kindred uses, no matter how meritorious the project may appear to be in its practical, ethical, or sentimental aspects. Even the legislature, itself, the fountainhead of matters educational, cannot divert school funds to other uses.”

I submit that the majority opinion in this case is allowing school funds to be diverted to pay county expenses. In the case of Walls v. State Board of Education, 195 Ark. 955, 116 S. W. 2d 354, this Court held that the school funds could not be diverted, even to the assistance of the State School for the Blind; and yet, in the case at bar, the majority is allowing the school funds of the Little Rock School District to be loaned to Pulaski County so that Pulaski County may hire some assessors who, presumably, will increase assessed valuations so that not only the Little Rock School District, but the City of Little Rock and the other governmental agencies involved in this case will get more money. If there ever was a ease of diversion of school funds, this is it.

I know that taxes should be equalized; I know that schools are entitled to more money; I believe in education. But I believe in the Law; and I believe that when a Court puts expediency ahead of the Law, the Court makes a great mistake; and I think that is what has been done by the majority in this case.

For the reasons herein stated, I respectfully dissent.


author: J. Seaborn Holt, Associate Justice.

text:
    Springfield v. City of Little Rock.
    5-964
    290 S. W. 2d 620
    Opinion delivered May 28, 1956.

      O. W. Pete Wiggins, for appellant.
    O. D. Longstreth, Jr., Dave E. Witt and Joseph Brooks, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves the right of the City of Little Rock to condemn and order the removal (or razing) of 16 dwelling units located on four adjoining city lots, each 50 ft. x 140 ft., and numbered Lots 1, 2,-3, and 4 in Block 194, City of Little Rock, all owned by appellant, M. D. Springfield. The city, following an inspection of the above property, filed complaint in which it alleged that said property had been condemned by Ordinance No. 9814 enacted May 9, 1955, and after describing each of the 16 units further alleged that all had “been allowed to deteriorate and the condition of said pieces of property and the improvements thereon are such that they are now, and for several months prior hereto have been, a structural hazard, fire hazard, and health hazard; and further that said properties are now, and for some time past have been, a constant menace to the lives and health of the citizens of Little Rock,” and prayed that appellant be required to raze or remove all of the houses from the property. Appellant answered with a general denial, alleged that the city was exceeding its authority, was acting arbitrarily, and in a cross-complaint prayed for permission to repair the property. On a trial the court, after hearing testimony and viewing the property, sustained the city’s complaint that each of these houses was “a menace to the health and safety of the citizens of the community, especially so to those adjoining to these houses” and ordered appellant to remove all the houses located on said property. This appeal followed.

For reversal appellant contends that the court’s action was arbitrary,- was without authority and an invasion of his constitutional rights. We do not agree.

The preponderance of the evidence shows that on an inspection made March 23, 1955, of Lots 1, 2, 3 and 4 here involved, it was found that six houses were located on Lot 1, with a family occupying each house, eight families shared one toilet, and for each particular dwelling there was no toilet, no hath, no kitchen and no water supply. The heating was unsatisfactory and there was evidence of rat harborage. The exterior and interior of the houses were in a bad state of repair; there was fire damage; the houses were only 4 ft. apart; and there were no screens on the windows. As to Lot 2 there was this testimony: “A. There are four houses on this particular lot and only two families. Q. What about the plumbing? A. It had a toilet and sink in the kitchen. Was in need of major repairs interior and exterior. There was rat harborage. Back yard was littered with rubbish, cans and automobile tires holding water providing mosquitoes breeding. ’ ’ On Lot 3 there were four families and 3 houses, one toilet to two families, no bath, only 4 ft. clearance between houses. As to Lot 4 there were four houses on this lot and three families; eight families were using one toilet. There was no toilet, bath or sink in any of these houses. They were in a bad state of repair and evidence of rat harborage under the houses. In short, it is clearly shown by the evidence that all of these houses were a fire hazard, a health hazard and a structural hazard.

Section 19-2803 ArJc. Stats. 1947 provides: “Removal or razing of buildings. — They shall also. have the power to order the removal or razing of,, or to remove or raze any buildings or bouses that have become in the opinion of the council dilapidated, unsightly, unsafe, unsanitary, obnoxious or detrimental to the public welfare, and shall ■ provide by ordinance the manner of removing and making such removals.” Proceeding under the authority of this section, the City of Little Rock enacted Ordinance No. 9814 which contained the following provisions: “SECTION 1. That M. D. Springfield is the owner of the following described property and that said owner is hereby ordered to remove or raze the buildings upon said property within thirty (30) days from the effective date of this ordinance. SECTION 2. That said property is hereinafter set forth in this section, giving the, street address, the legal description thereof, and the hazard which it constitutes to the citizens of Little Rock ...” Then follows a legal description of each of the 16 dwelling units in which each is declared to be a structural, fire and health hazard. “SECTION 3. That the City Attorney is hereby directed to institute such legal proceedings as may be necessary in order to enforce the provisions of this ordinance, and to remedy the dangerous and unsightly conditions brought about as a result of the failure of the owner to properly keep up said property. SECTION 4. That said legal proceedings shall provide that unless the houses are razed within a certain period, to be allowed by the Court, the City of Little Rock be authorized to raze said property and have a lien upon the real estate for the cost of removing said house. SECTION 5. That all ordinances and parts of ordinances in conflict herewith are hereby repealed and, unless the provisions of this ordinance are put into effect immediately, the public peace, health and safety of the people of Little Rock will be adversely affected; therefore, an emergency is hereby declared to exist, and this ordinance shall be in full force and effect from and after its passage and approval.” [this ordinance was introduced and made a part of the record by stipulation of counsel.]

On the record presented we hold that the City has not only acted clearly within its police power, but that it was its duty, in the circumstances, to so act, in the interest of the public health and safety of its inhabitants. “Generally there is a duty upon duly constituted municipal authorities to exercise the police power where there is a public need for it, but it is within their sound discretion to determine both the need and the measure to meet it. Courts will not interfere except for abuse of their discretion, and violation of their duty subjects them only to political consequences and not civil liability,” McQuillin on Municipal Corporations, Volume 6, page 518, Paragraph 24.33. In the fairly recent case of Geurin v. City of Little Rock, 203 Ark. 103, 155 S. W. 2d 719, we said: ‘ ‘ The police power is as old as the civilized governments which exercise it . . . Moreover, it has been said that the very existence of government depends on it, as well as the security of the social order, the life and health of the citizen, the enjoyment of private and social life, and the beneficial use of property. One of the most important fields of legislation that may be enacted under the police power is that of regulations in the interest of public health. If a city could not enact laws of this sort to protect the health of its citizens, any kind of disease might be permitted to spread among the inhabitants, resulting in great damage. It would be useless to undertake to review, or even collect the many authorities on this subject; but it is generally held that measures of this nature may be enacted.” The general and accepted rule is further announced by Mc-Quillin in Volume 6, page 495, paragraph 24.23, where he points out that under its police power a municipal corporation may destroy private property without compensation. “Under certain circumstances and by virtue of the police power a state or municipal corporation may without compensation to the owner destroy private property. This may be done, generally speaking, in these situations: (1) where private property is inherently a public nuisance or injurious to the public welfare, health, safety or morality; (2) where private property, not inherently, but by reason of the manner of its use, which the owner cannot or will not correct, is a public nuisance or injurious to the public welfare, health, safety or morality; and (3) where private property is not a nuisance or injurious to the public in any way but its destruction is necessary to protect tlie public safety, health, morality or welfare. See Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205; Marysville v. Standard Oil Co., 27 F (2nd) 478.

“Unsanitary buildings or buildings injurious to the public health may be destroyed if necessary to abate the nuisance and protect the public health and safety. Quoting from Mr. Justice Harlan in Mugler v. Kansas, 123 U. S. 623.” See also City of Stuttgart v. Strait, 212 Ark. 126, 205 S. W. 2d 35.

Having concluded that the preponderance of the testimony is not against the Chancellor’s findings, that these buildings in question were a fire, health and structural hazard and irrepairable, we must and do affirm the decree.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Bigger v. Glass.
    5-880
    290 S. W. 2d 641
    Opinion delivered May 28, 1956.

      Josh McHughes, for appellant.

      Cooper Jaeoway, for appellee.
   Ed. F. McFaddiN, Associate Justice.

Appellee filed this suit against appellant, originally praying for specific performance, but subsequently changed the prayer into a claim for damages; and such change is one of the grounds on which appellant relies for reversal of the decree, awarding damages to appellee.

Appellee, Glass, owned a house and lot at “924 South Oak Street, Little Bock, Arkansas.” On December 1, 1953, appellant, Bigger, made a written offer to buy the property (described as quoted) for $11,000.00 cash. The next day, December 2nd, he increased the offer to $11,500.00, which Glass and his wife accepted. In the second offer, Bigger described the property as “924 S. Oak Street” and failed to add “Little Bock, Arkansas.” Appellee complied with all the terms of said offer and tendered to Bigger a deed conveying a good title; but Bigger refused to fulfill his offer. Thereupon, Glass sued Bigger for specific performance. Originally he sued only on the offer of December 2nd; but when Bigger demurred on the ground that “924 S. Oak Street” did not adequately identify the property, Glass amended his complaint in an effort to have the offer of December 1st (in which the property was described as “924 S. Oak Street, Little Bock, Arkansas”) used to complete the description of the property. He claimed that both offers were a part of the series of negotiations dealing with the property that resulted in the contract of December 2nd. Bigger demurred to the amended complaint and the Trial Court overruled his demurrer.

After realizing that Bigger was adamant in refusing to perform the agreement, Glass sold the property to a third person for $10,250.00, which was $1,250.00 less than the amount stated in Bigger’s offer of December 2nd. Glass then amended his complaint, alleging the sale and giving credit for the amount received, and prayed a money judgment for the deficit. Bigger then renewed the earlier demurrer on the description issue, and also demurred on the further contention that Glass, in selling the property, had abandoned his original suit, and that such abandonment prevented him from suing for money damages. The Trial Court overruled the second demurrer as amended. Bigger refused to plead further; the Court took testimony and gave Glass judgment against Bigger; and this appeal ensued.

We forego a discussion as to whether the first offer (which said “924 S. Oak Street, Little Rock, Arkansas”) could be used to complete the description in the second offer (which omitted “Little Bock, Arkansas”), because we are convinced that the original suit for specific performance constituted an election of remedies and prevented the plaintiff from subsequently seeking damages. The rule on Election of Remedies is stated in 18 Am. Jur. 129, et seq., to be that: “... where an aggrieved party has two remedies by which he may enforce inconsistent rights growing out of the same transaction and, being cognizant of his legal rights and of such facts as will enable him to make an intelligent choice, brings his action by one of the methods ... he shall not thereafter adopt the alternate remedy, for a suitor cannot pursue a remedy which predicates his case upon one theory of right and thereafter seek a remedy inconsistent with such prior proceeding.”

In 18 Am. Jur. 133, the text says:

‘ ‘ Stated briefly, the essential conditions or elements of election of remedies are: (1) the existence of two or more remedies; (2) the inconsistency between such remedies; and (3) a choice of one of them.”

We test the case at bar by these three essentials.

I. Existence Of Two Or More Remedies. It is obvious that when Bigger refused to perform the contract of purchase, Glass could have relied on the contract and sued — as he originally did — for specific performance; or, he could have treated the contract as broken by Bigger, and proceeded — as he subsequently attempted — to recover damages. The case of Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107, subsequently to be discussed, declares the existence of two remedies in a situation such as is here involved: so this element is present in this case.

I. Inconsistency Between Such Remedies. This brings ns to the question as to whether a suit for specific performance is inconsistent with an action for damages. The case of Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107, points the way to our present holding. The facts in that case were: that Whitting-ton duly contracted to sell certain real estate to Belding and then refused to perform the contract; that Belding first filed action against Whittington for damages; that Belding later dismissed the damage claim and then filed suit in equity for specific performance of the contract. We held that the filing of the action for damages was an election of remedies that prevented the subsequent filing of the suit for specific performance. This Court there quoted from Elliott on Contracts:

“ ‘It is the doctrine of election of remedies that one having the choice of two or more inconsistent remedies for his relief is bound by his selection of the remedy he will pursue, and. he cannot thereafter avail himself of the other remedies . . . So, where the party brings an action at law for damages for the breach, he cannot thereafter maintain a suit in equity to enforce specific performance.’ ”

This Court then summarized our holding:

“We conclude therefore that the appellants are barred from maintaining this action for specific performance of the contract because they first elected to prosecute an action for damages for a breach thereof.”

The case of Belding v. Whittington holds that an action for damages is inconsistent with a suit for specific performance. The question here is whether the converse is true: i. e., is a suit for specific performance inconsistent with an action for damages on the same contract? Stripped of all legal niceties, the matter is simply this: when Glass asked specific performance he was offering to surrender the property to Bigger for the full amount of money contracted. When Glass asked damages, lie was keeping the property and seeking damages. Certainly keeping the property is inconsistent with surrendering the property. Other courts have held that a suit for specific performance is an election of remedies so as to prevent a subsequent action for damages on the same contract. In Christman v. Rinehart (Idaho), 270 P. 1059, the Supreme Court of Idaho used this language:

“Having elected the remedy of specific performance, plaintiff cannot now maintain the present action for damages, or rescission, since they are inconsistent remedies. See 20 C. J. p. 26, § 18; Whitley v. Spokane & Inland Ry. Co., 23 Idaho 642, 132 P. 121; Largilliere Co. v. Kunz, 41 Idaho 767, 244 P. 404; Otto v. Young, 227 Mo. 193, 127 S. W. 9, page 18, par. 7; 25 Cal. Jur. p. 707.”
In Riley v. Cumberland . . . Rd. Co., 234 Ky. 707, 29 S. W. 2d 3, the Court of Appeals of Kentucky, in holding that specific performance was inconsistent with an action for damages, used this language:
“In the case of Zutterling et al. v. Drake, 10 Ohio Cir. Ct. (N. S.) 167, 30 Ohio Cir. Dec. 561, the court in stating the question before it said that under the contract set up the plaintiffs originally had two remedies for the enforcement of their rights against the defendant. One was an action on the contract for specific performance; the other was a suit at law for damages for breach of the contract. It was held that having elected to pnrsne the remedy of specific performance it was too late thereafter to institute a suit for damages. The court based the opinion on 7 Enel. Pleading & Practice, page 364. The opinion in the above case was cited with approval in the case of Lee et al. v. Thoma, 17 Ohio (N. S.) 144, 1 Ohio App. 384. Appellee cites the case of Belding et al. v. Whittington et al., 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107. The opinion supports the position taken by counsel for appellee.”

In 28 O. J. S. 1072, “Election of Remedies,” Sec. 6, the foregoing cases, as well as others, are cited to sustain this textual statement:

“Other authority holds that damages and specific performance are alternative inconsistent remedies and, consequently, that a party electing the remedy of specific performance cannot thereafter maintain an action for damages.”

We, therefore, conclude that the remedies of specific performance and damages for breach of contract are inconsistent remedies; and thus, the second element, in the rule of election of remedies, is present in this case.

III. The Choice Of A Remedy. The remaining question is whether the plaintiff made an irrevocable choice when he filed his suit and prayed for specific performance. In many jurisdictions, merely filing a specific performance suit is not considered an irrevocable choice, for that suit may be dismissed without prejudice and then a damage action may be filed. This is no longer an open question in Arkansas, for we have a line of cases all holding that the filing of the suit is the act of irrevocable election. In Bolding v. Whittington, supra, the matter was surveyed in detail, and we there said:

“We believe the better reason is to bold one to a deliberate choice once made between inconsistent remedies, where that choice involves nothing more than the determination by the party as to which of two remedies will best subserve his purpose. Certainly this doctrine has the merit of preventing one who is about to hale another into court from making a capricious choice between inconsistent remedies which he may pursue. Because he knows that whatever course he elects to pursue he will not thereafter be allowed to shift his ground, unless he can show that his election was based upon a mistake of material facts.”

In Roy v. Notestine, 216 Ark. 447, 226 S. W. 2d 66, and in Sutterfield v. Burbridge, 223 Ark. 854, 268 S. W. 2d 900, we reiterated and followed our holding in Bolding v. Whittington-, and in each case held that the filing of the proceeding constituted an irrevocable election.

So we conclude that appellee, Glass, by filing the specific performance suit, made an irrevocable election of his remedies arising out of his dealings with Bigger, and could not later convert the specific performance suit into a claim for damages. The decree of the Chancery Court is reversed and the cause is dismissed.

Justice Millwee not participating. Justice George Rose Smith concurs. Justice Ward dissents.

       Mrs. Glass was a party to this litigation, but for convenience we refer to Glass and wife as “appellee.”

       In the recent case of Ray v. Robben, 225 Ark. 824, 285 S. W. 2d 907, we discussed the validity of descriptions which referred to the property by street number in a named city.

       Of course, there are some rare situations in which the court can award damages in a specific performance suit, as where there has been a partial failure of title or property; but no such situation is here presented. See 49 Am. Jur. 195, et seq.

       There were filed by Glass an original complaint and two amendments. The prayer of the original complaint was: “Wherefore, plaintiffs pray that the defendants be required to pay to the plaintiffs said sum of $11,500.00 and that the plaintiffs be given judgment against the defendants and each of them in the sum of $11,500.00. Plaintiffs pray for their costs expended herein and for all other proper relief.” The prayer of the first amendment to the complaint was: “Wherefore, plaintiffs renew their prayer for the relief prayed in the original complaint.” The prayer of the second amendment to the complaint (which was the amendment asking damages instead of specific performance) said: “Wherefore, plaintiffs pray, in lieu of the relief prayed in the complaint as first amended, that plaintiffs be given judgment against the defendants jointly and severally in the sum of $2,008.20 and that said sum of $2,008.20 bear interest at the rate of six per cent per annum from the date of this second amendment until same with interest thereon has been paid in full. Plaintiffs pray for their costs expended herein and for all other proper relief.” So the plaintiff, by changing the prayer of his complaint, apparently recognized the inconsistency between specific performance and damages.

       In 26 A. L. R. 111, in the Annotation following our own case of Belding v. Whittington, the annotator cites cases from several states which hold that the mere filing of an action or suit does not constitute irrevocable election; but the annotator there recognizes that Belding V. Whittington, and many other cases, hold that the filing of a specific performance suit is an irrevocable election. Besides the cases cited in the Annotation as so holding, we mention the following: Levy v. Mass. Co., (N. J.), 2 A. 2d 341; Kline v. Myriad Pictures, 207 N. Y. S. 109; and see also cases cited in the Annotation in 6 A. L. R. 2d 10 et seq. For a recent case on Election of Remedies, see Thompson v. Phillips, 225 Ark. 736, 284 S. W. (2) 842.


author: MiNor W. Mill wee, Associate Justice.

text:
    Morris v. State.
    4836
    290 S. W. 2d 624
    Opinion delivered May 28, 1956.

      Robert M. Lowe and Shaver, Tackett & Jones, for appellant.

      Tom Gentry, Attorney General and Roy Finch, Jr., Assistant Attorney General.
   MiNor W. Mill wee, Associate Justice.

The principal issue on this appeal is whether the use of a deadly or dangerous weapon is a requisite to the commission of the crime of assault with intent to kill.

On November 16, 1955, appellant was charged by information with the crime of assault with intent to kill by striking and beating Robert Erwin with his fist with the unlawful and felonious intent to kill and murder him. The record reflects that upon being arraigned on November 19, 1955, appellant was advised by the court of the nature of the charge and the punishment that might be inflicted in the event of a conviction. At that time, appellant entered a plea of not guilty after he was advised of his right to court-appointed counsel in the event he was unable to employ an attorney. Appellant assured the court of his ability to employ counsel and the case was set for trial on November 28, 1955. After further conferences with the sheriff and prosecuting attorney and upon their recommendation that he be given the minimum punishment, the appellant changed his plea to one of guilty on November 22, 1955 and was sentenced to one year in the penitentiary.

A penitentiary commitment issued on the date of sentence had not been executed on December 3, 1955 when appellant employed counsel and filed a motion for leave to withdraw the plea of guilty with the alternative pleas that the judgment be arrested and the information quashed or a new trial granted because appellant could not have been guilty of the crime charged by striking the prosecuting witness with his fist as charged in the information and had pleaded guilty without counsel to so advise him. This appeal is from an order overruling appellant’s motion after a hearing.

It is earnestly insisted that the court erred in overruling appellant’s motion in arrest of judgment and for leave to withdraw the plea of guilty because, as a matter of law, one cannot he adjudged guilty of assault with intent to kill by merely striking another with his fists under Ark. Stats. Sec. 41-606. The statute reads: “Whoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill, or shall administer or attempt to give any poison or potion with intent to kill or murder, and their coun-sellors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one [1] nor more than twenty-one [21] years.,” Appellant relies on such cases as Warren v. State, 88 Ark. 322, 114 S. W. 705 and Wilson v. State, 162 Ark. 494, 258 S. W. 972, which hold that a conviction of the crime of aggravated assault under Ark. Stats. Sec. 41-605 is not sustained by a showing that the defendant inflicted injuries to another by striking with the fists or kicking him. These decisions are based upon the proposition that an injury in such manner does not constitute an assault with “a deadly weapon, instrument or other thing,” as that statute requires. In contrast, Section 41-606, supra, does not require the use of a deadly weapon in the commission of the offense of assault with intent to kill.

In the absence of a statute requiring the use of a deadly weapon to constitute the offense, the applicable rule is stated in 26 Am. Jur., Homicide, Sec. 604, as follows: “No particular instrument or weapon need be employed in order to constitute an assault with intent to kill or murder. Such a crime is ordinarily committed by the use of a weapon, the employment of which is calculated to produce death, but the use of such a weapon is not requisite to the commission of the crime.” See also 40 C. J. S., Homicide, See. 75. Our own decisions are to the effect that an assault with the bare fists may be attended with such circumstances of violence and brutality that an intent to kill will be presumed. In the recent case of McGaha v. State, 216 Ark. 165, 224 S. W. 2d 534, we affirmed a conviction of murder in the second degree of one who used only his fists, saying: ‘ ‘ Since death is not the natural or probable result of a blow with the fist, it seems that no intent to kill will, under ordinary circumstances, be presumed though death results from an assault thus committed. But it has been held in many cases that an assault without a weapon may be attended with such circumstances of violence and brutality that either malice or an intent to kill will he implied. Anno. 15 A. L. R. 675, 24 A. L. R. 666.” See also Howard v. State, 34 Ark. 433, Pixley v. State, 203 Ark. 42, 155 S. W. 2d 710. Cases from other jurisdictions to the same effect are collected in an exhaustive annotation on the subject in 22 A. L. R. 2d 854.

It is clear from the record that the trial court was fully apprised of all the circumstances surrounding the assault in which the 23-year-old appellant administered a violent and brutal beating to his elderly and totally disabled father-in-law with his ■ fist. While the court stated that permission to withdraw the guilty plea after sentence might involve the issue of double jeopardy, it is clear that he also concluded that the circumstances of the assault fully sustained the offense charged under the foregoing rule. Ark. Stats. Sec. 43-1222 provides: “At any time before judgment, the court may permit the plea of guilty to be withdrawn and a plea of not guilty substituted. ’ ’ In construing the statute, we have repeatedly held that the right to withdraw a plea of guilty rests in the sound discretion of the trial court and that its action in this regard will be reversed only when it clearly appears that its discretion has been abused. Estes v. State, 180 Ark. 633, 22 S. W. 2d 36. While there is no statute on the subject of withdrawal of a plea of guilty after rendition of judgment, the trial court has the power to set aside its judgment at any time before the expiration of the term and the same rule has been applied in cases where the withdrawal motion was not made until after judgment entry. McClain v. State, 165 Ark. 48, 262 S. W. 987. Gunter v. State, 202 Ark. 551, 151 S. W. 2d 85.

A review of the entire record convinces ns that appellant’s motion for permission to withdraw the plea of guilty was not rejected because it had not been filed until after judgment, but was overruled upon findings and under circumstances which failed to disclose any abuse of the court’s discretion. The court fully apprised appellant of the nature and gravity of the charge against him. Appellant voluntarily entered the plea of guilty with full knowledge of the consequences of his act in doing so and after being fully advised of his right to counsel under Ark. Stats. Sec. 43-1203. There is nothing in the record to show that he was induced to enter the plea of guilty improperly or that he did so in ignorance of his rights or under any misapprehension of the facts. Under these circumstances, it was within the sound discretion of the trial court to grant or withhold the privilege of withdrawing the plea of guilty, and we are unable to say that there was a clear abuse of such discretion. The judgment is accordingly affirmed.

Bobinson, J., dissents.


author: George Rose Smith, J.

text:
    Lampkin v. Long.
    5-975
    290 S. W. 2d 623
    Opinion delivered May 28, 1956.

      Henry J. Burney, for appellant.

      Millard Alford, for appellee.
   George Rose Smith, J.

In 1951 the appellants bought certain land from the appellee, the conveyance being by warranty deed. More than three years later this action for breach of warranty was brought by the purchasers, who asserted that the seller did not have title to one third of the property sold. The defendant answered with a general denial and a plea of limitations. The case, tried without a jury, was submitted upon an agreed statement of facts. The court entered judgment for the defendant, but the record does not indicate the ground on which the decision was reached.

It is admitted that the plaintiffs bought and paid for a lot and a half of ground. According to the stipulation, however, “the plaintiffs later learned that a fence runs diagonally across Plot 12, dividing Plot 12 into two equal halves and leaving the north half of said Plot 12 on the north side of said fence, which north half was and is being claimed by Albert L. Woody, thus leaving the plaintiffs with possession of only two thirds of the one and one-half plots; that said Woody claims said north half of said Plot 12 by virtue of adverse possession; that he claims to have had actual adverse possession since 1942; that the value of the north half of said Plot 12, which is being held by the said Woody, is $716.67; that plaintiffs have demanded possession of the north half of Plot 12 from said Woody and that he refuses to yield or give it to the plaintiffs; that the plaintiffs advised the defendant, Mrs. Annie Long, of this situation prior to bringing of this suit and that she has failed and refused to do anything about it; [and] that there has been no adjudication of title to the property as between the plaintiffs and the said Woody.”

Upon the agreed facts the plaintiffs are entitled to recover. The plea of limitations is not well founded, since the suit was brought well within the five years allowed for an action for breach of warranty. Bird v. Smith, 8 Ark. 368; Smith v. Boynton Land & Lbr. Co., 131 Ark. 22, 198 S, W. 107. Nor is it material that’ Woody’s possession at the time of the conveyance gave notice of Ms claim, for the covenant of warranty is a protection against known, as well as unknown, defects of title. Jones, Arkansas Titles, § 397.

The stipulation recites that there has been no adjudication of title as between the purchasers and Woody, but there is no requirement that such a suit be brought by the vendee as a condition precedent to his action against the vendor for breach of warranty. Heyn v. Ohman, 42 Neb. 693, 60 N. W. 952; Jones v. Richmond, 88 Va. 231, 13 S. E. 414; cf. Hoppes v. Cheek, 21 Ark. 585. When the adverse claimant clearly has paramount title to the property nothing could be gained by requiring the purchaser to bring an action having no prospect of success, an action in which the plaintiff could not truthfully prepare a complaint stating a cause of action.

This stipulation recites that Woody is in adverse possession of the half lot and “claims to have had actual adverse possession since 1942.” The appellee, having agreed to this language, is not in a position to contend that it states a mere conclusion of law. Redman v. Hudson, 124 Ark. 26, 186 S. W. 312. At the very least the stipulation must be taken to mean that Woody would testify to the ultimate facts recited, and this, as we have seen, is sufficient to establish a prima, facie case for the plaintiffs. Since no other evidence was introduced at the trial the appellants’ proof is undisputed.

The' judgment is reversed, and, as the amount of the appellants’ damages is agreed upon, judgment will be entered here in the sum of $716.67, with costs.


author: Paul Ward, Associate Justice.

text:
    Coder v. Coder.
    5-979
    290 S. W. 2d 628
    Opinion delivered May 28, 1956.

      Sam Goodkin, for appellant.

      Hardin, Barton, Hardin & Garner, for appellee.
   Paul Ward, Associate Justice.

This is a child custody case, and, as usually happens in such cases, both cold facts and warm emotions are involved.

The litigation which led to this appeal began on September 6, 1955 when appellant, Nadine Coder, filed for a Writ of Habeas Corpus in chancery court to obtain possession of her 12 year old son, Frank Ray Coder. The writ was directed against Robert B. Coder, the father, and his father and mother, Frank D. and Lola Coder, who at that time had actual custody of the child.

The factual background leading up to this litigation is, briefly, as follows: Nadine Coder and Robert E. Coder were married August 31, 1941 and Frank Ray was born some two years later; The parties were divorced in February of 1945, and remarried in February of 1946; They were again divorced in the latter part of 1949, the result of a suit filed by Robert E. Coder in Sebastian County Arkansas charging his wife with desertion; On December 17, 1951, while Nadine Coder was living with her son in St. Louis, Missouri, the Missouri court gave her the custody of her son; Shortly thereafter Nadine Coder, with her son, moved to the home of her parents in Neosho, Missouri where she was employed; In January 1953 Robert E. Coder, under circumstances to be discussed later, went to Neosho and got his son, and brought him to Fort Smith where he has lived with his father and his paternal grandparents until this time, and; In August 1953 appellant moved to California where she is employed, living in a rented home with no other adult.

After hearing all the testimony, the trial court denied appellant’s petition for a Writ of Habeas Corpus and gave the custody of Frank Ray Coder to his father, Robert E. Coder, one of the appellees herein. The trial court further ordered that appellant, the mother, was entitled to have her son, Frank Ray Coder, spend his vacations [between school terms] with her in California, provided she furnish a $1,000 bond conditioned upon the return of the child to his father, provided she must return the child to his father at any time the child desires, and provided she pay the round trip fare each way. It was further ordered that the father should pay appellant the sum of $30 per month during the time she had the boy in her custody.

For a reversal, appellant makes the following contentions: (a) The trial court failed to give full faith and credit to the decree of the Missouri court; (b) Appellees failed to file an answer or any other affirmative defense; (c) Appellees failed to show changed conditions since the Missouri decree, and; (d) The trial court imposed improper visitation conditions. We reach the conclusion that only the last of these contentions can he sustained.

(a and c). These contentions are so related that they may be discussed together. Appellant appears to be under the impression, and we think erroneously so, that the trial court based its decision on incidents and conditions that occurred and existed prior to the Missouri decree awarding custody of the child to her. It is true that some matters occurring prior to the said decree were brought out in the testimony, but the court explained that it could not intelligently compare present conditions with those existing prior to the Missouri decree without knowing something about the prior conditions. We gather from the trial court’s decree that it was based on a change of conditions since the Missouri decree and not on conditions that existed prior thereto. The law in this respect is well settled. We have repeatedly held that a decree of another state fixing the custody of a child is final on conditions then existing, and should not be changed thereafter by a decree of a court of this state unless on conditions altered since the decree of the other state, or on material facts existing at the time of the de: cree of the other state but unknown to that court, and then only for the welfare of the child. See Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450; Keneipp v. Phillips, 210 Ark. 264, 196 S. W. 2d 220; Turner v. Dodge, Chancellor, 212 Ark. 991, 208 S. W. 2d 467, and; Henkell v. Henkell, 224 Ark. 366, 273 S. W. 2d 402. All of these eases, and many others, also hold that the welfare of the child must be considered.

After a careful consideration of all of the testimony we are persuaded that the weight of the evidence sustains the chancellor’s findings that the change in conditions and circumstances since the Missouri decree, and the welfare of the child at the present time, justified awarding the custody of the boy to his father. Such holding is confirmed by the knowledge that the trial judge observed- the witnesses and their demeanor and was, therefore, in a better position than we to evaluate their .testimony.

With one or two exceptions, later noted, the evidence is not in dispute.

Since 1953, when appellant left her parents in Neo-sho and moved to California, she has lived in a rented house with no one who could look after her son while she is absent at work. We are convinced' that appellant has great love for her son and that she would do all in her power to look after him properly, and he would have access" to' excellent schools and churches, but she herself admits that during the interval when her son would be óiit pf school in1 the afternoons and before she returned from work in the evenings he would be left to the care and protection of her neighbors. Also, it is the contention of appellees that appellant, in January 1953, voluntarily surrendered the permanent custody of her son to his father. Although this contention is denied by appellant, we think the weight of the conflicting testimony Sustains it. Mrs. Lola Coder, the paternal grandmother of the boy, testified that appellant, in January 1953, telephoned her that she was having some trouble with the boy, that he didn’t get along with his maternal grandmother, that she herself had to work, and that she didn’t know what she was going to do. Mrs. Lola Coder further testified that she told appellant she would help her out and that she would be glad to keep the boy in her home. Following this the boy’s father went to Neosho, Missouri and brought him back to Fort Smith, bringing all of his clothes. It is admitted by appellant that' she agreed for the father to take the boy on this occasion but she denies that she agreed to turn over to appellees the permanent custody. Her statement is that she intended for the boy to make.-only a temporary visit with his father. Appellant further states that she had been trying all along to get the boy back but.she fails to detail any means or attempts calculated to do so. The fact remains that she took no legal steps to regain custody of her son until she instigated this, litigation on September 6, 1955. Under these circumstances we think the chancellor was justified in finding that her actions-were not compatible with her avowed intention to merely let her son make a temporary visit to Fort Smith. The undisputed testimony discloses that' during the two and one-half years which the hoy has lived with appellees in Fort Smith, he has been given proper care and treatment, he has been afforded excellent school and religious training, he has acquired wholesome friends and associates, and he is happy .and contented in his present home. It is appellant’s belief that the appellees háve attempted to alienate her son’s affections for her, but they and he deny this, and the boy says he still loves his mother but had rather live with his father. We agree with the chancellor that it is for the best interest of Frank Bay, who is now 12 years old, to remain with his father in the present surroundings. It is true that the father has employment which permits him to be at home only once or twice every two or three weeks, but at all times the boy is in the home and under the care and protection of his paternal grandparents.

(b) We do not agree with appellant that it was reversible error for the trial court to refuse to require appellees to file an answer to her petition or, in lieu thereof, grant her petition. The petition for the writ was filed on September 6, 1955 and the hearing was held two days later. At the hearing, the first witness was introduced by the petitioner and from this witness there was elicited certain information regarding the religious and educational environments which would surround the boy if he was permitted to go to California. Appellant testified next, and it was during her testimony that her attorney stated in effect that he was willing to develop matters subsequent to the Missouri decree, although at the same time he objected to the court hearing testimony as to conditions and matters previous to said decree. The trial court overruled appellant’s objections on this point but explained its reasons as heretofore mentioned. Shortly thereafter- appellant’s attorney- reminded the court again that he did not know what appellees-’ defense would be. Thereupon appellees ’ attorney, at the suggestion of the court, outlined appellees’ defense. There was no further insistence by appellant that any written pleading he filed by appellees and no further objections were made to the introduction of testimony on that ground. Under these circumstances appellant waived the filing of a formal answer by appellees and cannot at this time be heard to complain.

(d) We feel that the visitation conditions imposed by the court on appellant were too harsh, and that they might amount to a complete denial thereof. Appellant strongly insists that she is not able, under the circumstances existing, to make a $1,000 bond for the safe return of her son to Fort Smith if and when he visits her in California, and there is no evidence to the contrary. We think a bond in the amount of $500 should be sufficient, especially in view of the fact that the boy should within two years or less be capable of making his own decision as to where he wants to live. The trial court required appellant to pay all travel expenses for the boy from Fort Smith to California and return. It is usual in such instances, and we think it is appropriate in this case, for appellant to pay the travel expenses from Fort Smith to California and for the boy’s father to pay his travel expenses from California to Fort Smith. We note also the court provided that when and if the boy should visit his mother during vacation time she should return him “to the home of his father at any time he desires.’-’ This restriction, it seems to us, is not only useless but it would be difficult to enforce, and it also might lead to a denial of visitation rights entirely. If and when the boy visits his mother during vacation time she should not in any way be hampered in her efforts to strengthen her son’s ties of love and loyalty.

Therefore the decree of the trial court is modified as above set forth and, as so modified, is affirmed, and the trial court is directed to enter a decree in conformity with the views above expressed.

Justices MiNOR W. Millwee and George Rose Smith dissent.


author: Sam BobiNsoN, Associate Justice.

text:
    Maples v. State.
    4844
    290 S. W. 2d 627
    Opinion delivered May 28, 1956.

      Fred Newth and Kenneth Goffelt, for appellant.

      Tom Gentry, Attorney General; Thorp Thomas, Asst. Atty. General, for appellee.
   Sam BobiNsoN, Associate Justice.

Appellant was convicted in the Pulaski Circuit Court of the crime of manslaughter, and, on July 18, 1955, during the March term of the Circuit Court, he was sentenced to three years in the penitentiary. The judgment was affirmed by this court January 9, 1956. Maples v. State, 225 Ark. 785, 286 S. W. 2d 15. Subsequently, on February 7,1956, during the September 1955 term of Circuit Court, Maples filed what is designated as a motion to vacate the judgment. The motion alleges that a witness is now available who will testify that she saw the killing, and that Maples acted in self-defense. The motion further alleges that this witness was incompetent at the time of the first trial, and, therefore, was unable to testify. The trial court denied the motion, and Maples has appealed.

Prior to the trial in July 1955, Maples had filed a, motion asking for a continuance on the ground that the witness referred to was not available at that time, but could be called as a witness later if a continuance were granted. The court denied the continuance, and, on appeal, there was no contention that the court erred in doing so.

Appellant now seeks a new trial, relying on authority of Ark. Stats. § 29-506, which provides: “.The court in which a judgment or a final order has been rendered or made, shall have power, after the expiration of the term-,' to' 'vacate ■ or modify such judgment or order, .Seventh: For unavoidable casualty or misfortune preventing the party from appearing or- defending.” This statute has no application to criminal cases. Thomas v. State, 136 Ark. 290, 206 S. W. 435; Smith v. State, 200 Ark. 767, 140 S. W. 2d 675.

Appellant also says his constitutional rights were violated; however, the point is not argued, and no authority is cited.

Affirmed.


author: Lee Seamsteb, Chief Justice. Ed. F. McFaddin, Associate Justice

text:
    Pasteur v. Niswanger.
    5-919
    290 S. W. 2d 852
    Opinion delivered June 4, 1956.

      J. W.- Patton, Jr., and 'Shaver, Tackett-- S' Jones, for appellant.

      Fulton, Hancock & McClain and Keith & Clegg, for, appellee.
   Lee Seamsteb, Chief Justice.

This appeal is from-the Lafayette Chancery Conrt. The court decreed parti-1 tion and sale of a leasehold working interest in an oil and gas lease on 40 acres of land in said county. The question involves the right of the court to enter a judgment for partition and order of sale of the leasehold working interest owned by the parties, under the facts in the case.

Appellant Edna Mae Pasteur acquired the ownership of the lease in question. To get the funds necessary to drill or work the lease, she sold and assigned a one-half interest in the lease to Adma C. Niswanger for the sum of $9,000, and Pasteur contracted with Niswan-ger to drill a well on the premises and if oil was found to also drill a second well thereon, to he commenced within. six months from the completion of the first well. .

By a later agreement between said parties Pasteur' agreed to drill this second well on the leasehold premises- and Niswanger was to pay her an additional $17,000 to’ pay for one-half of the cost of drilling the second well Niswanger paid to Pasteur the $17,000 and still owns a half interest in the leasehold estate.

To provide funds for her part of the cost of drilling the second well, Pasteur sold other interests in the leasehold working interest; To appellant, Eddie Adamson, a’ one-sixteenth interest; to appellant, M. H. Harrell, three-' sixteenths interest. Harrell, mortgaged his interest to Farmers and Merchants National Bank of Gilmer, Texas;; and to the appellee, Iris Jordan a one-sixteenth, interest.-, Pasteur retained three-sixteenths interest in the lease. The working interest of seven-eighths is also'subject to two overriding royalty interests, one eighth of one-eighth' of seven-eighths leasehold interest held by Carter Oil Company and one-sixteenth of seven-éighths of leasehold' interest held by T. C. Short.- i!-

. The parties now own the respective interests as set out above in the leasehold working interest, including all machinery and personal property used on the premises. Both of the wells drilled by Pasteur were producing wells. The oil produced from the two wells is now being-severed from the soil and delivered through oil pipe lines to the market.

. Appellees filed the partition suit on the sole ground that they are co-tenants of the appellants in the leasehold estate and as such are entitled to a sale under partition and division of the proceeds of such sale among the parties as their interests are set out herein.

There is no evidence on this point but Title 53 of Arkansas Statutes, 1947, creates the Oil and Gas Commission and gives it jurisdiction over the production and sale of oil and gas in this state as a conservation regulation of such industry. It is necessary to secure a permit from the Commission before drilling starts for oil or gas. Where there is production, a division order requiring the proper measuring of the oil at the time of delivery to the pipeline, and a designation of the owners and their interest in the oil to be delivered must be set out. We assume the parties have complied with the law in drilling and selling the oil from the two wells here involved.

Our court has held that an oil and gas lease conveys an interest and easement in land itself, but no title passes until the oil and gas is reduced to possession. Clark v. Dennis, 172 Ark. 1096, 291 S. W. 807; Osborn v. Arkansas Territorial Oil and Gas Co., 103 Ark. 175, 146 S. W. 122; Davis v. Collins, 219 Ark. 948, 245 S. W. 2d 571.

Oil severed from the soil and reduced to possession becomes personal property. Shreveport-El Dorado Pipe Line Co. v. Bennett, 172 Ark. 804, 290 S. W. 929.

No attempt was made in this case to partition the land upon which the lease exists. Our statute, Sec. 34-1801 Ark. Stats. 1947, provides for the partition of land. Owners of leasehold working interests are not co-tenants of the owners of the fee or surface of the land. Their interests are of a different kind. Their interests are also of a different kind to the interests of the owners of mineral rights where severed from the land.

The mineral interests in land may he partitioned under the provisions of Sec. 53-401, Ark. Stats. 1947, and related sections, under the conditions therein set out. None of the statutes apply to the facts in this case or to the partition of a leasehold working interest. Warfield Natural Gas Co. v. Cassady, 266 Ky. 217, 98 S. W. 2d 495; Hall v. Vernon, 47 W. Va. 295, 34 S. E. 764; Beardsley v. Kansas Natural Gas, 78 Kan. 571, 96 P. 859, 173 A.L.R. 860, note 5.

There is no statutory right, to compel the partition of a leasehold estate worlcing interest in this state-. • The right to have partition in equity is based upon the application of equitable principles, and only upon showing facts indicating sufficient reason for equitable interference. 173 A. L. R. p. 850-859.

In the case of Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844, the court held that where there is production operating under a division order partition has already been made. '

It has been held that'there is no ground for partition of personal property where it is divisible by weight, a measure or number into portions identical in quality and value. There would be no dispute that a court of law or equity could settle. Counting, weighing and measuring are not judicial but ministerial functions. 40 Am. Jur. p. 87, Sec. 104.

The object of a leasehold estate working interest is to produce the mineral sought. As long as there is production, there is partition. Under the facts in this case the right to partition by the court should be denied.

The decree is reversed and the petition for partition is dismissed.

Justice McFaddiN concurs.

Ed. F. McFaddin, Associate Justice

(Concurring). From a decree of the Chancery Court ordering a sale of .the properties- of all the parties, there is this appeal, challenging the validity of the order of sale. The appellants are Edna Mae Pasteur, Eddy Adamson, M. H. Harrell and the Farmers & Merchants National Bank of Gilmer, Texas. The appellees are Adma C. Niswanger and Iris Jordan.

The appellants and appellees together own a leasehold working interest in the SW14 SW% Sec. 10, Twp. 16' S., R. 24 W., LaFayette County, Arkansas. All the parties herein are agreed: (a) When the original oil and gas leases were executed on the above 40 acres, there was a l/8th interest retained by the landowner and called the “royalty interest”. That interest is not involved herein. The remaining 7/8ths interest in the minerals was called the “leasehold interest”, (b) On the particular 40-acre tract here involved there was carved out of this 7/8ths leasehold interest two overriding royalty interests, and being:

T/8 of 1/8 of the 7/8 or leasehold interest held by Carter Oil Company; and 1/16 of 7/8 of the 7/8 or leasehold 'interest held by T. C. Short, (c) The remainder of the leasehold interest (after the over-riding royalty interest in (b)'above) is. the leasehold working interest and is • owned by the appellants and the appellees in these proportions :

Appellee, Adma G. Niswanger 1/2
Appellee, Iris Jordan 1/16
Appellant, Edna Mae Pasteur 3/16
Appellant, Eddy Adamson 1/16
Appellant, M. H. Harrell (subject to the mortgage of the Farmers &
Merchants National Bank of Gilmer, Texas) 3/16

On August 26, 1952, appellant, Pasteur, owned all of the aforesaid leasehold working interest mentioned in (e) above, and made a contract with appellee, Nis-wanger,. whereby, for the sum of $18,000.00 duly paid, Pasteur assigned to Niswanger 1/2 of the said leasehold working interest owned by Pasteur, and also'agreed to drill a well on the 40 acres of oil and gas. This well was drilled and became a producer; and then it became necessary to drill another well on the. 40-acre lease, for half of the expense of which second well Niswanger beeaihe liable. She was advised by Pasteur that Niswanger’s portion of the expense of the second well was $17,000.00, which amount Niswanger paid. Both wells were producing at the time of the litigation in the lower court.

On January 7, 1954, Niswanger filed this suit in the Chancery Court, praying for an accounting and claiming that Pasteur, in the operation of the wells, had overcharged Niswanger on the cost of the second well and had also failed to properly handle the finances of the entire leasehold working interest. Later, by an amendment, Niswanger alleged that the other parties to this litigation (besides Niswanger and Pasteur) had acquired interests in the leasehold working interest from Pasteur, and they were brought in as parties; and then Niswanger, by amendment, prayed that the entire lease-hold working interest of all parties in this litigation, including the machinery and equipment of the two wells, be sold and the proceeds held for partition after the accounting. Iris Jordan joined with Niswanger in seeking sale and-.partition, which was resisted by all the other parties.. ■. The Chancery Court ordered the sale of the lease-hold working interest of appellants and appellees and also the sale of the equipment and machinery of the appellants and appellees at the two wells. All of this was' in ad--vanee of hearing the other questions in the case: it was conceded that there would be a subsequent accounting. -

The parties on this appeal have briefed the case on' the question of whether there can be a partition of oil and gas leasehold rights. I do not understand that, to be the vital question. The real questions in this litigar tion are: (1) What was the status of the appellants and appellees between themselves; i.e., were they joint■/adf.. venturers, partners, or what? (2) Whatever their status, did equity have the power to sell the corpus of their holdings in advance of deciding whether there had been a breach of the operating agreement; i.e., could equity sell the corpus until it was first shown that a cause of action existed to justify the winding up of the relationship? I think the present decree should be reversed and the cause remanded to the Chancery Court for trial and decision on the two questions stated in this paragraph.


author: J. SeaboeN Holt, Associate Justice. Paul Ward, Associate Justice,

text:
    Coley v. Amsler, Judge on Exchange.
    5-987
    290 S. W. 2d 840
    Opinion delivered June 4, 1956.

      Lee Miles, Ed E. Ashbaugh and Wright, Harrison, Lindsey & Upton, for petitioner.

      J. F. Holtsendorff and Frances D. Holtzendorff, for respondent.
   J. SeaboeN Holt, Associate Justice.

This is an original proceeding by petitioner, Frank Coley, for a writ of prohibition. On July 4, 1955, an automobile owned and driven by Naomi Faupel, and in company with her mother, collided with a truck driven by appellant, Frank Coley, in Lonoke County. August 22,1955, Naomi Faupel brought suit against Coley in the Circuit Court of Prairie County based on personal injuries and property damage growing out of the mishap. Coley, after having been duly served with summons, appeared specially and filed motion to quash, the summons, and that the complaint he dismissed, on the ground that venue in Prairie County was improper since the collision happened in Lonoke County and Miss Faupel (he alleged) was not a resident of Prairie County at the time of the mishap. On a hearing, at which both parties offered testimony, the trial court overruled appellant’s motion and on February 29, 1956, appellant filed in this court his petition for writ of prohibition seeking to prohibit the Prairie Circuit Court from proceeding further in the case. Appellant says: “The only question presented by this Petition is whether or not the plaintiff was a resident of Prairie County, Arkansas, at the time the accident giving rise to her complaint occurred.”

The venue in this case and in similar litigation is controlled by § 27-610 and 27-611 Ark. Stats. 1947 which provide: “All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury . . . Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.”

The testimony discloses that Naomi Faupel, single and now 25 years of age, was reared in Hazen, Prairie County. Her parents have continued to reside in their home in Hazen. After finishing high school in Hazen and a business education in Little Rock, Naomi Faupel returned to Hazen and worked for a construction company and a local bank until 1953. In October 1953, she, after having pursued a correspondence course to qualify for a position with an airline company, went to Kansas City, Missouri to take an additional six week’s course of study, which was required. Following the completion of her course of study she applied for a position with the airlines, but finding no opening she accepted her present position with an insurance company, in order to support herself, but only on a “temporary basis.” Her application with-the airlines was still pending. While working in .-Kansas; City, she-testified that .she continued to claim Hazen'as her home “Q. And Hazen is your parents-’ home? -A. And my home too.” A. substantial amount of her clothing, personal possessions, including her hope chest, silver and other treasures, were kept in her .home in Hazen and that she maintained in Kansas City only such clothing as the seasons required. She returns to Hazen as often as she can on week-ends and on holidays -=— “Q. How often do you come hack to see your mother and dad at Hazen? A. About every two months.” She further testified that her visits to them were “from a week to ten days or two weeks, whatever time she has;” that on these visits she brings home her clothes and things like that and takes back some; that she had been in Hazen two days -when the mishap here in question, occurred and that she was going back to Kansas City to work and remain until Thanksgiving, when she would again be home. She had also been home thirty days before this on Labor Day. She continued to maintain her church membership in a church in- Hazen, her membership, in a riding club, claims interest in a horse which she and her father keep at Hazen, and maintains burial insurance at Hazen. She cast her maiden vote in. Prairie County in 1951 and has voted in each election in that county since, voting an absentee ballot in 1954, and has purchased her poll tax for the year 1955 in Prairie County. Her name appears on the published and official list of qualified electors, of Prairie County for each of these years. She has never voted in Missouri ór any other place except Prairie • County. She' owned an Arkansas Driver’s License for the’years 1950, 1951, 1952,1953 and 1954. She did not own an Arkansas Driver’s License for the year 1955, but owned a Missouri Driver’s license for that year. She paid no State Income Tax either in Missouri or Arkansas. The 1955 Ha-zen Telephone Directory shows the telephone at the Paupel residence listed in Miss Naomi Faupel’s name.

Appellant stoutly contends that the undisputed testimony shows that Miss Faupel was not a resident of Prairie - County at the time of the. collision, but was in fact a resident of Kansas City and that we must so declare as a matter of law. We do not agree. We do not think the evidence as to Miss Fanpel’s residence was wholly undisputed. The principles of law announced in our comparatively recent case of Twin City Lines, Inc. v. Cummings, Judge, 212 Ark. 569, 206 S. W. 2d 438, are controlling here. As indicated, the question of the trial court’s jurisdiction turns upon a fact question, whether Naomi Faubel was a resident of Prairie County at the time of the mishap. We cannot say from the above testimony that the question of her residence was undisputed, and was such that the only inference to be drawn therefrom was that she was, in fact, a resident of Kansas City, as the petitioner here contends.' We said in the Twin City Lines case above that: “The fact of deceased’s residence at the time of her death is, therefore, a controverted and contested question which the trial court was called upon to determine from the testimony' adduced on that issue. This court has repeatedly held that where the jurisdiction of a trial court depends upon, a question of fact, a writ of prohibition will not lie . . . The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is:never.granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. When the court has jurisdiction over the subject-matter and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error, and prohibition is not the proper remedy. . . . We do not regard the testimony as to deceased’s residence as being wholly undisputed and certainly the legal effect of such facts is a matter that is highly controversial . . .. Probably in most instances the- facts upon which jurisdiction may. rest .or be determined are controverted. In most other instances they might be controverted, that is to say, there is the ..possibility of the facts being disputed. In'either event, the. matter, is one that must be determined by the trial ¡court, and .in- the proper- exercise of the trial court’s functiohkwe do not interfere by prohibition. We might,differ, most, seriously from the view taken-by the trial court,-but' if we think the trial court erred, we can correct that only upon appeal.” See also Twin City Coach Co. v. Stewart, Administrator, 209 Ark. 310, 190 S. W. 2d 629.

We conclude, therefore, that a disputed question of fact was presented and the Circuit Judge had the power in the circumstances to' determine the question of the residence of Naomi Faubel, and even though he might have done so erroneously, petitioner has an adequate remedy by appeal-and prohibition will not lie. The writ is, therefore, denied. J "

Justice Ward dissents.

Paul Ward, Associate Justice,

Dissenting. In my opinion the Writ asked for by petitioner should be granted. I cannot agree with the majority opinion for the reasons hereinafter stated.

; The majority opinion is based on the holding in the Twin City Lines, Inc., ease. In the cited case the court -itself said: “We do not regard the testimony ,as to deceased’s residence as being wholly undisputed ...” In order to bring the issue in the present case under consideration within the provisions of the Twin City case, the majority must, of course, find that the testimony and facts in the case are disputed, i.e. not undisputed. This is exactly what the majority has done in these words: “We do not think the evidence as to Miss Faupel’s residence was wholly undisputed.” I disagree with this finding by the majority, for two reasons: (a) First, the majority points out no disagreement and no conflict in the testimony, and (b) In the second place, the respondent specifically refutes the majority’s finding. From the respondent’s brief, at page 13, I quote: “We agree with the petitioner that the facts involved herein are not in dispute. ...”

Since, therefore, no disputed question of fact was presented to the trial court or is presented to this court, it follows that only a question of law was presented below and.is, now-:presented to this court. That question is: Do the undisputed facts in this case show Naomi Faupel to have been a resident of Prairie County or a resident of Kansas City? Briefly tlie undisputed facts are these: For two arid orie-half years' (previous to the accident) Naomi Faupel had worked, lived and resided in Kansas City,'Missouri, except'for a visit, about once every two months, to her parents in Prairie County.

In the outset it is important not to confuse residence with domicile: Our courts have uniformly made a clear distinction: between the two. This distinction, concisely stated, is: that residence means a place where one lives or resides and domicile refers to one’s permanent abode or legal residence or domicile. See Norton v. Purkins, 203 Ark. 586, 157 S. W. 2d 765; Smith v. Union County, 178 Ark. 540, 11 S. W. 2d 455, and Shelton v. Shelton, 180 Ark. 959, 23 S. W. 2d 629.

The undisputed facts in this case show too clearly to admit- of argument or refutation that Naomi Faupel resided in Kansas City at the time of the accident and had been residing there for two and one-half years.

Because Naomi Faupel had a drivers license and a poll tax, and. maintained a telephone in her name in Prairie County, is some indication, of course, that she meant to maintain Prairie County as her legal residence or permanent abode [although she herself said she had no present intention of returning to Prairie County], yet the incidents above mentioned are in no way incompatible with her maintaining her residence in Kansas City. Everyone is familiar with fine examples of the difference between maintaining a residence and a domicile. It can hardly be denied that all of the Senators and Congressmen together with all of their assistants from this State reside in Washington D. C. while the Congress is in session, but all of the parties mentioned would be the first to deny that their domiciles and legal residences are in Washington.

Ark. Stats. § 27-610 provides that when a person is injured, such as Naomi Faupel was in this case, that person has a right to bring an action in the.county where he “resided at the time of the injury.” .

Heretofore the word residence has had a well defined meaning. Black’s Dictionary, 4th Edition defines residence as “a factual place of abode. Living in a particular locality.” The new Webster’s International Dictionary, Second Edition defines residence in this way: “Act or fact of abiding or dwelling in a place for some time; act of making one’s home in a place.’.’ It appears to me that the majority opinion has thrown into utter confusion the common ordinary meaning of the word residence and, consequently the meaning .of the statute above quoted.