text:
    Wells, Executrix v. Hayes.
    5-2855
    362 S. W. 2d 700
    Opinion delivered December 17, 1962.

      Roy Finch, Jr. and Thorp Thomas, for appellant.

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

Appellants, Ruby A. Wells and R. L. Wells, are the wife and son, respectively, of L. L. Wells, deceased. Mrs. Wells is executrix of her late husband’s estate. During his lifetime, L. L. Wells operated a busness known as “Arkansas Tastee Freez,” a distributor in this state for the sale of “Tastee Freez” ice cream stores. Mrs. Wells and the son worked with Mr. Wells in the business during the period of time hereinafter referred to. On February 27, 1954, L. L. Wells and R. L. Wells, d/b/a Arkansas Tastee Freez Company, entered into a contract with Randall Hayes and Jennie V. Hayes, husband and wife, and appellees herein, wherein the former agreed to sell their Tastee Freez business, including the realty and improvements, for the sum of $12,200. On the same date, a contract was entered into between the parties whereby Arkansas Tastee Freez Company leased to appellees, for a period of six years, certain equipment used in making the ice cream and further agreed to sell (and the purchaser to buy) Harlee Freezers, to be likewise used. The agreement, inter alia, provided that appellees would use only Tastee Freez mix (or such other mix as approved by lessor), and they were to purchase the mix at the price of $1.24 per gallon, less a rebate at the end of the year. This price included a 30 cents per gallon surcharge, of which 10 cents, according to the contract, was to be sent to Harlee Manufacturing Company for advertising. Appellees further agreed to use only supplies, such as flavors, sundae toppings, spoons, containers, straws, uniforms, etc., that had been approved by the lessor, and to use only such equipment in connection with operating the freezers and feeders as had been approved by the lessor. Numerous other provisions were included which are not particularly pertinent to this litigation. The last paragraph of the agreement provides,

“It is further agreed that in the event of the cancellation of this agreement, the Lessor shall have the right and option to purchase the Harlee Freezers and special topping cabinet sold to Lessee at the Lessee’s cost thereof less an amount equal to 50% of said cost as depreciation for the first year or any part thereof, an additional amount equal to 20% as depreciation of said equipment for the second year or any part thereof, and an additional amount equal to 5% of the cost of said equipment as and for depreciation in each of the third, fourth, fifth, and sixth years.”

Pursuant to the agreements, appellees purchased the business (which admittedly has been completely paid for) and used the Tastee Freez mix in 1954, 1955, 1956 and part of 1957. The 30 cents surcharge was paid monthly until March 9, 1957, when appellees, through their then attorney, advised the Arkansas Tastee Freez Company that they would no longer use this mix, and the 30 cents surcharge was not paid subsequent to that date. After that time, appellees commenced using a mix other than Tastee Freez, and without approval of appellants. In the March 9 letter, appellees advised Arkansas Tastee Freez Company that it could pick up the feeders, and could purchase the freezer on the terms outlined in the last paragraph of the agreement. No reply was received to the letter, and on August 7, counsel for appellees again advised Arkansas Tastee Freez that the agreement was being cancelled and the equipment could be picked up. On August 10, L. L. Wells sent his check for $468.55 as per the terms of the lease agreement, to cover the cost of the Harlee freezer, topping bar, deep freeze and topping rail, advising that the items would be picked up the following week. This was subsequently done. L. L. Wells died on January 24, 1958. On August 23, 1958, appellants instituted their complaint against appellees, alleging that the latter had breached their agreement (by ceasing to use Tastee Freez mix) and that there were due, as royalties, 30 cents per gallon for each gallon of ice cream mix used since March 9,1957. An accounting was prayed, and appellants sought judgment in whatever amount might be found to be due them. On trial, the court dismissed the complaint. From the decree so entered, appellants bring this appeal.

The evidence reflects that appellees, after March 9, 1957, sold 3,210 gallons of mix during the balance of that year, 3,810 in 1958, and 2,360 in 1959. In their brief, appellants contend that, based upon the 30 cents per gallon surcharge, they should have received judgment for the sum of $2,814.00. We do not quite understand how appellants contend for this amount, inasmuch as the proof shows that 10 cents of the 30 cents was to be paid to the Harlee Manufacturing Company for local and national advertising, and 10 cents was to be sent to the National Buying Association to help pay the operating cost for that organization. However, inasmuch as we agree that the chancellor correctly dismissed the complaint, this matter is immaterial.

The contentions of each are simple. Appellants simply assert that Mr. and Mrs. Hayes breached the contract. Appellees assert two defenses, alleging that they were induced into entering into the agreement through false representations, and further, that the lease agreement between the parties was cancelled. The first mentioned deals with the complaint of appellees that, though they had been told that products could be bought much cheaper by buying through the Tastee Freez National Buying Association, actually the prices were much higher. This was a reference to the mix, topping for ice cream sundaes, spoons, and various other supplies that were purchased. It is also asserted that no technical assistance was provided by the company relative to the operation of equipment, as set forth in the contract. It is not necessary that we discuss this contention (false representations) for we think the litigation is definitely determined by the provisions of the last paragraph of the agreement, heretofore referred to.

It may be (though this is not argued by appellants) that the company, in including this cancellation paragraph in its printed contract, intended that it become operative only at the conclusion of the six year term of the lease, i.e., in event one or both of the parties did not desire to renew the agreement. However, there is nothing in the contract which so provides; that instrument simply recognizes the right of cancellation, and Mr. L. L. Wells, evidently the principal operator of Arkansas Tastee Freez Company, likewise, recognized the right of cancellation. This is definitely shown by his actions subsequent to receiving the communication from appellees’ counsel. The August 7 letter in behalf of appellees to Arkansas Tastee Freez Company advised as follows:

‘ ‘ Gentlemen:
“On March 9 I advised that Randall Hayes and Jennie V. Hayes of Clarendon, Arkansas, did not intend to continue in the sale or further use of Tastee Freez products aud were cancelling their agreement with you. I also advised you that you could pick up the Harlee Manufacturing Company feeder or feeders and that you could purchase the Harlee freezer if you so desired. To this date I have not heard from you concerning same. If I do not hear from you concerning the purchase of the Harlee freezer within ten days from the date of this letter I will assume you do not wish to purchase same and Mr. and Mrs. Hayes will make other disposition of same.
“Yours very truly,”
On August 12, Mr. Wells replied as follows:
“Dear Sir:
“Enclosed you will find my check for $468.55 to cover the costs of the 2500 Harley freezer, complete with pump and the Anheiser-Busch topping bar, deep freeze and the topping rail.
‘£ This is in accord with the operator’s agreement and depreciated as per their schedule of 50% for the first year or fraction thereof; 20% for the second year then 5% for the third year or fraction thereof.
“The original cost of the equipment was $1445. on the freezer and $430. on the deep freeze complete.
“I will arrange to have this picked up some time next week.
“Respectfully,”

Moreover, though Wells did not die until nearly six months later, no action was taken by him on account of a breach of contract, nor does the record reflect that he ever made any such contention. In fact, neither Arkansas Tastee Freez, nor any one in their (its) behalf, ever made any demand on appellees for the surcharge before the filing of this action. It would certainly seem that if Mr. Wells, or appellants, considered that appellees had breached the contract, legal steps would have been taken; actually, if such a view were held, it is somewhat puzzling that action was not commenced when the letter of March 9 was received, some five months before Wells exercised his right to purchase the equipment. Be that as it may, we think unquestionably that the agreement was can-celled by the actions of the parties. According to Webster’s Third New International Dictionary, the word “cancel,” inter alia, means “revoke, annul, invalidate, remove from significance or effectiveness, call off.” This is exactly what happened in this instance, and it might be here mentioned that Mr. Wells, in joining in the cancellation, received certain benefits, in that he was able to purchase the equipment heretofore mentioned at a price which, according to the testimony, was considerably less than the value of said equipment.

It follows, from what has been said, that we find no merit in appellants’ contention that the trial court committed error in denying them judgment for damages for breach of contract.

Affirmed.

       The record does not make entirely clear the interest of R. L. Wells in the business. Appellants’ brief speaks of him as an employee, but, as herein set out, he did join in the contracts.

       The contract provided that the lease would be automatically renewed for successive periods of six years each, unless either of the parties advised the other to the contrary, in writing, at least 30 days prior to the conclusion of any six-year period.

       Appellants alleged that they believed that the amount would be in excess of $50,000.

       The association purportedly operated for the purpose of permitting lessees to purchase products cheaper (by buying through the association).

       For instance, there was testimony that Hayes had the opportunity to sell the freezer alone for $750.00.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Traders & General Ins. Co. v. Henderson.
    5-2793
    362 S. W. 2d 671
    Opinion delivered December 17, 1962.

      Mahony & Yocum, for appellant.

      Wendell Utley and Jack Machen, for appellee.
   Carleton Harris, Chief Justice.

The question here presented is whether Traders & General Insurance Company had issued its Workmen’s Compensation Insurance Policy (8 12621) granting coverage to the employees of Parr Production Company of Texarkana, and if such policy was in effect on July 11, 1960. O. H. Henderson, an employee of Parr, suffered a compensable injury on that date. Appellant had issued a Workmen’s Compensation Policy covering Parr for the previous year, and some time prior to June 9, 1960, Parr had made application to appellant for a renewal of this coverage for the period of time beginning July 10, 1960, and ending July 10, 1961. Traders & General sent the new policy (renewing the insurance for such period of time) to the Wade and Wade Agency, also of Texarkana, on June 14. The agency retained the policy in its possession for some 56 days while Parr was endeavoring to make arrangements to pay a $1,000 deposit premium, required by the company before delivery could be made. The $1,000 was not paid, and on August 9, 1960, the policy was returned by the agency to the company for cancellation “flat.” The company contends the policy was never issued; appellee, supported by Parr Production Company, contends that arrangements were made with the agency for payment of the premium; that said premium was charged to Parr, and the policy was in full force and effect on the date of Henderson’s accident. The referee held that the policy was in effect, and the full commission held likewise. On appeal, the Circuit Court affirmed the commission. Prom such judgment, Traders & General appeals to this court.

Without discussing at length the testimony, or arguments advanced, by appellant, we think clearly there is substantial evidence in tbe record to support tbe finding that tbe policy had been issued. Decker Wade, a partner in the agency firm, testified,

“We carried Mr. Farr’s insurance for the year of 1959, that is, July 10, 1959 to July 10th, 1960 and his policy was received in our office prior to the expiration and we held it and explained to him that we would have to have a deposit premium which is outlined and stipulated by the company of one thousand dollars before we could turn the policy over to him. There was a considerable amount of premium involved and once we release that policy without any money, we as the agents are liable for that earned portion. Mr. Jones came in the office and arrangements were made whereby they would pay for the policy, the Workmen’s Compensation and the general liability and also on some trucks that he had but the payment was never made; * * * ”

A statement, dated November 22, 1960, appears in the transcript, showing various charges to Farr, together with credits that had been given. While counsel disagree as to the meaning of this statement, it definitely does show a charge to Farr of $2,238 on “WC 12621.” This entry was made on July 10, and the sum listed is the amount due as shown by the policy itself. Also the evidence reflects that the previous policy had been issued on a credit basis, and according to the testimony, some portion of payment was still due on that policy. This tends to support Farr’s testimony of an “open account” with Wade; however, there are matters appearing in the record which are even more pertinent to the issue, and which constitute substantial evidence of the issuance of the policy. For one thing, appellant company recognized the claim, and actually made payments. On August 15, appellant directed a letter to Farr Production Company seeking information relative to whether Henderson had performed any work since his accident, whether he was unable to work at that time, and inquiring as to when he was expected to return to work. The company paid five weeks’ compensation to Henderson (July 13 to August 17) in the amount of $175.00, and other expenses in connection with the claim, all of which totaled $346.56. Decker Wade testified that the claim on Henderson was filed with the Claims Department of Traders & General “during the period of time” that the policy was being returned in the mail to the company, “and they went ahead and processed the claim, not knowing that the policies were in the process of being cancelled” * # *. This statement is a bit difficult to understand since the policy was returned to the company on August 9, and the letter (from the company to Farr) heretofore referred to, was dated August 15; of course, any payment covering compensation through August 17, was made even some time later.

The company sent notice to the Workmen’s Compensation Commission, advising that the policy had been cancelled. While the notice of cancellation stated that the policy was cancelled as of July 10, 1960, the commission approved the cancellation as of September 1, 1960. This was in conformity with Sub-section (b) of Sec. 81-1338, Ark. Stats., 1960 Replacement, which provides,

“No contract or policy of insurance issued by a carrier under this act [§§ 81-1301 — 81-1349] shall be canceled prior to the date specified in such contract or policy for its expiration until at least fifteen [15] days have elapsed after a notice of cancellation has been sent to the Commission and to the employer, provided, however, that if the employer procures other insurance within the fifteen [15] day period, the effective date of the new policy shall be the cancellation date of the old policy.

Possibly the most potent evidence to the effect that the policy had been issued, is contained in a notice sent to the Workmen’s Compensation Commission by appellant. This notice was sent in compliance with Rule No. 3 of the Commission, which provides,

“Every employer within the operations of the Arkansas Workmen’s Compensation Law shall file with the Commission proof of its compliance with the insurance provisions of the Law. A notice from the insurer, through the Arkansas Compensation Rating Bureau, certifying this fact, will he received as acceptable proof."

The notice, which was received by the Commission on July 25,1960, is as follows:

To THE ARKANSAS WORKMEN’S COMPENSATION COMMISSION: This is to certify that the workmen’s compensation INSURANCE POLICY OF THE EMPLOYER DESCRIBED HEREIN HAS BEEN

Issued............renewal...........................Hate............June 9,1960.....................

Cancelled....................................................Date.................................................................

Amended....................................................Hate.................................................................

Employer....................................Farr Production Co.....................................

Address.....................Wadley Bldg., Texarkana, Texas........................

Nature of Business..................Oil or Gas Well drilling.....................

Place of Business..............................State of Arkansas..............................

Agency Writing..................Wade, Wade and Associates..................

Number of Policy............WC-12621............ Hate.........7-10-60.........

Expires..................7-10-61..................

Policy Amended as Follows:..............................................................................

Carrier:.....................Traders & General Insurance Co......................

By:........................................................................

WC-689

The purpose of such a notice is to enable the Commission to know that the Workmen’s Compensation Law is being complied with. Certainly, if the certification is eff ective only if the company has received its premium — such certification means nothing, — and it will he noted that this notice does not state that the insurance has been conditionally renewed. Rather, the notice is a certification that a Workmen’s Compensation Policy is in effect from July 10, 1960, to July 10, 1961. Of course, it would hardly be feasible to expect the Commission to conduct an investigation to determine whether the company had received its premium. Be that as it may, this certification by appellant is certainly cogent and convincing evidence that it had issued the policy in question.

As previously stated, we think there was substantial evidence to support the finding of the Commission, and the judgment of the Circuit Court is affirmed.

       This is an insurance expression, meaning in effect “from the be * ginning, or inception, of the policy.” Here, it meant that the cancellation was as of July 10, 1960.

       This refers to Robert Jones, bookkeeper for Farr Production Company.

       No other insurance was obtained by the employer.

       Emphasis supplied.

       Of course, if it so stated, the rule would not be complied with, and the certification would be unacceptable.

       Appellant says that the sending of the certifying notice was a “clerical slip.”


author: Ed. F. McFaddin, Associate Justice. Paul Ward, Associate Justice

text:
    Ozment v. Mann.
    5-2838
    363 S. W. 2d 129
    Opinion delivered December 17, 1962.

      Paul K. Roberts, for appellant.

      W. P. Switzer, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a partition suit brought by the appellants; and resisted by the appellees on the ground that the appellants have no interest in the lands sought to be partitioned. The crucial point in the case is the effect of certain nunc pro tuno proceeding’s.

On June 2, 1961, appellants, Lawson Ozment and the heirs of his brother, Tom Ozment, filed this suit in the Ashley Chancery Court against Floyd Mann and the other appellees, seeking to have a sale of the lands of J. Y. Mann, deceased, and a division of the proceeds between the appellants and the appellees. The complaint admitted that each of the appellees was entitled to some interest in the land, but urged that the appellants were also entitled to some interest because — -as the complaint alleged — J. Y. Mann had adopted Lawson Ozment and Tom Ozment as his sons in 1898. The appellees denied the validity of the adoption order, and the Chancellor’s decision was based on the invalidity of the original order of adoption in 1898 and the ineffectiveness of the subsequent nunc pro tunc orders in the adoption proceedings.

1. The 1898 Adoption Order. The only claim of appellants to any interest in the lands of J. Y. Mann, deceased, is because of the adoption order of 1898; but the original order of 1898 is fatally defective because neither the petition nor the order recited that J. Y. Mann or the Ozment boys were residents of Bradley County; and we have repeatedly held that an adoption order is void if it fails to recite such essential jurisdictional facts. Den v. Brown, 216 Ark. 761, 227 S. W. 2d 623. Mr. J. Y. Mann died intestate in 1928; and the interest of the appellees became vested at that time, subject only to the widow’s rights; so nothing in Act No. 137 of 1935, Act No. 369 of 1947, or Act No. 408 of 1947 can make valid the void adoption order of 1898. See Dean v. Brown, supra.

II. The Nunc Pro Tuno Orders. There are two of these: the first was on September 1,1961; and the second was on December 4, 1961. When the appellants ascertained that the 1898 order of adoption was void, they undertook to remedy the situation by filing in the Bradley Probate Court a petition for order nunc pro tunc to include the essentials as to residence. The petition was filed on June 13, 1961 (the partition suit having been pending since June 2,1961); and on September 1,1961 the Bradley Probate Court, without notice to any of the appellees, made its order nunc pro tunc, which recited that evidence was heard in 1898 which showed that J. Y. Mann and the two Ozment boys were then residents of Bradley County. Then, on December 4,1961 — at the same term in which the September 1, 1961 nunc pro tunc order had been entered —the Bradley Probate Court, on its own motion, set aside the September 1, 1961 nunc pro tunc order, and, with the attorney for the appellants present, entered an order nunc pro tunc regarding the original adoption order of 1898; and the germane portion of said December 4, 1961 order reads:

“It is therefore, by the Court considered, ordered and adjudged that the Petition for Order Nunc Pro Tunc and Amendment to Petition for Order Nunc Pro Tunc filed herein, be, and the same is granted and the clerk of this Court, be, and he is hereby directed to enter now for then the following corrected order and judgment: 1 Come J. Y. Mann and files his Petition praying the court for an order adopting Tom and Lawson Ozment as the Sons of the said J. Y. Mann and it appearing from the evidence of the said J. Y. Mann and others that J. Y. Mann is a resident and citizen of Bradley County, Arkansas, and that the said Tom Ozment is only 8 years of age and Lawson Ozment is 11 years of age and that both Tom Ozment and Lawson Ozment are residents and citizens of Bradley County, Arkansas, and that the said children have no parents living. The Petition of the said J. Y. Mann is by the court considered and granted. It is therefore by the Court ordered that the said children, be, and they are hereby adopted as the sons of the said J. Y. Mann and they shall be entitled to receive all the rights and interests in the estate of such adopted Father by descent or otherwise.
“It is further ordered that this order shall not in any wise either in law or equity be construed or held to effect or prejudice the rights of any person or persons who may have acquired either by purchase or descent any vested rights in the estate either real or personal of J. T. Mann, now deceased, who have not had notice of the application for this nunc pro tunc order and/or the proceedings. All rights of said person or persons not having said notice are hereby preserved. (Emphasis supplied.)
“IT IS SO ORDERED.
“To all of which the Petitioner objects and excepts, which objections and exceptions are hereby noted of record, /s/ James Merritt, Probate Judge.’ ”

Appellants object very strenuously to the italicized portion of the December order and claim that the Bradley Probate Court had no right to add such a limitation on the nunc pro tunc order. But the fact remains that the Bradley Probate Court, on its own initiative, had full power at the same term to set aside any order it had made. Stinson v. Stinson, 203 Ark. 883, 159 S. W. 2d 446; Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50; Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797; Eakin v. Cities Service Co., 228 Ark. 979, 311 S. W. 2d 530; and West’s Digest, “Judgment” § 341. So the December 4, 1961 order nunc pro tunc is the only one left to be considered.

III. The Effect In The Present Case Of The Nunc Pro Tunc Order Of December 4, 1961. The appellants claim that the Bradley Probate Court should not have included in the nunc pro tunc order of December 4, 1961 the italicized paragraph, as heretofore quoted. There are several answers to this claim of the appellants. In the first place, the appellants could have given due notice to the appellees of the intention to have a hearing on the motion for order nunc pro tunc, and thereby have the appellees bound by whatever order might have been entered. Secondly, the appellants could have challenged by direct appeal the power of the Bradley Probate Court to include the italicized language in the nunc pro tunc order of December 4th; but it does not appear that this course of procedure has been pursued.

A court, such as the probate court, has power to limit the relief that it may grant. See Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S. W. 2d 827. Particularly in nunc pro tunc proceedings a court should be careful to see that the rights of innocent third parties are not prejudiced by orders made long after the original record of proceedings has been published. In Melton v. St. L. I. M. & S. Ry., 99 Ark. 433, 139 S. W. 289, Justice Frauenthal recognized that the rights of innocent third parties are not to be prejudiced by the entry of an order nunc pro tunc. In American Jurisprudence, Vol. 30A, page 580, “Judgments” § 594, the holdings are summarized as regards entering of orders nunc pro tunc:

The acts of a court in rectifying an error or misprision in its own records of judgments in having the corrected entry made nunc pro tunc are often declared to be largely a matter of judicial discretion, . . . and it would seem that the exercise of the discretion should be confined to the determination of questions of fact and of considerations such as the effect of the entry on innocent third persons, ? ?

And again, in American Jurisprudence, Vol. 30A, page 601, “Judgments” § 626, in discussing nunc pro tunc orders as affects the rights of third persons and the power of the court to make protective provisions in entering the orders nunc pro tunc, the holdings are summarized :

“It is a doctrine adhered to by many courts that when it becomes necessary to correct the record of a judgment by an amendment thereof and the entry of the amendment nunc pro tunc, such corrective action will not be taken to prejudice or affect adversely the rights of innocent third persons, acquired intermediate the original judgment and its amendment nunc pro tunc, especially where such third persons have superior equities due to their diligence in making the property involved subject to the payment of the debts. By way of removing all doubt, the protection accorded the intervening rights is sometimes expressed in the order allowing the amendment, . . .”

In objecting to the italicized portion of the nunc pro tunc order of December 4, 1961, the appellants are in the inconsistent position of relying on the December nunc pro tunc order to make valid the void adoption order of 1898, and at the same time attacking the very order on which they rely. On the present appeal we must give full effect to the entire order of December 4,1961. The case of Grimes v. J ones, 193 Ark. 858,103 S. W. 2d 359, affords the appellants no support; because in that case the nunc pro tunc order contained no savings clause for innocent third persons or unnotified parties; whereas the nunc pro tunc order of December 4, 1961 here before us contains such a savings clause.

As heretofore recited, J. Y. Mann departed this life intestate in 1928, and the title to the lands here involved vested in the appellees (as admittedly being some of his heirs at law), subject to the widow’s rights ; so the appellees had a right to be heard in the Bradley Probate Court in any attempt to rectify the original Probate Court adoption order. Their rights were protected by the savings clause. The appellants have failed to prove by a valid and unconditional order of adoption that the Ozment boys were ever legally adopted by J. Y. Mann. The Chancery Court dismissed the appellants’ complaint; we find no error; and the decree is affirmed.

Johnson, J., dissents.

Paul Ward, Associate Justice

(dissenting). The majority affirm the case on the ground that no notice was given to appellees when appellants petitioned for the two nunc pro tunc orders. My reasons for disagreeing with the majority are as hereafter set out.

1. It was not necessary, in a proceeding of this type to give notice to appellees.

The cases relied on by the majority are not in point. The case cited by the majority to show notice must be given is Simpson v. Talbot, 72 Ark. 185, 79 S. W. 761. This was a mortgage foreclosure suit. After the decree was entered and after the term of the court had elapsed, one party applied to the court to have the decree amended to speak the truth. No notice was given to the other party to the foreclosure suit. In a short opinion this Court said:

“The chancery court had the authority to amend the record of its decree at a subsequent term, so as to make it speak the truth, but it cannot do so without notice first given to the party against whom it is made.” (Emphasis added.)

It seems clear to me that the italicized words of the court meant against the other party to the original suit. Any doubt as to whom the court meant in using the above words was removed by this Court in the case of Irby v. Drusch, 216 Ark. 130, 224 S. W. 2d 366. In that case this Court, in referring to the Simpson case, supra, said:

“The court’s order was therefore erroneous for notice must first be given to parties to the original action when nunc pro tunc relief is sought. Simpson v. Talbot, 72 Ark. 185, 79 S. W. 761; Bridwell v. Davis, 206 Ark. 445, 175 S. W. 2d 992.” (Emphasis added.)

It is hardly necessary to point out that these appellees were not parties to the original adoption proceedings in Bradley County on October 10, 1898.

2. In order to sustain the result reached by the majority opinion it is necessary to overrule the case of Grimes v. Jones, 193 Ark. 858, 103 S. W. 2d 359, which they completely ignored and which is, to my knowledge, the only case in point. In that case Grimes contended:

“that the appellees, under the amended pleadings, would be allowed to introduce an order of the probate court amending, nunc pro tunc, the original order of adoption; that the amending order was made without notice to appellant ; that the first order was void ab initio ...” (Emphasis added.)

In spite of such, contention we affirmed the trial court.

In this case there are strong equities in favor of appellants who stand to lose their inheritance because of no fault on their part but because of a doubtful technicality of the law applied by the majority. In a court of equity all doubts should be resolved to achieve equity — not to defeat equity.

Johnson, J., joins in this dissent.

       The petition reads:
      “TO THE HONORABLE PROBATE COURT OF BRADLEY COUNTY.
      “The undersigned would respectfully petition your Honor to make an order for the adopting of Lawson Ozment age 11 years old and Thomas Ozment age 8 years old and they (have) no parents living and that the said children have no property and the said Petitioner does solemnly swear he asks for the adoption of said children and that they have no home and that they may be cared for to their best interest and they have the name of the Petitioner, Your petitioner would ever pray and AWCL. J. Y. MANN.
      “Sworn to and subscribed before me this 10 day of Oct., 1898.
      “B. F. Langston, Clerk, by H. S. Turner, D. C.
      “ON REVERSE: NO. 889 Petition of J. Y. Mann for the adoption of Lawson & Tom Ozment. Examined and approved October 10, 1898.
      “Filed Oct/98 B. F. Langston, Clerk, by H. S. Turner, D. C.

       The adoption order of the Bradley Probate Court of October 10, 1898, reads:
      “J. Y. Mann Petition to have Tom & Lawson Ozment adopted as his Sons. GRANTED.
      “Comes J. Y. Mann and files his petition praying the Court for an order adopting Tom & Lawson Ozment as the sons of the said J. Y. Mann and it appearing from the evidence of the said J. Y. Mann and others that the said Tom Ozment is only 8 years of age and Lawson Ozment is 11 years old and that the said children have no parents living. The Petition of the said J. Y. Mann is by the Court considered and granted. It is Therefore by the Court ordered that the said children be and they are hereby adopted as the sons of the said J. Y. Mann and they shall be entitled to and receive all the rights and interests in the estate of such adopted Father by descent or otherwise.
      “It is ordered that Court adjourn until Tuesday Morning at 9 O’clock, s/ J. C. Bratton, Judge.”

         Nunc pro tunc orders in adoption matters have been considered by this Court in a number of cases, of which the following are some: Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623; Grimes v. Jones, 193 Ark. 858, 103 S. W. 2d 359; Newell v. Black, 201 Ark. 937, 147 S. W. 2d 991; Ward v. Magness, 75 Ark. 12, 86 S. W. 822. For nunc pro tunc orders generally see: Vaughan v. Vaughan, 223 Ark. 934, 270 S. W. 2d 915; and Eiland v. Parkers Chapel Church, 222 Ark. 552, 261 S. W. 2d 795, and cases there cited.

       The terms of the Bradley Probate Court are fixed by statute (§§ 62-2004 and 22-406 Ark. Stats.) as being the fourth Monday in January and the second Monday in June of each year. The order of December 4,1961 was at the same term as the September 1,1961 order; so we must consider the December 4,1961 order as the only valid nunc pro tunc order.

       In Simpson v. Talbot, 72 Ark. 185, 79 S. W. 761, Mr. Justice Battle said: “The Chancery Court had the authority to amend the record of its decree at a subsequent term, so as to make it speak the truth, but it cannot do so without notice first given to the party against whom it is made. Martin v. State Bank, 20 Ark. 636; Alexander v. Stewart, 23 Ark. 118; King v. Clay, 34 Ark. 300.” To the same effect see Irby v. Drusch, 216 Ark. 130, 224 S. W. 2d 366.

       See also the following: Freeman on Judgments, 5th Ed. § 138, 49 C. J. S. page 255, “Judgments” § 121; 2 C. J. S. page 427, “Adoption of Children” § 40 (d); and annotation in 14 A. L. R. 2d 224 entitled: “Necessity of notice of application or intention to correct error in judgment entry.”

       Mr. J. Y. Mann’s widow departed this life in 1961.


author: Ed. F. McFaddin, Associate Justice.

text:
    Griffin v. Solomon.
    5-2844
    362 S. W. 2d 707
    Opinion delivered December 17, 1962.

      A. M. Coates, for appellant.

      David Solomon, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellants were cotenants with Arthur Cotton, Jr. He mortgaged the lands to the appellees; and the Chancery Court held that •■such mortgage gave the appellees a lien on appellants’ interests. This appeal challenges that decree.

On October 20, 1938 Arthur Cotton, Sr. made application to the State of Arkansas to receive a donation deed to a tract of 80 acres in Phillips County, Arkansas, and hereinafter called “the land.” Cotton, with his wife and five children moved on the land, complied with the requirements of the law, and received a deed from the State on February 19,1941. In the application to the State in 1938, and in the deed from the State in 1941, the name of the applicant and grantee was “Arthur Cotton”; and it is clearly shown that the said Arthur Cotton was in 1938 a Negro man, 56 years of age, and that he had a son named Arthur Cotton (hereinafter sometimes called “Arthur Cotton, Jr.”) who was twenty years of age in 1938. It is the identity of name of the father and son which misled the appellees and caused the confusion which resulted in this litigation. For clarity, we refer to these as “Arthur Cotton, Jr. ” and “Arthur Cotton, Sr. ”; although in all the conveyances herein mentioned the name of said party, either as grantor or grantee, was merely ‘ ‘ Arthur Cotton. ’ ’

The wife of Arthur Cotton, Sr. died in 1946; and Arthur Cotton, Sr. died on June 8, 1948, while occupying the land. He was survived by five children, being: (1) Arthur Cotton, Jr., a son; (2) Quincy Cotton, a son; (3) Elijah Cotton, a son; (4) Cora Cotton Griffin, a daughter; and (5) Elizabeth Cotton Snowden, a daughter. All of these five children are of full age; and the last named four are the appellants. After the death of his father, Arthur Cotton, Jr. returned from Michigan and occupied and farmed the lands. For a short time, his two brothers, Quincy and Elijah, were also on the land, but Quincy soon moved, and in 1950 Elijah also moved; so only Arthur Cotton, Jr. remained on the land, occupying and farming it under a claimed agreement with his cotenants that he would maintain the improvements, and pay the taxes. At some irregular intervals he paid some of his cotenants amounts said to be rent.

While so occupying the lands, Arthur Cotton, Jr. (listing himself merely as “Arthur Cotton”) joined with his wife, Annie Mae, executed the following instruments, each of which was duly recorded:

(1) On October 5, 1955 Arthur Cotton and wife executed a right-of-way deed to Beaver Bayou Drainage District, conveying a right-of-way over the lands.

(2) On June 21, 1955 Arthur Cotton and wife executed a deed of trust to L. K. Grauman to secure an indebtedness of $550.00, which was satisfied in 1956 from the proceeds of the next mentioned transaction.

(3) On J anuary 11,1956 Arthur Cotton and wife executed a deed of trust to the Helena National Bank to secure an indebtedness of $1,000.00, which was satisfied from the proceeds of the next mentioned transaction.

(4) On J anuary 25,1957 Arthur Cotton and wife executed a deed of trust to L. K. Grauman to secure an indebtedness of $1,182.90, which was satisfied in 1959 from the proceeds of the next mentioned transaction.

(5) On April 11, 1959 Arthur Cotton and wife executed a deed of trust to B. M. Solomon to secure an indebtedness of $2,000.00 and other advances; and this is the instrument that the appellees are seeking to foreclose.

In each of the instruments numbered 2 to 4 inclusive, Arthur Cotton and wife mortgaged the entire land and warranted the entire title to the grantee. Furthermore, Arthur Cotton obtained redemption deeds from tax sales and improvement delinquencies, either expressly or impliedly representing himself as the owner of the land. On January 14,1961 B. M. Solomon et al., the present appellees, filed this suit to foreclose the April 11, 1959 deed of trust, as above mentioned; and “Arthur Cotton and his wife, Annie Mae Cotton, ’ ’ were listed as the only defendants. Their answer was that they owned only an undivided one-fifth interest in the land and that the other four-fifths interests were owned by his cotenants, being the appellants in this case. The appellants, Elijah Cotton, Quincy Cotton, Cora Cotton Griffin, and Elizabeth Cotton Snowden, intervened and claimed that each owned an undivided one-fifth interest in the land; that Arthur Cotton, their cotenant, only owned one-fifth interest and had no right to encumber any interest in the lands except his one-fifth interest. To this intervention, the appellees responded:

“If the intervenors are the owners of 4/5ths of the lands described, it is at least rather peculiar that they now assert their claim in a suit for a past due debt when Arthur Cotton and his wife have executed deeds of trust on such lands on four occasions and executed a perpetual right of way.
“Plaintiffs deny that the intervenors have any interest in such lands, but allege that if they have, then they are estopped from asserting such claim due to laches, negligence in the manner in which the land has been handled in that Arthur Cotton has been permitted by them to use the land as his own, and the intervenors knew, or should have known, that if they owned the interest in the land they have assisted and participated by their silence and failure to act in permitting Arthur Cotton and his wife to falsely and fraudulently procure loans in his and his wife’s name on deeds of trust on such lands as if the lands were his own.”

Trial in the Chancery Court resulted in a decree in favor of the appellees, holding that the interest of each of the four appellants was subject to the lien and indebtedness claimed by the appellees; and this appeal is by appellants to reverse that decree.

A careful study has failed to reveal a sound basis on which to rest an affirmance of the Chancery decree. When Arthur Cotton, Sr. died intestate in 1948 as the owner of the lands, the title descended to his five children, who became cotenants (§ 50-411 Ark. Stats, and Sanders v. San ders, 145 Ark. 188, 224 S. W. 732). Mere lapse of time does not dissolve a cotenancy. Hollaway v. Berenzen, 208 Ark. 849, 188 S. W. 2d 298. Arthur Cotton, Jr. testified positively and unequivocally that he never held the land adversely to his cotenants. But even if his testimony should be disbelieved, nevertheless the appellees failed to show any acts by Arthur Cotton, Jr. which would amount to a disseizin of his cotenants. In Hardin v. Tucker, 176 Ark. 225, 3 S. W. 2d 11, we said:

“In Singer v. Naron, 99 Ark. 446, 138 S. W. 958, it was held that, in order for the possession of a tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be presumed. The reason is that the possession of one tenant in common is prima facie the possession of all, and the sole enjoyment of rents and profits by him does not necessarily amount to a disseizin. Hence, for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be presumed.”

The fact that Arthur Cotton, Jr. encumbered the entire title in the instruments heretofore listed, did not ipso facto encumber the appellants ’ interests. Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989. In Garner v. Horne, 219 Ark. 762, 245 S. W. 2d 229, in affirming the holding of the Trial Court that the interest of a nonsigning cotenant was. not lost, we said:

“As to Mrs. Odum’s one-fourth interest, little need be said. She did not agree to sell her interest to the Garners and did not sign any papers to them, and she disavowed any power of W. D. Horne to act for her. In the record in this case we cannot find facts sufficient to support any application of ‘agency by estoppel’, as urged by appellants ; so we affirm as to Mrs. Odum’s interest.”

In their response to the intervention, the appellees claimed — as heretofore copied — that the appellants were guilty of negligence and laches, and also were barred by 'estoppel; but we find no evidence or applicable rule of law or equity to support any of these pleas. As to negligence and laches, mere lapse of time does not dissolve a cotenancy (Hollaway v. Berenzen, supra). It is not negligence for one cotenant to allow another eotenant to occupy the land; and that is the extent of the evidence against the appellants. Arthur Cotton, Jr. never surrendered possession to any third person so as to make applicable cases such as Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537. The case of Singer v. Naron, 99 Ark. 446, 138 S. W. 958, is one involving cotenancy. The plaintiff, A. J. Singer, left Arkansas in 1878, and in 1895 his cotenants, assuming him to be dead, divided the land between themselves and executed partition deeds, which were recorded. When A. J. Singer sought to recover his interest in the land, the Trial Court instructed the jury that the partition deeds, being recorded, were notice to A. J. Singer that there were claims adverse to his interest. In holding such instruction to be erroneous this Court said:

“After the plaintiff’s brother and sisters made partition of the land in 1895 and each one went into possession of his allotted share, they executed mutual deeds to each other. Some of these deeds were filed for record, and the court instructed the jury that placing the deeds in the recorder’s office for record was notice to the plaintiff of the execution of the deeds. This was error. Both the plaintiff and the defendants, who are his brothers and sisters, derived title to the land as heirs of their deceased father. These partition deeds were not in the line of plaintiff’s title, and he was not required to look for them. Rosell v. Chicago Mill & Lumber Co., 76 Ark. 525; Turman v. Sanford, 69 Ark. 95.”

The appellees, likewise, have failed to establish any estoppel. That Arthur Cotton, Jr. used the identity of names to deceive the appellees is rather clearly shown; but there is no evidence that the appellants knew of such deceit or in any way participated in it. Since the appellants did not know that Arthur Cotton, Jr. was encumbering the entire title, they cannot be held responsible for the fact that the appellees believed Arthur Cotton, Jr. to be the owner. In Pettit-Galloway Co. v. Womack, 167 Ark. 356, 268 S. W. 353, we said:

“In other words, to constitute silence an estoppel, there must he both the opportunity and the duty to speak, and the action of the person asserting the estoppel must be the natural result of the silence, and the party maintaining silence must he in a situation to know that some one is relying thereon to his detriment. ’ ’

It therefore follows that the decree of the Chancery Court is reversed and the cause is remanded, with directions to set aside the decree heretofore rendered and have further proceedings not inconsistent with this opinion. It is indicated in the record that some of the funds obtained from the various mortgages or deeds of trust executed by Arthur Cotton, Jr. were used to pay taxes and special assessments. By subrogation, the appellees may have a lien on the interests of the appellants in the lands for their proportionate amounts of such taxes and special assessments. If so desired, the appellees may establish such amounts in the Chancery Court. Aside from these items, the appellees have no lien on the interests of the appellants in the lands.

       This was under the Act approved April 4, 1887 — as amended— and contained in § 8636 et seq. Pope’s Digest of 1937. The present statute is § 10-905 et seq. Ark. Stats., which contains the more recent Act No. 331 of 1939.

       The death certificate of Arthur Cotton, Sr. shows that he was born on May 8,1882, and died on June 8,1948.

       The testimony of Arthur Cotton, Jr. gives the date of his birth as November 2, 1918; and his marriage certificate in 1950 shows he was then 31 years of age.


author: George Rose Smith, J.

text:
    Harrison v. Matthews.
    5-2818
    362 S. W. 2d 704
    Opinion delivered December 17, 1962.

      McMath, Leatherman, Woods & Youngdahl, for appellant.

      Mahony & Yocum, for appellee.
   George Rose Smith, J.

By Act 54 of 1961 our courts are authorized to enter personal judgment against a nonresident defendant who was domiciled in this state either at the time the cause of action arose or at the time he was served with process under the act. Service is had by sending a summons and a copy of the complaint to the nonresident defendant, by registered or certified mail. Ark. Stats. 1947, § 27-339. The question here is whether this new method of obtaining personal jurisdiction can be used with respect to a cause of action that arose before the act was passed.

This action was brought by the appellant Harrison to recover damages for personal injuries sustained by him when an oil derrick collapsed in Union County, Arkansas, on May 4, 1960. One of the defendants, the appellee Matthews, was domiciled in Arkansas when the accident happened, but he left the state before this suit was filed on June 7, 1961 (which was also the effective date of Act 54). Matthews was domiciled in Louisiana on January 12, 1962, when he was served by registered mail pursuant to the new act. This appeal is from an order quashing the service and dismissing the action against Matthews, upon the ground that Act 54 is not applicable to a case involving a cause of action that antedated the statute.

There can hardly be any serious question about the constitutionality of the act as it applies to causes of action arising after the statute went into effect. When a tort occurs in Arkansas, as it did here, this state has a sufficient connection with the controversy to justify basing jurisdiction upon domicile, and service by registered mail is a fair method of providing the defendant with notice and an opportunity to be heard. Milliken v. Meyer, 311 U. S. 457, 85 L. Ed. 278, 61 S. Ct. 339; International Shoe Co. v. Washington, 326 U. S. 310, 90 L. Ed. 95, 66 S. Ct. 154; McGee v. International Life Ins. Co., 355 U. S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199; Kelso v. Bush, 191 Ark. 1044, 89 S. W. 2d 594; 15 Ark. L. Rev. 428.

The rule by which statutes are construed to operate prospectively does not ordinarily apply to procedural or remedial legislation. ‘ ‘ The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature.” State ex rel. Moose v. Kansas City & M. Ry. & B. Co., 117 Ark. 606, 174 S. W. 248. Upon this reasoning we held that the enactment of our venue act, restricting the venue in tort cases, required the dismissal of a case that was properly pending when the act took effect. Fort Smith Gas Co. v. Kincannon, 202 Ark. 216, 150 S. W. 2d 968.

Act 54 did not create new substantive rights. Whatever cause of action this appellant now has was already in being when the statute was adopted. Its only effect was to permit a plaintiff to obtain personal jurisdiction in the courts of this state over a nonresident defendant. The act is procedural in nature, merely providing in this instance a new forum for the enforcement of existing rights. Being procedural, the act applies to all eases filed after it became effective.

This is the view that has been taken in the only two states where the exact question has arisen. Under similar statutes in California and New Mexico the courts have held that the new procedure is available in cases involving causes of action that already existed when the acts went into effect. Allen v. Superior Court, 41 Calif. 2d 306, 259 P. 2d 905; Owens v. Superior Court, 52 Calif. 2d 822, 345 P. 2d 921; Gray v. Armijo, 70 N. M. 245, 372 P. 2d 821. We think these decisions to be sound, for, as the court observed in the Owens case, just cited, the “ defendant has no vested right to have the jurisdiction of the courts of this state limited as it was at the time he left the state. ’ ’

The appellee relies principally upon Gillioz v. Kincannon, 213 Ark. 1010, 214 S. W. 2d 212. Domicile was not involved in that case. There Gillioz, a nonresident contractor, damaged the plaintiff’s land in the course of engaging temporarily in business in Arkansas. After Gillioz had returned to his home in Missouri our legislature adopted an act which provided that any nonresident doing business in Arkansas would be deemed to have appointed the Secretary of State as his agent for service in cases arising from the business so done. Ark. Stats., § 27-340. We held that the statute did not operate retroactively to permit the plaintiff to obtain jurisdiction over Gillioz in Arkansas.

That decision is clearly distinguishable from the case at bar. The statute in the Gillios case gave the nonresident visitor a choice, warning him that if he engaged in business in Arkansas he thereby appointed the Secretary of State as his agent for service and subjected himself to suit here. But the nonresident was free to avoid the risk of litigation in Arkansas simply by electing not to do business in the state. Gillioz had come and gone before the statute was enacted. Obviously it could not with justice have been applied to his prior visit, for such a retrospective construction would have deprived Gillioz of any choice in the matter, attaching to his Arkansas visit a significance that it did not have when it was made.

By contrast, the present case does not turn upon the defendant’s freedom of choice. The appellee certainly did not choose to live in Arkansas from 1941 until 1960 simply because he knew that he could escape the state’s personal jurisdiction by changing his domicile. Thus the reasoning upon which the Gillios decision rested is not pertinent in the dispute now before us. There is no just basis for exempting this appellee from accountability in this state for a tort committed while he was domiciled here.

Reversed.


text:
    Spink v. Mourton.
    5-2819
    362 S. W. 2d 665
    Opinion delivered December 17, 1962.

      Ben Core, for appellant.

      Nabors Shaw, Donald Poe, Dobbs, Pryor & Dobbs, for appellee.
   George Rose Smith, J.

This is an action by Paul W. Spink and Ms wife to recover damages from Malvin Mourton, an insurance agent at Mena, because of Mourton’s allegedly negligent failure to obtain a personal property floater policy for the Spinks. The jury returned a verdict for Mourton. The Spinks then moved unsuccessfully for a judgment notwithstanding the verdict. They now contend that there is no substantial evidence to support the verdict and that the trial court should therefore have granted their motion for judgment non obstante veredicto.

The proof must be examined in detail. In July of 1959 Spink was notified by his insurer, Western Fire Insur anee Company, that the fire policy upon his home and the floater policy upon his household goods and personal effects were to be canceled on August 1. In an effort to obtain similar coverage elsewhere Spink discussed the matter with Mourton, a local soliciting agent, on the evening of July 27. Mourton assured Spink that he could write the fire policy, but he explained that he had never written a personal property floater and would have to make a call to Little Bock to find out about this coverage.

The next day, July 28, Mourton telephoned Lewis Johnson, the Little Bock manager for Farmers Union Mutual Insurance Company — one of several companies represented by Mourton. Johnson said that his company did not write personal property floaters, but he offered to pass the request on to E. W. Turner, whose agency, the Farmers ’ Insurors Agency, did write such policies. Mourton and Johnson discussed the premium charge for a floater policy and concluded that it would be about twelve dollars for each $1,000 of insurance.

Later that same morning, July 28, Spink came by Mourton’s office. Mourton assured him that the matter had been taken care of, that he was covered as of noon on July 30. Mourton testified that in giving this assurance he relied upon Johnson’s promise to submit the application to Turner. Mourton collected from Spink the premium for the proposed fire policy and the premium (as estimated by Mourton) for the personal property floater. That afternoon Mourton mailed to Johnson an application for the fire policy and a list of the personal property to be covered by the floater. The fire policy was issued in due course by Johnson’s company, and Johnson forwarded the list of personal property to Turner, as he had promised to do.

Instead of writing a one-year floater policy Turner’s agency issued only a ten-day binder, effective July 30, with Anchor Casualty Company as the insurer. The binder was enclosed in a letter that reached Mourton’s office on August 4. The letter is not in the record, but the other evidence indicates that in the letter Turner asked for additional information as a basis for writing the floater policy.

Mourton’s office mail was customarily opened by his secretary, Jo Ann Cole. She read Turner’s letter and told Mourton what it said, but she wholly failed to notice that the binder was to expire after ten days. Mourton, without reading either the letter or the binder, directed Miss Cole to send the binder back to Turner, along with the information that he wanted. In complying with these instructions Miss Cole sent Turner, for his information, the floater policy that Spink had formerly had with Western Fire.

In response to this communication Turner again wrote to Mourton, on August 9. He pointed out that the ten-day binder had expired. Assuming that the Western Fire floater policy was still in force, for he had never been informed of its cancellation, Turner again asked for more information as a basis for issuing the requested substitute policy upon some future date.

At about daybreak on August 10 Mourton left with his family for a short vacation in Colorado; so he was not in his office when Turner’s letter arrived. Miss Cole opened the letter but took no action toward replacing the lapsed coverage. The Spinks’ home and household effects were destroyed by fire on August 13. When Mourton returned to his office on August 15 he forwarded to Turner a check for the premium upon the proposed floater policy, but Turner disclaimed liability and refused the tender. The Spinks recovered their real property loss from Johnson’s company, which had issued the fire policy, but they eventually learned that no insurer had issued a personal property floater. The present action was brought to hold Mourton liable for negligence in failing to obtain such a policy.

The verdict was in favor of Mourton. Now it is true that the trial judge might have granted a new trial if he found the verdict to be against the preponderance of the evidence. Bockman v. World Ins. Co., 222 Ark. 877, 263 S. W. 2d 486. But this case does not involve a motion for a new trial; instead, the request was for a judgment notwithstanding the verdict. Such a motion may be granted if there is no substantial evidence to support the verdict. Stanton v. Ark. Democrat Co., 194 Ark. 135, 106 S. W. 2d 584. In other words, as counsel for the Spinks rightly concedes in his brief, the motion for judgment n.o.v. was properly denied unless it can be said that the trial court should have directed a verdict in favor of the plaintiffs. That is the issue.

Owing to the fact that the plaintiff has the burden of proof — that is, the burden of persuading the jury that he is entitled to win the case — a directed verdict for the plaintiff is a rarity. As we said in Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S. W. 2d 708: “A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.”

The problem is especially acute in negligence cases, for the standard of care — that of a reasonably careful person — is apt in almost every case to become an issue of fact for the jury. In one of the few cases that have discussed this exact point the Court of Appeals for our circuit had this to say: “Negligence and proximate cause will become transformed from questions of fact into questions of law rather on probative deficiency than on probative abundance. Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.” United States Fire Ins. Co. v. Milner Hotels, 8th Cir., 253 F. 2d 542.

Testing the case by our language in the Reese case, supra, we cannot declare that the trial court should have directed a verdict for the Spinks unless we are prepared to announce that no reasonable person could draw any conclusion from the proof except that Mourton was negligent in failing to obtain the floater coverage. It seems plain that the proof is not so completely one-sided as that. The jury may have thought that Mourton acted with reasonable care in assuming that Johnson would see that the policy was issued by Turner’s agency. Or that Mourton acted with reasonable care in relying upon his secretary’s understanding of the pivotal letter from Turner. Or that Mourton, had he read the letter and binder himself, might in the exercise of due care have overlooked the single line of type giving the expiration date of the binder. Or that Mourton’s absence on vacation when Turner’s second letter arrived, at a time when it was still not too late to obtain coverage, was an excusable misfortune rather than culpable negligence. All these questions involve niceties of judgment, matters of degree, about which we cannot say that all fair-minded men must necessarily arrive at the same conclusion. Hence a question of fact was presented; so the motion for judgment notwithstanding the verdict was properly denied.

There is one other issue. The appellants also sought to recover from Farmers Union Mutual Insurance Company, Turner, Farmers’ Insurors Agency, and Anchor Casualty Company, upon the theory that each of these defendants was under a duty to notify the Spinks personally that the ten-day binder was to expire on August 9. Upon this issue the trial court directed a verdict in favor of the defendants.

The court’s action was correct. There is no suggestion that any of these defendants had any direct communication with the Spinks before the loss occurred. They dealt only with Mourton, the local soliciting agent. As a matter of common knowledge we know this to be the usual practice in the insurance business. There is literally no proof whatever to support the contention that these defendants were under an obligation to inform the Spinks of the expiration date that appeared on the binder sent to Mourton. To have submitted that issue to tbe jury would bave empowered that body to impose liability upon tbe basis of speculation and conjecture ratber than upon tbe basis of any evidence in tbe record. Hence tbe directed verdict was proper.

Affirmed.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Bookout v. Hanshaw.
    5-2849
    363 S. W. 2d 125
    Opinion delivered December 17, 1962.

      Ward & Lady, for appellant.

      Jack Lessenberry and Dennis W. Horton, for appellee.
   Paul Ward, Associate Justice.

Appellant, Bill Book-out, sued appellee, Victor Hanshaw, for $6,000 actual damages and $6,000 punitive damages based on an alleged “unwarranted, illegal, malicious, and violent assault”. From a jury verdict in favor of appellee appellant, setting out several alleged errors, prosecutes this appeal. Briefly stated the situation giving rise to the alleged assault developed as presently set out.

On March 10, 1961, Hanshaw, a member of the State Police, along with other such members, set up a so-called road block at the junction of Highways No. 1 and No. 90 near Rector (Clay County) for the purpose of checking automobile licenses, drivers’ licenses, and automobile mechanical defects such as lights, brakes, etc. Viewing the testimony in the light most favorable to sustain the verdict, the jury could have found: The latter part of February, 1961, (about ten days before this incident) appellee saw appellant driving a car with a 1960 license, but no ticket was given; Appellant appeared to resent being accosted, stated that he usually carried a gun and that he was a rough character. When appellant approached the road block on March 10,1961, appellee, in the course of his duty, informed appellant that the tail light on his car was not burning. Appellant got out of his car to look, found appellee was right, and then got back in his car. At this point appellee asked to see appellant’s driver’s license, explaining that he needed the information to fill out a warning ticket; at first appellant refused, saying, “I don’t have to give these to you, I am afraid you will tear them up or won’t give them back”. When appellee told him he would be in violation of the law if he refused, he handed over the license; After the warning ticket was made out and given to appellant, he threatened appellee telling him he would definitely take care of him later and started to drive off. Thereupon, appellee told appellant to get out of the car but he refused; when appellant refused the second time appellee opened the door of the car and took appellant by his left arm; appellant made two lunges to free himself, and appellee used only the necessary force to remove or help appellant from the car. Appellee stated: “What it amounted to, I more or less helped him from the car”.

Although there is a conflict in the evidence as to just what happened when appellant got out of the car, appellee said “No blows were struck”, and other witnesses corroborated this statement. Anyway, appellant got back in his car and drove away. Appellee further testified: “I removed Mr. Bookout from the vehicle with the intent to arrest him and to determine whether or not he was carrying a weapon”.

1. We find no merit in appellant’s contention the court erred in not striking appellee’s amendment to his answer. Appellee’s original answer amounted to a general denial. Later, five days before the trial, he filed an amendment, stating, in effect, that appellant was hostile during the investigation, and had previously threatened his life; He only took precautionary measures to ascertain the nature of said threats; He acted at all times in a lawful, prudent and reasonable manner. Appellant admits the trial court had broad discretion, but says it abused its discretion by refusing to strike the amendment to the answer. This contention seems to be based on the fact that the amendment was filed only five days before the trial, but appellant did not plead surprise or ask for a delay of the trial to make further preparation.

2. Neither do we find any error in the court’s refusal to instruct a verdict as to appellee’s liability. Appellant asked for this instruction on the ground appellee “admitted that he did commit an assault and battery upon plaintiff Bookout and no justification for that act has been shown”.

The above contention by appellant amounts to challenging the sufficiency of the evidence to support the jury’s verdict. In support appellant cites the case of Orr v. Walker, 228 Ark. 868, 310 S. W. 2d 808. In that case we affirmed a judgment for Walker against Orr, a Little Bock policeman. But in doing so we set out the testimony, and then we said it was ‘‘sufficient to sustain a verdict”. The cited case merely holds that a jury question was raised by the testimony, as is true in this case.

It is insisted that “mere words never justify an assault”, citing Bergdorf v. Chandler, 220 Ark. 727, 249 S. W. 2d 562. That case, however, is distinguished from this case on the facts. Here, there was more than words— there is testimony of threats and resistance to an officer to deter him in the performance of his lawful duty. No officer was involved in the cited case. Therefore, it was for the jury to say whether appellee was justified in doing whatever (the jury found) he did do to appellant. It cannot he said that the testimony was undisputed on that point, as has been pointed out.

Under this same point appellant says it was error for the court to give Instruction No. 3, to-wit:

“You are instructed that if you find from the evidence that defendant acted in investigating the threat of the plaintiff, if any, and acted justifiably and took plaintiff in his custody and used only such force as was necessary and reasonable at the time to put plaintiff under control and custody, then you are instructed to find for the defendant. ’ ’

Appellant makes no argument and cites no authority to show the above instruction is-wrong. He apparently takes the position that there is no evidence to support it. What we have already set out concerning what took place refutes that position. It was for the jury to say whether appellee used more force than was ‘ ‘ necessary and reasonable”. We find that the instruction was properly given.

3. The trial court refused appellant’s requested instruction which reads:

“You are instructed that the defendant Hanshaw had no right to place plaintiff Bookout under arrest or place his hands in any manner upon any part of the person of the plaintiff Bookout without first informing plaintiff Book-out that he was about to be arrested and stating the offense for which he was to he arrested.”

To justify the above instruction appellant relies on Ark. Stats. § 43-416 and the decision in Minton v. State, 198 Ark. 875, 131 S. W. 2d 948. The section of the statute mentioned says, in effect, that the officer making an arrest shall tell the person (about to be arrested) he is going to arrest him and also the reason for doing so. We think appellant has misconstrued the statute as it applies to the facts of this case. This is a case where appellee tried to arrest the appellant for an offense committed in his presence. The facts here (as the jury could have found) are that the trouble resulted from appellant’s resistance to and interference with an officer in the discharge of his duty. This being true, we think the Minton case, supra, supports appellee rather than appellant. In that case this Court, in construing the above statute said: “But this statute has no application when the offense is committed in the presence of the officer ...”

We see no error in refusing to give the instruction in this case.

4. Appellant requested the court to give his Instruction No. 3. We set out only the first portion:

“You are instructed that every man is the sole custodian of his person. No one — not even an officer of the law— has the right, etc. ...” (Emphasis added.)

The court gave the requested instruction after deleting the words emphasized above. This was not error because the court had no right to emphasize the rights and duties of an officer of the law as a distinct class of persons.

5. Finally it is insisted the court erred in instructing the jury it might consider appellant’s reputation as a violent and turbulent person. Considering the court’s entire instruction on this point, we find no error. It reads as follows:

‘ ‘ Evidence has been introduced as to the character of the plaintiff tending to show that he is a violent and turbulent person. On the other hand, evidence has been given to show the general reputation of defendant for peace and quietude. Such evidence, if any, is not admitted to justify the defendant’s action, but may be considered by the jury for the sole purpose of determining who was the probable aggressor. ’ ’

First, it is noted that appellant does not base his objection to the instruction on the ground there is no substantial evidence to show he was a “violent and turbulent person” or to show appellee was a quiet peaceable man. His objection appears to be based on the general rule of law, “that the reputation of a plaintiff for turbulence or peacefulness in an action for assault and battery is not admissible for any purpose.” The only authority cited by appellant to sustain his view is 6 C. J.S., Assault and Battery, § 41, P. 859. It is true that under said section, sub-section (a) the general rule is announced as stated. However, in the same paragraph an exception to the general rule is stated. Such exception is where the reputation of the parties is “placed in issue by the nature of the proceeding itself, as where there is a dispute as to who was the aggressor.” The exception to the rule was also recognized and sustained in the case of Bartlett v. Vanover, 260 Ky. 839, 86 S. W. 2d 1020. In that case appellee assaulted appellant who sued for damages. Evidence (as to the reputation of each party) was offered and the court held it was proper for the purpose of showing who was the aggressor. In 4 Am. Jur. Assault and Battery § 172, in speaking of character evidence, there appears the following statement:

“The law recognizes the fact that in human experience, the known reputation or character of an assailant as to violence and turbulence has a very material bearing on the degree and nature of the apprehension of danger by the person assaulted, and also that one who is turbulent and violent may the more readily provoke or assume the aggressive in an encounter. ’ ’

In this connection we also point out that the court’s instruction did not mention the reputation of appellant. Appellee was not influenced by what he knew of appellant’s reputation but by what he 1mew about appellant’s violent and turbulent disposition.

Therefore, under the facts and circumstances of this case as previously set out, we think the instruction was both proper and appropriate. When appellee was threatened by appellant after the trouble over the driver’s license, that threat alone might or might not have justified appellee in attempting to get appellant out of the car to search or arrest him. Therefore, it was proper for the jury to know they could consider appellant’s violent disposition so they could correctly determine whether appellee used more force than was necessary in discharging his duty as an officer.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.

Harris, C. J., not participating.

McFaddin and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice

(Dissenting). I dissent from the affirmance because I am convinced that the Trial Court committed reversible error in giving Instruction No. 4, as requested by the defendant. This instruction reads:

“Evidence has been introduced as to the character of the plaintiff tending to show that he is a violent and turbulent person. On the other hand, evidence has been given to show the general reputation of defendant for peace and quietude. Such evidence, if any, is not admitted to justify the defendant’s actions, but may be considered by the jury for the sole purpose of determining who was the probable aggressor.”

Hanshaw, a State Policeman, stopped Bookout at a roadblock and informed him that the tail light of his car was not burning. Bookout emerged from his car, looked, and found that Hanshaw was right, and reentered the car. Then Hanshaw wanted to see Bookout’s driver’s license; and finally Bookout showed him the license. All this time Bookout was seated in his car, ready to drive away; and when Hanshaw gave Bookont a warning ticket, Bookout, while still seated in his car, told Hanshaw that he would see him later, and started to drive away. It makes no difference what Bookout said to Hanshaw as he was about to drive away, because words do not justify an assault (Burgdorf v. Chandler, 220 Ark. 727, 249 S. W. 2d 562).

Hanshaw grabbed Bookout and pulled him out of the car, and thereby committed an assault on Bookout. What caused the assault? Something that Bookout said to Hanshaw; but we have held that mere words never justify an assault. So, under such holding, Hanshaw was not justified in assaulting Bookout; and any seizing of the person of another is an assault. The Court instructed the jury, without objection of Hanshaw, as follows:

“You are instructed that Officer Hanshaw, the defendant, has admitted that he did commit an assault and battery upon plaintiff Bookout and if you find from a preponderance of the evidence that no justification for that act has been shown then your verdict will be for the plaintiff, Bill Bookout; and you may fix his compensatory damages at such sum as you find from a preponderance of the evidence will fairly compensate him for physical pain, medical expenses, humiliation, disgrace, and damage to his reputation. ’ ’

Thus, the Court told the jury that Hanshaw had admitted an assault and battery upon Bookout; and to the instruction Hanshaw raises no complaint.

With an unjustified assault committed on Bookout by Hanshaw (in grabbing Bookout out of his car), it was erroneous for the Court to then tell the jury that the reputation of Bookout and Hanshaw might be considered on the question of “who was the probable aggressor”: that is the language of the Instruction No. 4. It had already been established and admitted that Hanshaw was the aggressor; and so the Instruction No. 4 should never have been given; and I submit that the case should be reversed for error in giving that instruction. It is clear that Hanshaw was the aggressor and committed an unjustified assault and battery on Bookout.

Johnson, J. joins in this dissent.


author: Paul Ward, Associate Justice.

text:
    Smith v. Smith.
    5-2857
    362 S. W. 2d 719
    Opinion delivered December 17, 1962.

      G. S. Snuggs, for appellant.

      Thomas D. Wynne, Jr. and Frank W. Wynne, for appellee.
   Paul Ward, Associate Justice.

The issues to be decided on this appeal emanate from an attempt to partition land in which appellant (a minor) held an undivided one-half interest in fee and appellee held a dower interest. One Henderson Smith was the owner of the land at the time of his death in 1942. Appellant is his grandson and appellee is his widow. Appellant is eighteen years old and has at all pertinent times been represented by a guardian who is his mother.

Stripped of the maze of pleadings and legal maneuvers, the real issues to be decided are as hereafter set out.

One. Appellant contends the widow, having only a lifetime interest, could not maintain the partition suit she filed herein. This contention is based upon our holding in the case of Monroe v. Monroe, 226 Ark. 805, 294 S. W. 2d 338, decided October 22, 1956, and Krickerberg v. Hoff, 201 Ark. 63, 143 S. W. 2d 560. However, the law in this respect was changed by Act 324 of 1957. Section 1 of that act (presently found in Ark. Stats. § 34-1801) specifically includes "Any persons having any interest and desiring a division of land held ... as assigned or unassigned dower” among those who can petition the circuit or chancery court for partition of land.

Two. Appellant insisted in the trial court and insists here that no summons was served on him individually but only on his guardian. We see no merit in this contention for several reasons. Ark. Stats. § 34-1803 gives the guardian of an infant the right to appear' and defend for him. This section appears in the Civil Code as § 540 along with other sections dealing with partition of land. The record in this case also shows that appellant appeared and asked for (and received) affirmative relief against appellee on the ground she had committed waste. Appellant, having made himself a party to the litigation, could not complain of lack of service on himself. Evans v. Davis, 146 Ark. 595, 226 S. W. 520.

Three. In addition to what has already been said there is still another over-all reason why we must affirm the decree of the trial court. The partition decree was entered on April 15, 1961, and no notice of appeal was filed within thirty days as required by statute (Ark. Stats. § 27-2106.1). A decree partitioning land is a final decree from which an appeal could have been prosecuted. See: Branstetter v. Branstetter, 130 Ark. 301, 197 S. W. 688.

Appellant has also attempted to appeal from the order of confirmation entered on January 16, 1962, but his only assignment of error is that he was not served with notice. The record discloses, however, that he was personally served with notice on December 23, 1961 that the confirmation hearing would be on January 16,1962. Moreover, the notice of appeal from that order ivas filed 37 days after it was entered.

No error appearing, the decree of the trial court is affirmed.

Affirmed.

McFaddin, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    McMillan, Trustee v. Powell.
    5-2839
    362 S. W. 2d 721
    Opinion delivered December 17, 1962.

      McMillan & McMillan, J. Bruce Streett, W. H. Kitchens, for appellant.

      Harry Grumpier and Lamar Smeacl, for appellee.
   Sam Robinson, Associate Justice.

On August 11, 1958, Delbert Powell filed this action alleging that he and Al and Alice Grándbush are owners as tenants in common, along with others, in three separate leasehold estates producing oil and gas; that in the course of operations, Powell had expended large sums of money; that the Grandbush’s proportionate part of the expense of such operations amounts to the sum of $21,912.93. It was further alleged that Monsanto Chemical Company is the purchaser of the oil and gas produced on the properties. Powell asked that such company be required to pay to him the oil and gas runs going to the credit of the Grandbushs until the alleged indebtedness is paid in full.

Later, H. W. McMillan was made a party. It developed that Mr. McMillan had obtained a judgment against Grandbush on June 4, 1958, execution was issued June 7, 1958, and levied July 10, 1958. This was a month or so prior to the time Powell filed this suit.

McMillan bought the Grandbush interest at the execution sale, and now the only controversy' is between Powell and McMillan. Powell contends that he has a right to be reimbursed for money spent in the operation of any and all of the leases out of oil and gas produced on any one of the leases. On the other hand, McMillan maintains that Powell is entitled to be reimbursed for money spent in the operation of a lease only from the sale of oil and gas produced from that particular lease. The Chancellor held that Powell should be reimbursed in full from the sale of oil and gas from any or all of the leases. McMillan has appealed.

The three leases involved are known as the Reynolds Berg Lease, the Laney Lease, and Reynolds Brothers Lease. Appellee states his position as follows: “Obviously the appellee seeks to recover the money expended by him in the maintenance and improvement of such property from the three leases herein involved for the reason that the well upon the Reynolds Brothers Lease was nom productive and he would never recover the money expended by him in the improvements without recovering the runs from the three leases.”

The appellee recognizes the rule that, to quote appellee, “The rights of contribution of tenants in common who make repairs and improvements upon common property without the consent of the other tenants is not ordinarily entitled to contributions beyond the benefits actually recovered from such property or particular lease. ’ ’ But appellee contends that in the case at bar, the rule has no application because the improvements were made with the consent of the then owner, Grandbush. It appears that the only consent given by Grandbush was in 1957 when he agreed to drilling, completing and equipping ‘ ‘ a well on the Reynolds Brothers Lease, ’ ’ which resulted in a dry hole.

The leases are not worked as one operation. Separate records were kept on the operation of each lease. Moreover, the owners of the three leases are not identical. This case is controlled by Ashland Oil and Refining Co. v. Bond, 222 Ark. 696, 263 S. W. 2d 74. There, it was pointed out that “when one tenant in common has drilled a producing oil well upon the .common property he must be given credit for his reasonable expenses upon being required to account to the cotenant for the oil withdrawn from the land. ’ ’ But that the share of the proceeds from all wells owned by co-lessees could not be applied against the expenses of reworking just one of the wells. It was further pointed out in the Ashland case that in the absence of an agreement, the operator incurred the expenses of reworking a well at his own risk and was entitled to be reimbursed by a co-lessee only to the extent of the value of the co-lessee’s share produced from such well, if any.

Reversed with instructions to enter a decree not inconsistent herewith.


text:
    Clement v. Davis.
    5-2851
    362 S. W. 2d 706
    Opinion delivered December 17, 1962.

      Levine & Williams, for appellant.

      W. Lee Tucker, for appellee.
   Sam Robinson, Associate Justice.

The only issue involved in this appeal is the validity of eight write-in votes cast for appellee, Homer J. Davis, in an election of School Board Directors wherein appellant, Lavone Clement and Davis were opponents. Appellant contends that the votes are invalid because an X was not placed in the square at the end of the name written in. The trial court held that the write-in votes for Davis are valid, and Clement has appealed.

Ark. Stats. 3-826 provides: “In all elections, except Primary Elections, at the bottom of each list of names for each position or office appearing on the ballot there shall be a blank line, or lines, for possible write-in votes for that position or office. There shall be no write-in votes in Primary Elections.” In this section there is nothing said about putting a square at the end of the blank line in which an X could be marked.

Ark. Stats. 3-827 provides: “At the right of the name of each candidate and on the same line there shall be a square. Above each Act, Amendment, or Measure to be voted on there shall lie two [2], words ‘For’ and ‘Against’ — one above the other with a square to the right of each word and on the same line. ’ ’ This section provides for a square at the end of the name of each candidate. This means the name printed on the ballot and has no application to the name written in by a voter. This is the only reasonable construction to be placed on the statutes.

To hold that a voter must put an X in a square at the end of a name written in would be to say that a voter might take the trouble to go to the polls, obtain a ballot, write in a name that did not appear on the ballot, and then vote for someone else. It cannot be said that the lawmakers anticipated such unreasonable conduct on the part of anyone. In Brannon v. Perkey, 31 S. E. 2d 898, the Court held that it was not necessary to pnt an X in the box at the end of a name written in. There the Court said: ‘' The statutory provision just quoted is a legislative recognition of the right of a voter to select some person other than those nominated for office and whose name is not printed on the ballot. It is unnecessary to the validity of a vote cast that a cross mark appear in the space to the left of the name so written. ’ ’

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Laman, Mayor v. Martin.
    5-2850
    362 S. W. 2d 711
    Opinion delivered December 17, 1962.

      Glenn C. Zimmerman and William G. Fleming, for appellant.

      Warren & Bullion, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises out of an action for declaratory judgment. Appellees, Billy Martin and others, who were dismissed from their jobs with the North Little Bock Electric Department, brought this suit for declaratory judgment and mandatory injunction against appellants, Laman as Mayor of North Little Bock and Jarvis as manager of the North Little Bock Electric Department, seeking a declaration that appellees are entitled to the rights, remedies and protection of municipal civil service under Act 339 of 1939, and therefore entitled to job re-instatement and back pay. Appellants demurred, stating that they were not proper parties defendant, and answered denying, inter alia, that Act 339 of 1939 applied to the City of North Little Bock, and urged the unconstitutionality of the act.

The trial court found that Act 339 of 1939 was valid and constitutional; that those employees of the City of North Little Bock who are covered by the terms of Act 339 of 1939 are entitled to the protective coverage of that statute; that appellees were entitled to a hearing before the North Little Bock Civil Service Commission to determine the propriety of their discharge under Act 339; that the court had no jurisdiction to grant a money judgment for past wages; and that the judgment was without prejudice to appellees to secure further relief in the court in the event that the Civil Service Commission refused to grant them a hearing. From this decree comes this appeal.

Appellants’ first point urged for reversal is: “Appellants are not proper parties to defend this suit for declaratory judgment. ’ ’

At the hearing, appellants asked for a ruling on their demurrer, but the trial court stated that it would withhold the ruling until the record was made. Thereafter, a memorandum opinion was filed by the court, which did not rule on the demurrer. Appellants filed a motion for specific ruling on their demurrer, prior to entry of the final decree, but the record does not reflect any ruling by the trial court. To reiterate, the demurrer simply stated that “Defendants are not proper parties defendant to defend this action. ’ ’

Act 274 of 1953, as amended, is our declaratory judgment statute. Section 10 of that act (Ark. Stats. § 34-2510) is as follows:

“Parties. — When the declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.”

This court set out the requisites for a proper suit under the declaratory judgment act in Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S. W. 2d 97:

' ' Our declaratory judgment act (§ 34-2501 et seq. Ark. Stats.) was not intended to allow any question to be presented by any person: the matters must be justiciable. In Anderson on 'Declaratory Judgments’ 2d Ed. § 187, the general rule is stated as to declaratory judgments:
The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination. ’
‘ ‘ In the same authority in § 221 at page 488 the rule is stated:
“ ‘The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented.’ ”

In an action instituted against a school district and its directors relative to location of a school building, in Johnson v. Robbins, 223 Ark. 150, 264 S. W. 2d 640, we held, in part, as follows:

. . . “And second, all necessary parties have not been brought into court. The Act requires that all persons ‘ shall be made parties’ who have any interest which would be affected by the declaration. Ark. Stats. § 34-2510 [supra]. Elsewhere the court have very sensibly stressed the importance of this requirement, for it is evident that no controversy would be terminated by an adjudication not binding upon everyone concerned. Updike Inv. Co. v. Employers’ Liability Assur. Corp., 128 Neb. 295, 258 N. W. 470; Kilroy v. O’Connor, 324 Mass. 238, 85 N. E. 2d 441. A declaratory decree in this case would not bind the County Board of Education, which, though not a party hereto, is required to approve whatever school site is chosen. It follows that a decree would not end the dispute, since the County Board would still be entitled to an opportunity to be heard on the question. We need not now go so far as to say, as some courts have, that the presence of all necessary parties is jurisdictional; for in any event we regard the defect as sufficiently fundamental to be reached by demurrer.”

In the case at bar, only the Mayor and the manager of the City electric department were made parties. Appellees seek to establish the validity of a municipal ordinance (the civil service ordinance). This being true, then the clear wording of Ark. Stats. § 34-2510, supra, makes the City of North Little Rock a necessary party. Under the Act here in question and the declaration sought, the City Council of North Little Rock as well as the Civil Service Commission of North Little Rock would be proper parties. Further following the wording of the statute, supra, because Act 339 of 1939 was alleged to be un'Constitutional by appellants, a copy of the proceeding was required to be served on the Attorney General, who is entitled to be heard in such matters. It follows, therefore, since all parties who have an interest which would be affected by the declaration have not been made parties to the action, and as stated in Johnson v. Robbins, supra, “that no controversy would be terminated by an adjudication not binding on everyone concerned”, the decree is reversed.