author: John I. Purtle, Justice. Conley Byrd, Justice,

text:
    Edwin HENDERSON et al v. Herbert B. RUSSELL et al
    79-232
    589 S.W. 2d 565
    Opinion delivered November 13, 1979
    (In Banc)

      Hixson & Cleveland, by: R. H. “Buddy” Hixson, for appellants.

      Witt & Donovan, for appellees.
   John I. Purtle, Justice.

This case arises from the Logan County (Northern District) Circuit Court’s holding that an ordinance by the quorum court prohibiting nepotism by elected county officials was a valid and properly adopted ordinance. The trial court reviewed the case on a petition for writ of certiorari.

Appellant challenges the trial court’s decision on grounds that the quorum court had no authority to pass the ordinance; that it was not passed or published according to law; and that the emergency clause was ineffective. We hold the trial court was correct on all alleged errors, except the emergency clause.

Five or six days prior to its meeting on December 11, 1978, the county clerk mailed the members of the quorum court an agenda which stated nepotism was a matter to be considered. The quorum court had previously passed Ordinance No. 15 on the same subject. At the meeting on December 11, 1978, the quorum court adopted Ordinance No. 20 which was the same as Ordinance No. 15 except for a change in the title and repealing clause. The journal of the proceedings of the Logan County Quorum Court reflects Ordinance No. 20 was called for discussion and one member moved to suspend the rules and place Ordinance No. 20 on the calendar for action on that date. The motion was seconded and the vote to suspend the rules was unanimous. The ordinance was then read for the first time upon motion and second. The rules were suspended for a second and third reading of the ordinance, and it was then passed unanimously. The emergency clause was read only one time before the vote, and it passed unanimously. This session of the quorum court was on a Monday night and the first publication was made in the local weekly newspaper on December 18, 1978. Both the ordinance and the proof of publication were included in the record. The ordinance did not have the word “title” written on it, but it did contain a title. The questioned ordinance had these words following the title: “BE IT ORDAINED BY THE LOGAN COUNTY QUORUM COURT.” The county judge approved the ordinance on December 14, 1978.

The case was submitted to the court on stipulation of the facts and briefs. The trial court determined the quorum court had subject matter jurisdiction, and the ordinance was passed and published according to law.

Amendment No. 55 to the Constitution of the State of Arkansas states:

§ 1. Power of quorum court. — (a) A county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law.

Ark. Stat. Ann. § 17-3801 (Supp. 1979) states:

As provided by Amendment No. 55, Section 1, (a) of the Arkansas Constitution, a county government acting through its Quorum Court may exercise local legislative authority not expressly prohibited by the Constitution or by law for the affairs of the county . . .

We do not find any provision in the constitution nor any law enacted by the General Assembly to prohibit a quorum court from enacting nepotism statutes or ordinances. Therefore, we hold the quorum court had the authority to approve this legislation.

Appellants contend the ordinance was not properly passed nor published according to law. Ark. Stat. Ann. § 17-4003 (Supp. 1977) states:

(2) Style Requirements of Ordinances and Amendments to Existing Ordinances, (a) General Provisions. No ordinance or amendment to an existing ordinance passed by a Quorum Court shall contain more than one (1) comprehensive topic; and shall be styled[:] ‘Be it Enacted by the Quorum Court of the County of , State of Arkansas; an Ordinance to be Entitled:’. Each ordinance shall contain such comprehensive title and the body of such ordinance shall be divided into articles, sequentially numbered, each expressing a single general topic related to the single comprehensive topic.

Ark. Stat. Ann. § 17-4005 (Supp. 1977) states:

(1) Defined. An emergency ordinance or emergency amendments to existing ordinances may be introduced in the manner provided by law for the introduction of ordinances. An emergency ordinance may be enacted only to meet public emergencies affecting life, health, safety, or the property of people.
(2) * * *
(3) Declaration of Emergency. An emergency ordinance must contain a declaration that an emergency exists and define the emergency. All emergency ordinances shall be designated ‘Emergency Ordinance.’
(4) Readings and Publication. An emergency measure does not require separate readings or publication prior to passage; provided, however, that publication shall be initiated within two (2) calendar days, excepting holidays, after approval of the emergency measure by the County Judge.
* * *

From the above statutes it can be seen the conflict arises by .the fact that the ordinance in question stated “Be it Ordained by the Logan County Quorum Court.” Thus it contained the word “ordained” rather than the statutorily prescribed word “enacted.” The word “ordain,” as defined by Webster’s New World Dictionary, means to “appoint; decree; establish; enact.” The same dictionary defines the word “enact” to mean “to make into law; pass (a law); decree; ordain.” Thus we have the word “enact” to mean ordain and the word “ordain” to mean enact. No one could be misled by the use of the word “ordain” in place of “enact.” We must then consider whether such technicality voids the ordinance. We have long held that statutory construction requires a common sense approach. Dozier v. Ragsdale, 186 Ark. 654, 55 S.W. 2d 779 (1932). When the General Assembly uses words which have a fixed and well-known signification, they are presumed to have been used in that sense. State v. Jones, 91 Ark. 5, 120 S.W. 154 (1919). The rule of strict construction will not be used to defeat the obvious intent of the General Assembly. Ark. State Highway Commission v. Butler, 105 F. 2d 732 (1939). The primary rule in construing a statute is to ascertain and give effect to the intent of the General Assembly and this intent is obtained by considering the entire act. Perry Co. v. House, 196 Ark. 317, 117 S.W. 2d 342 (1938). If the language is ambiguous, we consider the subject matter of the act, object to be accomplished, purpose to be served, as well as the remedy and consequence. Holt v. Howard, 206 Ark. 337, 175 S.W. 2d 384 (1943).

We have held that substantial compliance with publication requirements is sufficient as it relates to Initiative and Referendum amendments. Johnson v. Munger, 260 Ark. 613, 542 S.W. 2d 753 (1976). A liberal construction is accorded an act in order to effectuate its purpose. Leigh v. Hall, 232 Ark. 558, 339 S.W. 2d 104 (1960). In Leigh, we further held substantial compliance with the law was sufficient to validate an election. We also adhered to the rule of substantial compliance in Vinsant v. Knox, 27 Ark. 266, (1871); Trussell v. Fish, 202 Ark. 956, 154 S.W. 2d 587 (1941); and Cain v. McGregor, 182 Ark. 633, 32 S.W. 2d 319 (1930), where we stated: “The whole proceeding is statutory, and the statute must be substantially followed in all proceedings.” Further, there is a presumption that the law was followed, and it is incumbent upon those attacking the validity of a statute to show its invalidity. Wilson v. Luck, 201 Ark. 594, 146 S.W. 2d 696 (1941).

In State ex rel Attorney General v. Chicago Mill & Lbr., 184 Ark. 1011, 45 S.W. 2d (1941), and Cooper v. Town of Greenwood, 195 Ark. 26, 111 S.W. 2d 452 (1936), we stated:

It is a well-settled principle of statutory construction that statutes will receive a common sense construction, and, where one word has been erroneously used for another, or word omitted, and the context affords the means of correction, the proper word will be deemed substituted or supplied. This is but making the strict letter of the statute yield to the obvious intent of the legislature.

Statutes will not be defeated on account of mistakes, errors or omissions, provided the intent of the General Assembly can be collected from the whole statute. Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154, 40 S.W. 2d 998 (1931). We have often held that the title of an act is not controlling in its construction even though it is a matter to be considered in determining the meaning of a statute which is otherwise ambiguous. Matthews v. Byrd, 187 Ark. 458, 60 S.W. 2d 909 (1933). Likewise, the language used in the title of an act is not controlling but may play a part in explaining ambiguities in the body of the statute. City of Conway v. Summers, 176 Ark. 796, 4 S.W. 2d 19 (1928). We examine the title of an act only for the purpose of shedding light on the intent of the General Assembly. Lyerley v. Manila School District No. 15, 214 Ark. 245, 215 S.W. 2d 733 (1948).

Ark. Stat. Ann. § 17-4005 (4) (Supp. 1977) provides:

Readings and Publications (Publication). An emergency measure does not require separate readings or publications prior to passage; provided, however, that publication shall be initiated within two (2) calendar days, excepting holidays, after approval of the emergency measure by the county judge.

The above statute requires such ordinances to be published and states the publication shall be initiated within two (2) days (now seven (7) days) after approval by the county judge. The approval by the county judge was on Thursday, December 14, 1978, and it was published in the next issue of the local weekly newspaper. This publication was on Monday, December 18, 1978. With Saturday and Sunday deleted the publication was at least initiated within two (2) days as contemplated by the General Assembly.

Ark. Stat. Ann. § 17-4005(3) (Supp. 1979) states:

Declaration of Emergency. An emergency ordinance must contain a declaration that an emergency exists and define the emergency. All emergency ordinances shall be designated “Emergency Ordinance.”

Since the statute requires an emergency to be defined, we now examine the present ordinance to determine whether an emergency is defined. Section 4 of the ordinance states:

Whereas. County Officers must have Deputies and employees necessary to carry out the essential activities of County Government, it is hereby found that it is in the best interest of County Government that no person be employed as a Deputy or County Employee who is related by affinity or consanguinity within the third degree to any elected official. Therefore, an emergency is hereby declared to exist and this Ordinance being necessary for the immediate preservation of public peace, health and safety shall be in full force and effect from and after its passage and approval.

We cannot find an emergency defined in the above quotation. It has been a fact for more than 100 years that county officers have used deputies to assist in carrying out their work. Also, during this same time many deputies have been related to the office holder within the third degree of affinity or consanguinity. These facts are very similar to those stated in Gentry v. Harrison, 194 Ark. 916, 110 S.W. 2d 497 (1937), wherein we declared the emergency clause was ineffective. In the Gentry case the emergency clause stated that it was a function of the state government to regulate insurance. That was the emergency relied upon and we held it did not state facts sufficient to constitute an emergency. We do not think that fair-minded and intelligent men might reasonably differ in their interpretation of whether an emergency was stated in the emergency clause of Ordinance No. 20. There simply is nothing in the emergency clause to indicate a real emergency existed. We declare that the emergency clause has failed and the ordinance will take effect as it would have had there been no emergency clause.

Affirmed as modified.

Harris, C.J., not participating.

Fogleman and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. If the style requirements for enactment of county ordinances, Acts 1977, No. 742, Ch. 5 § 86 [Ark. Stat. Ann. § 17-4003 (Supp. 1977)] could be read in isolation and without regard to other provisions of “The Arkansas County Government Code,” I would not bother to enter a written disagreement with the majority’s assertion that the nepotism ordinance by using “Be it ordained’ ’ was a substantial compliance with the style requirement of “Be it enacted.” A look at the authorities generally would support the majority view — i.e. In re Senate File 31, 25 Neb. 864 (1889), the term “Be it enacted” was held to be equivalent to “Be it resolved’ ’; Smith v. Jennings, 67 S.C. 324, 45 S.W. 821 (1903), “Be it resolved” was held to be a substantial compliance with a mandatory constitutional requirement of “Be it enacted”; State ex rel v. Dalles City, 72 Or. 337 (1914), the terms “Be it enacted,” “Be it resolved,” and “Be it ordained” were held to be synonymous. In City of Ft. Smith v. Taylor, 228 Ark. 722, 310 S.W. 2d 13 (1958), we held there was no difference in the legal effect of a resolution and an ordinance.

Presumably those who drafted “The Arkansas County Government Code” Acts 1977 No. 742 [Ark. Stat. Ann. §§ 17-3101 through 17-4208 (Supp. 1977) had access to the foregoing authorities from other states and the decisions of this court and if the General Assembly wanted to make a distinction between resolutions and ordinances, it has the authority to do so. Now to understand my disagreement with the majority’s substantial compliance view, it is necessary that the following pertinent portions of “The Arkansas County Government Code,” Acts 1977 No. 742, be setforth as follows:

“Ch. 1, § 1 [Ark. Stat. Ann. § 17-3101 (Supp. 1977)]. This Act constitutes the Arkansas County Government Code.
Ch. 1, § 2(1) [Ark. Stat. Ann. § 17-3102(1) (Supp. 1977)]. Except when a specific definition is given or a technical interpretation is required, words and phrases used in this title shall be construed according to their ordinary usage in the English language.
Ch. 5, § 84 [Ark. Stat. Ann. § 17-4001 (Supp. 1977)]. LEGISLATIVE AUTHORITY. — The Legislative power of county government is vested in the Quorum Court of each of the several counties of the State subject to the limitations imposed by the Constitution and by State law.
Ch. 5 § 85 [Ark. Stat. Ann. § 17-4002 (Supp. 1977)]. COUNTY LEGISLATIVE PROCEDURE. —
(7) Legislative Affairs. All legislative affairs of a Quorum Court shall be conducted through the passage of ordinances, resolutions, or motions.
(9) County Ordinance. A county ordinance is hereby defined as an enactment of compulsory law for a Quorum Court which defines and establishes the permanent or temporary organization and system of principals of a county government for the control and conduct of county affairs.
(10) County Resolution. A county resolution is hereby defined as the adoption of a formal statement of policy by a Quorum Court, the subject matter of which would not properly constitute an ordinance. A resolution may be used whenever the Quorum Court wishes merely to express an opinion as to some matter of county affairs and such resolution shall not serve to compel executive action.
(11) Motion. A motion is hereby defined as a proposal to take certain action or an expression of views held by the Quorum Court body; and, as such, a motion is merely a parliamentary procedure which precedes the adoption of resolutions or ordinances. Motions shall not serve to compel any executive action unless such action is provided for by a previously adopted ordinance or state law.
(12) Ordinances may be amended and repealed only by ordinances.
(13) Resolutions may be amended and repealed only by resolutions.
(14) All ordinances shall be subject to initiative and referendum as provided for through Amendment Number 7 to the Arkansas Constitution.
Ch. 5, § 86 [Ark. Stat. Ann. § 17-4003 (Supp. 1977)]. COUNTY ORDINANCE PROCEDURES — ADOPTION AND AMENDMENT. —
(2) Style requirements of Ordinances and Amendments to Existing Ordinances.
(a) General Provisions. No ordinance or amendment to an existing ordinance passed by a Quorum Court shall contain more than one (1) comprehensive topic; and shall be styled [:] ‘Be it Enacted by the Quorum Court of the County of_, State of Arkansas; an Ordinance to be Entitled:’ Each ordinance shall contain such comprehensive title and the body of such ordinance shall be divided into articles sequentially numbered, each expressing a single general topic related to the single comprehensive topic.
(4) Approval and Publication of Ordinances and Amendments. Upon passage all ordinances . . . shall be approved by the County Judge . . . Such ordinances or amendments shall be published by the County Clerk as prescribed by law.
Ch. 5, § 93 [Ark. Stat. Ann. § 17-4010 (Supp. 1977)]. RESOLUTIONS — ADOPTION and AMENDMENT. —
(2) Style requirements of Resolutions. General Provisions. No resolution or amendment to a resolution passed by a Quorum Court shall contain more than one (1) comprehensive topic; and shall be styled ‘Be it Resolved by the Quorum Court of the County of , State of Arkansas That: ’.
(4) Majority Vote Required. A proposed resolution must be read and adopted by a majority vote of the whole number of Justices comprising a Quorum Court . . .
(5) Resolutions or an amendment to an existing resolution may be introduced and adopted in a single meeting of the Quorum Court.
(6) Upon passage, all resolutions or amendments to existing resolutions shall be entered into the records of the Quorum Court. Publications of resolutions shall not be required except where publication is specified in such resolution adopted by a Quorum Court.
(8) The power of veto shall not apply to the adoption of resolutions or amendments to resolutions.”

To understand what the majority is calling a substantial compliance with the style requirements of The Arkansas County Government Code for enactment of an ordinance it is necessary to look at the “alleged” nepotism ordinance which provides:

“AN ORDINANCE PROHIBITING ALL ELECTED COUNTY OFFICIALS OF LOGAN COUNTY FROM EMPLOYING DEPUTIES AND COUNTY EMPLOYEES WHO ARE RELATED BY AFFINITY OR CONSANGUINITY WITHIN THE THIRD DEGREE TO ANY ELECTED COUNTY OFFICIAL; TO REPEAL ORDINANCE NO. 15 AND FOR OTHER PURPOSES.
BE IT ORDAINED BY THE LOGAN COUNTY QUORUM COURT:
SECTION 1.
That Ordinance No. 15 is hereby repealed.
SECTION 2.
That all elected County Officials of Logan County are hereby prohibited from employing Deputies or County Employees who are related by affinity or consanguinity within the third degree to any elected County Official.
SECTION 3.
Provided, however, this Ordinance shall not prohibit the continued employment of any County Employee or Deputy who is presently serving as a County Employee or Deputy for the remainder of the present term of office.
SECTION 4.
Whereas: County Officers must have Deputies and employees necessary to carry out the essential activities of County Government, it is hereby found that it is in the best interest of County Government that no person be employed as a Deputy or County Employee who is related by affinity or consanguinity within the third degree to any elected official. Therefore, an emergency is hereby declared to exist and this Ordinance being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.
APPROVED:
BUSTER J. TRITT,
County Judge
DATED:
12-14-1975
ATTEST:
Penn S. Smith,
County Clerk

The first obvious defect in style is that the title precedes the enactment clause. The second obvious defect is that the Enactment Clause starts “Be it ordained” instead of “Be it enacted” as required by Acts 1977 No. 742 Ch. 5 § 86(2) [Ark. Stat. Ann. § 17-4003(2) (Supp. 1977)], supra. The third defect in the Enactment Clause is that it does not mention “State of Arkansas.” After all, the authority for the Quorum Court of the County of Logan to enact any law depends upon the authority given it by the State of Arkansas, yet there is no mention of such authority in the Enactment Clause.

As can be seen from the provisions of The Arkansas County Government Code, supra, the General Assembly has gone to great lengths to make a distinction between ordinances and resolutions and has given clear and simple style requirements by which the members of the Quorum Courts and the public can easily distinguish between ordinances and resolutions. However if the majority’s ‘ ‘ substantial compliance’ ’ theory is carried to its logical extension, the businessmen in this State can expect to find legal notices that look like the following:

“Sunday Closing of Business
Be it Resolved by the Quorum Court of the County of White
1. That it is unlawful for any wholesale or retail establishment to remain open on Sundays during the hours of 8:00 A.M. and 5:00 P.M.
APPROVED
John Doe
Date 10-18-79
Attest: Richard Roe
County Clerk”

When the businessman contacts the members of the Quorum Court, he is told that they only passed a resolution that the County Judge approved because of his religious beliefs, but the sheriff and the prosecuting attorney by pointing to our construction of the terms “Be it enacted,” “Be it ordained,” “Be it resolved” as synonymous can take the position that the Quorum Court passed an ordinance. When the businessmen complain to their State Legislators, the State Legislators can truthfully state that they provided a simple and easy method to distinguish between what constituted an ordinance and a resolution and that it was the Arkansas Supreme Court that created the confusion. I must say that I have always considered it the duty of this Court to give a clear interpretation of the law, — i.e. it has the duty of not adding confusion to the law.

Needless to say, I do not think that the “alleged” nepotism ordinance sufficiently complied with the required enactment clause to be valid.

For the reasons stated, I respectfully dissent.

Fogleman, J., joins in this dissent except for that part pertaining to the use of the words “Be it ordained” rather than “Be it Enacted.”


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Burt BEAVERS v. STATE of Arkansas
    CR 79-159
    589 S.W. 2d 573
    Opinion delivered November 19, 1979
    (In Banc)

      James O. Fels, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a no-merit appeal from a verdict and judgment sentencing Beavers, as an habitual offender, to two consecutive 50-year sentences for aggravated robbery and kidnaping. Counsel for the appellant and the Attorney General for the State find no merit in the appeal. Beavers has not availed himself of the opportunity to file a pro se brief. We have studied the case and agree that it should be affirmed for want of merit. We point out, however, two defects in the appellant’s abstract and brief. First, the testimony has been copied verbatim instead of being abstracted, as required by Rule 9. Smith v. Pond, 259 Ark. 564, 534 S.W. 2d 769 (1976); Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W. 2d 605 (1965). Second, counsel has not presented the arguable points for reversal, as required by Anders v. California, 386 U.S. 738 (1967). Counsel merely states, as a conclusion, that in his opinion there is nothing in the record that would arguably support an appeal. The State, however, has supplied the deficiencies.

Affirmed.

Harris, C.J., not participating.


author: Frank Holt, Justice.

text:
    Cecil WALTERS v. STATE of Arkansas
    CR 79-143
    587 S.W. 2d 831
    Opinion delivered November 19, 1979

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Neal Kirkpatrick, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

In Walters v. State, unpublished opinion February 27,1978, we set aside appellant’s 1973 plea of guilty and a twenty-one year sentence to robbery with a firearm. Following a trial by jury, upon remand, appellant was sentenced to consecutive terms of twenty-one years’ imprisonment for robbery and fifteen years imprisonment for the use of a firearm in the commission of a felony.

Appellant first contends that the trial court erred in failing to suppress his confession. When, as here, the question of the voluntariness of a confession is raised on appeal, we review all of the evidence and make an independent determination of its voluntariness based on the totality of the circumstances. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978); and Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). When the voluntariness, as here, depends entirely on the credibility of the witnesses, we must defer to the superior position of the trial judge who observed the witnesses when they testified. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74(1978); and Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133 (1978). The finding of the trial judge will not be set aside unless it is clearly against the preponderance of the evidence. Clark v. State, supra; and Degler v. State, supra.

Here, the only witness to testify regarding the taking of the confession were a police officer and the appellant. The officer, the only person present when the confession was taken other than the appellant, testified that after he advised the appellant of his rights, the appellant wrote and signed a statement. The officer made no threats or promises to induce the appellant to sign the rights form or write his statement. The appellant denied writing or signing the statement or any other statement. He stated that “the officer probably made it up himself.” The appellant identified his signature on the waiver of rights form which was admitted into evidence. Over the appellant’s objection, the handwritten signed confession was also admitted into evidence.

The question raised by the appellant pertains to an issue “which could only have been decided on the basis of credibility.” Gardner v. State, supra. In reviewing the circumstances and giving due deference to the determination of the trial court in the case at bar, we cannot say that the finding that the statement was voluntarily made by the appellant was clearly against the preponderance of the evidence.

Neither can we agree with appellant that the trial court erred in failing to grant his motion for a mistrial following a police officer’s statement that he had secured an “unlawful flight to avoid arrest” warrant from the FBI when he was unable to locate the appellant after the robbery. It is well settled that the accused’ s flight from the scene of the crime is admissible as a circumstance to be considered with other evidence in determining his probable guilt. Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977); Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884 (1973); and Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887 (1955).

Appellant argues that the trial court ordered consecutive (21 years plus 15 years) rather than concurrent sentences solely due to his vindictiveness towards appellant because of his prior successful appeal. Consequently, his maximum sentence should not exceed twenty-one years. We have recently held that a more severe sentence may be imposed on a second trial so long as it is not the result of any vindictiveness by the court towards the appellant arising from the convicted party’s prior successful appeal. Marshall v. State, 265 Ark. 302, 578 S.W. 2d 32 (1979), citing North Carolina v. Pearce, 395 U.S. 711 (1969). Here the jury assessed an additional fifteen year sentence after determining that the appellant had employed a firearm in the commission of the robbery. Ark. Stat. Ann. § 43-2336 (Repl. 1977); Redding v. State, 254 Ark. 317, 493 S.W. 2d 116 (1973); Brown and Bettis v. State, 259 Ark. 449, 534 S.W. 2d 213 (1976). Ark. Stat. Ann. § 43-2337 (Repl. 1977) requires that any additional sentence imposed for the use of a firearm in the commission of a felony “shall run consecutively, and not concurrently, with any period of confinement imposed for conviction of a felony itself.” The sentence imposed by the trial court was precisely that recommended by the jury and consistent with statutory provisions. No prejudicial error is demonstrated.

Appellant also contends that even if the guilty verdict is affirmed, the thirty-six year sentence should be modified by giving him credit for time served. We agree, as does the state, that the approximately five years the appellant served in prison preceding the present sentence should be credited to his sentence. Ark. Stat. Ann. § 41-904 (Repl. 1977); and Marshall v. State, supra. On this aspect the cause is remanded to the trial court for modification of the judgment.

Affirmed as modified.

Harris C.J., not participating.


author: DARRELL HICKMAN, Justice.

text:
    FARRCO CONSTRUCTION COMPANY et al v. Webster GOLEMAN
    79-277
    589 S.W. 2d 573
    Opinion delivered November 19, 1979
    (In Banc)

      Bridges, Young, Matthews, Holmes & Drake, for appellants.

      Gibbs Ferguson, for appellee.
   DARRELL HICKMAN, Justice.

This is an appeal of a Workers’ Compensation case by Farreo Construction Company and its insurance carrier. The appellant did not abstract the administrative trial judge’s opinion, the Workers’ Compensation Commission decision nor the circuit court order, all of which favored appellee, Webster Goleman. We find this a violation of Rule 9(d) of the Supreme Court Rules.

We cannot distinguish this case from Manes v. M.O.V.E., Inc., et al, 261 Ark. 793, 552 S.W. 2d 211 (1977) where we affirmed the Workers’ Compensation Commission order because the order was not abstracted by the appellant.

We explained in Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W. 2d 707 (1978), the necessity for the appellant’s brief to properly contain an abstract of the record. In the case of Wade v. Franklin-Stricklin Land Surveyors, Inc., 264 Ark. 841, 575 S.W. 2d 677 (1979), we referred to numerous recent cases which were affirmed because of noncompliance with Rule 9(d). See also Smith, Arkansas Appellate Practice; Abstracting the Record, 31 Ark. L. Rev. 359 (1977).

Affirmed.

Harris, C.J., not participating.

George Rose Smith, J., would affirm the judgment on its merits.


author: John I. Purtle, Justice.

text:
    CIRCLE REALTY COMPANY v. Harold GOTTLIEB
    79-260
    589 S.W. 2d 574
    Opinion delivered November 19, 1979
    (In Banc)

      James Howard Smith, for appellant.

      Julian Glover and Friday, Eldredge & Clark, by: George Pike, Jr., for appellee.
   John I. Purtle, Justice.

This case arises from the verdict of a jury on a suit between two Arkansas real estate brokers over the division of a sales commission. A verdict granting one broker half of the commission from the sale by the other broker is brought here on appeal as a matter of right.

Appellant contends the trial court erred in denying a directed verdict; failing to grant judgment n.o.v.; failure to give proffered instructions; and that the contract sued upon was illegal and unenforceable. We agree with the trial court in rejecting the request for a directed verdict and refusing to grant ajudgment n.o.v.; also, that the requested jury instructions were not proper and the contract sued upon was valid and enforceable.

Appellee, Harold Gottlieb, a licensed real estate broker in Hot Springs, Arkansas, received information from a New York broker in July 1976 which related to certain property in Hot Springs which the New York broker claimed to have listed for sale. The New York broker was not authorized to sell real estate in Arkansas. The information sent to appellee generally described the property for sale but contained a considerable amount of incorrect information. Appellee made several unsuccessful attempts to sell the property in 1976. Sometime in March of 1977 appellee contacted Rainey Realty, Inc. of Little Rock about working on the sale of the property; however, Rainey suggested Circle Realty Company, a licensed real estate company in Little Rock, might be more likely to find a buyer than Rainey. A representative of Circle Realty Company, Mike Hedrick, discussed the possible sale of the property with appellee on the same date. Appellee left information with Rainey who subsequently passed it on to Circle. Appellee testified he reached an agreement with Circle that if a sale was made by either Circle or Rainey the commission would be divided 50-50 between the two Little Rock brokers on one hand and the appellee and the New York broker on the other. This was denied by appellant during the trial. Rainey testified he always intended to give appellee some kind of a referral fee. Appellant, Circle Realty, subsequently determined the New York broker did not have an exclusive listing nor an Arkansas license. Appellant and appellee jointly showed the property to a prospect who eventually purchased the property. However, appellant had to dig up most of the information about the property in order to make the sale. The property was sold in May of 1977 but no part of the commission was given to appellee and the appellant refused to pay him anything. The contention was that appellee’s claim for participation in the commission came through the New York broker who was not authorized to do business in Arkansas and, therefore, the contract was void.

Appellee filed suit in the Pulaski Circuit Court against Rainey and Circle claiming half of the $30,000 commission which had been paid to Circle. His suit was based upon the alleged oral agreement between the Arkansas brokers. Rainey settled with appellee prior to submission of the case to the jury and was dismissed from the suit. Appellant resisted the claim and the jury awarded appellee $15,000. The commission had been paid by the purchaser pursuant to agreement prior to the sale.

Appellant insisted all the way through the transaction and trial, and continues to do so in this Court, that an essential element of the contract was that appellee must prove the New York broker held a valid property listing from the owner. This was the basis for the motion for a directed verdict and for the judgment n.o.v. This was also the main element in the refused jury instructions. Appellant freely admits it was appellee’s efforts which set in motion the chain of events which ultimately culminated in the sale of the property in question.

We think appellant misunderstands the law on the subject. It correctly states the law as it relates to a commission on the sale of real estate when the owner and a broker are involved. However, here we are dealing with a contract between two brokers, neither of which held an exclusive listing on the property which was sold. Further, the owner is not being charged a commission but rather the purchaser has paid it. All of the cases cited by appellant involve a dispute between the owner and a broker.

A contract or agreement between two brokers is binding and enforceable in the same manner as contracts between other contracting parties. It makes no difference in this case whether anyone had a listing to sell the property because it was in fact sold on agreeable terms. Although we find no Arkansas case in point, other jurisdictions have held one broker may recover from another broker even though a suit could not properly be brought against the owner to recover a commission. Hohenberger v. Schnitzer, 235 S.W. 2d 466 (Tex. Civ. App. 1951). See also 12 C.J.S. Brokers § 81 which states:

In order that one broker may recover a share of the commission of another broker it is necessary and sufficient that there be a valid, existing, and applicable agreement between them for a division of the commission, that plaintiff shall have performed his part of the agreement, and that defendants shall have actually received the commission. Where there is such an agreement, it is binding and enforceable and the rights of the parties are governed by its terms and the proper construction thereof, rather than by the contract of sale or exchange or by the ordinary rules which govern the rights of real estate brokers to commissions for sales of land. * * *

Appellee’s requested Instruction No. 6 was given without objection and is a correct instruction. It simply stated that appellee could not recover unless the jury determined (1) that Circle Realty Co., Inc. agreed to share the commission on a 50% basis with Harold Gottlieb, and (2) that Gottlieb performed his portion of the agreement. Therefore, the jury was properly permitted to determine the factual issue of whether the parties had an agreement to split the commission. In testing the sufficiency of the evidence as being substantial on appellate review we need consider only the testimony of the appellee and any other evidence favorable to him. Love v. H.F. Construction Co., Inc., 261 Ark. 831, 552 S.W. 2d 15 (1977). If there is substantial evidence to support the decision, it will be affirmed. Bradley v. Hendricks, 251 Ark. 733, 474 S.W. 2d 677 (1972). The jury is the sole judge of the credibility of the witnesses and if there is substantial evidence to support the verdict we affirm. Bradberry v. Gower, 247 Ark. 700, 447 S.W. 2d 124 (1969). We review the evidence on appeal in a light most favorable to the jury verdict. Sardin v. Roberts, 244 Ark. 312, 424 S.W. 2d 889 (1968).

In view of the law and the facts as presented in this case, we find no reversible error.

Affirmed.

Harris, C.J., not participating.


text:
    Jimmy Lonnie LOVELL v. MARIANNA FEDERAL SAVINGS & LOAN ASSOCIATION et al
    72-293
    589 S.W. 2d 597
    Opinion delivered November 19, 1979
    (In Banc)

      Ray & Donovan, for appellant.

      Daggett, Daggett & Van Dover, for appellees.
   John I. Purtle, Justice.

The Lee County Chancery Court awarded appellant the proceeds of three certificates of deposit issued by appellee. However, the decree denied prejudgment interest on the proceeds. Ownership of the funds was not in dispute in this matter. The only argument in this appeal is whether the court erred in rejecting appellant’s claim for prejudgment interest. The facts were before us in the prior decision which is reported in Lovell v. Marianna Federal Savings & Loan Association, 264 Ark. 99, 568 S.W. 2d 38 (1978).

Appellant survived as joint payee of the certificates of deposit in the original amount of $36,000. November 13, 1973, he made demand upon appellee for proceeds of the certificates, which had been purchased by his father. Because of doubt as to ownership, appellee filed a declaratory action and paid the funds into the registry of the court. At the first trial it was decided the widow of decedent was the owner of the disputed funds. We reversed the trial court and returned it for judgment in favor of appellant. The trial court entered a decree in which appellant was declared to be the owner of the funds but denied interest prior to the decree. Appellee paid the proceeds to appellant without prejudice to his claim for interest pending this appeal. We agree with appellant that prejudgment interest should be allowed under the facts and circumstances of this case.

The case is argued very ably by both parties to this appeal. Several Arkansas cases are correctly cited by the parties m support of their arguments. Likewise, the trial court quoted from our cases in support of the decree. We cannot say either the court or counsel misunderstand or misquote the law or cases. We must admit the error of the cases on this subject. They are simply irreconcilable and we must decide which rule to follow in this case and in the future.

In very early cases, such as Crow v. State, 23 Ark. 684 (1861); Kelly v. McDonald, 39 Ark. 387 (1882); and St. Louis I.M. & S. Ry. v. Biggs, 50 Ark. 169, 6 S.W. 724 (1887), we held to the rule that if the damaged or destroyed property had a market value, or other definite standards of determining the value, at the time of loss, damage or destruction, prejudgment interest was allowable. Thus, if marketable property were damaged or destroyed the measure of damages was its value at the time of the loss plus damages in the nature of interest. It does not appear that recovery of interest prior to judgment is dependent upon whether the claim is liquidated or whether it sounds in tort or contract. The test in prejudgment interest cases is whether there is a method of determination of the value of the property at the time of the injury. If such method exists, prejudgment interest should be allowed. Although such damages were usually referred to as damages in the nature of interest, it does not change the fact that such damages were measured by the legal rate of interest allowed by law at the time. Therefore, it may as well be called interest.

The reason for allowing interest in such cases is to compensate the plaintiff for the loss. The time of the loss is used to determine the value of the property. When there has been a delay in compensating the injured party, he has an additional loss for the period of time for which he has been deprived of the use of the property. During this period of time between the loss and the recovery, the defendant has had the use of plaintiffs recovery. Therefore, the defendant should pay the plaintiff for such additional loss, and the most logical measurement of the additional loss is the rate of interest which is currently in use by those lending money.

It is equally true that in cases where the damages cannot be ascertained at the time of the loss interest before judgment should not be allowed. Damages for personal injuries are not capable of being determined at the time of the injury. In most personal injury claims the amount of money damages cannot be measured until some future date. Therefore, there is no method of measuring the damages at the time of the loss; neither is there a vested property right such as exists in cases where property is damaged. When recovery is had in personal injury cases it is for all damages which the plaintiff has suffered at the time of the recovery. Frequently, such recovery is for damages to occur in the future. If the damages are not by their nature capable of exact determination, both in time and amount, prejudgment interest is not an item of recovery.

Somewhere along the way a line of cases appeared holding that prejudgment interest was not allowed in tort actions. The first such case brought to our attention is Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S.W. 2d 158 (1961). This case was followed as late as Members Mutual Insurance Co. v. Blissett, 254 Ark. 211, 492 S.W. 2d 429 (1973). However, in Dickerson Construction Co., Inc. v. Dozier, 266 Ark. 345, 584 S.W. 2d 36 (1979), we returned to the former rule which allowed prejudgment interest, at least when applied to growing crops. This was a tort action as were the Hardin and Blissett cases. We believe the Dozier case follows the most logical rule. This rule was followed in Kennedy v. Clayton, 216 Ark. 851, 227 S.W. 2d 934 (1950), wherein we quoted with approval from Richards v. Citizens N. G. Co., 135 Pa. 37, 18 Ark. 600, as follows:

. . . “Interest cannot be recovered in actions of tort or in actions of any kind where the damages are not in their nature capable of exact computation, both as to time and amount. In such cases the party chargeable cannot pay or make tender until both the time and the amount have been ascertained, and this default is not therefore of that absolute nature that necessarily involves interest for the delay. But there are cases sounding in tort and cases of unliquidated damages where not only the principle on which the recovery is to be had is compensation, but where also the compensation can be measured by market value or other definite standards. Such are cases of the unintentional conversion or destruction of property, etc. Into these cases the element of time may enter as an important factor and the plaintiff will not be fully compensated unless he receive, not only the value of the property, but receive it, as nearly as may be, as of the date of his loss. Hence it is that the jury may allow additional damages in the nature of interest for the lapse of time. It is never interest as such, nor as a matter of right, but compensation for the delay, of which the rate of interest affords the fair legal measure.”

In the present case the certificates of deposit had an exact value on the date appellee refused to pay them over to appellant. He has been wrongfully deprived of the use of these funds since November 13, 1973. These funds had an exact determinable value, both as to time and amount, when appellant was deprived of the use of them. Therefore, he is entitled to the proceeds of the certificates of deposit together with interest from the date of such loss of use, at the rate of 6% per annum, as required by art. 19 § 13, Const, of Ark., until he receives payment.

This case is therefore reversed and remanded to the trial court with directions to proceed consistent with this opinion.

Reversed and remanded.

Harris, C.J., not participating.


author: Otis H. Turner, Special Chief Justice. John A. Fogleman, Justice,

text:
    Vera McENTIRE v. Estate of J. L. McENTIRE, Deceased, James C. McENTIRE, Executor, and PINE BLUFF NATIONAL BANK
    79-47
    590 S.W. 2d 241
    Opinion delivered November 19, 1979
    [Rehearing denied January 7, 1980.]

      C. Mac Norton, Brockman & Brockman, for appellant.

      Jones & Petty, for appellees.
   Otis H. Turner, Special Chief Justice.

Prior to December 18th, 1975, J. L. McEntire maintained a checking account in Pine Bluff National Bank in his individual name with sole authority in the owner to withdraw funds from the account. On December 18,1975, a new signature card for the account was executed by McEntire and his wife, Vera E. McEntire, permitting either to withdraw funds from the account but retaining the account in the sole name of J. L. McEntire. Thereafter, both Mr. and Mrs. Entire did, on occasion, withdraw funds from the account on their individual signature. On January 6,1977, J. L. McEntire caused a new signature card to be issued in his sole name withdrawing the authority of Mrs. McEntire to draw funds from the account.

Both signature cards contained the following identical language:

“You are authorized to recognize either of the signatures subscribed below in the payment of funds or the transaction of any business for this account. . .”
“The below — signed, joint depositors, hereby agree each with the other and with you that all sums now on deposit or herebefore or herafter deposited by either or both of said joint depositors with you to their credit as such joint depositors with all accumulations thereon are and shall be owned by them jointly, with right of survivorship, and be subject to the check or receipt of either of them or the survivor of them and payment to or on the check of either or the survivor shall be valid and discharge you from liability.”
“Each of the below — signed appoints the other attorney, with power to deposit in said account monies of the other and for thát purpose to endorse any check, draft, note or other instrument payable to the order of the other or both said joint depositors.”
* * *
‘ ‘Your rights or authority under this agreement shall not be changed or terminated by us or either of us except by written notice to you which shall not affect transactions therebefore made.”

J. L. McEntire died subsequent to January 6, 1977. Vera McEntire brought this action against the Estate of her deceased husband and Pine Bluff National Bank to recover the funds on deposit in the account. Thereafter, both parties moved for summary judgment which was granted in favor of the estate and the Bank. From that Judgment, this appeal is taken.

For reversal, Appellant raises two broad issues. First, that appellant, rather than appellee, was entitled to summary judgment; and second, that the Motion for Summary Judgment should not have been granted because there exist genuine issues of material fact.

Under point one, appellant urges that she is entitled to Summary Judgment because a tenancy by the entireties was created in the bank account on December 18, 1975, which could not be destroyed by the unilateral act of J. L. McEntire in removing the cotenant’s name from the account. Appellant further urges under point one that the Bank is estopped to deny appellant’s absolute right to the balance in the account because checks executed by appellant and drawn on the account were honored by the bank subsequent to January 6, 1977.

Under point two, appellant makes no attempt to state what issues of material fact exist. However, the Complaint alleges (1) that a gift was made; (2) estoppel by the Bank and, (3) the creation of a tenancy by the entireties in the account.

We will first consider appellant’s point two in that under the state of the record before us, we find that no genuine issue of material fact exists which would justify a reversal.

In order to establish a completed inter vivos gift, there must be clear and convincing evidence that there was an actual delivery of the subject matter of the gift with a clear intent to make an immediate, present and final gift beyond recall, accompanied with an unconditional release of all future dominion and control by the donor over the property delivered. Porterfield v. Porterfield, 253 Ark. 1073, 491 SW 2nd 48; Coristo v. Twin City Bank, 267 Ark. 554, 520 SW 2nd 218.

The affidavits produced by appellant leave no issue of fact relating to inter vivos gift and the establishment of the account did not constitute a gift, as a matter of law.

The assertion that Pine Bluff National Bank is estopped by its conduct in honoring checks drawn against the account after January 6, 1977, is without merit. The uncontroverted facts in the record before us are that at the time the bank honored the checks, the authority of Mrs. McEntire to draw funds from the account had already been terminated.

Equitable estoppel is available only to one who has in good faith relied upon the conduct of another and has been led thereby to a change of position for the worse, acted to his injury, or gave up or abandoned a legal right upon the representations or conduct constituting the estoppel. Geren v. Caldarrera, 99 Ark. 260, 138 SW 335; Deal v. Deal, 220 Ark. 134, 246 SW 2nd 429; Thompson v. Wilhite, 131 Ark. 77, 198 SW 271.

Applying the facts of this case to the estoppel rule, it is immediately apparent that the appellant neither alleged or in fact changed her legal position or status because the checks were honored; she has not acted to her injury; and lastly, she gave up no legal right as a result thereof. Whether the checks drawn against the account after January 6,1977 were paid or dishonored does not alter the legal status of the parties, the nature of the account at any given time, or the legal rights of Mr. or Mrs. McEntire relating to the account. What was done with regard to the account was done within the bounds of the laws of this State and was done prior to the acts alleged to constitute an estoppel.

The Bank was acting within its authority in permitting the removal of appellant as one authorized to draw funds from the account. The involved account was held in such a manner that J. L. McEntire (or Mrs. McEntire) could withdraw or receive payments or withdraw all funds therefrom, and any such payments made by the banking institution would be a complete discharge as to the amount paid. Ark. Stats. Annotated, § 67-552(h). In addition, the Bank was under no legal duty to notify appellant that she could no longer withdraw funds from the account and no legal right of appellant was impaired or destroyed by the unauthorized payment of checks drawn on the account by appellant subsequent to January 6, 1977.

Appellant implies that a withdrawal of authority, or change of authority to draw upon the account should be distinguished from a withdrawal of the funds and establishment of a new account. We have previously established that there is no such valid distinction and it was thus unnecessary for Mr. McEntire to withdraw the funds and establish a new account as opposed to the course he followed in this instance. To require such would have been superfluous and equity regards substance rather than form. Davis v. Jackson 232 Ark. 953, 341 SW 2nd 726.

The remaining question under appellant’s point two relates to the estate created between this husband and wife upon execution of the account signature card on December 18,1975. The account, as it existed subsequent to December 18, 1975 and prior to January 6, 1977, was a tenancy by the entireties. Having previously disposed of the inter vivos gift and the estoppel arguments, this leaves only the question of the rights of the parties under a tenancy by the entireties in a bank account — those rights being the subject of established law.

There being no genuine issue of material fact remaining, summary judgment was a proper remedy in this case.

Turning then to appellant’s point One urging that appellant, rather than appellee, should have been granted summary judgment on her motion, we consider the rights of tenants by the entireties in a bank account as those rights are governed by our established law and the facts in this case.

As early as 1921, this Court recognized that an estate by the entireties may be created in personal property. Union and Mercantile Trust Company v. Hudson, 147 Ark. 7, 227 SW 1. That holding has been consistently reaffirmed through the years, Black v. Black, 199 Ark. 609, 135 SW 2nd 837, and is now so well recognized that extensive citations are unnecessary.

In 1965, the General Assembly (Act 78 of 1965) established that bank accounts held in the names of persons who designate themselves as husband and wife shall be the property of such persons as tenants by the entireties and upon the death of one of the persons the account shall be payable to the survivor. The statute further provides that the banking institution shall pay withdrawal requests and otherwise deal in any manner with the account upon the direction of any one of the persons named therein. Ark. Stats. Annotated, Section 67-552. This was the Statute in existence at the time of creation of the account in question.

In Black, supra, we held that the Statute was passed for the protection of the bank in which the deposit was made. Though the Statute existing at the time of the Black decision was subsequently amended, we hold that the amendments do not change the character thereof and the statute continues to exist for the same primary purpose.

An estate by the entireties in a bank account differs in one significant aspect from an estate in real property in that the estate exists in the account only until one of the tenants withdraws such funds or dies leaving a balance in the account. Funds withdrawn or otherwise diverted from the account by one of the tenants and reduced to that tenant’s separate possession ceases to be a part of the estate by the entireties. Black v. Black, supra; McGuire v. Benton State Bank, 232 Ark. 1011, 342 S.W. 2d 77. This does not mean that in a proper case under timely allegations of fraud or other such remedy, that one of the co-tenants could not sustain an action to recover all or a part of the funds diverted or withdrawn by the other. No such allegation or proof exists in this case.

The decree of the Chancellor is in all things affirmed.

Special Justice Douglas Smith joins in the opinion.

Harris, C.J., and Byrd, J., not participating.

Fogleman and Hickman, JJ., dissent.

John A. Fogleman, Justice,

concurring in part; dissenting in part. Although I agree that summary judgment in favor of the bank was proper, I cannot agree that the estate of J. L. McEntire was entitled to a summary judgment in this case. Perhaps the basis for my disagreement is the majority’s treatment of the basic document upon which appellant relies as a signature card. It may be, even though it is not so labelled, but it is much more than that. It is an agreement between J. L. McEntire and his wife, Vera E., both of whom signed the document. The fact that it is an agreement between them is obvious from reading the second paragraph of the quotation in the majority opinion. I simply do not see how anyone could argue that, at least on the face of the agreement, a tenancy by the entirety was not created. This is not a case where the agreement was ‘ ‘in fine print’ ’ or where it was on the back of a signature card. It was above the signatures of the parties.

In considering the question whether a tenancy by the entirety existed, it must be remembered that the four unities once required for a joint tenancy are no longer required for a tenancy by the entirety in that a vesting of title at the same time is no longer required when one of the spouses executes an instrument conveying or transferring an interest to himself and his spouse. Ebrite v. Brookhyser, 219 Ark. 676, 244 S.W. 2d 625; Harmon v. Thompson, 223 Ark. 10, 263 S.W. 2d 903. We have indicated that this holding would be equally applicable where personal property is involved. Miller v. Riegler, 243 Ark. 251, 419 S.W. 2d 599. In speaking oí Ebrite v. Miller, we said:

This decision certainly has not been viewed as unsound for there can be no logic in preventing a spouse from directly giving to his or her marriage partner equal rights in property that is owned, when the same result was permitted by creating the estate through a third party who really held no interest in the property at all.

Consequently, decisions based upon the obsolete premise of unity of time are no longer controlling or even persuasive.

Furthermore, it has long been recognized that a husband may, by simply changing a bank account from his own name to that of him and his wife, create an estate by the entirety. Black v. Black, 199 Ark. 609, 135 S.W. 2d 837. It has been said that the creation of a “husband and wife’ ’ joint account is not a true common law tenancy by the entirety because either party may extinguish the joint estate while both are living as to any part of the money withdrawn from the account and reduced to separate possession. Those holdings are applied where the tenancy is dependent upon the mere establishment of the account in two names or upon statutes. See McGuire v. Benton State Bank, 231 Ark. 608, 331 S.W. 2d 258, 232 Ark. 1008, 342 S.W. 2d 77. There is no indication whatever that there was any agreement in McGuire of the nature of the one involved here.

It must be remembered that appellant’s reliance is not placed upon any statute for an investiture of title in her, so cases based upon statutes have neither controlling nor persuasive effect. Davis v. Jackson, 232 Ark. 953, 341 S.W. 2d 762, relied upon by the majority, is such a case, as is Coristo v. Twin City Bank, 257 Ark. 554, 520 S.W. 2d 218. It also must be kept in mind that the relationship of husband and wife did exist in the present case, so cases involving parties standing in other relationships, such as Davis v. Jackson, supra, should carry little weight.

It also must be remembered that this is not a case where the husband was attempting merely to have the account pass to his wife upon his death. Instead, the agreement was that the account be presently owned by the husband and wife jointly, with the right of survivorship. Under the agreement appellant could have withdrawn every cent in the account. There is nothing in the document appellant relies upon to indicate that the arrangement was simply testamentary. Cases in which the attempt was made to merely cause the balance of the account to pass to the surviving spouse on death of the other have no bearing.

It seems clear to me that the widow had the right to litigate the question of ownership of the funds. In Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S.W. 1, the funds in question were the proceeds of a loan on lands held by a husband and wife as tenants by the entirety. The husband deposited them in his own account rather than in the joint names of the parties. The court said that, in equity, the matter was to be considered as if he had deposited the funds jointly and, because the funds had not been reduced to the husband’s separate possession, with the wife’s knowledge and consent, they were the property of the husband and wife as an estate by the entirety. In this case, under the agreement, the funds were considered as deposited jointly. In Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W. 57, the court held that a tenancy by the entirety in funds withdrawn from a joint bank account by a husband and reduced to this separate possession with the knowledge and consent of the wife had been destroyed. In Dickson, every cent put into the account belonged to the husband and the wife had never drawn any checks on the account. Still both knowledge and consent of the wife were required to validate the husband’s destruction of the tenancy by the entirety. Consent is contained in the agreement between the parties here, but there is absolutely nothing to indicate that appellant had any knowledge of Mr. McEntire’s reduction of the entire account to his separate possession.

On the executor’s motion for summary judgment, it was incumbent upon him to show that there were reasons why the agreement should not be binding. There is no showing that Mr. McEntire did not read and understand the language of the agreement. There is no showing that he did not instruct the employees of the bank in a manner that would indicate an intent contrary to the one carried out. There is nothing to indicate an intent contrary to the one stated in the agreement. See Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709. Even though the burden might be different on trial of the case, it certainly was the executor’s burden to show such things on motion for summary judgment. The burden is on the movant for a summary judgment to show that there are no material issues of fact. Pioneer Finance Co. v. Lane, 255 Ark. 811, 502 S.W. 2d 624; Harvey v. Shaver, 247 Ark. 92, 444 S.W. 2d 256.

The treatment of the question of gift in this case totally disregards the relationship of husband and wife and the authorities cited have no bearing on the question for the reason that neither involved such a relationship. The decision in Ramsey v. Ramsey, 259 Ark. 16, 531 S.W. 2d is controlling. There we said that where the husband is responsible for property being taken in both names, the fact that the consideration given belonged to the husband only is of little, if any, significance. The reason is that the presumption is that there was a gift of an interest by the husband to the wife, even though the wife may have no knowledge of the transaction. As to that presumption we said:

The presumption is strong, and it can be overcome only by clear, positive, unequivocal, unmistakable, strong, and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof.

The property involved in Ramsey was promissory notes. We further said that delivery to the husband is considered as delivery to the husband and wife sufficient to make the gift complete. As I see it, the question of gift relates only to the creation of a tenancy by the entirety. There was a completed gift to appellant of her title as a tenant by the entirety, which has not been shown to have been destroyed by the husband with her knowledge.

We have recently recognized the right of parties to a joint account to litigate the ownership of money which a bank permitted to be withdrawn from a joint account by one co-tenant without the knowledge of the other tenant. Haseman v. Union Bank of Mena, 262 Ark. 803, 562 S.W. 2d 45. We should at least do the same here by reversing the judgment in favor of the McEntire estate.

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


text:
    W. A. KRUEGER COMPANY v. ST. BERNARD’S REGIONAL MEDICAL CENTER
    79-264
    590 S.W. 2d 1
    Opinion delivered November 26, 1979
    (In Banc)

      Robert S. Kirschenbaum, Scottsdale, Arizona and Kelly W. Webb, of Webb & Houston, for appellant.

      Branch & Thompson, for appellee.
   George Rose Smith, Justice.

The appellee obtained a judgment against Homer Dutton and served writs of garnishment upon the appellant. The appellant, as garnishee, filed three successive answers to the appellee’s interrogatories, each admitting that the garnishee owed Dutton a certain amount and stating that the garnishee ‘ ‘will turn over such withheld sum less reasonable Garnishee fees of $20 incurred in preparation of this answer [Ark. Stat. Ann. § 31-146 (Repl. 1962)], upon receipt of an Order of this Court to that effect.” This appeal is from a judgment against the appellant for the full amounts owed by it to Dutton, without deduction of the three garnishee’s fees, totaling $60. For reversal the appellant argues that it is entitled to the asserted fees, each of which is itemized (and erroneously totaled) as follows in the appellant’s brief:

Secretarial expense $12.25
Postage (certified letter) 1.75
Telefax and long distance charges 6.00
Review of pleadings by counsel 5.00
$20.00

The pertinent language of the statute relied upon reads:

[The garnishee] shall not be subjected to costs beyond those caused by his resistance of the claim against him; and if he discloses the property of the defendant in his hands, or the true amount owing by him, and delivers or pays the same according to the order of the court, he shall be allowed his costs. [§ 31-146, supra.]

We have not decided this precise point, but there is nothing in this statute to except it from our general rule that statutes regulating costs are strictly construed against the party claiming them. Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912); Hempstead County v. Harkness, 73 Ark. 600, 84 S.W. 799 (1905). Here the particular items claimed by the appellant are either attorney’s fees or miscellaneous expenses incidental to litigation. Such items are not recoverable, as costs or otherwise, absent a statute so providing. Romer v. Leyner, 224 Ark. 884, 277 S.W. 2d 66 (1955); American Exchange Tr. Co. v. Trumann Spec. Sch. Dist., 183 Ark. 1041, 40 S.W. 2d 770 (1931). The Texas case cited by the appellant is not in point, for there the controlling Rule of Procedure allowed “reasonable compensation” to the garnishee. Pan American Nat. Bk. v. Ridgway, 475 S.W. 2d 808 (Tex. Civ. App., 1972).

Affirmed.

Harris, C.J., not participating.


author: John A. Fogleman, Justice.

text:
    BWH, INC., d/b/a THE COUNTRY SQUIRE, et al v. METROPOLITAN NATIONAL BANK
    79-100
    590 S.W. 2d 247
    Opinion delivered November 26, 1979
    (Division I)
    [Rehearing denied January 7, 1980.]

      James A. Neal, for appellants.

      House, Holmes & Jewell, for appellee.
   John A. Fogleman, Justice.

Appellee Metropolitan National Bank brought suit against appellants, BWH, Inc., James A. Neal and Charles A. Neal on a promissory note executed by BWH, Inc. and Charles A. Neal. The note was dated August 23,1977, for $27,000, with interest at the rate of 10% per annum. Appellee alleged that Charles A. Neal and James A. Neal had executed a guaranty of the indebtedness of BWH, Inc. on August 30, 1977. Appellants answered, admitting their status and residence, but otherwise generally denying appellee’s allegations. Appellee then filed requests for admissions addressed to James A. Neal and Charles A. Neal separately. No responses were ever filed by either. On September 27, 1978, 19 days after the filing of the requests for admissions, appellee filed a motion for summary judgment, based upon the failure of appellants to answer the requests for admissions. On the same day, appellants addressed interrogatories to appellee, which were answered October 20, 1978. Appellants filed a response to the motion for summary judgment on October 9, 1978. In the response, appellants stated that there were genuine issues of material fact to be adjudicated, that they verily believed that defenses could be raised by further pleadings, that interrogatories to appellee had been propounded prior to the filing of the motion for summary judgment but that no response had been received, that appellants had been diligent in conducting discovery, and that responsive pleadings by them prior to receipt of responses to the interrogatories would be irresponsible and spurious.

On November 7, 1978, appellants filed an amended response to the motion for summary judgment. Appellants stated that their attorney had received, by regular mail, appellee’s request for admissions on September 11, 1978, a notice of trial date of March 5, 1979, on September 19, 1978, and appellee’s motion for summary judgment on September 29, 1978. Appellants asserted that the motion for summary judgment was filed prior to the time fixed by statute for answering the requests for admissions. Appellants also alleged that Steve Riggs, appellee’s attorney, had, on or about October 3,1978, indicated to the attorney for appellants that no further action would be taken on the motion for summary judgment until appellee responded to the interrogatories propounded to it, and that appellants’ attorney had informed Riggs that there were justiciable issues and valid defenses to be raised and that he was attempting to conduct discovery as provided by law. Appellants excused their failure to file controverting affidavits by saying that appellee had filed no supporting affidavits and the motion was untimely filed. (No objection to the premature filing of the motion had been made in the response filed October 9.) Appellants also alleged that, after their attorney received appellee’s response to their interrogatories on October 23 or 24, 1978, he attempted to contact Charles A. Neal, an active member of the United States Army, stationed at Ft. Sam Houston, for the purpose of discussing the responses to the interrogatories and further discovery by depositions, but was unsuccessful until Charles Neal came to Little Rock on October 30, 1978, when it was decided that further discovery was necessary. Appellants also alleged that, on November 2, 1978, their attorney received a copy of a letter to the circuit judge enclosing a precedent for summary judgment, and indicating that the judge had requested the precedent. Appellants further alleged that on November 3, 1978, appellee’s attorney was informed by telephone that appellants had not completed discovery and that they proposed to take the deposition of Weldon McWhirter, an officer of appellee, but, several minutes later, appellant’s attorney received a telephone call from the circuit court law clerk, who stated that the summary judgment would be entered, but the judge was out of town and would return on November 7,1978. They alleged that the law clerk was informed that appellants would file additional pleadings and affidavits. Appellants asserted that they had been diligent in their attempts to complete discovery and file responsive pleadings but were unable to do so without completion of discovery. Appellants also asserted that appellee was not entitled to summary judgment because the motion was untimely filed, since no time for hearing on the motion had been fixed as required by Ark. Stat. Ann. § 29-211 (c) (Supp. 1977) and because appellant was not entitled to summary judgment “as a matter of law required by Ark. Stat. Ann. §§ 29-201 and 29-211.”

This amended response was supported by the affidavit of appellant James A. Neal, who is also attorney for appellants. In that affidavit, he asserted that: McWhirter, an officer of appellee, had stated on oath in response to appellants’ interrogatory that the promissory note was not a renewal of a previous note or notes but that the note exhibited with the complaint stated on its face that it was a renewal; BWH, Inc. and Charles A. Neal had received no consideration for the promissiory note; Charles A. Neal and James A. Neal received no consideration for the execution of the guaranty executed some seven days after the note was executed; and other guarantors may be liable to appellee or appellants, but entry- of summary judgment might be res judicata against said liability or contribution as allowed by Ark. Stat. Ann. § 27-1134.1 (Supp. 1977). This affidavit also contained the following allegations: that appellee’s response to an interrogatory was that, as part of the sale of BWH, Inc., the proceeds of the note which was the subject of the suit were used to pay off the outstanding indebtedness of that corporation evidenced by certain notes, but that affiant had not received any proceeds or documents reflecting that the indebtedness was paid off as part of the sale of the corporation; and that this sale was the subject of an action by Charles A. Neal and James A. Neal to recover damages from Dewey L. Buffington for alleged fraud in the sale of stock in BWH, Inc. by him to the Neals. Appellants again asserted that they had not been granted sufficient time or opportunity for full discovery.

On November 17, 1978, appellants filed a motion to set aside the summary judgment, which had been entered on November 7. The following grounds were alleged: the motion was a nullity because it was untimely filed; the judgment was entered without notice of the date and time fixed for the hearing; the judgment was entered without a hearing; there was no statutory authority specifically allowing for the summary judgment, or, in the alternative, the extent of relief granted exceeded the lawful purpose and intent of summary judgment statutes and the judgment was not well founded in law or fact; the record clearly reflects that there were material issues of fact and law that appellants were attempting to raise by discovery; and the entry of summary judgment within approximately 80 days of the institution of this suit while various pleadings were filed and discovery was being conducted was a denial of appellants’ legal right to defend against the claim and unlawfully foreclosed appellants’ remedies.

Appellants’ motion was denied because the trial judge found that appellants had not, even to the date of the denial, November 22, 1978, injected any factual issues to be resolved in this case.

Appellants contend that summary judgment may be granted in Arkansas only in those specific situations authorized by Ark. Stat. Ann. § 29-201 (Repl. 1979), and that no summary judgment may be rendered in an action on a promissory note. They quote from an article on the summary judgment procedure written by Dr. Robert A. Leflar more than a decade before the adoption of Ark. Stat. Ann. § 29-211 (Repl. 1962). That article contained a statement that most states, like Arkansas, restrict the summary judgment procedure to a limited group of actions. Minimum Standards of Judicial Administration - Arkansas, 5 Ark. L. Rev. 1, 7. In the same comments on summary judgment procedure, Dr. Leflar also pointed out that Rule 56 of the Federal Rules of Civil Procedure made summary judgments available in federal courts in all appropriate cases regardless of the type of action involved.

It is appellants’ contention, however, that by the subsequent act (Act 123 of 1961, digested as Ark. Stat. Ann. § 29-211) adopting Rule 56 of the Federal Rules of Civil Procedure, the legislature merely prescribed procedures to be used in the limited group of actions enumerated in other specific statutes, none of which mention actions on promissory notes. They rely particularly on § 2 of the Summary Judgment Act providing that “This Act is cumulative and supplementary to existing provisions governing summary judgments, and does not in any manner amend, repeal, or supersede such provisions.” The mere fact that the act did not amend, repeal or supersede existing statutory provisions does not limit the effect of the act to providing a procedure for obtaining summary judgment in cases authorized by other statutes, even if it actually does that. If the act were merely supplementary, appellants’ argument would carry more weight. The word cumulative, as used in the act, is indicative, however, of an addition to existing provisions for summary judgments. Since the act is both cumulative and supplementary to existing provisions, we find no merit in this argument.

Appellants argue that, since the General Assembly passed Act 30 of 1961 adding another category to cases in which summary judgments are permissible under Ark. Stat. Ann. § 29-201 at the same session it adopted Federal Rule of Civil Procedure 56, the General Assembly intended to limit the scope of Act 123, so that it is only a procedural implementation of § 29-201. This argument is not persuasive.

Appellants contend that the record and proceedings establish the presence of issues of fact. In this case,, appellants’ failure to answer the requests for admissions, in effect, admitted the allegations of the complaint. The time allowed for answer to the request for admissions under Ark. Stat. Ann. § 28-358 (Supp. 1977) was 20 days after the services of the requests. Appellants take the position that there was no service of the request until September 11. Appellants, however, never filed any response to the requests. They satisfied themselves by filing, on October 9, a response to appellee’s motion for summary judgment which had been filed on September 29. A response to requests for admissions must be a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why the party to whom the request is directed cannot truthfully admit or deny those matters or written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part. Sec. 28-358 (a) (Supp. 1977). Appellants’ response to the motion for summary judgment did not begin to conform to these statutory requirements. Those requests must be taken as admitted, because no attempt was made to answer them, either in the allotted time or after its expiration. Ark. Stat. Ann. § 28-358 (a); Federal Factors, Inc. v. Wellbank, 241 Ark. 44, 406 S.W. 2d 712; Stocker v. Southwestern Co., 245 Ark. 350, 432 S.W. 2d 481. These admissions establish the execution of the instruments upon which the suit was brought and that the indebtedness evidenced by the note remains unpaid.

The signatures on the commercial instrument on which suit was brought were not specifically denied in the pleadings, so they stood as admitted in any event. Ark. Stat. Ann. § 85-3-307 (1) (Addendum 1961). The signatures being admitted, appellees would have been entitled to a judgment upon production of the instrument, unless the defendant established a defense. Ark. Stat. Ann. § 85-3-307. Appellants have never sought to establish a defense, except for their belated attempt in their amended response to the motion for summary judgment to assert want of consideration. Want of consideration is an affirmative defense to an instrument. Ark. Stat. Ann. § 85-3-408 (Addendum 1961). It was never pleaded, even though appellants filed an answer. Affirmative defenses must:be pleaded by answer. Ark. Stat. Ann. § 27-1121 (Repl. 1962). Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1. Appellants could not raise an issue not raised by the answer by simply amending their response to the motion for summary judgment. Although the burden of demonstrating the non-existence of a genuine issue of fact is on the moving party, a plaintiff moving for summary judgment after answer has been filed is not required to negate defenses not raised by the answer. See Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76.

Appellants do not point out any significant fact issue in their brief here. They state that the promissory note, in the handwriting of an officer of the bank, reflects on its face that the note was a renewal, but in answering one of appellants’ interrogatories, an officer of the bank had answered that the note was not a renewal of a previous note. Appellants have failed to demonstrate the significance of this apparent conflict.

We are not persuaded that appellants have demonstrated that there is any material fact issue. At best, appellants ask us to speculate that further discovery would develop a material fact issue, without indicating what they expect to discover. A mere suspicion in the mind of the party against whom summary judgment is sought will not create a genuine issue of fact, nor does it suffice as good cause for further discovery. Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W. 2d 607. The record before us does not remove the further discover sought by appellants from the category of an outright and unadulterated fishing expedition — something we have never sanctioned under Ark. Stat. Ann. § 28-356 (Repl. 1962). Marrow v. State Farm Ins. Co., supra.

Appellants also contend that the summary judgment should be set aside because they were not given notice of the date and time fixed for hearing on the motion as required by Ark. Stat. Ann. §§ 29-202 — 29-204 (Repl. 1979) and § 29-211. The first two sections apply only to proceedings under § 29-201. Failure to hold a hearing under Ark. Stat. Ann. § 29-211 is not always fatal to a summary judgment when a party against whom the judgment is entered is not prejudiced. Sherman v. Keene, 256 Ark. 850, 510 S.W. 2d 870; Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W. 2d 187. Although we do not approve of the disposition of a motion for summary judgment without notice and hearing, we will not reverse a summary judgment when it is manifest that the error is not prejudicial. Purser v. Corpus Christi State National Bank, supra. Appellants contend that they were prejudiced because appellee’s requests for admissions were taken as admitted when appellants’ time for answering had not expired under Ark. Stat. Ann. § 28-358 (Supp. 1977). The time allowed for answer under that statute was 20 days after service of the request. Appellants did not seek or obtain an extension of time for answering the requests. They do contend that they were assured by appellee’s attorney, on October 3, 1978, that the motion for summary judgment would not be pursued until appellee had answered appellants’ interrogatories. Appellants’ attorney received these answers on October 23 or 24. The proposed summary judgment was received by appellants on November 2. Appellants filed nothing until November 7, at which time they filed their amended response, a few hours after the judgment had been entered. Since appellants never attempted to answer the requests for admissions, at least prior to November 7, they are in no position to say that they were prejudiced by the filing of a motion for summary judgment one day prior to the expiration of the time for answering the requests, even if appellants’ calculation of the time is accepted.

Until the filing of the amended response after appellants’ attorney had been advised that summary judgment was about to be entered, appellants had never requested a hearing on the motion for summary judgment. Rule 2e of the Uniform Rules for Circuit and Chancery Courts provides that, unless a hearing on a motion is requested by counsel or is ordered by the court, a hearing will be deemed waived and the court may act upon the matter without further notice five days after the time for the movant’s reply to a response has expired. Under that rule, the court could act, and action on either November 2 or November 7 was not necessarily premature. The reason appellants did not file a request for a hearing between October 24 and November 7 has not been shown. We have no idea what affidavits appellants could possibly have filed in opposition to appellants’ motion or the admissions máde. Appellants were not excused from filing opposing affidavits to show a material issue of fact, as they seem to think, by appellee’s failure to file supporting affidavits when appellee could show entitlement to judgment on the basis of admitted facts and the absence of any issue on any affirmative defense. It is quite difficult to see why appellants could not assert want of consideration for the instruments upon which the suit was based without discovery procedures.

A party opposing a motion for summary judgment must be diligent in countering the motion and mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76. We conclude that there manifestly was no prejudice to appellants in not having a hearing on the motion for summary judgment or in the lack of notice.

Appellants also contend that the trial court erred in denying its motion to set aside the judgment. What we have said heretofore is dispositive of the issues raised by that motion. Appellants filed a brief in the trial court in support of that motion. Statements in that brief which are not supported by pleadings or affidavits filed in the case cannot be considered by us on appeal. See Ashley v. Eisele, supra.

The judgment is affirmed.

We agree. George Rose Smith, Hickman and Purtle, JJ.

       This statement by appellants is not supported by their abstract of the note which simply states, “Printed promissory note with handwritten entries.” After appellee pointed out, in its brief, that appellants had failed to abstract the note and guaranty agreement, appellants attempted to supply the deficiency in their reply brief. This was too late to be considered. Energy Oil Co. v. Rose Oil Co., 250 Ark. 484, 465 S.W. 2d 690; Merritt v. Merritt, 263 Ark. 432, 565 S.W. 2d 603; Young v. Farmers Bank & Trust Co., 248 Ark. 613, 453 S.W. 2d 47.

       Appellee has endeavored to introduce a copy of a letter addressed to the circuit judge, with copy to appellants’ attorney, and dated October 26, 1978, in which, he asked a ruling on the summary judgment or, alternatively, to set a hearing on the motion. Appellants’ attorney denies that he received such a letter. We do not consider this letter, because we cannot find it in the transcript of the record and the method used to bring in this matter outside the record is highly improper.