author: Conley Byrd, Justice.

text:
    Clyde HACKETT et al v. FAIRFIELD COMMUNITIES LAND COMPANY
    77-369
    565 S.W. 2d 430
    Opinion delivered May 15, 1978
    (Division II)

      Francis T. Donovan, for appellant.

      Warner & Smith, for appellee.
   Conley Byrd, Justice.

Appellee Fairfield Communities Land Company, a cotenant, with an undivided one-half interest in a 220 acre tract, brought this action to enjoin appellant Clyde Hackett, a cotenant, from cutting the timber therefrom. The chancellor entered a temporary injunction which, after a hearing, was made permanent.

The record shows rather conclusively that appellant had commenced a “clear cutting” of the land at the time of the filing of the suit. The proof is also rather conclusive that the land is valuable to appellant for its production of timber. On the other hand appellee produced rather convincing proof that the highest and best use for the land is for residential development. For that purpose the 220 acres with the timber in place has a value of $500 per acre. Without the timber the value of the land for residential development would not exceed $300 per acre. According to the testimony of George Fox, who qualified as an expert, the present value of the standing timber would not exceed $28,738. Thus, we see that appellant in removing $28,738.00 of timber would reduce the value of the 220 acres by $44,000.00.

From what we have shown by the record it at once becomes obvious that appellee does not have an adequate remedy at law — i.e. to recover one-half the value of the timber would not keep it from suffering damages by the removal thereof. See O’Kane v. OKane, 117 Ark. 33, 173 S.W. 821 (1915), where we pointed out that equitable waste is that which a prudent man would not do with his own property. Courts have consistently enjoined the committing of waste. It follows that the trial court properly enjoined appellant from cutting the timber for commercial harvest — i.e. appellee did not have an adequate remedy at law.

Appellant makes other contentions which we find to be without merit. One such contention has to do with the fact that appellee only had a contract for the purchase of its interest at the time of the temporary injunction. However, appellee had received its deeds by the time of the hearing. Other such contentions having no merit or not supported by a preponderance of the evidence are: (1) appellee does not have clean hands; (2) appellant has committed no waste, and (3) the equity should be balanced.

Affirmed.

We agree: Harris, C.J., and Hickman and Howard, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    COMMISSIONER, ARKANSAS DEPARTMENT OF LABOR v. Hubert MITCHELL
    77-373
    565 S.W. 2d 431
    Opinion delivered May 15, 1978
    (Division II)

      Herrn Northcutt, for appellant.

      Marvin H. Robertson, for appellee.
   Conley Byrd, Justice.

Appellee Hubert Mitchell became unemployed as a result of the storm that destroyed the business section of Cabot, Arkansas in 1976. While his former employer was rebuilding his business building, appellee applied for unemployment compensation benefits. Appellant, Commissioner, Arkansas Department of Labor, relying upon Ark. Stat. Ann. § 81-1105(c) (Repl. 1976), declared appellee ineligible to receive benefits. After the week ending August 21, 1976, appellee did not report and register at an Employment Security Division office. The trial court after making the foregoing findings held that appellee’s appeal to the Appeal Tribunal from the Commissioner’s rulings of ineligibility made it unnecessary for appellee to thereafter report and register weekly. As a result the trial court held that appellee was entitled to receive the maximum weekly benefits for the weeks between August 21, 1976, and the date he returned to work on October 18, 1976. We reverse.

Ark. Stat. Ann. § 81-1105 (Repl. 1976) provides:

“An insured worker shall be eligible to receive benefits with respect to any week only if the Director finds that—
(a) He has made a claim for benefits with respect to such week in accordance with such regulations as the Director may prescribe.
(b) On and after July 1, 1971, he has registered for work at, and thereafter continued to report at, an Employment Security Division Office in accordance with such regulations as the Director may prescribe, except that the Director may, by regulation, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which he finds that compliance with such requirements would be oppressive, or would be inconsistenet [inconsistent] with the purpose of this Act [§§ 81-1101 — 81-1108, 81-1111 — 81-1121]; provided that no such regulations shall conflict with Section 3 (a) [81-1104(a)] of this Act.”

The making of a weekly claim for benefits is a prerequisite to the right of an insured worker to claim benefits under the Employment Security Act. Appellee has cited no law to the contrary and we know of none that would support the trial court’s judgment. We have been unable to find anything in Public Law 93-288, Federal Disaster Unemployment Assistance, that would support the trial court’s judgment.

Reversed and remanded.

We agree: Harris, C.J., and Hickman and Howard, JJ.


author: Frank Holt, Justice.

text:
    Pamela GARRETT, A Minor, by Harvey GARRETT, Her Father and Next Friend, and Harvey GARRETT, individually v Donald GALLOWAY
    77-383
    565 S.W. 2d 432
    Opinion delivered May 15, 1978
    (Division I)

      Lohnes T. Tiner, for appellants.

      F. W. Jeffcoat, for appellee.
   Frank Holt, Justice.

Appellants initiated this action in Poinsett Circuit Court against appellee to recover damages for personal injuries received by Pamela in a boating accident which occurred on Greers Ferry Lake in Cleburne County. Appellee demurred to the complaint on the basis the court lacked jurisdiction. The trial court sustained appellee’s demurrer and dismissed the complaint. Appellants argue, and we agree, that venue for this civil action was properly in Poinsett County since it is the county wherein they resided at the time of the alleged injury.

The circuit courts have original jurisdiction in actions for the “redress of civil wrongs, except when exclusive jurisdiction is given to other courts . . . . ” Ark. Stat. Ann. § 22-301 (Repl. 1962). Further Ark. Stat. Ann. § 27-610 (Repl. 1962) reads:

All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury.

Appellee agrees that venue here would have properly been in Poinsett County where appellants reside had the accident occurred on land but asserts that since it happened on a navigable body of water, proper venue was in Cleburne Circuit Court, citing Ark. Stat. Ann. § 21-242 (Repl. 1968). Ark. Stat. Ann. § 21-221 — 21-242 (Act 453 of 1959) is a comprehensive act with respect to the rules, operation, regulations and liability in the ownership and operation of watercraft on state navigable waters. § 21-240 provides that violations of any provisions of the act constitute a misdemeanor. § 21-242 states:

Jurisdiction to try offenses under this Act (§§ 21-221 — 21-242] shall be in the courts of the county where the person owning or operating such boat resides, or in the county where the offense is committed or in any county through or by which said boat is being run or operated on the waters of this State at the time of such violation of this Act.

We are of the view that this act vests jurisdictcon in the various circuit courts to try criminal offenses only. We do not think the legislature, by this later act, intended to preempt § 27-610 as to jurisdiction and venue for the redress of a civil wrong. Consequently, the appellants, being residents of Poinsett County, had a choice of bringing their action there. Therefore, the court should have overruled the demurrer.

Reversed and remanded for proceedings consistent with this opinion.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.


author: Darrell Hickman, Justice.

text:
    John D. ROBINSON et al v. ARKANSAS STATE GAME & FISH COMMISSION
    77-332
    565 S.W. 2d 433
    Opinion delivered May 15, 1978
    (In Banc)

      E. W. Brockman, Jr., of Brockman, Brockman & Gunti, for appellants.

      Murray F. Armstrong and William H. Donham, for appellee.
   Darrell Hickman, Justice.

The Arkansas Game and Fish Commission in cooperation with the Federal Soil Conservation Service is proposing to create a lake in Lincoln County. The project is called the Cane Creek Project.

Employees of the commission were prevented by several landowners from entering the landowners ’ property and conducting a survey in connection with the Cane Creek Project. The commission filed suit in chancery court and obtained restraining orders against these landowners.

The orders provided the commission, its agents, and employees, could enter upon the appellants’ land for the purpose of making and conducting surveys and appraisals in connection with the Cane Creek Project. The orders restrained the landowners from interfering in any way with the work of the commission or its employees. The orders did restrain the commission and its employees from damaging the property of the landowners, but it required no bond by the commission. The orders were effective for only six months and that time has expired.

The appellant-landowners argue on appeal that the chancery court had no jurisdiction to enter these orders. We agree.

Although the effective dates of the orders have expired, we choose to review this matter because of public interest and to prevent future litigation. See Arkansas-Missouri Power Co. v. Brown, 176 Ark. 774, 4 S.W. 2d 15 (1928); Cain v. Carl Lee, 171 Ark. 155, 283 S.W. 365 (1926).

The Arkansas Game and Fish Commission has the power of eminent domain by virtue of Amendment 35, § 8 of the Arkansas Constitution. It reads:

Said Commission shall have the power to acquire by purchase, gifts, eminent domain, or otherwise, all property necessary, useful or convenient for the use of the Commission in the exercise of any of its duties, and in the event the right of eminent domain is exercised, it shall be exercised in the same manner as now or hereafter provided for the exercise of eminent domain by the State Highway Commission ....

The State Highway Commission has statutory authority to obtain a temporary easement in connection with establishing and constructing highways:

Temporary easements for temporary uses by the State Highway Commission in connection with the establishment and construction of State Highways may be acquired or condemned in the same manner as fee simple estates .... Ark. Stat. Ann. § 76-545 (Repl. 1957).

It is readily apparent that the Game and Fish Commission, having the same authority as the Highway Commission, may obtain a temporary easement pursuant to this statute. It is undisputed that this was not done in this case.

The commission argues the chancery court had jurisdiction and acted properly because there was no taking of a landowner’s property; the landowner’s constitutional guarantees were protected; and, the commission had the right to make the survey under its “police powers.” All of these arguments are without merit.

The entry upon another’s land is not a right to be assumed by anyone — private citizen or public agency. A public agency’s right of eminent domain is a constitutional privilege granted with limitations.

First, there must be established the need for taking for public use or purpose. “This is a judicial question which the owner has a right to have determined by the courts.” Arkansas State Highway Comm. v. Alcott, 260 Ark. 225, 539 S.W. 2d 432 (1976).

Second, the condemnation of land must be according to law. This means that a lawsuit must be filed in circuit court and money tendered to compensate the landowner for the taking until the damages can be ascertained by a jury. See Ark. Stat. Ann. §§ 76-532, et seq. (Repl. 1957), as amended (Supp. 1977); see also Arkansas State Highway Comm. v. French, 246 Ark. 665, 439 S.W. 2d 276 (1969).

If it becomes necessary, the commission should proceed in circuit court in accordance with the statute and obtain an easement for the purpose of conducting a survey and any incidental and necessary use of land that goes along with conducting a survey. Ark. Stat. Ann. § 76-545 (Repl. 1957). The description of land necessary to obtain such an easement would have to be no more specific than the description of land contained in the injunctions entered in this case. In other words, it may be a general description. Also, the amount of money that would have to be tendered in such a case would nearly always be a minimal amount.

The use of appellants’ land was admittedly slight and for a relatively short period of time. However, it was still a use of land inconsistent with the landowner’s right to control and enjoy his property in fee simply absolute. Therefore, it is a taking of a landowner’s interest and as such must be in accordance with Arkansas law which insures that one’s right of property is preserved.

It is argued the commission through its “police powers” had the right to gain entry to the appellants’ land. Also, that since this was not a “taking” the chancery court had jurisdiction to issue a routine injunction. We cannot accept the argument that the commission had any right of entry except in furtherance of its power of eminent domain. The state has no inherent right to enter anybody’s property.

There is the added problem that has given us some difficulty when chancery courts exercise jurisdiction in cases where the state’s right of eminent domain is exercised. See Arkansas State Highway Comm. v. Rice, 259 Ark. 190, 532 S.W. 2d 727 (1976). The question was recently raised and we decided that there are limited circumstances when chancery court has such jurisdiction. See Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W. 2d 20 (1977).

Although the chancellor used good judgment in this case and the restraining order was reasonable, we feel the chancellor did not have jurisdiction and therefore reverse his orders.

Reversed.

Harris, C.J., not participating.

Fogleman, J., dissents.


text:
    Harrison APPLE & Sadie APPLE v. Lola Person COOPER
    77-365
    565 S.W. 2d 436
    Opinion delivered May 15, 1978
    (Division II)

      Gordon, Gordon & Eddy, for appellants.

      Kenneth Parsley and Richard L. Peel, for appellee.
   Darrell Hickman, Justice.

This is an appeal from a chancery court decree finding that Walter Cooper, now deceased, did not orally contract to will 80 acres of land in Yell County, Arkansas, to Harrison and Sadie Apple. The Apples appeal the decision of the chancellor alleging that the court was in error. We disagree and affirm the decree.

In 1941 Walter Cooper was living on the 80 acres of land in question with his wife, Lola, and his sister, Viola Clark. Viola was the mother of appellant Sadie Apple. Walter and Lola decided to move to Dardanelle. Both Harrison Apple and Sadie Apple testified that there was an oral agreement that if they would move on the place and take care of Viola Clark for as long as she lived, then on the death of Walter Cooper the 80 acres would be theirs.

Viola Clark died in 1968. Walter Cooper died intestate in 1972. A son of the appellants testified that he knew in general that there was an agreement as stated by his parents.

An acquaintance of Walter Cooper’s testified that he had heard Walter say one time, “I am going to get Harrison and Sadie to move down there and take care of Viola the rest of her life. If they will, that is the last move they will ever make. That will belong to them from then on.”

It was undisputed that the appellants made considerable improvements to the property during the years they lived on the 80 acres. According to their testimony this was because they thought the place would be theirs eventually. However, there was testimony that the improvements were made with the permission of Walter Cooper. The appellants moved off the 80 acres in 1969 and filed this action in 1973.

Walter Cooper’s widow, Lola, testified that she did not know anything about such an agreement and that her only knowledge of any dealings regarding the property was when Harrison Apple came to talk to her husband about buying some land. Walter Cooper owned six or seven hundred acres in the area. The appellant, Harrison Apple, and his son testified the conversation with Walter about buying land was regarding all of the other land that Walter Cooper owned and did not involve the 80 acres in question.

Harrison Apple testified that he paid rent to Walter Cooper according to the customary landlord-tenant agreement in the area.

The appellants, in an excellent brief, correctly point out that Arkansas does recognize oral contracts to make a will as valid and enforceable contracts. Crowell v. Parks, 209 Ark. 803, 193 S.W. 2d 483 (1946). Although our cases vary a little on the terminology identifying the burden of proof in such a case, no doubt such a contract must be proven by more than a preponderance of evidence. We have said that the evidence must be clear, cogent, satisfactory and convincing; or clear, satisfactory and convincing; and, in one instance, clear, satisfactory, convincing and substantially beyond a reasonable doubt. Williams v. Robinson, 251 Ark. 1002, 476 S.W. 2d 1 (1972); Jensen v. Housley, 207 Ark. 742, 182 S.W. 2d 758 (1944); see also, Merrell v. Smith, 228 Ark. 167, 306 S.W. 2d 700 (1957). In order to clear up any possible misunderstanding of the burden of proof in such a case, it should be clear, cogent and convincing.

The appellants argue that since it is undisputed by the only witnesses to the agreement (Walter Cooper being the other witness) that there was an agreement for valuable consideration, it should have been recognized and enforced by the chancellor. We cannot agree that the chancellor had no alternative but to find for the appellants. First, necessarily the decision of the chancellor was based on the credibility of the witness and we have said many times that the chancellor is in a better position to judge credibility than we are. Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 631 (1965). The chancellor decided in this case that the appellants had not met the burden of proof. The chancellor did not say what the quantum of proof was in such a case. However, we review chancery cases de novo and if the chancellor is correct for any reason, we affirm the decision. James v. Medford, 256 Ark. 1002, 512 S.W. 2d 545 (1974). We cannot say on review the appellants proved by clear, cogent and convincing evidence that the agreement was made.

Affirmed.

We agree.

Harris, C.J., and Byrd and Howard, JJ.


text:
    Lacey BAILEY v. STATE of Arkansas
    CR 78-23
    565 S.W. 2d 603
    Opinion delivered May 15, 1978
    (Division II)
    [Rehearing denied June 12, 1978.]

      Henry Morgan, for appellant.

      Bill Clinton, Atty. Gen., by: James Smedley, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Lacey Bailey was convicted in the Clark County Circuit Court of the first degree murder of his friend, Johnny Anderson, and the second degree murder of his wife, Effie Bailey. He was sentenced to life imprisonment for the murder of Anderson and twenty years for the murder of Effie.

On appeal he alleges two errors: the court refused to give the appellant’s instruction on the affirmative defense of intoxication; and, the court incorrectly overruled Bailey’s motion to quash pre-trial subpoenas issued by the prosecuting attorney to defense witnesses. We find no merit to either argument.

Bailey is accused of killing his wife and Anderson on the 23rd of August, 1976. The evidence, although circumstantial, is substantial. One witness testified that Bailey took him to the home during the day, showed him the bodies and said, “I done killed them.”

There was evidence that Bailey had been drinking that day. Several witnesses said they could tell Bailey had been drinking as early as 7:30 a.m. on the 23rd. The killings undoubtedly occurred before 2:00 p.m. of that day. Bailey argues that the court should have given an instruction that voluntary intoxication is an affirmative defense to an offense which requires a purposeful or knowing mental state. At the time of the alleged offense Arkansas recognized voluntary intoxication as such a defense. Ark. Stat. Ann. § 41-207(2) (Crim. Code 1976). Since then the legislature has repealed that act. Act 101, 1977 Ark. Acts.

The question is whether this Court can state as a matter of law that there were no facts in the record to justify the giving of the appellant’s requested instruction. Bailey argues that the instruction should have been given and cites our decision in Stevens v. State, 246 Ark. 1200, 411 S.W. 2d 451 (1969) as authority for this proposition. We noted in Stevens that the issue of whether a defendant is so intoxicated as to negate a specific intent was a jury question. However, in reviewing the evidence in that case this court found no grounds for reversing a jury decision that the defendant was not so intoxicated. In Stevens evidence was introduced that the defendant was “dog drunk” and “out of his head;” in addition, a psychiatrist testified about the defendant’s mental condition as it was affected by alcohol and glue sniffing. There was no such evidence in the case before us. No witness testified that Bailey appeared incapacitated by drinking — simply that he had been drinking. Therefore, we cannot say that the trial court erred in refusing this requested instruction.

Bailey also argues that the court should have granted a pre-trial motion to prevent the prosecuting attorney from subpoenaing the defense witnesses before the trial. About six days before the trial the deputy prosecuting attorney issued subpoenas to certain defense witnesses. Bailey filed a motion to prevent the prosecutor from subpoenaing the defense witnesses and argued that they would be intimidated.. The appellant did not abstract any evidence regarding this issue. The appellee provided some abstract of a hearing on this motion before the trial court. The deputy prosecuting attorney testified at the hearing that he had no intention of intimidating the witnesses and, therefore, we have simply the bare allegation that the witnesses would be intimidated and Bailey denied a fair trial. We cannot say on this record that the court abused its discretion in overruling the motion of the appellant.

Affirmed.

We agree.

Harris, C.J., and Byrd and Howard, JJ.


author: George Howard, Jr., Justice.

text:
    Johnny ALLISON and CASTLE INDUSTRIES OF ARKANSAS, INC. v. Archie O’DELL and Wife, Norma O’DELL
    77-370
    565 S.W. 2d 438
    Opinion delivered May 15, 1978
    (Division II)

      Brazil & Roberts, for appellants.

      George F. Hartje, of Hartje & Burton, for appellees.
   George Howard, Jr., Justice.

Appellants seek reversal of the trial court’s action in dismissing appellants’ complaint for specific performance of an option given by appellees to purchase real property on the grounds that appellants had not exercised their acceptance within the time period prescribed by the parties.

The facts are not really in dispute. However, the essential facts reveal that on May 13, 1974, appellees leased a parcel of land, which is a business or manufacturing site, to appellants for a term of two years at a monthly rental of $750.00. The lease contained an option to purchase which was to be exercised within the two year period. The cost of the property was designated at $70,000.00, plus interest at. the rate of 8 1/2% from the date of the lease until paid. However, appellants, in the event the option was exercised, would, under the terms of the option, receive credit against, the purchase price for the payments under the lease.

Sometime during the month of January, 1975, approximately five months before the lease and option were scheduled to expire, appellee, Archie O’Dell, telephoned appellant, Johnny Allison, and advised appellant that appellee needed money and that if appellant could come up with $50,000.00 within a week, appellee would accept this sum as the full purchase price for the property. Appellant advised appellee that appellant needed time in which to make financial arrangements and advised appellee, “I’ll let you know something in a day or two.”

The lease and option expired May 13, 1976. However, in July, 1976, appellee, Archie O’Dell, telephoned appellant and advised appellant that appellee had an opportunity to sell the property for $60,000.00 cash, but wanted to offer appellant the first opportunity to purchase the property. Again, appellant stated that he needed a few days to see if he could raise the money.

During the early part of August, 1976, appellees received a letter from appellants’ attorney stating that appellants needed additional time to make financial arrangements and requested an extension of the option to August 20, 1976, and requested appellees to sign the extension agreement. Appellees executed the written extension extending the option to August 20, 1976, and returned it to appellants’ attorney.

On August 19, 1976, appellants’ attorney mailed the following letter to appellees which was not received by appellees until August 29, 1976:

“August 19, 1976
Mr. & Mrs. Archie O’Dell
Route 2 Box 7
Duncan, Arizona 85534
RE: Castle Industries of Arkansas
Dear Mr. & Mrs. O’Dell:
We are hereby giving notice to you that Castle Industries of Arkansas and John Allison wish to exercise the option agreed to in the Contract executed on the 13th day of May, 1974 and the Extension Agreement that is attached hereto.
The enclosed payment record indicates that $60,675.01 is the balance due on said contract. Castle Industries and John Allison will continue to make payments of $750.00 per month plus 8 1/2% interest until the entire principal and interest have been paid in full as set forth in the original contract.
If you have any questions feel free to contact me.
With kind regards, I am,
Sincerely,
BRAZIL & ROBERTS”

In relevant part, appellee, Archie O’Dell, testified as follows:

“Q. May I ask you, Mr. O’Dell, if you know when you received that letter dated August 19, 1976?
“A. It was postmarked when I got it. The 29th. In Duncan, Arizona. That was the letter — I think I have the letter that is postmarked showing when I got the letter. It was about a week later.
“BY THE COURT: Your testimony is you didn’t receive this letter until August 29th?
“A. That’s right. I believe that date is right. This second option had ran out about a week before I got the letter. (Emphasis added)

Appellant, Johnny Allison, testified on cross-examination as follows:

“Q. Are you saying the option at that time was to purchase for sixty thousand?
“A. The option to purchase was for sixty-one thousand dollars.
“Q. In cash? In cash, one lump payment?
“A. Well, Mr. O’Dell did state that was the way he needed it. He needed the money. And that’s the reason he granted us additional time was because he needed the cash.
“Q. Was anything paid to Mr. and Mrs. O’Dell for the extension of this option agreement?
“A. Well we promised to try to work out the details where we could pay them cash. That’s the reason they granted it.
“Q. But no actual payment was made in the form of cash?
“Q. So the option was actually exercised between you and Mr. O’Dell back in January of 1976? Over the phone?
“A. Yes, sir.”

HOLDING OF THE TRIAL COURT

“That assuming without deciding that the Plaintiffs had an exercisable option to purchase the property described herein, that the Plaintiffs failed to properly notify the Defendants of their exercise of said option and for that reason said option expired and is of no longer any force and effect.”

THE DECISION

Inasmuch as the record is silent as to the mode or manner in which the acceptance of the option was to be communicated by appellants to appellees, we must determine the intent of the parties in light of the surrounding circumstances governing the creation and discussion between the parties involving the option in question. It is clear from the record that appellee, Archie O’Dell, in early January, 1976, telephoned appellant and offered to sell his property for $50,000.00 cash. Appellant, Johnny Allison, advised appellees that appellants needed a few days to make financial arrangements and advised appellees “I’ll be in touch with you in a few days.” However, after a period of seven months had elapsed and appellees had not heard from appellant, Johnny Allison, appellee, Archie O’Dell, again telephoned appellant and advised Mr. Allison that appellees had been offered $60,000.00 cash for the property, but appellees wanted to afford appellants the opportunity to purchase the property. We are persuaded that the telephonic calls initiated on the part of appellee, Archie O’Dell, created an implied stipulation or understanding between the parties that appellants’ acceptance shall be communicated by telephone. Consequently, the mailing of the written communication on August 19, 1976, containing an acceptance of the option and which was not received by appellees within the prescribed time period, namely, August 20, 1976, was nugatory as an acceptance.

It is well settled that for the exercise of an option to be valid, the exercise must be in accordance with the terms of the option. Indiana and Arkansas Lumber Co. v. Pharr, 82 Ark. 573, 102 S.W. 686.

We hold that we cannot say, from the record before us, that the trial court’s holding is not supported by a preponderance of the evidence.

Affirmed.

We agree.

Harris, C.J., and Byrd and Hickman, JJ.

      Appellant, Johnny Allison, is a resident of Faulkner County, Arkansas, and is President of Castle Industries of Arkansas, Inc., engaged in the manufacturing of mobile homes. Appellees are residents of Arizona, but formerly resided in Faulkner County, Arkansas, and formerly operated O’Dell Frame Shop which manufactured carriages under chassis for mobile homes. This manufacturing business was sold to appellants in 1974, but the premises were leased to appellants which contained an option to purchase.


author: PER CURIAM

text:
    Arthur L. HILL v. STATE of Arkansas
    CR 77-215
    566 S.W. 2d 127
    March 6, 1978

      Harold L. Hall, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   PER CURIAM

Appellant Arthur Hill was convicted by a jury of aggravated robbery and sentenced to ten (10) years imprisonment on July 2, 1976. No appeal from his conviction was taken. On May 5, 1977, appellant filed a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37, which was denied after a hearing on May 24, 1977. From the denial of appellant’s postconviction petition comes this appeal.

Appellant’s court-appointed counsel has filed a motion to be relieved as attorney of record, but in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), has submitted a brief stating there is no merit to the appeal. On January 28, 1978, appellant, filed a pro se brief alleging no points for reversal but requesting this Court to reverse the findings of the circuit court. The State concurs with appellant’s counsel that there is no merit to this appeal. ,

Appellant was represented by John Achor, Chief Deputy Public Defender, at trial. In addition to an allegation which was not proper for postconviction relief, in his postconviction petition, appellant alleged ineffective assistance of counsel based upon the failure to call a certain witness. Harold Hall, Public Defender, was appointed by the circuit court to represent appellant at the postconviction proceeding and presently on appeal. The alleged testimony of the witness who was not called to the stand was refuted by the State. However, counsel at the postconviction proceedings, upon diligent investigation, might have discovered other allegations of ineffective assistance of counsel. This Court requires that, counsel represent an indigent with all the zeal and competence that one would a paying client. We question the procedure whereby one public defender is appointed to represent an indigent alleging ineffective assistance of counsel of another public defender as being one in which a conflict of interest would inevitably arise. We suggest the better practice is to appoint counsel at postconviction proceedings wherein allegations of ineffective assistance of counsel are raised who does not practice law on a day to day basis with the lawyer against whom the allegations are made. The same rule would apply to members of the same law firm.

Accordingly, the judgment is reversed and remanded for appointment of counsel who is not associated with the public defender of Pulaski County to represent appellant during his postconviction proceedings. However, appellant's counsel’s motion to be relieved as attorney of record is granted.

Reversed and remanded.

Byrd, J., dissents.


author: George Rose Smith, Justice.

text:
    John W. BROWN v. J. C. DANLEY, Administrator
    77-390
    566 S.W. 2d 385
    Opinion delivered May 22, 1978
    (Division I)
    [Rehearing denied June 26, 1978.]

      L. T. Simes II, for appellant.

      Baker & Pittman, by: John Mauzy Pittman, for appellee.
   George Rose Smith, Justice.

This appeal questions the constitutionality of our statutes and rules of evidence which create an almost unassailable presumption of legitimacy when a child is born in wedlock. The argument is that our laws deny equal protection to black persons. We find no merit in the appellant’s assertions of unconstitutionality.

The appellant, John W. Brown (Jr.), is a black man who was born in Phillips county on September 19, 1937. Four and a half months earlier his mother, Inez Hall, had married John W. Brown. The appellant’s birth certificate recited that his parents were John W. and Inez Brown. The elder Brown died on November 30, 1938, when the appellant was about 14 months old. The appellant was brought up by his maternal grandparents and has lived in Phillips county practically all his life.

In 1976 Henry Smiley, a black man of substantial means who had owned a liquor store in Helena, died in Phillips county. Smiley had lived with his wife, Lela, from their marriage in 1910 until Lela’s death in 1965. The couple had no children. The appellee, J. C. Danley, was appointed as administrator of Smiley’s estate. The appellant then filed in the probate court the petition that gives rise to this appeal. The appellant asserts that the decedent, Henry Smiley, was the appellant’s natural father and that the appellant is therefore Smiley’s sole heir. The petition asks that the appellant be appointed as administrator and be declared to be entitled to the entire estate.

At the trial the appellant’s proof was twofold. First, several witnesses testified that Henry Smiley had sometimes said that the appellant was his son. That testimony was inferentially contradicted by other witnesses, related to or associated with Smiley, who stated that Smiley never indicated that he had any children. Second, the appellant proffered his mother’s testimony that Smiley was the appellant’s father and that she had not had sexual relations with her husband, John W. Brown, before the appellant’s birth. The probate court held the proffered testimony to be inadmissible, under our settled rule that parents cannot bastardize a child born in wedlock by testifying to their own nonaccess to one another. Thomas v. Barnett, 228 Ark. 658, 310 S.W. 2d 248 (1958).

There is a statutory presumption that a child born during a marriage is the legitimate child of both spouses. Ark. Stat. Ann. § 61-141 (a) (Repl. 1971). That statutory presumption is buttressed by the common law presumption that a child born to a married couple is the child of the husband. The common law presumption continues until it is overcome by the clearest proof that the husband was impotent or was without access to his wife during the time the child might have been conceived. Thomas v. Barnett, supra. We have indicated, without having to decide, that the common law presumption may be weaker when the child was conceived before the marriage. Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920).

if our presumptions and rules of evidence are valid, the probate court’s judgment was unquestionably correct. The proffered testimony of the appellant’s mother was inadmissible. There is no proof either that John W. Brown (Sr.) was impotent or that he had no access to Inez Hall when their son might have been conceived.

The pivotal question, then, is whether our presumptions and rules of evidence are valid. Preliminarily, the appellant’s argument presupposes the unconstitutionality of our statute which permits illegitimate children to inherit from their mothers but not from their fathers. § 61-141 (d). A similar statute was held unconstitutional in Trimble v. Gordon, 430 U.S. 762 (1977), although in that case the illegitimate child had been both acknowledged as and judicially determined to be the asserted father’s daughter. We need not determine whether that factual distinction between the cases makes any difference, because we would reach the same conclusion in this case even if our statute were held to be invalid.

In attacking our presumptions and rules of evidence the appellant insists that their effect is to discriminate against him simply because he is black. This novel argument runs as follows: The legal rules make it more difficult for an illegitimate person to prove the identity of his real father. Statistics, which we need not repeat, show that about 50% of the black children born in Arkansas are illegitimate, but only about 5% of the white children are illegitimate. Hence, it is argued, the legal rules deny the appellant his right to equal protection, because they operate more severely upon blacks as a class than upon whites as a class.

It seems to us that the appellant’s train of reasoning is fallacious in several particulars, but only two considerations need be mentioned to explain our inability to accept the argument.

First, even assuming that the appellant’s statistics can be applied to children born in wedlock, the legal rules clearly do not result in discrimination against blacks as compared to whites. The rules do make it more difficult for a child born in wedlock to prove that he was actually illegitimate, but color has nothing to do with it. In the circumstances a black child is competing for the inheritance with the decedent’s black legitimate heirs, and a white child is competing with white legitimate heirs. The scales are evenly balanced.

Second, in addition to the fact that the challenged rules have no relation to color, they rest upon sound principles of public policy. The present case illustrates the reason for the rules. The appellant was born in 1937. His legal father died in 1938, leaving no estate as far as the record shows. Henry Smiley, a well-to-do man, died 38 years later. The appellant, in seeking to acquire Smiley’s entire estate, argues that the rules unfairly prevent him from establishing his claim to inherit (at the expense of Smiley’s other heirs).

But suppose the situation were reversed. Let the facts be the same except that it was Smiley who died with no estate in 1938 and John W. Brown died a wealthy man in 1976. If Brown’s other heirs then argued that this appellant, although born in wedlock almost 40 years earlier, was in fact Smiley’s illegitimate child, the State would have many reasons for creating presumptions and rules of evidence to protect the appellant’s right to inherit from John W. Brown. We are not persuaded that the selfsame rules of law can be demonstrably desirable and justifiable in the one situation but unconstitutionally oppressive in the other.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Holt, JJ.


text:
    Everett WALKER v. STATE of Arkansas
    CR 78-22
    565 S.W. 2d 605
    Opinion delivered May 22, 1978
    (Division I)

      Seay & Bristow, by: Bill W. Bristow, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In 1970 the appellant pleaded guilty to four felony charges and received concurrent 15-year sentences, with 14 years suspended on condition of good behavior. In 1976 the prosecution filed a petition for revocation of the suspended sentences, asserting that Walker had been guilty of, and had been convicted of, various state and federal offenses, including 10 violations of federal firearm laws and the sale of counterfeit money. Walker was confined in a federal penitentiary when the revocation petition was filed. This appeal is from an order granting the petition. Three points for reversal are argued.

First, it is insisted that the entire proceeding should be dismissed because more than five years elapsed between the original suspension and the filing of the revocation petition. Two statutes are cited in support of this contention, but neither is applicable. First, it was provided by Act 438 of 1965, § 1, that periods of probation should not exceed five years. That limitation applied only to judgments granting probation, not to suspended sentences. Minick v. State, 256 Ark. 564, 509 S.W. 2d 289 (1974). Second, the Criminal Code, effective January 1, 1976, contained a five-year limitation on both probation and suspended sentences. Ark. Stat. Ann. § 41-1205 (Crim. Code 1976). The Code, however, does not apply to prior offenses, which are to be punished in accordance with preexisting law. § 41-102 (3). Moreover, the Commentary to § 41-1205 pointed out that “present law” (citing the pre-Code statute) sets a five-year limit on probation, but the pronouncement of sentence “can now be suspended” for a period equal to the maximum term of imprisonment. Thus it is evident that the draftsmen of the Code were familiar with the existing law and did not make the Code provision retroactive.

Second, it is argued that the revocation petition should have been dismissed because of the State’s delay in bringing the matter to trial. It is conceded, however, that the delay did not exceed that allowed by Rule 28 of the Rules of Criminal Procedure (1976). We find nothing in the record to show that the actual delay amounted to a denial of due process. It is also suggested in the reply brief that the State did not act within the 180 days allowed by the Interstate Agreement on Detainers. Ark. Stat. Ann., Title 43, Ch. 32 (Repl. 1977). A sufficient answer to this suggestion is that no demand for trial was ever made in compliance with Article ¡II (a) of the Interstate Agreement.

Third, Walker argues that he should be given credit for his nine-month incarceration between the filing of the revocation petition and its disposition. Jail-time credit is appropriate when the prisoner’s pretrial incarceration is due to his inability to make bail, but it is not allowable when the delay is due, as here, to his incarceration in another jurisdiction. See Hughes v. State, 260 Ark. 399-A, 540 S.W. 2d 592 (1976).

Walker also argues that he should be given credit for his “good behavior” during the years between the imposition of the suspended sentences in 1970 and their revocation in 1977. This argument is presented as a matter of law, no facts having been developed in the trial court. The statutes contemplate that the trial judge, upon the revocation of a suspension or probation, may impose any sentence that might have been imposed originally. §§ 41-1208 and 43-2324 (Repl. 1977). We can find no reason to think that the legislature intended that there be an automatic credit for the duration of a suspended sentence prior to its revocation.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Holt, JJ.


author: John A. Fogleman, Justice.

text:
    Jimmy POE and Carolyn POE v. Bernice CASE
    77-381
    565 S.W. 2d 612
    Opinion delivered May 22, 1978
    (Division I)

      Paul J. Nicholson, for appellants.

      John I. Purtle, of Purtle, Osterloh & Weber, for appellee.
   John A. Fogleman, Justice.

On June 12, 1975, an interlocutory order of adoption of Christina Jean Handy, a minor, by.Jimmy and Carolyn Poe (the child’s natural mother), was entered by the Probate Court of Pulaski County. After a trial on the issue whether the child has been abandoned by Reginald Wayne Handy, her natural father, from whom Carolyn Poe had been divorced, the parties agreed to the entry of a consent decree affirming the adoption order and granting to Mrs. Bernice Case, mother of Reginald Wayne Handy, rights of reasonable visitation, as she requested by pleading filed in the case. On October 20, 1977, Mrs. Case filed a petition asking that the Poes be held in contempt of court, alleging that they had denied Mrs. Case the enjoyment of her right of visitation and asking that the court set definite visitation rights. The Poes denied these allegations and alleged that the visitation provision of the decree of adoption was void because the probate court lacked authority and jurisdiction to make an award of visitation rights in an adoption proceeding. They asked that the court vacate that portion of the decree.

The probate court denied the motion to vacate and proceeded to hear testimony on the issue of contempt. At the conclusion of this hearing, the court denied the Poes’ renewal of their motion to vacate the visitation provisions of the adoption decree. This motion was based on their assertion of the court’s lack of authority or subject matter jurisdiction to award visitation rights to a natural grandparent. We agree with the appellants and reverse the judgment of the probate court.

The probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers are are conferred by the constitution or by statute, or necessarily incident to the exercise of the jurisdiction and powers specifically granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W. 2d 810. There is no mention of adoption, child custody or visitation rights in the Arkansas Constitution. Jurisdiction of adoption proceedings has been vested in the probate court by statute. Adoption proceedings were unknown to the common law, so they are governed entirely by statute. Morris v. Pendergrass’s Admr., 59 Ark. 483, 28 S.W. 30. See also, Spencer v. Franks, 173 Md. 73, 195 A. 306, 114 ALR 263 (1937). These proceedings were governed by Ark. Stat. Ann. § 56-101 et seq (Repl. 1971 ) at the time the decree of adoption was entered in this case. The court’s authority and jurisdiction are governed strictly by this statute. See Norris v. Dunn, 184 Ark. 511, 43 S.W. 2d 77. Nothing is said in it about visitation rights of grandparents. As a matter of fact, the natural parents of an adopted child are divested of all legal rights and obligations due from them to the child and from the child to them. Ark. Stat. Ann. § 56-109 (a). The relative rights of the adopting parents and the adopted person are said to be as if the child had been born to the parents in lawful wedlock. Ark. Stat. Ann. § 56-109 (b) and (c). See also, Ark. Stat. Ann. § 56-124. Ark. Stat. Ann. §§ 56-109 and 56-124 constitute a clear declaration of public policy in this respect. The adopted child actually ceases to be a member of the family of the natural parents, occupies the status of a natural child in respect to the adoptive parents, becomes a member of their family and they exercise custody and control over it. Dean v. Smith, 195 Ark. 614, 113 S.W. 2d 485; Shaver v. Nash, 181 Ark. 1112, 29 S.W. 2d 298, 73 ALR 961; Sanders v. Taylor, 193 Ark. 1095, 104 S.W. 2d 797; Annot. 114 ALR 271.

When an adoption statute has the effect ours has, it is generally held that the court granting the adoption has no authority to include a grant of visitation rights to members of a natural parent’s family. See Browning v. Tarwater, 215 Kan. 501, 524 P. 2d 1135 (1974); Spencer v. Franks, supra; Matter of Fox, 567 P. 2d 985 (Okla., 1977); 2 Am. Jur. 2d 929, Adoption, § 85.

A decree attempting to grant visitation rights to a natural grandparent as an incident to an adoption or to enforce a grandparent’s visitation rights granted before the adoption, without specific statutory authority, is surplusage, void and separable from the remainder of the decree. Spencer v. Franks, supra. We have held that an attempt by a probate court to determine who should have custody of a child in a contest between its mother and grandmother which arose in a guardianship proceeding was void because it was beyond the power and authority of the court. Edwards v. Martin, 231 Ark. 528, 331 S.W. 2d 97. The action here was void for the same reason. Furthermore, the jurisdiction of the court has, for all practical purposes, been exhausted when the final decree of adoption is entered and the probate court has no jurisdiction to change or modify its original decree or make orders pertaining to custody questions, as appellee sought to have it do. Spencer v. Franks, supra.

Appellee relies upon the fact that the Poes agreed to these visitation rights as a basis for the natural father’s consent to the adoption. An agreement to provide for such visitation rights in the absence of statute is against public policy and void and unenforceable. Whetmore v. Pratello, 197 Or. 396, 252 P. 2d 1083 (1953); Stickles v. Reichardt, 203 Wis. 579, 234 N.W. 728 (1931).

Since the visitation portion of the adoption decree was in excess of the court’s authority or subject matter jurisdiction, it was void and subject to collateral attack. See Edwards v. Martin, supra; Spencer v. Franks, supra.

It is urged that the policy of this state with reference to visitation rights of grandparents expressed in Ark. Stat. Ann. §§ 57-135 and 34-1211.1 (Supp. 1977) is applicable and sufficient to sustain the probate court’s action. Those statutes address themselves to courts having jurisdiction in custody proceedings and are clearly inapplicable by their own terms to adoption proceedings. Since this is the case, they certainly do not indicate a reversal of the strong public policy, expressed in the adoption statutes, to strengthen the relationship between the adopted child and its adoptive family and to terminate the previous family relationship. See Browning v. Tarwater, supra; Matter of Fox, supra. Besides, the new adoption statute is the most recent declaration of public policy with reference to adoptions. In Ark. Stat. Ann. § 56-215 (Supp. 1977), the General Assembly stated that a final adoption decree should have the effect of terminating all legal relationships between the adopted individual and his relatives so that the adopted individual thereafter is a stranger to his former relatives for all purposes.

The judgment of the probate court is reversed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

      The natural father was neither a party nor a participant, either here or in the trial court, to any of the proceedings subsequent to the entry of the final decree of adoption.

      Those sections have been repealed and replaced by Ark. Stat. Ann. § 56-201 et seq (Supp. 1977) effective July 5, 1977. This new statute does not affect this proceeding or indicate any public policy changes in respect to adoptions.


text:
    Doyle E. OWEN v. STATE of Arkansas
    CR 77-186
    565 S.W. 2d 607
    Opinion delivered May 22, 1978
    (In Banc)

      Richard D. O’Brien, for appellant.

      Bill Clinton, Atty. Gen., by. Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant won reversal of his conviction of both arson and conspiracy to commit a felony in Weems & Owen v. State, 259 Ark. 532, 534 S.W. 2d 753. Thereafter, his case was severed from that of a codefendant, Weems. On separate retrial, he was again convicted of both crimes.

On appeal, he asserts the following grounds for reversal:

I
THE COURT ERRED IN OVERRULING THE MOTION TO DISMISS BASED ON THE THEORY OF RES ADJUDICATA AND COLLATERAL ESTOPPEL.
II
THE COURT ERRED BY REFUSING TO REVOKE THE APPOINTMENT OF THE SPECIAL PROSECUTOR.
Ill
THE COURT ERRED IN ITS REFUSAL TO QUASH THE INDICTMENT CHARGING CONSPIRACY.
IV
THE COURT ERRED IN HEARING THE CASE BECAUSE THE JUDGE LACKED JURISDICTION.
V
THE COURT ERRED IN CONSOLIDATING THE TWO INDICTMENTS FOR TRIAL.

I

Appellant argues that the court should have granted his motion to dismiss on the ground that further prosecution was barred by res adjudicata and collateral estoppel, because his codefendant Weems was acquitted. He then proceeds to support his contention in this regard by reference to evidence adduced in the second trial of Weems. This record is not before us, and even if we could take judicial notice of the evidence in that case, we simply have no record of which we can take judicial notice, even of the fact that Weems was acquitted. There is nothing in the record on this point in the trial court, as it is abstracted here, other than the bare motion by appellant and his trial attorney’s presentation of the motion in language almost identical to that of the motion. The burden was on the appellant to demonstrate error. Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377. He has totally failed to do so.

II

Appellant makes a very convincing argument that the Special Prosecuting Attorney, William F. Sherman, was ineligible for appointment as such, because as a member of the General Assembly, he was prohibited from serving because he would be exercising the powers of the judicial department in violation of §§ 1 and 2 of Art. 4 of the Constitution of Arkansas. He also argues that Sherman was ineligible to serve because his appointment made him a deputy prosecuting attorney and, as such, the holder of a civil office, in violation of Art. 5, § 10, of the constitution.

We take judicial notice of the fact that Sherman was, both at the time of appellant’s motion and at the time of his reappointment as Special Prosecuting Attorney in May, 1976, a member of the House of Representatives of the General Assembly of the State of Arkansas. We point out that he was not in any sense of the word a deputy prosecuting attorney. A deputy is one who is clothed with the powers of the principal, but who acts in the name of his principal. Martindale v. Honey, 259 Ark. 416, 533 S.W. 2d 198; Bingley v. State, 235 Ark. 982, 363 S.W. 2d 530, cert. den. 375 U.S. 909, 84 S. Ct. 202, 11 L. Ed. 2d 148; Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15. On the other hand, a special prosecuting attorney is clothed with the powers of the prosecuting attorney in the case or matters for which he is appointed, but he acts in his own name in the stead of, as a substitute for, the regularly elected prosecuting attorney, but not in his name. See Weems v. Anderson, 257 Ark. 376, 516 S.W. 2d 895.

It matters not whether we consider a special prosecuting attorney as the holder of a civil office or that he is exercising some of the powers .of the judicial branch, the question is still one of eligibility for appointment. See, Martindale v. Honey, supra. It is well settled that the circuit judge had the power to appoint a special prosecuting attorney. See Weems v. Anderson, supra. In such a case, the appointee was an officer de facto. Center Hill School District No. 32 v. Hunt, 194 Ark. 1145, 110 S.W. 2d 523; Stafford v. First National Bank, 182 Ark. 1169, 34 S.W. 2d 759; Faucette v. Gerlach, 132 Ark. 58, 200 S.W. 279; Fortin v. Parrish, 258 Ark. 277, 524 S.W. 2d 236; Matthews v. Bailey, 198 Ark. 830, 131 S.W. 2d 425. Thus, Sherman was a special prosecuting attorney de facto. Since he was, appellant could not question his authority or right to act as such. Keith v. State, 49 Ark. 439, 5 S.W. 880; Logan v. Harris, 213 Ark. 37, 210 S.W. 2d 301.

Appellant also contends that the reason for the original appointment of the special prosecuting attorney, i.e., the fact that the prosecuting attorney at that time was a codefendant, no longer existed and that there was no reason for the appointment of a special prosecuting attorney at the time of the last appointment. The record discloses, however, that the prosecuting attorney in office at the time of the latest appointment asserted that he was disqualified by reason of the fact that he had been, not only the chief deputy prosecuting attorney during the tenure of appellant’s codefendant as prosecuting attorney, but also a partner with that codefendant in the practice of law. The circuit judge then serving, following the disqualification, appointed Sherman. The circuit court had the same power and authority to make this appointment as it did in Weems v. Anderson, supra.

Ill

Appellant contends that his motion to quash the indictment should have been granted for two reasons. The first reason is based upon the amendment of the indictment by the prosecuting attorney, with leave of the trial court, to add the words “the felony not having been committed” to the indictment charging conspiracy to commit a felony. Appellant argues that, by this amendment, an essential element of the crime charged was added and that, without this addition, the indictment was defective and subject to dismissal, citing Elsey v. State, 47 Ark. 572, 2 S.W. 337. Whatever result might have been required at the time of the decision in Elsey, appellant has overlooked the effect of Initiated Act 3 of 1936. One of the sections of that act is Ark. Stat. Ann. § 43-1024 (Repl. 1977) which permits the prosecuting attorney or other attorney for the state, with leave of the court, to amend an indictment, as to matters of form, when the nature of the crime charged is not changed. Appellant contends, however, that this amendment was not a matter of form because it supplied an essential element of the crime which had not been alleged. We do not agree that this is an appropriate limitation on Ark. Stat. Ann. §43-1024. Another section of Initiated Act 3 is digested as Ark. Stat. Ann. § 43-1006 (Repl. 1977), which renders unnecessary the inclusion of any statement of the act or acts constituting the offense charged, unless the offense cannot be charged without such a statement. Estes v. State, 246 Ark. 1145, 442 S.W. 2d 221. That section provides that the name of the offense charged carries with it all such allegations. See also, Ark. Stat. Ann. § 43-1007, -1008 (Repl. 1977).

The indictment charged Thomas Woolsey, Doyle E. Owen and Sammy A. Weems with the crime of conspiracy to commit a felony in violation of Ark. Stat. Ann. § 41-1201. That section (Repl. 1964) provides:

If two or more persons shall agree and conspire to commit any felony, and make some advance thereto, without committing the felony, they shall be deemed guilty of a misdemeanor.

It is clear that the indictment clearly apprised the defendants of the crime charged and that the amendment was simply a matter of form, which did nothing to change the nature of the crime otherwise clearly charged. See Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304; Brewer v. State, 195 Ark. 477, 112 S.W. 2d 976; Castle v. State, 229 Ark. 478, 316 S.W. 2d 701.

Appellant also asserts that the indictment should have been dismissed because it omitted to allege another essential element, i.e., an overt act committed in furtherance of the alleged conspiracy, citing Powell v. State, 133 Ark. 477, 203 S.W. 25. We cannot agree that there was a fatal omission. It was alleged that the three persons named conspired to violate Ark. Stat. Ann. § 41-1901 (obtaining money by false pretenses) by burning the Doyle E. Owen home in Hamsite Heights Addition and making claim for the fire loss with the Hartford Insurance Company, which carried fire insurance on said home and the contents therein, with intent to defraud. Only by a technical reading of the indictment can it be said that the burning of the house was not alleged as an overt act. The allegation of the particular acts constituting the crime was not essential to the validity of this indictment, as heretofore pointed out, and the indictment was sufficient against this technical objection under Initiated Act 3. See Williford v. State, 252 Ark. 397, 479 S.W. 2d 244.

IV

This argument was premised upon the contention that, in spite of the fact that the Chief Justice had assigned Circuit Judge Andrew Ponder to try the case, including all ancillary and subsequent proceedings, the regular judge of the circuit court of Prairie County, W. M. Lee, actually presided at his trial, over appellant’s objection that he had no jurisdiction. Appellant argues that a disqualified judge could not have had jurisdiction, citing State v. George, 250 Ark. 968, 470 S.W. 2d 593 and Hobson v. Cummings, 259 Ark. 717, 536 S.W. 2d 132. The record discloses, however, that the order assigning Judge Ponder had been terminated by an Acting Chief Justice. Thus, the regular judge of the court (of both Arkansas County, to which venue had been changed and Prairie County, where the indictment was returned and to which the case was retransferred) had jurisdiction in the matter. Appellant’s argument that, having once been disqualified, this judge had no power to act is without merit, because there is nothing in the record to indicate any basis for disqualification of the circuit judge in the trial of appellant.

V

Appellant objected to consolidation of the trial on the two charges. This objection does not appear to have been made at the time of the consolidation and there does not appear to have been any abuse of the trial court’s discretion in this respect. Joinder, consolidation and severance of indictments for trial are procedural matters. People v. Adams, 274 N.Y. 477, 9 N.E. 2d 46, 110 ALR 1303 (1937) and Annot. p. 1308; Sinclair v. State, 159 Tex. Cr. 35, 261 S.W. 2d 167 (1952), cert. den. 346 U.S. 830, 74 S. Ct. 20, 98 L. Ed. 354; People v. Foster, 261 Mich. 247, 246 N.W. 60 (1933). Appellant’s trial was held in January, 1977. At that time the Arkansas Rules of Criminal Procedure were in effect. Rule 1.7 (d). The procedural law in effect at the time of trial governs all procedural matters. Duncan v. State, 260 Ark. 491, 541 S.W. 2d 926.

Rule 23.1 provides that two or more charges may be consolidated for trial, if the offense could have been joined in a single indictment. Under Rule 21.1, two or more offenses may be joined in one indictment when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. If Rule 21.1 had been in effect when the indictments in this case were returned, they clearly could have been charged in separate counts of the same indictment. In the arson charge, it was alleged that appellant and his codefendant burned the house and the burning of the house was alleged to be a part of the conspiracy charged. Consequently, at the time of the trial, the court had the authority to consolidate the two indictments, subject to appellant’s right to move for a severance. See Atha v. State, 215 Ark. 753, 223 S.W. 2d 188.

Appellant’s objection came after the jury was selected and sworn. A motion for severance must be timely made before trial, unless it is based upon a ground not previously known. Rule 22.1 (a). Appellant did not actually state any ground for severance, except that there were two separate indictments. Since the objection was not made before the trial commenced, there was a waiver of severance, even if the objection is considered to be a motion for severance. Rule 22.1 (a). Burnett & David v. State, 262 Ark. 235, 556 S.W. 2d 653. Furthermore, appellant has not suggested, either here or in the trial court, how he was prejudiced by the consolidation.

The judgment is affirmed.

Holt and Hickman, JJ., not participating.

      The test for determining whether a rule regulates procedure has been related to the following definition of procedure: “the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedies and redress for disregard or infraction of them. ” Sibbach v. Wilson & Co. Inc., 312 U.S. 1, 61 S. Ct. 422, 85 L. Ed. 479 (1940).


author: Conley Byrd, Justice. John A. Fogleman, Justice, George Howard, Jr., Justice,

text:
    Glenn A. PARKS, Sr., d/b/a PARKS PRODUCTS COMPANY v. E. N. BEARD HARDWOOD LUMBER, INC.
    77-362
    565 S.W. 2d 615
    Opinion delivered May 22, 1978
    (In Banc)

      William F. Magee, for appellant.

      Jabe E. Hoggard, for appellee.
   Conley Byrd, Justice.

Appellee E. N. Beard Hardwood Lumber, Inc. of Greensboro, North Carolina, brought this action against appellant Glenn A. Parks, d/b/a Parks Products Company, for the $10,484.82 balance due upon an open account for lumber received by appellant on April 20, 1976, and April 27, 1976. Invoice # 5130, dated April 20, 1976, in the amount of $6,615.27 provided terms of “2% 10 net 30”. At the bottom of the invoice is this notation: “interest charges of 1% per month (12% per annum) on all amounts over 60 days.” Invoice # 5202 dated April 27, 1976, in the amount of $5,324.81 carried the same notation. On May 28, 1976, appellant was eiven credit for a payment in the amount of $955.26. On August 31, 1976, when the outstanding balance due was $10,984.82, appellee charged appellant with interest in the amount of $109.85. On September 7, 1976, appellant paid $500 and on September 20, 1976, paid the interest charge of $109.85. On October 30, 1976, when the outstanding balance was $10,484.82, appellee again charged appellant with interest in the amount of $104.85. Appellant answered contending that the account violated the 10% usury provision of the Arkansas Constitution. The trial court, after determining that the interest charged did not exceed 10%, entered a summary judgment in favor of appellee. We affirm.

Sixty days from April 20, 1976, would be June 19, 1976. On that date the balance owing on invoice #5130 would be ($6,615.27 — $955.26) $5,660.01. Interest on $5,660.01 from June 19 to August 31, 1976 at 10% per annum would be (73 days times $1.5506876 daily interest) $113.20.

Sixty days from April 27, 1976, the date of invoice # 5202 would be June 26, 1976. On that date the balance owing on invoice # 5202 was $5,324.81. Interest on $5,324.81 from June 26th to August 31st at 10% per annum would be (66 days times the daily interest in the amount of $1.458852) $96.28.

Consequently, the allowable interest on August 31, 1976 at 10% per annum upon the outstanding balance due on invoices would have been ($113.20 plus $96.28) $209.48.

The allowable interest on the outstanding balances due from August 31st to September 7, 1976, when appellant made a $500 payment would have been ($5,660.01 plus $5,324.81 times 10% divided by 365 times 7 days equals) $21.07.

After the $500 payment on September 7, 1976, the outstanding principal balance was $10,484.82. There are 53 days from September 7, 1976 to October 30, 1976 (the last interest charge date). The allowable interest for that period would be ($10,484.82 times 10% divided by 365 times 53 equals) $152.25.

From the foregoing computations it is evident that appellee, within the limits of the usury law, could have legally charged interest in the amount of $382.80. Since this is an open account and the total interest charged to the account by appellee was only $214.70, it follows that the trial court was correct in holding that appellee had not violated Arkansas’ prohibition against usury.

Affirmed.

Fogleman and Hickman, JJ., concur.

Howard, J., dissents.

John A. Fogleman, Justice,

concurring. I fully agree with the majority opinion in this case. I cannot agree, however, with the statement in the dissenting opinion that the majority rejected the trial court’s holding that a North Carolina contract was involved. To the contrary, the result reached is based entirely upon the assumption that the Arkansas law applied because, and only because, that is the law most favorable to appellant. As I view the record in this summary judgment procedure, the documents and affidavits filed failed to establish that the contract was either an Arkansas contract or a North Carolina one. But if the action of the trial court was correct for any reason, we should affirm, so long as the basis for affirmance was in issue in the trial court. Here the question whether the contract was usurious under the Arkansas constitutional provision limiting interest to 10% per annum was definitely an issue.

George Howard, Jr., Justice,

dissenting. The majority has premised its conclusion that the account involved in this action is not usurious in that “the interest charged did not exceed 10%. ” I submit that the majority’s position is misplaced. The question is not what interest was actually received by appellee, but, on the contrary, the pivotal question simply put: Is there an agreement authorizing the collection of an interest charge in excess of 10% per annum? The majority has avoided answering this question, as it must, in order to sustain its position.

It is clear that the majority rejects the trial court’s holding that the transaction was a North Carolina one for, indeed, it was an Arkansas transaction and Arkansas law is applicable.

An invoice which was made a part of the record and which sheds light upon the transaction provides, in material part, as follows:

“Interest for October 1976 at 12% per annum or 1 % per month on all invoices more than 60 days old.”

Article 19, § 13, of the Ark. Const., in relevant part, is as follows:

“All contracts for a greater rate of interest than ten percent per annum shall be void as to principal and interest, ...”

The majority seeks to avoid the mandate of the Constitution by asserting:

“Since this is an open account and the total interest charged to the account by appellee was only $214.70, it follows that the trial court was correct in holding that appellee had not violated Arkansas’ prohibition against usury.”

But from the plain meaning of the constitutional provision, all contracts for a greater rate of interest than 10% per annum shall be void. In Wilson v. Whitworth, 197 Ark. 675, 125 S.W. 2d 112, we said:

“. . . if the lender alone charges or receives more than is lawful, the contract is void. ” (Emphasis added)

I would reverse the trial court and dismiss the action on the ground that the transaction is usurious; therefore, I dissent.

      The trial court found that the transaction in question was a North Carolina arrangement. The trial court also found “12% penalty is legal in the state of North Carolina.”
      Pertinent part of the trial court’s opinion is as follows:
      “IT IS THEREFORE CONSIDERED by the Court that purchase and delivery was made in North Carolina (i.e., ‘your truck’); that possession of the goods was taken by the Defendant or his agent in North Carolina. That there has not been a violation of Arkansas’ prohibition of usury in excess of ten percent.”


text:
    Dwane EDMONSON v. G. L. FARRIS
    77-363
    565 S.W. 2d 617
    Opinion delivered May 22, 1978
    (In Banc)

      Thomas D. Ledbetter, of Ledbetter & Associates, Ltd., for appellant.

      Joe D. Villines, Jr., for appellee.
   Frank Holt, Justice.

Appellee sought to recover SE-SOS.60 as unaccounted funds from appellant, his former employee. Summons was issued against appellant pursuant to Ark. Stat. Ann. § 27-330 (Repl. 1962). The return recited personal service upon appellant. On the trial date appellant did not appear, and the court entered a default judgment for the amount sought in the complaint. An execution on the judgment was returned non est. Subsequently, appellant moved the court to set aside the default judgment on the ground, inter alia, of defective service of process. The trial court denied the motion after an evidentiary hearing. However, the court held that appellant would be allowed to file a counterclaim and cross-complaint as a setoff to appellee’s default judgment. We first consider appellant’s contention that the court erred in failing to vacate the default judgment because it was based upon an invalid service of process.

Ark. Stat. Ann. § 29-107 (Repl. 1962), in pertinent part, provides that “ [a] 11 judgments” rendered by any court against any person “without notice, actual or constructive, and all proceedings” thereon “shall be absolutely null and void.” See, also, Halliman v. Stiles, 250 Ark. 249, 464 S.W. 2d 573 (1972). In regard to notice, § 27-330 provides:

The service shall be:
First. By delivering to the defendant a copy of the summons; or
Second. If he refuses to receive it, by offering a copy thereof to him; or
Third. By leaving a copy of such summons at the usual place of abode of the defendant, with some person who is a member of his family over the age of fifteen years.

A failure to comply with § 27-330 renders any attempted service void. Booker v. Greenville Gravel Co., 249 Ark. 330, 459 S.W. 2d 408 (1970). Here the court denied the motion to set aside the default judgment on the basis that appellant failed to meet his burden of proving the summons was not validly served upon him.

Appellant’s father testified that the sheriff called him on the phone and told him he had a subpoena for his son. He told the sheriff that his son, a long distance truck driver, was not home and he did not know where his son was but he would be back in town the next week. Appellant’s wife testified that she picked up the papers at the sheriff’s office. At that time, appellant was away from home looking for a job and out of the county. The deputy sheriff, who was on duty the day the papers were served, testified that he did not remember serving the papers on appellant’s wife. However, since his signature was on the return, “I am bound to have given her the papers.” He admitted that, although the return recites appellant was personally served by him, that was not correct. He “possibly served them [on appellant’s wife] at the jail.” He stated he had not served any papers in the town where appellant resided. The sheriff testified that it was the custom of his office not to give such papers to family members at the office because “this is not good service.”

The court observed that the service upon a member of appellant’s household, his wife, at the jail rather than at the place of abode was a technical distinction and, therefore, the service was valid. We have held that statutory service requirements, being in derogation of common law rights, must be strictly construed and exactly complied with. Jenkins v. Hill, 240 Ark. 197, 398 S.W. 2d 679 (1966). Here we are of the view that the undisputed proof clearly shows that the deputy failed to sufficiently comply with the mandatory provisions of § 27-330 in attempting service of process. Booker v. Greenville Gravel Co., supra. In the case at bar, the attempted service being invalid, the judgment was void ab initio. Halliman v. Stiles, supra. That being true, a showing of a meritorious defense or other just cause by a compliance with Ark. Stat. Ann. §§ 29-506, 508 and 509 (Repl. 1962), as asserted by appellant, was unnecessary.

Appellant also contends that the trial judge erred in not disqualifying himself in the proceeding since his son is the lawyer representing the appellee. In support of his argument, appellant cites our recently approved Code of Judicial Conduct and argues that Canon 2 and 3 would require the judge to disqualify himself on his own motion or sua sponte. Appellee responds that, in the absence of any objection, as here, the asserted error was waived inasmuch as it is raised for the first time on appeal. Pettigrew et al v. Washington County, 43 Ark. 33 (1884); Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919); Nowlin v. Kreis, 213 Ark. 1027, 214 S.W. 2d 221 (1948); and Carr v. City of El Dorado, 217 Ark. 423, 230 S.W. 2d 485 (1950). Here, we are confident the trial judge would have quickly disqualified himself had he been so requested by appellant. We reverse only on the invalid service of process. However, because the problem is a recurring one that judges, including the members of this Court, are subject to, we give the following caveat.

Canon 3C of the Code of Judicial Conduct provides:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: . . .
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: . . .
(ii) is acting as a lawyer in the proceeding;

The commentary of the Special Committee on Standards of Judicial Conduct, American Bar Association, provides:

The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that his impartiality might reasonably be questioned under Canon 3C (1), or that the lawyer-relative is known by the judge to have an interest in the law firm that could be ‘substantially affected by the outcome of the proceeding’ under Canon 3 (1) (d) (iii) may require his disqualification.

We are aware that in areas of this state good judges have sat in cases when the trial lawyer is related to the judge within the definition of the Code. In fact in some of those areas, it would be almost impossible for litigants to get a speedy disposition of their cases unless some understandable arrangement is worked out among the lawyer-relative of the judge and the party litigant. The Code of Judicial Conduct recognized this problem and provided a remedy. Canon 3D provides:

A judge disqualified by the terms of Canon 3C (1) (c) or Canon 3C (1) (d) may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

As pointed out in the commentary following Canon 3D, this procedure is designed to minimize the chance that a party or lawyer will feel coerced into an agreement. The commentary also states that when a party is not immediately available, the judge without violating this section may proceed on the written assurance of the lawyer that his party’s consent will be subsequently filed. In cases arising in the trial court after this date, we construe our rule to require the judge to note his disqualification without any request by a trial lawyer.

The default judgment being void because of invalid service of process, the order denying appellant’s motion to set it aside is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded.

      The State Judicial Council unanimously approved and recommended we adopt the Code of Judicial Conduct.


author: Darrell Hickman, Justice. Conley Byrd, Justice.

text:
    HAWES FIREARM COMPANY v. Russell ROBERTS, Judge of the Conway County Circuit Court
    77-276
    565 S.W. 2d 620
    Opinion delivered May 22, 1978
    (In Banc)

      Wright, Lindsey & Jennings, for petitioner.

      James K. Toung, by: Luther B. Hardin, for respondent.
   Darrell Hickman, Justice.

The Hawes Firearm Company, a California corporation, filed a petition for a writ of prohibition to stop the circuit judge of Conway County from proceeding further in a lawsuit against Hawes. W.e will deny the petition.

William Roberds sued Hawes and Gibson Products Company of Russellville alleging that Hawes manufactured a pistol which Gibson sold to Roberds. The verified complaint recited that a breach of warranty, both express and implied, caused the plaintiff to be injured.

It was alleged that Hawes was doing business in Arkansas by selling pistols to Gibson, and, therefore, subject to suit in Arkansas under our “long-arm” statute. See Ark. Stat. Ann. § 27-2502 C.l. (Supp. 1977).

Hawes filed a motion to quash service alleging it did not have sufficient contacts within the state to be sued personally in Arkansas. Neither Hawes nor Roberds offered evidence at the hearing on the motion. The trial court denied the motion to quash. Hawes argues that Roberds’ failure to offer any evidence of jurisdiction requires us to prohibit the suit. Respondent feels that there is sufficient evidence in the pleadings to support this decision; however, respondent further states that due to the fact no formal record was taken, he remains ready to have a formal hearing on the record on this jurisdictional issue.

The issue presented to us is whether Roberds could stand on his verified complaint since Hawes did not offer any evidence to support its motion to quash. The answer is yes.

It is, of course, a fundamental principle that the plaintiff has the burden of proving that a non-resident defendant has sufficient contacts with Arkansas to be sued in personam. See Pennsalt Chemical Corp. v. Crown Cork & Seal Co., Inc., 244 Ark. 638, 426 S.W. 2d 417 (1968). However, the question before us is, does this burden remain with the plaintiff, or, does a nonresident defendant assume the burden when a motion is filed before trial to quash the summons because of lack of jurisdiction.

We have held that ordinarily the burden of proof is on the party who files the motion. Williams v. Edmondson, 257 Ark. 837, 520 S.W. 2d 260 (1975); Nix v. Dunavant, 249 Ark. 641, 460 S.W. 2d 762 (1970). Nix seems almost exactly in point with the problem before us.

In Nix each party presented evidence by way of affidavit. We decided on review that Dunavant’s — the non-resident — affidavit did not contain sufficient facts to sustain his motion.

The petitioner, in effect, is asking us to overrule the Nix case. The strongest argument of the petitioner is that a nonresident defendant is put to a great deal of trouble and expense in coming to Arkansas to defend a case that ultimately may be decided was not a proper case against a non-resident defendant. We do not feel our decision denying prohibition will work an injustice.

After careful review of the arguments in this case and the law, we have decided that Nix is still sound. First, it places no more burden on a non-resident defendant than any resident of the state. Second, it does not mean that a plaintiff is relieved of any burden to ultimately prove that sufficient contacts exist.with the state of Arkansas for a suit to be maintained against a non-resident defendant. It simply means the nonresident assumes the burden of proof when a motion to quash is filed. Third, it should be no effort for a non-resident defendant to provide proof that sufficient contacts to not exist with the state of Arkansas to justify such a suit. That is, if the non-resident feels the motion to quash is unquestionably meritorious. A non-resident defendant should either be prepared to do this, if it elects to file a motion to dismiss or quash, or simply let the lawsuit take its course and leave the burden of proof with the plaintiff. Even if the motion is incorrectly denied by the trial court, the non-resident defendant could get no interim relief because such an order is not final and cannot be appealed. See Pascall v. Smith, 262 Ark. 523, 558 S.W. 2d 150 (1977). If the motion is granted, obviously there is no prejudice. Finally, a non-resident defendant does not have to come to Arkansas if it is satisfied that there are insufficient contacts with Arkansas for suit to be maintained to satisfy the full faith and credit clause of the United States Constitution. A non-resident defendant can elect to ignore a frivolous lawsuit and defend in its resident state in the event a judgment of a court of this state is taken to the state of the non-resident defendant for registration or enforcement. See Hanson v. Denckla, 357 U.S. 235 (1958).

Our decision simply means that, as in every other instance, a non-resident defendant filing a motion to dismiss or quash has the burden of going forward and offering proof to sustain the allegations of the motion. If the motion is denied, this does not mean that the plaintiff is relieved from establishing jurisdiction; it merely means that at this point in the proceedings a prima facie case of jurisdiction sufficient to take the cause to trial has been made.

We have given this matter considerable attention because it is a difficult question and needs to be settled. We could easily have denied the petition for writ of prohibition because it is not proper in this case. It is not clear from the record that the trial court does not have jurisdiction. According to the allegations of the verified complaint, the trial court does have jurisdiction. There is no dispute as to the facts and this is not a case where prohibition is clearly warranted. Ordinarily these conditions must exist before we will grant prohibition. Webb v. Harrison, Judge, 261 Ark. 279, 547 S.W. 2d 748 (1977). None of them exist here.

Writ denied.

Harris, C.J., and Byrd, J., dissent.

Conley Byrd, Justice.

As I read the majority opinion, the plaintiff, in securing personal jurisdiction upon a nonresident pursuant to the Uniform Interstate and International Procedure Act, Ark. Stat. Ann. § 27-2501, et seq. (Supp. 1977), no longer has to make a showing that the nonresident defendant purposefully availed itself of the privilege of conducting activities in this state. The reason for that assumption is that the burden of proof in such matters is upon the nonresident defendant. Thus, under today’s majority decision, a nonresident becomes subject to the jurisdiction of the courts of this state upon a mere verified allegation of the plaintiff that the nonresident defendant has availed itself of the privilege of conducting activities in this state. The majority’s position is incorrect for the following two reasons.

(1) By the terms of Ark. Stat. Ann. § 27-2502 C. 1., a presumption of jurisdiction is not authorized. That section provides:

C. Personal jurisdiction based upon conduct.
1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s
(a) transacting any business in this state:
(b) . . . .
2. When jurisdiction over a person is based upon this section, only a (cause of action) (claim for relief) arising from acts enumerated in this section may be asserted against him ....

As can be seen from the very terms of the Uniform Act, jurisdiction of the person is limited to “acts” performed by the person — not from a presumption of facts.

(2) The presumption created by the majority opinion makes the Uniform Interstate and International Procedure Act invalid under the due process clause of the United States Constitution. In Pennsalt Chemical Corp. v. Crown Cork & Seal Co., Inc., 244 Ark. 638, 426 S.W. 2d 417 (1968), after pointing out that the United States Supreme Court had recognized the right of a state court to exercise personal jurisdiction over a nonresident for acts committed outside the state but affecting a resident of the state, we recognized the limitation of that right in this language:

The only restriction in International Shoe Co. v. State of Wash., 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057 (1945), and McGee v. International Life Ins. Co., supra, is that before a state can exercise such jurisdiction it is essential that there be a showing that the defendant purposefully availed itself of the privilege of conducting activities within the forum state. It is recognized that such activities may be carried on by mail, Travelers Health Ass’n. v. Commonwealth of Va., 339 U.S. 643, 70 S. Ct. 927, 94 L. Ed. 1154 (1950), and by an independent agent or manufacturer’s representative, Jackson v. National Linen Serv. Corp., 248 F. Supp. 962 (W.D. Va. 1965); Gray v. American Radiator & Sanitary Corp., 22 Ill. 2d 432, 176 N.E. 2d 761 (1961); Johnson v. Equitable Life Assur. Soc., 22 App. Div. 2d 138, 254 N.Y.S. 2d 258 (1964); and Coreil v. Pearson, 242 F. Supp. 802 (W.D. La. 1965).

The unconstitutional burden placed upon a nonresident defendant by the majority decision can be demonstrated by assuming the case of the ex-mothér-in-law who wishes to help the daughter fight her battles and assumes that the ex-son-in-law, a nonresident, works for an interstate airline. The mother, a resident of Arkansas, can file suit and verify a complaint alleging that she loaned the ex-son-in-law $2,500 in cash when he came through Arkansas on his honeymoon. When the son comes into court and testifies that he had never been to Arkansas before in his life, the ex-mother-in-law only has to testify that the ex-son-in-law is a liar and the trial judge, not knowing which one to believe, will have to find against the ex-son-in-law on the matter of jurisdiction because the majority says that he has the burden of proof. New people can tell you where they were on a Saturday thirty months ago and still fewer can find anyone to corroborate their locations on such a day. Yet the majority opinion places the onerous burden upon the nonresident of disproving his alleged contacts with the state. A nonresident defendant has enough problems when sued in a foreign jurisdiction without being “home towned” in favor of the plaintiff by a presumption that he must have done the things the plaintiff has alleged.

For the reasons stated, I respectfully dissent.