text:
    Ismet DIVANOVICH v. STATE of Arkansas
    CR 81-17
    617 S.W. 2d 345
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981
    [Rehearing denied July 13, 1981.]

      Gregory N. Robinson, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Ismet Divanovich was charged in this case with escape from the Department of Correction, where he was in confinement after a conviction for murder. See Divanovich v. State, 271 Ark. 104, 607 S.W. 2d 383 (1980). After the expiration of three full terms of court following the filing of the charge of escape, Divanovich sought dismissal of the charge for want of a speedy trial. He seeks to appeal from an order denying his motion. Prohibition being the proper remedy, Callender v. State, 263 Ark. 217, 563 S.W. 2d 467 (1978), we so treat the appeal and take jurisdiction under Rule 29(1) (f).

Divanovich, having been in confinement, concedes that three full terms of court represent the maximum limitation under Criminal Procedure Rule 28.1, absent periods of excluded time. Wade v. State, 264 Ark. 320, 571 S.W. 2d 231 (1978). Here, after two trial settings had resulted in continuances, the trial of the escape charge was set for October 8, 1980, which would have been the 31st day after the third term of court expired on September 7. Hence a key question is whether there was an excludable period amounting to 31 days or more. Wallace v. State, 270 Ark. 17, 603 S.W. 2d 399 (1980).

There was at least one such period. On February 28, 1980, the court set the case for trial on April 8. On February 29 Divanovich’s appointed attorney filed a motion asking that he be relieved as counsel because he was to become a deputy prosecuting attorney on March 3. That motion, after some delay, was granted on May 14. On the same day substitute counsel was appointed for Divanovich. Still later, on Divanovich’s motion the court disqualified the prosecuting attorney on the ground that his professional association with Divanovich’s first attorney created a conflict of interest. A special prosecutor was then appointed.

Although all the foregoing steps were not completed until the appointment of the special prosecutor on August 18, it is evident that the scheduled trial on April 8 could not have been held, because of the necessity of appointing a new prosecutor and a new defense counsel. A continuance necessitated by defense counsel’s having an earlier conflicting trial date in a civil case has been held chargeable to the defendant. Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980). Here the postponement of the scheduled trial on April 8 was certainly for good cause, bringing it within Rule 28.3 (h). The excluded period greatly exceeded 31 days.

Finally, we find no facts justifying a conclusion that, even though the case was tried within the time allowed by our Rules, there was prejudicial delay calling for a dismissal under Barker v. Wingo, 407 U.S. 514 (1972).

The application for a writ of prohibition is denied.

Adkisson, C.J., and Purtle, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. The majority has held that an excludable period exists for good cause under Rule 28.3(h). I dissent for two reasons: first, because the State failed to prove that defendant’s first attorney had no knowledge on February 28 (the date the case was set for an April 8 trial) of his March 3 employment with the prosecuting attorney’s office which presented a conflict of interest; and second, because of the trial judge’s failure to immediately appoint other counsel for the defendant upon being advised by the defendant’s attorney on February 29 that he would be unable to represent the defendant.

In State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980) we held that “it was the burden of the State to prove the delay was legally justified.” Here the State failed to sustain its burden of proof, and the trial court could not and did not make the necessay finding of good cause for the excludable period; but now the majority attempts to avoid Rule 28.3 (h) and Lewis, supra by supplying the deficiency and forging a finding of good cause out of a silent record.

On February 29 appellant’s attorney advised the court of his conflict of interest and of his inability to represent his client at the trial set for April 8. The trial court failed to immediately appoint substitute counsel; nor did it later make a finding of good cause for excluding the period between February 29 and the appointment of substitute counsel on May 14. Obviously, this two and one-half month delay in appointing substitute counsel was not the fault of the appellant and the delay should not be attributed to him. How can this Court determine that the trial court had good cause for delaying the appointment of substitute counsel for this lengthy period?

I am authorized to state that Purtle, J., joins me in this dissent.


source: Caselaw Access Project

author: Frank Holt, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Bob R. SMITH v. Gale WHITMIRE and Dwayne WHITMIRE
    81-39
    617 S.W. 2d 845
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981
    [Rehearing denied July 20, 1981.]

      Elrod & Lee, by: John R. Elrod, for appellant.

      Thomas J. Tucker, for appellees.
   Frank Holt, Justice.

Appellees brought this action in chancery court to establish and foreclose an equitable lien on 50 shares of corporate stock which they had sold to appellant. The chancellor, upon stipulated facts, found the issue in favor of the appellees, ordered a public sale of the stock if necessary to pay the judgment, and a deficiency judgment should the proceeds of the sale be insufficient.

Appellees owned 5% each (25 shares) of the corporate stock of Delco Manufacturing Co., Inc. appellant owning the other 90%. When the appellees terminated their employment with the corporation, they agreed to sell appellant their stock for $1,000 per share, or $25,000 to each appellee. The written agreement provided that $5,000 would be paid to each appellee upon execution of the contract, which was done. The remaining $20,000 due each appellee was to be paid in 4 annual installments of $5,000 each. These installments were secured by separate promissory notes, bearing no interest, which provided that time was of the essence and upon default the appellees could, without notice or demand, declare the entire unpaid amount immediately due and payable. The sale contract itself provided that upon default of any installment payment, any and all balances due would become due and payable immediately. The notes and the stock certificates were placed in escrow with a local bank.

The first annual installment, due November 10, 1979, was not paid on that date. Within a few days, appellees attempted to inform appellant by certified letter that the entire balance was immediately due, but the letter was returned. They then so notified him by a hand delivered letter of November 24. On November 30, appellant’s wife paid SI0,000 to the bank in cash. However, the bank telephoned her later that day and informed her it was under instructions not to accept any payments and instructed her to return for the payment made, which she did.

Appellees filed this action seeking to enforce an equitable lien on the stock. Appellant answered, asserting the affirmative defenses of waiver and estoppel. He subsequently filed a motion to dismiss, alleging lack of subject matter jurisdiction. This motion was overruled. The chancellor awarded the relief sought, finding appellant was in default; appellees were entitled to declare the entire unpaid balance due and payable; and appellant had failed to show any waiver of appellees’ right to prompt payment or to declare the balance due or any conduct which would estop them from insisting on their rights under the notes and contract.

Appellant first asserts that the chancery court erred in refusing to grant his motion to dismiss, for lack of subject matter jurisdiction, and transfer the matter to the circuit court. He argues that the transaction here is governed by the Uniform Commercial Code, a recent statutory scheme not contemplated by our 1874 Arkansas Constitution. Inasmuch as case law has interpreted the Constitution as limiting jurisdiction of equity courts to that which they could exercise at the time the Constitution was adopted, appellant contends the equity court here had no jurisdiction. Furthermore, there was an adequate remedy at law.

Art. 7, §§ 1 and 15, Arkansas Constitution (1874), authorizes the legislature to create courts of chancery and vest them with jurisdiction “in matters of equity,” although the legislature cannot add to nor reduce that jurisdiction. Hester v. Bourland, 80 Ark. 145, 95 S.W. 992 (1906); Gladish v. Lovewell, 95 Ark. 618, 130 S.W. 579 (1910); and Nethercutt v. Pulaski Co. Spl. Sch. Dist., 248 Ark. 143, 450 S.W. 2d 777 (1970). Jurisdiction “in all manners of equity” is vested in the chancery courts. Ark. Stat. Ann. § 22-404 (Repl. 1961). Even if courts of law are given jurisdiction of a case of which equity originally had jurisdiction, this does not divest equity of jurisdiction but the two have “concurrent jurisdiction.” Titan Oil and Gas v. Shipley, 257 Ark. 278, 517 S.W. 2d 210 (1974); Vaughan v.Hill, 154 Ark. 528, 242 S.W. 826 (1932); and German National Bank v. Moore, 116 Ark. 490, 173 S.W. 401 (1915). This is true even though the remedy given at law might be adequate. Hempstead & Conway v. Watkins, Adm’r of Byrd, 6 Ark. 317 (1845). An action to enforce an equitable lien is certainly an action cognizable in equity. Finally, we, also, note that appellant raised equitable defenses in his answer; i.e., waiver or estoppel. This in itself makes the case one properly heard in equity unless equity is wholly without jurisdiction under all circumstances. Spikes v. Hibbard, 225 Ark. 939, 286 S.W. 2d 477 (1956); and Nottingham v. Knight, 238 Ark. 307, 379 S.W. 2d 260 (1964). We hold the chancellor correctly held he had jurisdiction of the subject matter of this action.

Appellant next asserts that the chancellor erred in finding a sufficient material breach of the agreement by appellant as “would warrant judgment and foreclosure.” He argues that he was a “busy man,” he was out of the country between November 10 and November 24, and that his wife delivered the delinquent payment to the bank just 6 days after he received the letter. This, he contends, was sufficient excuse to relieve the “forfeiture.” Although a court of equity will tend to relieve the hardships of acceleration of maturities, there must be circumstances to indicate such relief is warranted. Mitchell and Shaw v. The Federal Land Bank of St. Louis, Missouri, 206 Ark. 253, 174 S.W. 2d 671 (1943). Furthermore, an acceleration clause is nottreated as a forfeiture clause, but as a “stipulation for a period of credit on condition.” Mitchell and Shaw v. The Federal Land Bank of St. Louis, Missouri, supra. Here, the appel-lees, minority stockholders of their corporate employer, contracted to sell their stock to appellant, who owned the balance. It was expressly stated in the sales contract and promissory notes, which bore no interest, that time was of the essence of the contract and the unpaid balance would be due and payable upon default. That was the clear intention of the parties. Neither has appellant demonstrated a waiver or estoppel as to that intention. From the nature and circumstances of this case, we cannot say the chancellor’s finding is against the preponderance of the evidence.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because I think this is clearly an action on debt for the purpose of collecting a promissory note. No mortgage was given nor was any financing statement filed. The parties simply made an agreement and turned the certificates over to the Arkansas State Bank for safekeeping until the debt was paid. No papers were filed at the county courthouse. No one claims a mortgage ever existed. Therefore, this could not have been a foreclosure action.

There is no question but at the time of the adoption of the 1874 Constitution there was in existence a remedy at law for collecting on a debt. That remedy was to sue in the circuit court. Such procedure being vested in the circuit court at the time of the adoption of the Constitution, it would be illegal to attempt to give the chancery court jurisdiction of such subject matter.

Additionally, it is established law in Arkansas that if an adequate remedy exists at law, courts of equity have no jurisdiction. Fenton v. Halliday, 172 Ark. 517, 289 S.W. 2d 482 (1927). Also, Nethercutt v. Pulaski Co. Spl. Sch. Dist., 248 Ark. 143, 450 S.W. 2d 777 (1970).

Therefore, if equity had jurisdiction, certainly it had a duty to do equity. The court should have granted a reasonable time for the appellant to make his payment. In any event, he should be allowed time to pay the balance on the stock because it has all been declared due.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Harold HOBBS v. STATE of Arkansas
    CR 80-227
    617 S.W. 2d 347
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Appellate Defender, for appellate.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Harold Hobbs was charged with capital murder in Jackson County, Arkansas, and on his counsel’s motion the trial was moved to Lawrence County. The State’s case was that Hobbs went to an office in Newport, .Arkansas, forced a female bookkeeper to write two checks payable to him, took the bookkeeper to a remote location and killed her. Hobbs testified that he was at the scene of the crime but contended that another person killed the victim and forced Hobbs at gunpoint to participate in the robbery and kidnapping. The jury found Hobbs guilty and sentenced him to die.

We must reverse the conviction because of the trial judge’s comments during the selection of the jurors. In a capital case the process of selecting jurors is often laborious because the State and the defendant both seek an advantage. The State wants jurors who can vote for the death penalty; the defendant seeks those reluctant to invoke death. The case of Witherspoon v. Illinois, 391 U.S. 510 (1968) is the controlling precedent in this regard. A person irrevocably opposed to the death penalty cannot sit as a juror. The judge is supposed to direct the process, being given great discretion to insure that no undue advantage is gained. Sometimes the attorneys tend to take over the voir dire process and confuse the jurors. See Haynes v. State, 270 Ark. 685, 606 S.W. 2d 563 (1980). Sometimes, especially in a death case, the judge has to step in, after the attorneys have questioned prospective jurors, to insure fairness. In the case of McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979), for example, we approved the actions of a judge who clarified answers regarding the death sentence after both counsel had questioned a prospective juror. Even so, the judge cannot, in effect, step from the bench and aid either party and he cannot unfairly limit either party’s right to seek twelve people who can render a fair and impartial verdict.

In this case the trial judge invaded the process, dominating the selection of the jurors to the extent that he restricted the rights of the defense to fully and fairly question the prospective jurors, commented on the evidence, and in general injected himself into the process of selecting the panel so that it could not fairly try and sentence this defendant. The process began with each prospective juror being questioned separately. After two of these individuals were questioned the court took over the initial questioning of the remaining prospective jurors. The judge questioned the prospective jurors concerning possible bias, whether they could convict on circumstantial evidence, and whether they could fairly impose the death penalty. Then the State was given the witness and finally the defense was given a chance to ask its questions.

While some generalizations can be made, only extensive quotations from the record can accurately reflect the atmosphere of the voir dire. In two instances the judge asked prospective jurors how they would feel if someone came into their home and killed and brutally mutilated their family. This was an effort to determine whether the prospective juror really opposed capital punishment. It was an unfair question with no place in a proceeding to qualify a juror. As one man so aptly remarked to such a statement, that sort of act would seem to cry out for vengeance rather than punishment. Jurors should be sought who can put aside any feelings of vengeance or hate. The test of Witherspoon v. Illinois, supra, should be met without such questions.

At least eight times the trial judge referred to the notorious Illinois trial of John Wayne Gacy. He used the Gacy case not only as an example of a case where a conviction was obtained with only circumstantial evidence but also as a case where the death penalty should be invoked. Evidently that case had just recently been in the news. He referred to Gacy as a man who killed “thirty or forty young boys.” To bring to the mind of a prospective juror that case just before he is about to sit in judgment in a capital case was wrong. The trial judge repeatedly told the prospective jurors that the State only had a case of circumstantial evidence. To suggest that Gacy was convicted on circumstantial evidence was too strong a suggestion concerning the weight to be given to such evidence.

Quite often the trial judge began the questioning by asking the prospective juror his “feelings on capital punishment.” Most honest and fairminded jurors have mixed feelings on that subject, or at least they should have to qualify for jury duty. It is only those jurors irrevocably committed to voting for or against the death penalty who should not sit. There is no doubt that some of the questions by the court confused prospective jurors. Meeting the test of Witherspoon v. Illinois, supra, should be kept simple. The test is whether one can fairly consider one of two alternative punishments.

In our judgment the judge rehabilitated three prospective jurors that should have been excused for cause or at least examined more fairly.

The court committed error in commenting on the evidence in violation of Ark. Const, art. 7, § 23- An example of that is the examination of prospective juror Virginia Dullinger. The court said:

THE COURT:
Tell me what your answer would be to this. A few months ago there were news stories about a contractor named Gacy in Chicago who killed about twenty or thirty young boys. There was not a single eye witness. The state of Illinois built its case entirely on circumstantial evidence that Gacy was guilty. They also determined that the offense was horrible enough that he should be sentenced to death. Now had you been on that jury and had the proof been strong enough could you have found him guilty even though nobody saw him kill a single one of those twenty or thirty boys?
MS. DULLINGER:
Yes.
THE COURT:
All right. And if the facts were strong enough, could you on circumstantial evidence have sentenced him to death?
MS. DULLINGER:
Yes.

The judge several times rehabilitated a witness that should have been excused for cause or at least more fairly examined. In that regard we quote some of the testimony of prospective juror Roscoe Marshall:

DEFENSE ATTORNEY:
You don’t believe, do you, that because somebody is proven guilty of murder that they ought to automatically be put to death because they took a life, do you? Some people feel that way and that’s why I want to know if you do?
MR. MARSHALL:
Yeah, I think I feel that way.
DEFENSE ATTORNEY:
You do? If the state proved a death, then the punishment for a death ought to be a death, sort of an eye for an eye?
MR. MARSHALL:
Yes, sir.
DEFENSE ATTORNEY:
We would submit him for cause.
THE COURT:
I remember asking you that if you were on a jury and the jury first were able to agree unanimously that the defendant was guilty and then the court instructed you that once you found him guilty you had two choices as to punishment, life in the penitentiary without parole and death, and as I understood you, you said you would consider them both depending on how stout the proof was and how horrible the crime was.
MR. MARSHALL:
That’s right.
THE COURT:
Then to Mr. McLarty, you said that it just wouldn’t make any difference about the circumstances if somebody stopped breathing and they dug a hole and buried them, then somebody else ought to be put to death? Now which do you mean because they’re not the same?
MR. MARSHALL:
I would consider both of them, of course, but if I thought he was really guilty of taking a life with no reason, then I would recommend death.
THE COURT:
All right. He’s good.

It is our judgment this juror was going to vote for the death penalty and not “consider” any alternative.

In the questioning of prospective juror Patricia Ann Gifford we believe the court rehabilitated her on its own and precluded further inquiry.

THE COURT:
If the circumstantial evidence is strong enough, could you find a person guilty on circumstantial evidence alone?
MS. GIFFORD:
I think so.
THE COURT:
Do you have an opinion or feeling about the death penalty?
MS. GIFFORD:
No.
THE COURT:
If you’re taken as one of the twelve to try this case, if the proof was strong enough that you were convinced that the defendant was guilty, and even if there was sufficient proof of aggravating circumstances that you thought the case, that that was strong, if you were told by the court that you had two choices, life in the penitentiary without parole or death by electrocution, if the proof were stout enough, could you vote for death by electrocution?
MS. GIFFORD:
I believe.
DEFENSE ATTORNEY:
You told His Honor that you felt that you could vote for the death penalty. Could you tell me what type of case, in your mind, would deserve the death penalty?
MS. GIFFORD:
IVeil, if somebody was proven guilty of murder or something like that, then I think they ought to punish them like that and maybe it will cut down on the crimes that we have at the same time. [Emphasis added.]
DEFENSE ATTORNEY:
Are you familiar with the saying that comes out of the Old Testament of an eye for an eye, that there’s been a death on one hand that the punishment for that would be death on the other? Do you believe in that as far as being just punishment or the proper punishment?
MS. GIFFORD:
Yes, sir. (Rest of answer inaudible.)
DEFENSE ATTORNEY:
If the state in this case proved to your satisfaction beyond a reasonable doubt that Harold Hobbs was guilty of murder, that he was guilty of kidnapping, that he was guilty of robbery, and they proved that the case involved some aggravating circumstances, although His Honor told you that you could consider two punishments if you first found him guilty, life without parole or death by electrocution, do I understand that you’re saying that on those facts for this type of case you believe the only proper punishment to be death?
MS. GIFFORD:
If that’s what the judge said do.
DEFENSE ATTORNEY:
Well, the judge will give you a choice. In the event you find him guilty, the judge will give you a choice and you can make a choice. All the jury has this vote and, of course, the jury must agree before it becomes a verdict, but you will have a choice of life without parole or death. What I’m trying to determine is whether you are saying if the state proved these things against the defendant then I’m telling you even though I have two choices that my choice is going to be death by electrocution?
MS. GIFFORD:
Yes, I think it ought to be.
DEFENSE ATTORNEY:
You think that’s the proper punishment for that type of crime?
MS. GIFFORD:
I think that would stop some of the crimes that we have in this day and time. That’s the only way I think we’re going to stop it. [Emphasis added.]
DEFENSE ATTORNEY:
And though you have two alternatives available to you, you’re telling me right now you’re not going to consider the one, you’re going to just stick to the tougher one because it will stop crime?
MS. GIFFORD:
Yes. [Emphasis added.]
DEFENSE ATTORNEY:
We’d submit Ms. Gifford for cause.
THE COURT:
Ms. Gifford, at the risk of your feeling like we’re trying to pull you in two opposite directions at the same time, please don’t. It’s necessary that those questions be asked and that a trial of this sort be conducted with care. And I don’t care which your answer is, but I do care whether I’m reading you correctly or not. In your answers to Mr. McLarty, the way he phrased his questions, it sounded like that death is the only punishment that you would consider. Now when I asked you questions before he took over the questioning, I got the impression that what you were telling me was that everything that you voted for or against once you go out in the jury room is going to depend on the facts that are proven, what’s proven from that witness stand, and that next whether you found the defendant guilty or innocent would depend on the facts. That circumstantial evidence would have to meet the measure as far as you’re concerned.
MS. GIFFORD:
Yes, sir.
THE COURT:
I’m right on two steps then. And third that when it got down to punishment once the twelve of you had agreed, if you do, that the defendant was guilty, again it would depend on the facts and that if the facts were, I think as I phrased it, strong enough or rough enough you’d vote for the death penalty if you thought that those facts warranted that, but if you thought that the facts didn’t justify death, you’d vote for life imprisonment without parole. Am I correct on this third proposition?
MS. GIFFORD:
Yes, sir.
THE COURT:
She’s good.

At times it seemed that the judge had predetermined the way a juror would answer. In the case of prospective juror Jess King, who implied that he would have difficulty imposing the death penalty, the court said:

THE COURT:
(Gacy) was tried and they didn’t have anybody who said I saw him kill one of those boys, just circumstantial evidence was all. Now if you had been on that jury up there, could you have found him guilty on circumstantial evidence, or would you have said since it’s circumstantial, I’m just going to have to turn him loose and let him kill some more?
MR. KING:
Yeah, well, I wouldn’t have wanted to have told a story.
THE COURT:
No. I don’t care what your answer is. I just want to know. You’re saying that you couldn’t vote for a conviction on circumstantial evidence?
MR. KING:
No.
THE COURT:
You will be excused by the court, Mr. King.

The defense counsel objected at least six times to the court’s conduct. After several prospective jurors had been examined, a comprehensive objection was made to the court conducting the voir dire as it had. The court noted that this would be considered a continuing objection. A motion for mistrial was made at the conclusion of the selection on the same basis and it was denied. The record definitely reflects that the court made it clear to counsel not to make objections during the court’s voir dire.

DEFENSE ATTORNEY:
... [W]hen you started voir diring the final twelve and you started out on the question of the death penalty and went down, and then you went on circumstantial evidence and you went down on all twelve in their hearing of each other, after or during the time so as to not interrupt the court when you were going on the first one, I asked to approach the bench and you said, no, you may not, or not at this time, or words to that effect.
THE COURT:
Right.

In one place defense counsel said:

... The court has in effect taken all the questions and conducted all the voir dire, and, as I read the law, that’s not permissible; that the court is empowered with the authority to limit within reason the questions that are asked, but from the court’s questions that were set up and the court’s instructions to counsel, counsel is not in a position without, I think violating the court’s instructions to pursue any Witherspoon type questions to this juror without either disregarding the court’s instruction or acting in contempt of it, and I’m not going to act in contempt of it. ... I’m going to be severely limited in my voir dire unless I’m allowed to go into it, so I object.
BY THE COURT:
Well, is counsel in effect objecting because the Court has suggested that counsel not go back over the same questions that the Court just got through asking? Is that what you’re saying?
DEFENSE ATTORNEY:
That’s what I’m saying.
BY THE COURT:
You want to go back over it one more time?
DEFENSE ATTORNEY:
No, sir. No, sir, I don’t. The point that I’m making is that I would like to have the opportunity to go over it one time, and I would appreciate the opportunity to go over it fresh one time. I don’t see how I can stop the Court, and I’m not attempting to stop the Court, but I don’t see how I can stop the Court from asking what questions the Court wants to ask first, but enough — I have a difficult enough time to go back and ask the question after the Court has already been gone over it without it being completely repetitious but when the Court points out to the prospective juror that counsel is to listen up and the Court publicly advises counsel and this juror that there shouldn’t be any need to go over this again, then I am prejudiced from doing it or at least I’m prejudiced in this lady’s eyes.

While the trial judge no doubt felt that he was acting in the best interests of justice when he took over the direction of the voir dire, the record proves that in this case he went too far. For that reason the judgment is reversed.

For clarification we will discuss here those other issues which were raised in this appeal and may arise on a retrial. Hobbs argued that the trial judge was in error in changing the venue from Jackson to Lawrence County because Lawrence County is only composed of .91 percent black people whereas Jackson county is composed of 14.82. He argues that the trial should have been changed to a county with a black population equal to Jackson County. There is no constitutional right to a trial in a county most demographically like that in which the crime occurred. There is no right to a jury composed of a particular race. Waters v. State, 271 Ark. 33 (1980). There is no contention that the Lawrence County jurors did not represent a cross-section of that county or that the judge ordered the transfer to Lawrence County for an invalid reason. Other counties within the same judicial district had a smaller percentage of blacks. The right is to a jury panel representing a fair cross-section of those in the county where the trial is held. See Taylor v. Louisiana, 419 U.S. 522 (1975).

The appellant argues that the trial court failed to suppress the testimony of two witnesses for the State who identified Hobbs by a photograph. The picture was of three black men, two of whom were older than the appellant, who is age twenty-six. The argument is that the photograph was too suggestive. In this case the victim was reported missing to the police about 6:45 p.m. on October 26, 1979. Later that evening two checks were found by the police that had been taken from the business where the victim was a bookkeeper. Her body was discovered at 12:12 a.m. on the 27th. That same morning the police obtained the photograph from the residence of Kathy Davis who lived with Hobbs. The police had no other pictures of Hobbs. When two people called the police on the afternoon of the 27th to say that a man had attempted to draw a check on the business in question, a detective drove immediately to their place of business and these witnesses described the man as a well groomed black male, five feet eight to six feet tall, slender build, in his early twenties. The detective showed the. picture to the two witnesses and they identified Hobbs as the man who attempted to cash the check. They testified that they were one hundred percent certain of the identification.

Although the picture may be suggestive, the question is whether there is reliability in the identification. Considering the totality of the circumstances we find the identification evidence was admissible. Martinez v. State, 269 Ark. 231, 601 S.W. 2d 576 (1980). This court has considered the opportunity of the witnesses to observe; the lapse of time between the attempt to cash the check and the identification; the lack of inconsistencies of the description given by the witnesses; the fact that this was the only available picture; and all matters relating to the identification process. There is no likelihood of misidentification.

After Hobbs had been found guilty and the trial was in the sentencing stage, his counsel sought to introduce some video tapes taken in Texas. These tapes were statements by people who had known Hobbs when he lived there and related to his character when he was in high school. There was no oath administered to the witnesses and there was no opportunity to cross examine given to the State. The trial court refused to allow the tapes and Hobbs argues that this was error, citing Ark. Stat. Ann. § 41-1301 (4) (Repl. 1977) as authority for his position. That statute provides:

In determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in section 1303 [§ 41-1303], or any mitigating circumstances. Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters; but the admissibility of evidence relevant to the aggravating circumstances set forth in section 1303 [§ 41-1303] shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant or his counsel shall be permitted to present argument respecting sentencing. [Acts 1975, No. 280. § 1301, p. 500],

This is the first time we have considered this question regarding this statute. While evidence offered in mitigation should not be refused simply because it would not be admissible in a trial, that does not mean that it does not have to have some relevant or probative value regarding mitigation. The statute tends to relax the requirements of admissibility. That relaxation would go to perhaps authenticity or in the case of testimony, perhaps hearsay, either of which might prevent admissibility in a trial. That does not mean that the General Assembly intended to totally open the door to any and all matters simply because mitigation is the issue. Testimony that is offered should be sworn and the State should be given an opportunity to cross examine unless there are compelling and valid reasons for not meeting those requirements. Those requirements were not met in this case and we cannot say that there was an abuse of discretion on the part of the trial court in excluding the material.

Hobbs argued for separate jurors on the issue of guilt and punishment. Arkansas’s system for a bifurcated trial has been approved by the United States Supreme Court and appellant’s issue has no merit. Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), cert. den. 434 U.S. 878 (1977).

Hobbs also argues that all of the mitigating circumstances in the statute and in AMCI should have been submitted to the jury. We held in Miller v. State, 269 Ark. 341, 605 S.W. 2d 430 (1980) that those mitigating circumstances completely unsupported by any evidence need not be submitted to the jury. There was no evidence to support any mitigating circumstances except those submitted which were: (1) The capital murder was committed while Harold Hobbs was acting under unusual pressures or influences or under the domination of another person; (2) Harold Hobbs has no significant history of prior criminal activity; (3) Other: Specify in writing.

The other issues addressed to us need not be answered because they should not arise on a retrial.

Reversed and remanded.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in all of the majority opinion except those portions relating to the photograph identification of the appellant and the rules suggested for receiving evidence in the aggravation and mitigation stage of the trial.

The first point of disagreement with the majority is in allowing the photograph identification of the appellant. The photograph in question is of three men: a young black man wearing a beard and mustache who appears to be in his mid-20’s, a mustached middle-aged black man who appears to be in his late 40s or early 50s, and a clean-shaven older man in his 60s who has white hair and a light complexion. Keep in mind the appellant is 26 years of age.

I think the majority could have avoided declaring this photograph as not being too suggestive for the reason that it was shown to a party in an attempt to identify the person who had cashed a check at the bank. The appellant had not been charged and was not in custody nor were the identifying witnesses victims of a crime. However, the way the matter is written in the opinion it would appear that we would allow such prejudicial and suggestive identification if it were a case of the victim identifying the accused after he was in custody. I do not think the opinion should go that far, even though this error in not prejudicial.

The second point of my disagreement with the majority opinion is the interpretation placed on Ark. Stat. Ann. § 41-1301 (4) (Repl. 1977). The statute clearly states that for the purpose of determining the sentence evidence may be presented to the jury as to any matters relating to aggravating circumstances ... or any mitigating circumstances. The statute further states that such evidence may be presented by either party regardless of its admissibility under rules governing admission of evidence in trials of criminal matters. The statute clearly distinguishes the difference in matters presented in mitigation from those presented in aggravation. The statute states:

. . . the admissibility of evidence relevant to the aggravating circumstances set forth in section 1303 (§ 41-1303) shall be governed by the rules governing the admission of evidence in such trials. ...

There simply is no regulating criteria relating to mitigation evidence other than it be relevant.

I have been unable to find any history of this statute; therefore, we are left with the interpretation of the plain meaning of the words used in this statute. It seems most logical that the legislature intended to allow the convicted party a last opportunity to plead for his life. After all, only two sentences are possible at this stage of the proceedings. The accused may be sentenced to die by electrocution or may be sentenced to serve life imprisonment without parole in the Department of Correction’s institutions. This seems to me to be the reason the legislature specifically stated that an accused could present any mitigating circumstance regardless of its admissibility under the rules of evidence. I think the court is wrong in giving it the interpretation set out in the majority opinion because the only basis for such interpretation is the personal feeling of the individual members of the court. I realize a convicted person should not be turned loose at this point to present any and everything which might come to his mind. There must be an end to the trial at some time. However, since the person’s life is at stake, no doubt the legislature intended to allow him to present testimony, affidavits, statements, pictures, evidence of character and any other matter which has a relation to the offense for which he was convicted. I particularly dislike that portion of the majority opinion which interprets this rule to allow the state an opportunity to cross-examine unless there were compelling and valid reasons for not allowing it. This requirement is simply pulled from the air and is contrary to the intent of the statute.


author: John I. Purtle, Justice.

text:
    Norma S. McELROY v. JASPER SCHOOL DISTRICT
    80-309
    617 S.W. 2d 356
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981

      Cearley, Gitchell & Mitchell & Bryant, by: Richard W. Roachell, for appellant.

      Pinson & Reeves, by: Kenneth Reeves, for appellee.
   John I. Purtle, Justice.

The Newton County Circuit Court upheld the Jasper School District Board of Education in its refiisal to renew the contract of the appellant who was a probationary teacher. For reversal appellant argues the appellee school district violated her rights by failing to strictly observe the state statutes and policies adopted by the school board. We feel the board acted within its authority and substantially complied with the state law and the board’s own policies.

The appellant was employed by the appellee school district for a school term beginning on August 20, 1979, and expiring on May 16, 1980. This was appellant’s first year as a teacher. According to the principal and superintendent of schools, during the year she experienced problems in maintaining classroom discipline. She was counseled several times concerning problems in her work and the lack of progress made in remedying the deficiencies. When it was time for renewal of the contract, the appellant was not recommended for a second contract. Appellant was notified by a letter from the superintendent, dated April 2, 1980, that he would not recommend her contract be renewed. He gave reasons for his action and offered her an opportunity to request a hearing before the school board. The hearing was requested and held on May 5, 1980. The appellant was present and represented by a person from the Arkansas Education Association.

Pursuant to Ark. Stat. Ann. § 80-1256 (Repl. 1980), the board adopted personnel policies. Ark. Stat. Ann. § 80-1259 (Repl. 1980) requires that copies of the personnel policies will be furnished to each teacher employed by the district. The testimony indicates that appellant was not furnished a copy of the current personnel policies. Among the policies adopted by the school board were: the requirement that a teacher be evaluated at least twice during the school term; that teachers be given a written copy of their evaluations; and that teachers sign their evaluation. It is not disputed that the administrative personnel of the district failed to strictly comply with these particular policies.

Following the hearing by the school board on May 5, 1980, appellant was notified that the board was following the recommendation of the superintendent and not renewing her contract for the following year. An appeal was taken to the Circuit Court of Newton County pursuant to Ark. Stat. Ann. § 80-1264.9 (Repl. 1980). The circuit court affirmed the action of the school board.

The Teacher Fair Dismissal Act of 1979, as amended, provides that teachers with more than three years’ experience shall have a right to a hearing when their contract is not renewed. A teacher who has not completed three successive years’ employment in the district does not have a right to a hearing upon failure to renew the contract. Section 9 of Act 766 of 1979 is codified as Ark. Stat. Ann. § 80-1264.8 (Repl. 1980). This statute authorizes a first year teacher or any teacher to request a hearing upon receipt of a notice of recommended termination. However, only a teacher with more than three successive years with the district is entitled to a hearing for non-renewal recommendations.

In the present case it is not disputed by the parties that the formal notice required by the act was properly given. There is no dispute that the appellant is a “probationary teacher.” Since Act 766 has not given the appellant the right to a renewal of her contract, to be given any reason for non-renewal, or even to have a hearing upon failure to renew, we must determine if there are other grounds which grant such a right. The only other possible grounds are the district’s own policies. We have many times held that the sole power to terminate a teacher’s contract is vested in the district’s Board of Education. We have also recently held that substantial compliance with the statutory requirements is all that is required. Fullerton v. Southside School District, 272 Ark. 288, 613 S.W. 2d 827 (1981). In the present case we find there was substantial compliance. The appellant was given frequent conferences during the school year which certainly would substantially comply with the board’s policy of twice a year evaluation. Furthermore, she was present when the school administrator made written evaluations and she was aware of the contents of same. Although she apparently was neither given a written copy of the evaluations nor did she sign them, there is no contention that she was unaware of their existence or contents. It is true there is no evidence that the appellant received a written copy of the board’s policy as required by statute; however, it is not argued that her rights were substantially affected by the failure to receive the written policies or a copy of the evaluations. The superintendent and the board granted the appellant a hearing at which she was allowed to refute anything which had been said concerning her or her duties at the school. She also had a representative of the AEA with her during the hearing. A record of the hearing reveals that the board simply exercised its discretion to follow the recommendation of the superintendent in declining to renew the appellant’s contract for the second year. Although the hearing was not required, the record of that hearing reveals adequate grounds for the action taken even if such hearing had been required.

We do not mean to imply that a school district may ignore its own policies in dealing with personnel. The legislature mandated that school districts adopt personnel policies. Having done so, it is only reasonable to expect that the various boards will at least substantially comply with their own policies.

In the recent case of Maxwell v. Southside School Dist., 273 Ark. 89, 618 S.W. 2d 148 (1981), we held the failure of the board to follow its adopted policies entitled the probationary teacher to renewal of her contract. However, in Maxwell there was not even colorable compliance by the district with its current policies. Here, as in Fullerton, supra, we find the Board of Education substantially complied with its current policies.

We think the complete and fair hearing offered to the appellant and conducted by the board, and the various conferences and evaluations by administrative personnel were more than adequate to compensate for any shortcomings which may have existed by the failure to strictly follow the school board policies. The appellant viewed the written evaluation form which was placed in her file. She received numerous face to face conferences with the superintendent and principal during the school year. She makes no claim that she was deceived or otherwise injured by the failure to follow the exact letter of the law as it relates to evaluations. In fact, she received more than the law requires. A no.n-probationary teacher is entitled only to know the reasons for failure to renew and an opportunity to be heard by the board. The appellant received both even though she was not entitled to either, as she was a probationary teacher.

Affirmed.


author: John I. Purtle, Justice. Richard B. Adkisson, Chief Justice,

text:
    James Edward BRADY, Jr. and Billy Joe COGGINS v. ALKEN, INC.
    81-40
    617 S.W. 2d 358
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981

      Thomas G. Montgomery, for appellants.

      Butler, Hicky & Hicky, by: Steve Routon, for appellee.
   John I. Purtle, Justice.

The jury returned a verdict for $3,000 in favor of appellee and the court awarded an additional $2,000 for attorney’s fees. Appellants appealed from the award of attorney’s fee, but the appeal was dismissed by the trial court for failure to comply with Rules of Appellate Procedure. On appeal, the appellants contend that the trial court erred in dismissing the appeal and in granting the attorney’s fee. We agree with both arguments.

The appellee filed a suit against the appellants, pursuant to a lease contract between the parties, alleging the appellants owed $13,500 in rent and a reasonable attorney’s fee. By agreement of the parties the matter of the attorney’s fee was reserved to the court and the matter of the rent was submitted to the jury. March 19, 1980, the jury returned a verdict in favor of appellee in the amount of $3,000 for rent. The court added $2,000 as attorney’s fee, and the judgment was entered on April 16, 1980. Notice of appeal from the portion of the judgment granting attorney’s fee was given by the appellants on May 9, 1980, and it stated that the transcript of the trial court “will be requested.” The appellants’ attorney mailed a copy of the notice of appeal to the appellee’s attorney and called attention to the fact that they would try to settle the record later. At the same time notice of appeal from the attorney’s fee portion of the judgment was given, the appellants paid the $3,000 judgment awarded by the jury.

On July 17, 1980, the appellants’ attorney proposed to appellee’s attorney a supplemental record for appeal purposes. When no response was given, the appellants made a complete designation of the record on July 18, 1980. At the same time they filed a motion to supplement the record. On August 1, 1980, appellee moved to dismiss the appeal because of failure to designate the record in the notice of appeal. On August 4, 1980, appellants moved for an extension of time in which to lodge the record in the appellate court. The extension of time, until October 15, 1980, was granted the next day. The appellants responded to the motion to dismiss on August 18, 1980. An amendment to the notice of appeal and designation of record was filed on September 3, 1980. On the same date the trial court, without notice or hearing, signed an order dismissing the appeal. On September 8, 1980, the second notice of appeal was filed. This notice included an appeal from the order dismissing the first appeal.

We first consider the contention that the trial court erred in dismissing the appeal. There is no question that the trial court still had jurisdiction of the case when the order of dismissal was entered because the record had not yet been lodged in the appellate court. Estes v. Masner, 244 Ark. 797, 427 S.W. 2d 161 (1968).

Arkansas Rules of Appellate Procedure, Rule 3 (e), states:

Content of Notice of Appeal or Cross-Appeal. A notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript, or specific portions thereof, have been ordered by the appellant.

The Reporter’s Notes (as revised by the Court) to Rule 3 state that significant changes to prior Arkansas procedures are found in Sections (e) and (f):

In Section (e), it provided that the notice of appeal shall contain a designation of the record, . . . and shall contain a statement that the transcript has been ordered. The latter statement is intended to expedite appeals.

As it was the intention of the legislature and the Supreme Court that the Rules of Appellate Procedure would prevail in the event of a conflict with a statute not specifically superseded, we hold that Ark. Stat. Ann. § 27-2106.2 (Repl. 1979) has been superseded by Rule 3 (e) insofar as the Rule requires designation of the record and a statement that the transcript has been ordered to be included in the notice of appeal. See Act 38 of 1973, Per Curiam Order of December 18, 1978, and the Supersession Rule which is found following Rule 10 of the Inferior Court Rules.

We must now decide whether the designation of the record and the statement that the transcript has been ordered must be included in the notice of appeal, or whether, under the circumstances of this case, substantial compliance is sufficient.

Under prior case law, the question of whether an appeal should be dismissed for want of strict compliance with the statutes and rules turned on whether the appellee was prejudiced by the irregularity. Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W. 2d 709 (1970); Pine Bluff National Bank v. Parker, 253 Ark. 966, 490 S.W. 2d 457 (1973); Harbor v. Campbell, 235 Ark. 492, 360 S.W. 2d 758 (1962). Since the purpose of the Rules of Appellate Procedure was basically to revise and condense prior statutory law, and the Rules were adopted for the purpose of expediting appeals, it appears that prior cases would be persuasive in this matter. In Davis v. Ralston Purina Co. we stated:

. . . The filing of a notice of appeal is jurisdictional, but irregularities in the other procedural steps . . . are merely grounds for such action as this court deems appropriate.

In the present case we do not find that the irregularity in any manner prejudiced or misled the appellee.

Here, the appellants stated at the time they filed notice of appeal that the transcript “will be requested.” It is obvious the appellants probably anticipated no part of the transcript would be needed for the appeal at this time, the reason being that they were appealing only from that portion of the judgment which the trial court had added after the trial of the case. Subsequent attempts to obtain an agreed record, as provided by Rule 6, were unsuccessful, and the appellants designated the entire record as a record on appeal prior to the time the motion was made to dismiss the appeal. We think the action of the appellants was in good faith and substantially complied with the Rules of Appellate Procedure. The deficiency was known by the appellee from the first day the notice of appeal was given. It was also brought to the attention of the court and was obviously known by the appellants. Our view is that if for any reason counsel are not able to state in the notice of appeal that the transcript or portions of it have been ordered, the proper practice would be for an appropriate explanation to be included in the notice of appeal. We are unwilling, however, to hold that strict compliance with the requirement that the notice of appeal contain a statement that the transcript has been ordered is jurisdictional.

The second point argued by appellants is that the attorney’s fee should not have been allowed. The settled law in Arkansas is that attorney’s fees are allowed only by statute. Romer v. Leyner, 224 Ark. 884, 227 S.W. 2d 66 (1955). In Romer we stated:

Attorney’s fees cannot be allowed as costs in suits, except as provided by statute, the same being regarded as a provision for a penalty and not to be enforced in the State courts.

We are unable to find a statute which would authorize payment of attorney’s fees under the facts of this case. Therefore, it was error to allow attorney’s fees.

Reversed and dismissed.

Adhsson, C.J., dissents.

Richard B. Adkisson, Chief Justice,

dissenting. I dissent from the majority’s holding that a notice of appeal was filed in this case. Appellants’ purported notice of appeal did not comply with the requirement of Rule 3 (e), Rules of Appellate Procedure, Ark. Stat. Ann., Vol. 3A (Repl. 1979) which provides:

(e) Content of Notice of Appeal or Cross-Appeal. A notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript or specific portions thereof, have been ordered by the appellant. (Emphasis mine)

In the reporter’s notes to Rule 3 it is stated that ordering the transcript from the court reporter at the time of filing the notice of appeal “is intended to expedite appeals.” The effect of the majority ruling today is to abrogate the plain language of the rule and its stated purpose and intent. It is common practice to delay appellate procedure by not ordering the transcript from the court reporter until just before the time required for requesting an extention. Failure to order the transcript at the time of filing a notice of appeal as mandated by Rule 3 leaves the court reporter and the appellee in suspense as to whether or not an appeal will actually be taken.

When the order for the transcript belatedly arrives, the court reporter is then pressed to acknowledge a need for an extension of time in which to prepare the transcript and usually then has a little over three months in which to prepare the transcript as opposed to six months.

The majority have refurbished an old vehicle for delay in the administration of justice which our new Rules of Civil Procedure had closed.


author: Steeie Hays, Justice.

text:
    Clarence EATON and Wayne C. ROBERTS v. W. J. McCUEN, County Judge et al
    81-74
    617 S.W. 2d 341
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981

      Q. Byrum Hurst, Jr., for appellants.

      Friday, Eldredge & Clark, by: John C. Echols, for appellees.
   Steeie Hays, Justice.

Appellants ask in effect that we declare the Garland County Solid-Waste Service District to be invalid. They reside in the district and brought suit in chancery court against W. J. McCuen and other officials of Garland County seeking declaratory judgment and injunc-tive relief against the collection of a service charge levied for purposes of the Garland County Solid-Waste Service District. The case was submitted on stipulated facts from which the court granted summary judgment to the defendant-appellees. We affirm that judgment.

On May 22, 1978, the Garland County Quorum Court adopted Ordinance 0-78-17 creating a subordinate service district to operate a landfill to dispose of solid waste as authorized by Act 742 of 1977, codified as Ark. Stat. Ann. § 17-4101 et seq. (Repl. 1980). This ordinance was referred to the voters of Garland County in the 1978 general election and approved. The district now comprises all of Garland County except the city of Hot Springs and the unincorporated communities of Hot Springs Village, Lonsdale and Mountain Pine. § 17-4101 provides:

(1) Subordinate service districts to provide one [1] or more of the services authorized to be provided by county governments may be established, operated, altered, combined, enlarged, reduced, or abolished by the Quorum Court by ordinance. ...
(3) A subordinate service district is defined as a county service organization established to provide one or more county services or additions to county services and financed from revenues secured from within the designated service area through the levy and collection of service charges. ...

Ark. Stat. Ann. § 17-4109 (1) and (3).

The collection of solid waste being a “public purpose,” the .providing of such a service by a county is implied in Amendment 55, Constitution of Arkansas (1874) and specifically provided for in Ark. Stat. Ann. § 17-4109.1 (Repl. 1980) and Ark. Stat. Ann. § 82-2713 (Repl. 1976) which we will refer to more fully at a later point.

On December 28, 1978, and again on July 9, 1979, the Quorum Court amended Ordinance 0-78-17 to particularly describe the service district boundaries and to provide a method of collecting the $1.50 a month service charge levied on residents of the district, as provided in the original ordinance.

On July 14, 1980, the court authorized the issuance of $600,000 in Garland County Solid Waste Facilities Revenue Bonds (the “bonds”) pursuant to Ark. Stat. Ann. §§ 82-2713, et seq. (Repl. 1976).

The appellants brought suit below to declare the ordinance void as being unauthorized in law, Section 106 of Act 742 having been repealed, to enjoin collection of the service charges under the ordinance, and to enjoin issuance of the bonds alleging that they are prohibited by Amendment 10 and 13, Constitution of Arkansas (1874).

The chancery court granted summary judgment to the appellees as to each issue, and the appellants bring this appeal. They argue that the court erred in upholding the validity of the ordinances because each was enacted without statutory authority. We disagree. Each of the ordinances was adopted pursuant to Act 742 of 1977. Section 106 of that Act was repealed by Act 919 of 1979, codified as Ark. Stat. Ann. § 17-4109.1 (Repl. 1980). However § 17-4109.1 provides:

[Subordinate service districts created pursuant to said Section 106 [Act 742] and existing on the effective date of this Act [July 20, 1979] shall continue in existence and be operated and governed in accordance with the provisions of said Section 106 as in effect immediately prior to the effective date of this Act. Further, subordinate service districts may continue to be created as provided by law for the following purposes ...
(b) Solid waste services, including recycling ser-vives, and solid waste collection and disposal services.

The ordinances having been adopted under Act 742, and the power to administer such districts having been preserved under § 17-41091, we find the ordinances to be a valid exercise of the Quorum Court’s power, as the Chancellor held.

Second, the appellants argue that the $1.50 monthly charges levied against the residents and establishments of the district by the ordinance, as amended, is an unconstitutional property tax under Article 16, Constitution of Arkansas (1874). Again, we disagree with that contention. It is settled law that Article 16 does not apply to assessments for improvement districts. Bensberg v. Parker, 192 Ark. 908, 95 S.W. 2d 892 (1936). Further, service charges assessed against users within the service district are not taxes. Housing Authority of Blytheville v. City of Blytheville, 228 Ark. 736, 310 S.W. 2d 222 (1958); Holman v. City of Dierks, 217 Ark. 677, 233 S.W. 2d 392 (1950); City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W. 2d 12 (1946); and Guerin v. City of Little Rock, 203 Ark. 103, 155 S.W. 2d 719 (1941).

Under this same point for reversal the appellant argues that the “service charge” should be construed as a “tax” because the charge imposed has no reasonable relationship to the services provided. However, the stipulations entered into between the parties show that the cost of the service to the county would be $450,000 per year and that such an amount would be adequately financed by the charge of $1.50 per month to each person who has access to use the collection service. There is no evidence whatever in the record that the charge is disproportional to the services rendered. As the court stated in Holman, above:

It may be that the [method] selected by the council is a reasonable one, and in the absence of evidence to the contrary we are unwilling to say that the presumption of constitutionality has been overcome. Holman, at 679.

Finally, appellants argue that the bonds created an indebtedness exceeding the limitations of Amendments 10 and 13, Constitution of Arkansas (1874). We find no merit in this argument. Here, the bonds were authorized pursuant to Ark. Stat. Ann. §§ 82-2713, etseq. (Repl. 1976). As such, they are not general obligations of the county but rather are revenue bonds payable solely from the revenues derived from the district’s service charges. Therefore, Amendments 10 and 13 are not applicable to the value of the bonds issued. City of Harrison v. Braswell, above; Austin v. Manning, 217 Ark. 538, 231 S.W. 2d 101 (1950); Downen v. McLaughlin, 189 Ark. 827, 75 S.W. 2d 227(1934); and Williams v. Harris, 215 Ark. 928, 224 S.W. 2d 9 (1949).

The order granting summary judgment is affirmed.


author: Per Curiam. John I. Purtle, Justice,

text:
    Floyd Junior COTTON a/k/a Junior COTTON a/k/a Bud COTTON v. STATE of Arkansas
    CR 81-48
    617 S.W. 2d 19
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981

      Terry Jones, for petitioner.

      Steve Clark, Attorney General, for respondent.
   Per Curiam.

Appellant’s motion to proceed in forma pauperis, motion to withdraw as attorney of record, and motion for an order requiring Benton Circuit Clerk to prepare record for appeal is denied.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. The attorney for the petitioner’s request to withdraw was denied by the trial court because notice of appeal had already been filed. The majority afiirms the action of the trial court without opinion. The matter is of significant importance, as I see it, and ought to be addressed. It seems to me that we have three rules which touch upon the matter of withdrawal of counsel for an accused. They are set out as follows:

Supreme Court Rule 11(h) states:

Any motion by counsel for a defendant in a criminal case for permission to withdraw made after notice of appeal has been given shall be addressed to this court, shall contain a statement of the reason for the request, and shall be served upon the defendant appealing. ...

Rule 9, Circuit and Chancery Court Rules, states:

No attorney shall withdraw his appearance in any cause in this Court except by leave of the Court after notice served by him on his client. If an attorney is permitted to withdraw, he shall so notify opposing counsel.

Rules of Criminal Procedure, Rule 36.26, states:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

Prior to the adoption of the Rules of Criminal Procedure, the cases of Andrews v. Lauener, 229 Ark. 894, 318 S.W. 2d 805 (1958) and Estes v. Masner, 244 Ark. 797, 427 S.W. 2d 161 (1968) held that the trial court held jurisdiction of a case until the record was filed in the supreme court even though notice of appeal had been filed. The Rules of Criminal Procedure were adopted in an effort to clarify and update our criminal procedure process. It is apparent we should amend the rules to eliminate the inconsistency and to allow the jurisdiction from the trial court to the supreme court to change at the same time for all purposes. Presently the supreme court obtains jurisdiction for the purpose of approving or disapproving counsel as soon as notice of appeal is filed. For all other purposes the case remains with the trial court until the record is lodged with the clerk of the supreme court.

The trial court in the present case was clearly correct in ruling that Supreme Court Rule 11 (h) requires this court to act upon the motion to withdraw as counsel. It is possible the trial court could have acted pursuant to Circuit and Chancery Court Rule 9 and granted the motion. Also, the court could have acted pursuant to Rules of Criminal Procedure, Rule 36.26, which states either the trial court or this court may grant a motion to release counsel. It is possible the courts have concurrent jurisdiction but it is at least confusing in the present status.

Therefore, I would suggest that Rule 11 (h) be amended in such a manner as to continue the complete jurisdiction of a criminal case in the trial court until such time as the record is lodged with the supreme court. The only change which would be necessary is to change that part of the first sentence in Rule 11 (h) which states “to this court” to read “to the trial court.” With such change, the trial court would clearly have authority to act upon the motion of an attorney to withdraw until such time as the record became lodged with the supreme court.

Therefore, I concur in the results of this case but would issue a Per Curiam and Rule change amending the procedure.


author: George Rose Smith, Justice. Steele Hays, Justice,

text:
    M. Sam JONES, Jr. and Richard J. BROUSSARD v. FRANKS PETROLEUM, INC.
    80-291
    617 S.W. 2d 369
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981

      Keith, Clegg & Eckert, for appellants.

      Richard L. Choate, for appellee.
   George Rose Smith, Justice.

In 1975 the appellee Franks Petroleum, Inc., was the operator of two producing oil wells on 200 acres of land in Columbia county. The 200 acres had been owned by Peter Doss at his death in 1932, but thereafter the ownership of the minerals within the tracts became scattered among almost a hundred persons, some owning as little as an undivided 1/7200th interest. Franks Petroleum, in order to determine with precision the various mineral ownerships, filed a bill of interpleader bringing the various owners into court. In 1976 the court approved what was apparently a consent decree, which enumerated the descendants of Peter Doss, recited the stipulated effect of several conveyances, and quieted the title of the various mineral owners, setting out in detail their fractional interests. We regard that decree as decisive of practically all the issues in the present case and will refer to it as we state the facts.

The decree listed the two appellants, Jones and Brous-sard, as owners of a fractional mineral interest, but a dispute arose between them and Franks Petroleum about whether the Jones-Broussard interest was included in the oil and gas leases held by Franks Petroleum, as it contends, or was wholly unleased, as Jones and Broussard contend. To settle that dispute Jones and Broussard brought this suit against Franks Petroleum to obtain an accounting for their share of the production from the two oil wells. The chancellor found that the plaintiffs’ mineral interest was included in the Franks Petroleum leases and quieted its title to its oil and gas leasehold estate as against Jones and Broussard. They have appealed to this court under Rule 29 (1) (n). The issues are wholly of law, all the facts being stipulated.

After Peter Doss’s death his nine children (or their descendants) sought to partition the 200 acres by filing a plat. The consent decree, however, held that the partition was ineffective and that what had been assigned to one of the children as Lot 7, a 22-acre tract, in fact continued as an undivided one-ninth interest in the 200 acres. Before the consent decree, however, conveyances referred to Lot 7, which was described by metes and bounds and contained 22 acres, more or less.

In 1964 the Mangrums, who were the Doss great-grandchildren owning Lot 7, conveyed it by warranty deed to J. F. and Wanda Baker, describing the tract as 22 acres, reserving a % mineral interest (16.5 mineral acres), and “conveying a full 5.5 [mineral] acres” to the grantees. The consent decree recited that the Mangrum-Baker deed effectually reserved an undivided three fourths of the grantors’ mineral interest in the 200 acres and effectually conveyed an undivided one fourth to the Bakers.

In 1968 the Bakers conveyed the 22 acres to Lamar McEachern, with this reservation: “The grantors except all the oil, gas and other minerals as such have been reserved by former grantors.” The exception was ambiguous, because the word “as” can mean either “in the same manner that” or “because.” Webster’s Second New International Dictionary (1939). If “as” had the first meaning, the grantors excepted only the Mangrums’ reserved three fourths of the minerals, the remaining one fourth passing to McEachern. But if “as” meant “because,” the grantors excepted all the minerals, the final clause being merely explanatory. The second interpretation is obviously doubtful, since former grantors had not reserved all the minerals, only three fourths.

The ambiguity, however, was laid to rest by the consent decree, which recited that by stipulation of the parties it was the intent of the grantors and grantee to refer to the entire 200 acres, and that also by stipulation of the parties the deed effectually conveyed to McEachern all mineral interest acquired by the Bakers from the Mangrums. Hence after that 1968 conveyance McEachern owned 5.5 mineral acres in the 200 acres. In 1970 and 1972 Franks Petroleum obtained oil and gas leases from the Mangrums, who had retained three fourths of the mineral interest, and from the Bakers, who (according to the 1976 consent decree) had already conveyed their mineral interest to McEachern. Franks Petroleum has never obtained an oil and gas lease from McEachern nor from the appellants, who acquired McEachern’s mineral interest in 1973.

As we have indicated, the consent decree practically settles this case, because Franks Petroleum was a party (the plaintiff) in the interpleader suit and is bound by the decree. Indeed, the company does not controvert any of the facts as we have stated them. It argues instead that the Mangrums’ deed to the Bakers in 1964 should be construed to convey only a one-fourth mineral interest in the Mangrums’ one-ninth interest in 22 acres, which would be a one thirty-sixth interest in only 22 acres. That deed, however, said nothing whatever about a one-ninth interest. Lot 7 was then considered to be all that the Mangrums still owned, but the consent decree nullified the attempted partition and converted the intervening conveyances of Lot 7 into convey-anees of a one-ninth interest in the 200 acres. The consent decree is unmistakably clear on that point.

We should mention one other circumstance on which the chancellor relied in reaching his conclusion. In the interpleader suit the Bakers contended that their deed to McEachern was ambiguous and should be interpreted in their favor. Jones and Broussard disputed that contention. Two days before the signing of the consent decree that dispute was settled by the execution of a royalty deed from Jones and Broussard to the Bakers’ daughter, Evelyn Sluss, in return for which the Bakers gave up their claim. That deed, however, conveyed only a non-participating one-eighth royalty interest to Mrs. Sluss, not the grantors’ eight-eighths mineral interest. The chancellor’s view would mean that Jones and Broussard compromised the dispute by giving up their entire interest, even though the royalty deed explicitly described only a one-eighth interest. The royalty deed could not have subjected the grantors’ entire interest to the existing leases to Franks Petroleum, because Jones and Broussard never joined in such a lease.

Reversed and remanded.

Adkisson, C.J., and Hays, J., dissent.

Steele Hays, Justice,

dissenting. I do not understand where the chancellor erred. The evidence in this case was submitted to the trial court by stipulation, but even so we are to view that evidence in the light most favorable to the appellee. And we are to resolve all reasonable inferences derived from such evidence in favor of the appellee, affirming the trial court even where he mistakenly applies the law, if the result is correct.

This is an unusual case. The facts were fully stipulated and the issues of law, if there are any, are not identified anywhere — either in the appellants’ brief, who cite nothing throughout their brief on the only significant point raised on appeal; or in the appellee’s brief; or even in the majority opinion. If the chancellor is to be reversed the error ought to be pointed out. I find no error, simply a difference of opinion as to the inferences to be drawn from the evidence. In the premises of this case I think the trial judge is in a better position to reach the right result.

Peter Doss died intestate many years ago owning 200 acres in Columbia County, including all the mineral interests except a small interest not here involved. His nine heirs attempted a partition by means of a plat dividing the land into nine parts. One 22 acre tract, No. 7, was allotted or descended to Mamie [Doss] Mangrum and is the subject of this suit. In 1964, her heirs, Robert Mangrum and Maudell Mangrum Edwards deeded 22 acres, Lot 7, by a metes and bounds description to J. F. Baker and Wanda Baker, reserving to the grantors %ths of the minerals and conveying 14th, or 5.5 mineral acres, to the grantees. In 1968 the Bakers deeded the same 22 acres to Lamar McEachern, with this reservation:

The grantors except all the oil, gas and other minerals as such have been reserved by former grantors.

By mesne transactions, Franks Petroleum acquired mineral leases covering the entire 200 acres — from the Mangrum heirs in 1970 and from the Bakers in 1972.

In 1973 Lamar McEachern deeded the 22 acres to appellants. The deed contained a reservation excepting from the grant all oil, gas and other minerals “heretofore constructively severed from the above described land.”

In 1975 Franks Petroleum brought in two producing wells on the 200 acres and filed an interpleader suit to determine the ownership of more than @109,000.00 in oil royalties, naming some 70 heirs of Peter Doss and approximately 100 presumed distributees. The lengthy and complex decree, which undisputably was entered by consent contained two recitations on which the appellants have constructed their claim of entitlement to %ths of the mineral interest attributable to 5.5 acres and claims to other mineral and royalty interests in the 200 acres. The decree recites that “by stipulation between the parties” the Baker to McEachern deed effectually conveyed 14th mineral interest to McEachern to the entire 200 acres and, more, that the deed from McEachern to the appellants “effectually conveyed all mineral interest in and to the 200 acres” acquired by McEachern from the Bakers. Thus, on these stipulations, appellants contend that when Franks Petroleum acquired the mineral leases from the Mangrums in 1970 and from the Bakers in 1972 (some 5 or 6 years before the decree) they, the appellants, had an outstanding mineral interest for which Franks Petroleum should now pay them. But this argument, if it has no other flaws, is dependent on giving retroactive effect to stipulations of a consent decree which could not possibly have been intended by such stipulations. At least there is nothing in this record to indicate either that the court was actually making those findings or that the parties were actually intending to agree to those findings as a matter of compromise. It may be that they did, but the court found otherwise and I believe that it was in a far better position than we are to construe what occurred from this very abbreviated record. In my view what appellants ask us to hold was neither intended by the stipulation in the inter-pleader suit nor was it the result of a judicial determination by the trial judge. In the absence of proof one way or the other I believe the better course is to rely on the holding of the chancellor.

The majority point out that the chancellor’s view would mean that appellants compromised their dispute with the Bakers over the reservation in the Baker-McEachern deed by giving up their entire interest, which I concede to be improbable. But there are two answers: First, whether appellants gained other benefits by the compromise can’t be determined from this record, but I strongly suspect that they did. Secondly, even if they did not, one can speculate that they were willing to give up very little (a Vsth royalty interest to which they had a very dubious claim) in the expectation that by so doing they gained a good chance of acquiring %ths mineral interest to 5.5 acres, by claiming that they acquired their interest from McEachern unleased, and which the outcome of this appeal now validates. Hence, they bargained very little for very much, and won.

I would affirm the chancellor or, at least, remand the case with directions to grant the appellants’ motion for the submission of evidence on the issues “not completely developed in evidence or by the [chancellor’s] letter opinion.” In this fashion the case could be resolved, not on guesswork, but on relevant evidence. Where the issues have not been fully developed below, even due to common inadvertence of the parties, it is our practice in equity cases to remand for further proof. Hutchison v. Sheppard, 225 Ark. 14, 279 S.W. 2d 33 (1955).

Adkisson, C.J., joins in this dissenting opinion.


author: George Rose Smith, Justice.

text:
    Betty SCREETON v. Billy Ray CRUMPLER, Executor
    81-41
    617 S.W. 2d 847
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981

      W. B. Guthrie, Jr., Ltd., by: Robert M. Abney, for appellant.

      Thweatt & Bayne, P.A., by: James J. Bayne, for ap-pellee.
   George Rose Smith, Justice.

The only question here is whether the probate judge abused his discretion in dismissing, for want of good faith prosecution, the appellant’s contest of the will of Sammie Elaine Screeton. We find no error.

The decedent’s will was admitted to probate in Prairie county on January 16, 1980, following her death on January 10. In April the appellant, a resident of Florida, filed a petition contesting the will for testamentary incapacity and undue influence. The petition did not indicate what interest the appellant had in the proceeding. The executor promptly filed a response denying the invalidity of the will and asserting (1) that the appellant had no standing in the case because she was not a devisee, heir, or creditor of the testatrix, and (2) that the will contest was motivated by malice toward the testatrix and her beneficiaries.

In its order of dismissal the trial court found, we think with justification, that thereafter the appellant failed to proceed in good faith. First, when the court set the matter for trial on August 20 and ordered her to appear for a discovery deposition on August 1, a continuance was granted because she had “business conflicts” on both dates. The trial was reset for September 24, but her attorney obtained a continuance because she had told him she was to undergo emergency “biopsy surgery” in Texas during that week. The discovery deposition was reset for November 21, but her lawyer apparently appeared for her and said that she would not appear without having been tendered compensation for her expenses.

The will contest and a motion for its dismissal were finally set for hearing on December 1. The executor and his counsel appeared for the hearing with several witnesses. Again the appellant did not appear. Her attorney stated that he had not heard from her that day and that she had instructed him to stand on the position that she “should be tendered her expenses for the trip to Arkansas, compensated for time lost from her employment, and any other related expenses prior to her coming to offer her testimony.” The court sustained the motion to dismiss the will contest.

In seeking a reversal the appellant concedes that the trial court had discretion whether to dismiss the contest, but she insists that the court should have inquired, before dismissing it, about the appellees’ ability to proceed by depositions on written questions, by interrogatories, or by requests for admissions. That argument, however, puts the responsibility for diligence on the trial judge rather than on the contestant of the will, on whom it rests. The appellant had the opportunity to request, through counsel, that the appellee be required to resort to some other procedure. She made no such request, electing instead to stand on her position that she would not even appear at the trial without a tender of her expenses. She made no move to prepare for trial, to rebut the charge that she had no standing to contest the will, or to seek a continuance. The trial judge was right in dismissing her contest.

The appellant’s brief implies that the dismissal should have been without prejudice, but we do not think that procedure (as distinguished from a continuance) was available. A proceeding to probate a will is a special proceeding, not an “action” as that term is ordinarily used. Lanning v. Gay, 70 Kan. 353, 78 P. 810 (1904); State ex rel. Coulter v. McFarland, 166 Neb. 242, 88 N.W. 2d 892 (1958); Case v. Case, 124 N.E. 2d 856 (Ohio Prob., 1955); Lillard v. Tolliver, 154 Tenn. 304, 285 S.W. 576 (1926). It does not constitute a civil action within ARCP, Rules 2 and 3- A will contestant cannot take a nonsuit under Rule 41, because such a contest is not an independent proceeding in itself. It would seriously disrupt the administration and distribution of estates if a will contest could be dismissed, voluntarily or without prejudice, and refiled at some indefinite later date. Hence the dismissal in the probate court was necessarily with prejudice.

Affirmed.