author: Jack Holt, Jr., Chief Justice.

text:
    Ronnie HAYNES v. STATE of Arkansas
    CR 92-158
    832 S.W.2d 479
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., Catherine Templeton, Ass’t Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On November 14,1991, the appellant, Ronnie Haynes, was convicted of aggravated robbery, burglary, and three counts of aggravated assault and received sentences, respectively, of 40 years, 20 years, and 18 years (six years for each count of aggravated assault) to run consecutively and be served in the Arkansas Department of Correction.

On appeal, Haynes contends that the trial court erred in allowing a purported rape victim to testify regarding other crimes allegedly committed by him prior to the crimes for which he was convicted in this case. We agree and reverse and remand.

As an initial matter, the appellee, State of Arkansas, asserts that we are precluded from addressing Haynes’s argument because he failed to abstract his motion in limine, the trial court’s ruling on the motion, his objection to the testimony at trial, and the trial court’s ruling on the objection. From an examination of Haynes’s abstract, it is obvious that he has failed to comply with Ark. Sup. Ct. R. 9(d) by his failure to include the omitted items. The question then arises as to whether we can decide the points of error raised by Haynes in his argument by reading his brief and that of the State.

Haynes states in his brief that he “. . . was not charged with the rape or theft of vehicle in Saline County, Arkansas. [He] objected to the introduction and testimony of [the victim] concerning these activities in Pulaski County.”

In its brief, the State notes that “ [p] rior to trial, Haynes filed a motion in limine seeking to prevent the admission of testimony regarding other crimes allegedly committed by him. The trial court granted the motion in limine in part, but denied it with respect to the circumstances of an alleged rape and theft of a car that took place on May 3, 1991 in Pulaski County.”

As a result, we find from a reading of the briefs and the abstract that sufficient material parts as are necessary for an understanding of the objection and question at issue have been presented to us, and we cán and should render our decision on the merits. See generally Harrison Civil Serv. Comm’n v. Reid, 261 Ark. 42, 546 S.W.2d 413 (1977) (the abstract was not so deficient as to call for an affirmance under Rule 9(d)); Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972) (although not in compliance with Rule 9(d), the abstract was sufficient to determine the issue on appeal).

In this case, Haynes was charged by information in Saline County, Arkansas, with aggravated robbery, burglary, and three counts of aggravated assault, which offenses occurred during the course of his attempt to flee from Bryant police officers in the stolen car. These offenses occurred on May 9, 1992. During Haynes’s jury trial on these charges, an alleged rape victim testified that Haynes raped her in front of her three children and then stole her car on May 3,1991, in Pulaski County, Arkansas.

Haynes contends on appeal that the trial court erred in allowing the alleged rape victim to.testify as to the details of these other purported crimes committed in another jurisdiction on the basis that the probative value of this inflammatory testimony was substantially outweighed by the danger of unfair prejudice. A.R.E. Rule 403.

In Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988) (citing Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), and Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988)), we noted that, ordinarily, the trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion. Evidence of other crimes is admissible if it is independently relevant, and the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Obviously, the testimony of these other crimes was highly prejudicial. It is not so obvious that the evidence had great probative value. The State attempts to justify inclusion of this testimony on the basis that it was part of the res gestae of the offenses with which Haynes was charged. The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused; however, evidence of other crimes is admissible under the res gestae exception to the general rule to establish the facts and circumstances surrounding the alleged commission of the offense. Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980).

Here, the alleged rape of the victim and theft of her car occurred on May 3, 1991; six days later, the actions underlying Haynes’s charges in this case transpired. At trial, several police officers testified that the reason they pursued Haynes was that they had ascertained that the vehicle he was driving had been stolen. Establishment of the fact that the vehicle was stolen was accomplished by direct testimony of the police officers involved in Haynes’s apprehension and arrest; consequently, the alleged rape victim’s testimony was not necessary to establish any facts or circumstances surrounding Haynes’s commission of these crimes for which he was convicted.

As a result, the res gestae exception to the exclusionary rule is inapplicable in this case due to the separability of the alleged crimes with those offenses with which Haynes was convicted, both in time and nature of the offenses. The two separate incidents simply did not comprise one continuing criminal episode or an overall criminal transaction. See Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1989); Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981).

The State also suggests that the objectionable testimony was permissible under A.R.E. Rule 404(b), which provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive,- opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Although the State submits that the testimony regarding these other crimes is relevant as to Haynes’s intent and state of mind when the police officers found him in the stolen car and as an explanation for his behavior in committing the offenses in question, its independent relevance is negligible since Haynes’s actions can be explained through the police officers’ testimony that they encountered Haynes in the stolen vehicle, precipitating Haynes’s flight and ensuing criminal offenses.

As a result, we find that the relevance of the testimony concerning other crimes in this case is substantially outweighed by the danger of unfair prejudice due to its highly inflammatory nature, and the trial court abused its discretion in admitting the testimony.

Reversed and remanded.

Hays and Glaze, JJ dissent.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    ARKANSAS ALCOHOLIC BEVERAGE CONTROL DIVISION v. PERSON
    91-269
    832 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992
    [Rehearing denied July 13, 1992.]

      Milton Leuken, for appellant.

      Person & Hughes, by: Gary D. Person, for appellee.
   Robert H. Dudley, Justice.

Gary D. Person applied to the Arkansas Alcoholic Beverage Control Division to transfer his retail liquor and retail beer permits to a new location in Fort Smith. The Director of the A.B.C. denied the application because the new location is within 200 yards of a church. Ark. Code Ann. § 3-4-206 (1987) and A.B.C. Regulation 1.32(6)A.-B. both prohibit the location of a retail liquor business within 200 yards of a church. Person appealed the Director’s denial to the A.B.C. Board. The Board affirmed the denial. Person appealed to circuit court. The circuit court reversed the decision of the Board and gave three reasons: (1) The church was not a “church” within the meaning of the statute and regulation, (2) the Board abused its discretion in refusing to consider a waiver of the church, and (3) the Board abused its discretion because it had previously allowed another retail store to be located within 200 yards of a church. We reverse.

The rules governing judicial review of decisions of administrative agencies are well settled. Judicial review is limited in scope, and the administrative agency decision will be upheld if ■ supported by substantial evidence, and it is not arbitrary, capricious or an abuse of discretion. Citizens Bank v. Arkansas State Banking Bd., 211 Ark. 703, 610 S.W.2d 257 (1981). We review the decision of the board or agency, not the decision of the circuit court. Edwards v. Arkansas Alcoholic Beverage Control Div., 307 Ark. 245, 819 S.W.2d 271 (1991).

Appellant A.B.C. first argues that there was substantial evidence that the proposed location of the retail liquor and beer business was within 200 yards of a church. The argument is well taken. Ark. Code Ann. § 3-4-206 and A.B.C. Regulation § 1.32(6) together provide that no permit shall be transferred to a retail liquor business that is within 200 yards of a church. The proof before the Board showed that St. Augustine’s Episcopal Church is within 200 yards of the proposed location of the retail liquor store; the church has about forty-eight members, with sixteen of those being active; and services are held every Sunday morning. The affidavit of the Rev. Robert Burton, Vicar of St. Augustine’s, refers to the church as having forty members, thirteen active, who meet for religious services every Sunday morning. The word “church” in a statute means the place where a body of people or worshipers associate together for religious purposes. Stratton v. State, 13 Ark. 688, 691 (1853). The word church in a statute or regulation is to be given its usual and ordinary meaning. Abram v. City of Fayetteville, 281 Ark. 63, 661 S.W.2d 371 (1983). Thus, there was substantial evidence before the Board that the proposed location was within 200 yards of a church.

Appellant A.B.C. next argues that the Board’s decision was neither arbitrary nor capricious because it followed the regulation and the statute. Again, the argument is well taken. The trial court held that the action was arbitrary because the church waived the application of the statute and regulation. However, the waiver is ineffective. The statute expresses the public policy of this State, and a waiver by a church congregation does not change the State’s public policy. The action of the Board cannot be said to be arbitrary when it follows the mandate of a valid statute.

The applicant for the transfer, Person, argues that the A.B.C.’s regulations allow waivers of the distance requirement for private clubs, and therefore the regulations are inconsistent, and the A.B.C. abused its discretion in refusing to permit a waiver for his retail, or package, permits. The differentiation made by the regulations with regard to waiver and the types of permits is supported by our cases interpreting the statutes regulating the sale of alcoholic beverages. As previously set out, the statute prohibits location of a “retail liquor business” within 200 yards of a church or school. Ark. Code Ann. § 3-4-206 (1987). In Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979), we said the words “retail liquor business” refer to retail “package” stores and not to private clubs. In Rowell v. Austin, 276 Ark. 445, 448, 637 S.W.2d 531, 533 (1982),we affirmed the definition we had given the retail liquor permit and wrote, “[I]t is obvious that the legislature intended to prevent retail ‘package’ stores from operating within 200 yards of a school or church building.” Therefore, the regulations may differentiate between “package” stores and private clubs.

Person argues that some years ago the A.B.C. granted a permit for another retail liquor business to locate within 200 yards of a church in violation of the same statute, and therefore the action of the Board was arbitrary when it refused to likewise approve his proposed location. The A.B.C. acknowledges that in 1979 it erroneously granted a transfer of a permit to a location within 200 yards of a church. Even so, it is not arbitrary for a governmental agency to refuse to make the same error twice.

Person also contends that the A.B.C. should be es-topped from denying the permit. The facts underlying the argument are that the local agent of the A.B.C. suggested the proposed location to the manager of the business. The manager asked if there would be any problems with the location, and the agent replied that it might be too close to a church, but there were “two exceptions in the book,” and a permit could be obtained for the location. Person, the applicant, who relied on this advice, is an attorney who made a mistake in reading the regulations. Prior to 1980, the State could not be estopped by the actions of its agent. In Foote’s Dixie Dandy v. McHenry, Adm’r, 270 Ark. 816, 607 S.W.2d 323 (1980), we abandoned the principle that the State can never be estopped but stated that estoppel is not a defense that should be readily available against the State. In Arkansas Power & Light Co. v. Arkansas Public Service Commission, 275 Ark. 164, 628 S.W.2d 555 (1982), we held that estoppel could not be applied against the State because there was no necessary reliance upon a misleading action by the State. The same rationale applies here. Also, the local agent did not have the authority to waive the regulations and therefore estoppel can not be applied against the State. Miller v. City of Lake City, 302 Ark. 267, 789 S.W.2d 440 (1990).

We reverse the order of the circuit court and remand for entry of an order consistent with this opinion.


author:
Robert H. Dudley, Justice.
      Tom Glaze, Justice,

text:
    G.B. COLVIN, III v. COMMITTEE ON PROFESSIONAL CONDUCT
    91-229
    832 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      Compton, Prewett, Thomas, & Hickey, P.A., by: Robert C. Compton, for appellant.

      Hoover, Jacobs, & Storey, by: Lawrence J. Brady, for appellee.
   Robert H. Dudley, Justice.

Our Committee on Professional Conduct suspended the attorney’s license of appellant, G.B. Colvin, III. We reversed and remanded. Colvin v. Committee on Professional Conduct, 305 Ark. 239, 806 S.W.2d 385 (1991). The Committee conducted a second hearing and again voted to suspend the attorney’s license, this time for six months. We affirm the Committee’s action.

In his brief, appellant Colvin argues that the Committee’s decision is not supported by either the evidence or the law and should be modified. In oral argument, he expanded the argument and contended that de novo review means that we should totally disregard the Committee’s finding of facts.

In Muhammed v. Arkansas Supreme Court Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987), we thoroughly discussed the standard of review of the Committee’s actions and wrote that the Committee’s factual determinations would be sustained on appeal unless clearly erroneous. The reason is that the Committee is in the superior position to determine the credibility of the witnesses and weigh the preponderance of the evidence. After discussion of the reasons for the standard we concluded:

We do not reverse decisions made by the Arkansas Supreme Court Board of Law Examiners, which we also review de novo, unless we find the board’s decision to be clearly erroneous, Scales v. State Board of Law Examiners, 282 Ark. 578, 669 S.W.2d 895 (1984), and we will treat the findings of our committee on professional conduct the same way.

Id. at 36, 722 S.W.2d at 284.

The underlying facts show that one of appellant’s clients, Tony Reginelli, filed a complaint with the Committee alleging that his suit for personal injuries was dismissed with prejudice due to appellant Colvin’s failure to respond to requests for admissions and interrogatories within the time allowed by a court order, and that appellant did not tell him about either the court order, his failure to respond, or the dismissal. A hearing was held, and the allegations proved to be true. In addition, the proof showed that appellant made a conscious decision not to answer either the requests for admissions or the interrogatories. He testified:

At the time I received these interrogatories and received the cut-off date, I can distinctly remember sitting with my secretary and stating, “We’re going to get knocked out of court if we don’t answer this, but we had Robert Johnson who was set for trial.”
Mr. Johnson was charged with killing Mr. Henry Turney [phonetic]. Mr. Johnson was black, Mr. Turney was white.
I had a choice of doing some good for an individual charged in a criminal case or wasting time in a civil suit that I could not win.

Further, appellant Colvin affirmatively stated that he made a conscious decision to take care of his criminal cases, instead of the Reginelli case, and that he did not inform Reginelli of his decision. Appellant has abstracted a part of his testimony from the most recent hearing as follows: “I have never denied that I did not promptly and diligently handle Mr. Reginelli’s legal matters and I freely admit that now and I know that I was in violation of that canon of promptness and diligence.” The Committee found that appellant violated Rule 1.3 of the Model Rules of Professional Conduct, which provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Obviously, we cannot say that the Committee’s finding of fact was clearly erroneous, and based upon that finding of fact, the Committee could validly conclude that appellant violated Rule 1.3.

Appellant recognizes that, upon a finding of a violation of the Model Rules, the Committee may suspend him. See R. Prof. Cond. 7(A) (1990). He alternatively argues that, even if the Committee’s decision that he violated the rule is affirmed, it should be modified to conform to precedents established, by the Committee. Without authority or convincing argument he asserts that the sanctions made public and published “in the larger state newspapers and the Arkansas Bar Journar should be considered as precedent and applied to this case. The argument is without merit for a number of reasons. First, there is reason to question the validity of appellant’s statistics used in his argument because he uses statistics compiled from only August through October of 1989. Second, subject to certain exceptions, confidentiality of all communications, complaints, formal complaints, testimony, and evidence based upon a complaint is absolutely privileged. Model R. Prof. Cond. 4.1 — 4.4. As a result, the facts of each Committee decision made public are not revealed or made known to this court for any consideration or determination of precedential value. Third, even if the statistics were valid, we have stated in the context of criminal law that we will not reduce or compare sentences that are imposed within statutory limits. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990). In the civil context of damages awards, a comparison of awards made in other cases cannot be relied on as a measure of excessiveness. Clark County Lumber Co. v. Collins, 249 Ark. 465, 459 S.W.2d 800 (1970). Thus, we reject the argument.

The Committee’s action was within the range of sanctions for a violation of a provision of the Model Rules. Consequently, the decision of the Committee is affirmed.

Glaze, J., concurs.

Brown, J., not participating.

Tom Glaze, Justice,

concurring. Appellant raises a serious question regarding the possible inconsistent application of the Committee’s four sanctions because our court’s rules fail to describe the type of misconduct that is covered under each sanction. Guidelines, in my view, should be established as an aid so the Committee would have clear standards to follow when considering an attorney’s misconduct and the sanction it should impose. In fairness, an attorney should have some advance knowledge concerning which sanction(s) he or she may expect considering the complaint and allegations filed against him or her.

Appellant suggests the following guidelines which I think are worth of consideration.

(1) WARNING — to be given when there is some reasonable question as to whether there was in fact a violation.
(2) CAUTION — to be given when there has been a violation but no irreparable harm.
(3) REPRIMAND — to be given when there has been a violation with irreparable harm.
(4) SUSPENSION — to be imposed when the violation is intentional or includes moral turpitude.

First, I should point out that the above guidelines fail to help the appellant because, as the majority opinion reflects, the Committee’s finding was not clearly erroneous in deciding the appellant “consciously” or intentionally violated Rule 1.3. Nonetheless, appellant’s suggested guidelines are no less worthy of this court’s consideration when such guidelines, or ones like them, could be adopted and utilized to assure consistency in administering sanctions. Without such guidelines, the Committee, considering the large number of cases it hears and decides, innocently runs the risk of imposing different sanctions to situations where the same or similar misconduct may be involved.

The guidelines suggested by appellant present a starting point from which our Committee and this court can begin to improve the sanction stage of our court’s procedure under our rules regulating the professional conduct of attorneys. Everyone agrees, administering sanctions is a serious business, especially when an attorney’s license and privilege to practice law is suspended for any time. This court can ensure fairness now missing in this process by defining the sanctions that are available to the Committee and by describing the misconduct to which each sanction applies.

Although I agree with the decision reached by the majority, I believe it may prove worthwhile to memorialize appellant’s suggested sanction guidelines. Knowing there are other members on this court who share the view that the court’s sanctions should be defined, I recommend our Committee consider these foregoing guidelines along with any others it may find worthy of consideration.

In my view, notice and due process considerations are appropriate matters for this court to consider when an attorney’s privileges to practice law becomes an issue. The court’s present rules are inadequate in affording proper notice regarding possible sanctions, and the court and its Committee should take this opportunity to correct those deficiencies.


text:
    IN THE MATTER OF the ESTATE of LINDSEY
    92-179
    832 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      Sharp & Sharp, P.A., by: James B. Sharp and D. Franklin Arey, III, for appellant.

      Ball, Mourton, Ltd., by: E.J. Ball and Andy E. Adams, for appellee.
   Robert H. Dudley, Justice.

The executor of the estate of Gertrude H. Lindsey filed a petition in probate asking for the construction of the testatrix’s holographic will. The testatrix’s grandchildren contend that under a clause of the will they take the residue of the estate, while her nephews contend that they take the residue under a different clause. The probate judge made a detailed finding of fact and issued a well-reasoned opinion which, in essence, construed the will to contain a particular residuary clause bequeathing the residue of a particular class of property to the grandchildren and to contain a general residuary clause bequeathing the general residue of the estate to the nephews. We affirm the trial court’s determination.

The relationships to the testatrix of the two contesting classes of relatives are as follows. The testatrix was the wife, apparently the second wife, of John C. Lindsey, Sr., who died in 1969. Surviving him were the testatrix and a son, John C. Lindsey, Jr., who was the testatrix’s stepson. John C. Lindsey, Jr. subsequently died leaving five surviving children, Mary Bob Rowe, John C. Lindsey, III, Floyd Eugene Lindsey, Charles Mark Lindsey, and Steven B. Lindsey. These five are referred to as the grandchildren. On the other side are the nephews, Charles Lamont Lindsey, Billy L. Lindsey, and Elmer B. Lindsey. Charles Lamont Lindsey and Billy L. Lindsey are the sons of Bee Lamont Lindsey, a deceased brother of John C. Lindsey, Sr. They were the nephews, by marriage, of the testatrix. In addition, Charles Lamont Lindsey and Billy L. Lindsey were her nephews by blood, since their mother was the testatrix’s sister. Elmer B. Lindsey was not related by blood. In sum, the grandchildren of the testatrix were not related to her by blood, while two of the three nephews were so related.

The business activities of the testatrix and her late husband, John C. Lindsey, Sr., provide guidance in interpreting the will. In 1929 John C. Lindsey, Sr. and his three brothers formed a partnership to conduct a mercantile and farming operation in the Caldwell community of St. Francis County. In 1942 they extended the partnership to include the ownership and operation of a cotton gin, and the partnership became “Lindsey Mercantile & Gin Company.” This partnership was still in operation in 1985 when the testatrix died. As the original partners died through the years, the ownership of their interests changed, and the partnership agreement was amended to reflect those changes. In 1969, when John C. Lindsey, Sr. died, he owned 25 % of the partnership. He left 12 and 1/2% of the partnership to his widow, the testatrix, and his other 12 and 1 /2% to his son, John C. Lindsey, Jr.

The partnership always maintained a capital account, a personal account, and an excess capital account, or a deficiency capital account, for each partner. The capital account represented the interest of each of the partners. The personal account paid each of the partner’s personal and living expenses. Partnership expenses and the personal expenses of each partner were added at the end of each year and offset against the partnership income. The excess was placed in the capital account. This capital account represented the excess capital of a partner above the annual average of the partner’s ownership. In the event a partner had excess capital in the capital account at the end of the year, the partnership gave him or her a promissory note for that amount. On the other hand, if there was a deficiency capital account, the partner gave a promissory note to the partnership and paid interest on that note each year.

In 1971 the testatrix and the other partners entered into a new partnership agreement, and, on January 1 of that year, her excess in the capital account amounted to $26,906.75. The partnership gave her a promissory note for that amount, plus interest. The 1971 partnership agreement used the term “interest” throughout the document to refer to “a partnership share.” The testatrix wrote her will in October 1974. The partnership gave excess capital promissory notes to the testatrix each year from 1974 to 1984, except for 1976. These notes were later transferred to her capital account. At the time the testatrix made her will she held at least one of the partnership’s excess capital promissory notes.

The testatrix left an estate consisting of a home, farmland, household items, stock, certificates of deposit, the partnership interest, and cash. She bequeathed various items of personal property to specified relatives and ordered her home sold and the proceeds divided between two relatives. Any remaining real estate the testatrix owned and other assets not specifically devised make up the residue. The nephews contend that the will contains a residuary clause leaving the residue of the estate to them, while the grandchildren contend the will contains a residuary clause leaving the residue of the estate to them. As indicated earlier, the probate judge held that the nephews were entitled to the residue of the estate.

The holographic will is three and one-quarter pages long. Names of some of the beneficiaries are marked out and others added nearby. In some places a line with an arrow indicates the new beneficiary after the old one was marked out. At time punctuation is lacking and sentences are not complete, but no one questions the validity of the will. The first two and one-quarter pages make a number of specific bequests. The two clauses on page four are the ones giving rise to this dispute, and that page is photocopied in full as follows:

As can be seen, commencing eleven lines above the testatrix’s signature, she left “All other Interests be divided between Bill Lamont and Bee Lindsey,” referring to the nephews. Commencing four lines above the testatrix’s signature, she left “Captol Account & all other Interest to Grand Children.”

Obviously, the meaning of the language in the two clauses is not without question, and, because it is questionable, the probate judge had to resort to rules of construction in interpreting the language. The principal rules applicable to this case are the following. The paramount principle in the interpretation of wills is that the intention of the testator governs. In re Estate of Conover, 304 Ark. 268, 801 S.W.2d 299 (1990). This intention is to be determined from viewing the four corners of the will. Id. If possible, the will must be construed to give force and meaning to every clause and provision. Walt v. Bevis, 242 Ark. 644, 414 S.W.2d 863 (1967). The court may read the language used by the testator in light of circumstances existing when the will was written, but only if there is uncertainty about the testator’s intentions from looking at the language used in the will. In re Estate of Conover, supra. Where any ambiguity exists in the will, such construction should be given it as favors the heirs-at-law in preference to persons not so closely related to the testator. Walt v. Bevis, supra. In construing a will a court should give force to each provision thereof. It is only if there is an irreconcilable conflict between two clauses that one must give way to the other. Fies v. Feist, 145 Ark. 351, 224 S.W.2d 633 (1920).

Applying the above rules of construction to this case, it seems most unlikely that the testatrix intended to state that she left the general residue of her estate to one group and then turn around and irreconcilably again leave the general residue of her estate to another group. This seems especially true when both clauses can ■ be construed to have meaning by reading the language used in the light of the circumstances existing when the will was written. When we examine the two provisions in that light, we see that at the time the testatrix prepared her holographic will she was a partner in a partnership that owned various businesses, she held a promissory note from the partnership capital account, and the partnership agreement in effect referred to partnership shares as “interests.” Thus, it would seem that when the testatrix referred to the “Captol Account and all other Interest” she was referring to the capital account, the promissory note reflecting her excess iii the capital account, and all her interest in the partnership. This is referred to as a particular residuary clause.

[I]t is competent for a will to contain both a particular residuary clause and a general residuary clause or a number of particular residuary clauses. Hence, where a will contains two or more clauses apparently residuary in character, the court should ascertain whether or not one or more of them refers to a particular or limited residuum.

96 C.J.S. Wills § 798 (1957). This construction gives force to both provisions and makes “All other Interests be divided between Bill Lamont & Bee Lindsey,” the general residuary clause. Thus, both clauses are given effect, and the nearest blood relatives are favored with the general residual clause.

Finally, we note that both clauses are followed by specific bequests, but that will not invalidate either clause. Although it is normal practice to do so, it is not necessary that residuary clauses come at the end of a will. See 96 C.J.S. Wills § 796 (1957).

Affirmed.


author: Steele Hays, Justice.

text:
    Larry S. BURNS v. Linda Ruth BURNS
    92-65
    832 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      David W. Talley, Jr., for appellant.

      Ronald L. Griggs, for appellee.
   Steele Hays, Justice.

In March of 1991 Linda Burns (appellee) obtained a judgment of $9,256 against her former husband, Larry Burns (appellant), for an arrearage in child support. When nothing was paid an order entitled “Order Directing Appearance With Body Attachment” was filed on July 24, 1991, directing Burns to appear on August 14 to answer for contempt. The order provided for bail conditioned on the deposit of $5,000. Evidently that amount was deposited simultaneously with the execution of the order and Burns was released. On August 16 an order was filed directing the sheriff to pay the $5,000 to Mrs. Burns.

On August 28 Mr. Burns moved to strike the order Directing Appearance With Body Attachment and for restoration of the $5,000. A hearing was held on that same date, though no testimony was taken. On October 4 the chancellor denied the motion to strike and notice of appeal was filed on October 23.

Four errors are alleged: The court erred in issuing the order Directing Appearance With Body Attachment; the court erred in releasing the $5,000; the court erred in holding Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983), superseded by Ark. Code Ann. § 9-14-234 (1987); the court erred in not striking the order pursuant to Nooner v. Nooner, supra.

We do not reach the asserted errors for lack of a timely appeal. The Rules of Appellate Procedure make no provision for appeal from the granting or denial of a motion to strike an order. There is provision for appeal from an order striking an answer or pleading, Rule 2, but as to an order, if the entry or content is erroneous, the appeal is from the order itself.

In effect, appellant seeks review by appeal from two developments in the trial court— the Order Directing Appearance With Body Attachment, rendered moot upon his release or appearance, and the delivery to appellee of the $5,000 deposit. The first order was filed on July 24, 1991. No appeal was taken from that order, nor was appellant’s motion to strike filed within ninety days as provided in Ark. R. Civ. P. 60. The second order, directing payment to appellee, was filed on August 16,1991. No appeal was taken from that order. The motion to strike, while filed within thirty days of the second order, makes no reference to it. On appeal, appellant characterizes the second order as “ex parte,” but the record is otherwise silent on that score and we will not presume an order proper on its face was entered improperly. Blissard Management & Realty v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977).

Appeal dismissed.

       Neither side cites Gould v. Gould, 308 Ark. 213, 823 S.W.2d 890 (1992).


text:
    June COCHRAN v. Elisha COCHRAN, Jr.
    92-202
    832 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      Greg L. Mitchell of the Dep’t of Human Services, for appellant.

      Ralph C. Goza, for appellee.
   Steele Hays, Justice.

June Cochran (appellee) and Elisha Cochran, Jr. (appellant) were divorced in July 1987 and Ms. Cochran was awarded custody of Elisha Cochran III, age 12, and $39 per week in child support. In 1991 the Arkansas Department of Human Services, Child Support Enforcement Unit, moved ex rel. to increase child support based on a material change of circumstances and for income withholding pursuant to Ark. Code Ann. § 9-10-112 (Repl. 1991). Mr. Cochran denied there had been any material change of circumstances or that there was good cause for income withholding. The chancellor found that circumstances had changed since the divorce and that $60 per week was a reasonable amount of child support. He found that good cause existed not to order income withholding. Mrs. Cochran appeals. We affirm in part and reverse in part.

Ms. Cochran testified in some detail as to the increased expense of maintaining their son, a fifteen-year-old. She testified that food, clothing, extracurricular activities at school had all increased. Elisha is in the band, the Key Club, and the Astrology Club, which requires science projects. There are band trips and Elisha now wears men’s sizes. Since the divorce he has developed bronchial asthma. Blue jeans cost as little as $19.95 and as much as $40 a pair as opposed to $10 - $15 for boy’s sizes.

Mr. Cochran is a captain with the Camden Police Department, a position he held at the time of the divorce. His salary in 1987 was $12.03 per hour and $14.50 in 1991. His gross annual wages in 1988 were $28,242.56 and $30,509.27 in 1990, or an increase of $1,160. His current take home earnings are $730.38 bi-weekly. Deductions include $95 monthly for a savings account, without which his take home earnings would be $825.38 every two weeks. Additionally, $69.60 is withheld monthly for retirement and $9.08 for medical insurance. Mr. Cochran owns the following vehicles, one of which he acquired since the divorce: 1964 Thunderbird, 1974 Oldsmobile, 1971 Lincoln, 1973 Cadillac, 1977 Lincoln and 1980 Camero.

At the conclusion of the hearing the chancellor observed that if he followed the Family Support Chart [See In Re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990), adopted pursuant to Ark. Code Ann. § 9-12-312(a) (Repl. 1987)], the amount would basically double, from $39 per week to $78 per week, which he considered unreasonable. He continued:

On the other hand I think it’s unreasonable to maintain the child support at its present level. It was set four years ago. The chart has changed. Also there has been a change in circumstances. The principal change is the increase in income enjoyed by the defendant. So I have the two extremes which I reject.
From all of the totality of the circumstances, including the factors that I have enumerated, it will be the order of the Court that support will be increased from the current level to the sum of Sixty Dollars ($60) per week effective immediately.

Ms. Cochran raises two points for reversal: The trial judge erred in determining the amount of child support and in finding that good cause existed to not order immediate income withholding. We disagree as to the amount of child support but agree as to income withholding.

Two cases decided with reference to the Family Support Chart are Black v. Black, 306 Ark. 209, 812 S.W.2d 472 (1991) and Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). In both cases the chancellors declined to order child support in the amount designated by the chart and in one instance we affirmed and in the other we reversed. The distinction lies in the fact that in one case, Scroggins, the chancellor gave careful attention to the chart and proceeded to explain in written detail why he considered the chart amounts inappropriate to the case. “Indeed, he made specific findings spelling out why the support charge was inappropriate considering the pertinent factors sin this case.” Scroggins at 367. In contrast, in Black, the chancellor, in rejecting the chart, observed that the Family Support Chart “is not mandatory and the court may disregard it in making any change or refusing to make any change.” Black at 211. While we conceded the amounts reflected in the chart were not mandatory, we could not agree that the chart may be disregarded. We said that reference to the chart is mandatory, “and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate.” Black at 214.

Although in this case the chancellor obviously considered the chart amount, we are not persuaded that he gave due consideration to the amount, at least as reflected by his concluding remarks, the only indication we have concerning his reasoning. The sum and substance of his observations were that the chart amount of $78 was “unreasonable.” Given the presumption that the chart amount is reasonable, we believe it is incumbent on the trial courts to give a fuller explanation of their reasons for rejecting the chart. If appellate review is to have much significance, a greater account of why the chart amount is inappropriate under the circumstances of the case is essential.

We consider chancery appeals de novo, and we regard the record here as sufficiently developed to enable us to determine that the chart amount of $78 stands unrebutted by factors which would render such amount unjust. Accordingly, we reverse with directions that that figure be adopted by the trial court.

As to the question of income withholding, the chancellor noted that there was no arrearage in child support payments, ruling that such fact was good cause to refrain from ordering income withholding. Appellant has not demonstrated the error of that view and we, therefore, affirm that part of the order.

Affirmed in part, reversed in part.


text:
    Joanne LIGGETT v. STATE of Arkansas
    CR 92-222
    832 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Following the seizure of her driver’s license for DWI, appellant Joanne Liggett was convicted of driving on a suspended driver’s license. She challenges the conviction based on provisions of Act 549 of 1983, the Omnibus DWI Act.

Appellant was arrested for driving while intoxicated. Her license was seized by the arresting officer and she was issued a temporary driving permit to expire at the time of her trial. On November 7, 1990, appellant pled guilty to DWI, First Offense, and her driver’s license was suspended for ninety days.

On November 26, 1990, the same officer saw appellant driving and arrested her for driving on a suspended license in violation of Ark. Code Ann. § 5-65-105 (1987). Appellant was found guilty and sentenced to ten days in jail. She appealed to circuit court and moved to dismiss under Ark. Code Ann. § 5-65-104 (1987), contending she was still authorized to drive on the temporary permit issued after her arrest for DWI. The motion was denied and the case was submitted on a stipulation of facts, resulting in a conviction and a sentence of ten days in jail was again imposed.

On appeal, appellant argues the trial court erred in denying her motion to dismiss because the temporary permit issued earlier was still in effect.

Appellant’s argument involves the measures prescribed under § 5-65-104, portions of which are italicized:

(a)(1) At the time of arrest for violating § 5-65-103, the arresting officer shall seize the motor vehicle operator’s license of the person arrested and issue to such person a temporary driving permit to expire on the date of arraignment.
(2) The arresting officer shall remit the seized operator’s license to the court.
(3) Upon arraignment, the judge shall issue such person a temporary permit to expire on the date of the trial.
(4) If the person is convicted of violating § 5-65-103, the court shall transmit the operator’s license to the Office of Driver Services and shall instruct the Office of Driver Services to suspend or revoke such person’s motor vehicle operator’s license as follows:
(A) Suspension for not less than ninety (90) days nor more than one hundred twenty (120) days for the first offense;
(B) Suspension for not less than one (1) year or more than sixteen (16) months for a second offense within three (3) years of the first offense; and
(C) Suspension for not less than two (2) years nor more than thirty (30) months for the third offense within three (3) years of the first offense; and
(D) Revocation for the fourth or subsequent offense occurring within a three-year period of the first offense. Revocation shall continue for a period of three (3) years.
(b)(1) Any person who is found guilty or enters a plea of guilty to a first offense under this act may petition the Office of Driver Services that he or she be issued a restricted operator permit for employment-related purposes or to attend a state-required alcohol treatment or education program.
(2) The Office of Driver Services shall notify each person that he or she may request a restricted permit and shall advise the person of the time and place for making such request and for the hearing thereon, which shall be conducted within ten (10) days from the guilty plea or conviction.
(3) Such notice shall be given by mailing the notice to the last known address of the person whose operator license is suspended.
(4) Any previously issued temporary permit shall remain in effect until the hearing date.
(5) Furthermore, the sentencing court may postpone acceptance of a guilty plea or sentencing following a conviction until a determination of the request for a restricted operator’s permit has been made.
* * * *

Appellant’s argument is built on §§ 5-65-104(a)(l) and (3), which provide that upon arrest for DWI, the operator shall receive a temporary driving permit which expires on the date of trial. Appellant next refers to §§ 5-65-104(b)(1) and (2), which permit first offenders to petition the Office of Driver Services for a hearing to obtain a restricted license for employment purposes. Her final reference is to section (b)(4), which provides for any previously issued temporary license to remain in effect until the date of the restricted license hearing. In sum, appellant argues as follows:

If a person is found guilty of a first offense, the.previously issued temporary permit does not expire until Driver Services has had an opportunity, at the hearing date, to issue a restricted operator permit.

Appellant submits that a guilty plea or conviction of a DWI first offense effects the continuation of the previously issued temporary permit and such privilege continues until ODS issues a restricted license.

There was no communication between appellant and ODS after her conviction for first offense DWI concerning a restricted license. Appellant maintains that because she was never notified that she could have requested a hearing, nor given notice of a hearing, the temporary permit was still valid when she was arrested for driving on a suspended license. The statute clearly provides for a temporary permit to be issued upon arrest, which remains valid until the trial, but we cannot agree that after a guilty plea or conviction of a first offender the temporary permit continues indefinitely and expires only when the first offender receives notice of the right to apply for a restricted license.

We concede there is some uncertainty in the procedure under § 5-65-104 as to whether it is the first offender who must petition the ODS for a hearing or whether ODS is required in the first instance to notify all first offenders of their right to a hearing. Appellant favors the latter course and argues that notification of a hearing is a mandatory requirement on ODS. She contends in effect the lack of a notice amounts to a waiver by ODS or the state to charge her with driving on a suspended license. We doubt that the legislature intended any such result, but we need not decide, as appellant has not shown any adverse consequences by the lack of notice.

If a hearing for a restricted license is requested, the statute requires that it be held within ten days of conviction. Section 5-65- 104(b)(2). Had she decided to request a hearing, which she does not claim she would have done, and it was denied, the maximum time for her temporary license to continue would have been ten days after her conviction. It is undisputed that her second arrest was almost three weeks after her DWI conviction.

Assuming appellant would have requested a hearing had she been notified, she has not demonstrated that she was eligible for a restricted license, nor has she made any showing that she was arrested during the hours or for the purposes she would have been allowed to drive on a restricted license— driving related either to employment or to an alcohol treatment program.

Affirmed.


author: David Newbern, Justice.

text:
    Barbara BERRY v. Lucinda CHAPPLE
    92-282
    832 S.W.2d 256
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      Gary Eubanks & Associates, by: James Gerard Schulze and William Gregory Holt, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Sharp, Jr. and Brian Allen Brown, for appellee.
   David Newbern, Justice.

This is an automobile accident case in which the question is whether it was proper for the Trial Court to give the jury an instruction on sudden emergency, AMI 614, and refuse to give an instruction on keeping control of a vehicle when aware of danger ahead, AMI 901B. We hold the Court did not err in instructing the jury.

Barbara Berry, the appellant, was struck by a vehicle driven by the appellee, Lucinda Chappie. Ms. Berry was crossing Broadway at 14th Street in Little Rock. The accident took place at approximately 6:50 a.m. Ms. Chappie testified that it was relatively dark, the intersection was poorly lighted, the morning was rainy, there was steam or mist, and visibility was poor. Ms. Berry was dressed in a black raincoat and had an umbrella Ms. Chappie described as one that “come down.”

Ms. Berry said she had no recollection of the accident but insisted, and presented witnesses to verify, that she would not have attempted to cross this intersection without having a walk signal.

Ms. Chappie testified she was driving at a normal rate of speed, 25 to 30 miles per hour, and had a green light at the intersection. She saw “this big dark figure,” which turned out to be Ms. Berry, only a short time and distance (some six feet) before impact. She applied her brakes but was unable to avoid the collision.

Ms. Chappie requested AMI 614, the sudden emergency instruction, to which Ms. Berry objected on the ground that there was no evidence to support finding a sudden emergency. The objection was overruled. Ms. Berry then argued that the jury should also be given AMI 901 and instructed on the standard of care when a driver perceives a hazardous condition. Ms. Chappie objected that there was no evidence of any warning which would justify this instruction. The Court gave a modified version of 901 which did not include the language about perceived hazards. The jury returned a verdict in Ms. Chappie’s favor.

Ms. Berry argues there was no basis for giving the sudden emergency instruction and the error was compounded by the Court’s failure to give the instruction which would require the defendant to use ordinary care to respond to an emergency situation if there actually was one.

The bracketed portion of AMI 901B. Ms. Berry sought to have used and the commentary following it are as follows:

It is the duty of the driver of a motor vehicle to keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case.
[When the driver sees danger ahead, or it is reasonably apparent he is keeping a proper lookout (or if he is warned of approaching imminent danger) then he is required to use ordinary care to have his vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others.]
He * *
NOTE ON USE — PARAGRAPH B
The first paragraph will be used in virtually every case. The first and second paragraphs should be combined only when the evidence involves an imminent danger or threatened emergency. The clause in parentheses should be inserted only when warning signs or signals are involved or there is evidence of some other type of warning.

The last sentence regarding use of the section only where warning signs or signals are involved is based on Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967), in which we approved refusal to give the instruction where an incident occurred when a vehicle attempted to pass on the left. We said that to hold otherwise would place the court in a position of saying that every motorist when passing a vehicle waiting to make a left turn is warned of approaching imminent danger.

Likewise, we cannot accept Ms. Berry’s argument that the stop light regulating traffic at the intersection is a warning sign or signal requiring that the parenthetical part of the second paragraph be given. The light does not warn of danger, and we cannot be placed in the position of holding that every accident at an intersection equipped with a light regulating traffic is one in which the second paragraph of AMI 90IB. applies.

We held it was proper to give AMI 614 on sudden emergency as well as the second paragraph of AMI 901B. in East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986). That case is illustrative of a situation where the parenthetical language of the second paragraph would not apply but in which danger appeared to the driver. We held it was proper to give the instruction because of evidence that oncoming drivers could see smoke crossing the highway some distance away. The sudden emergency instruction was proper with respect to the actions of the defendant drivers after they entered the smoke and realized it was so thick they could not see. See also White v. Brewer, 295 Ark. 666, 750 S.W.2d 956 (1988).

In Rogers v. Kelly, 284 Ark. 50, 679 S.W.2d 184 (1984), by way of an obiter dictum, we said the instruction was not required just because the defendant driver had “seen a pedestrian standing stock-still inside a line of cars and looking in both directions before deciding to” cross the street. The clear implication is that the instruction is for use only when the driver should perceive danger well in advance of the later sudden emergency. In the circumstances of this case, the instruction was not required.

Ms. Berry contends the sudden emergency instruction was misleading because she has not argued that Ms. Chappie acted unreasonably once the emergency was upon her. Her contention, rather, is that Ms. Chappie was negligent prior to seeing her in failure to keep a lookout and driving too fast for conditions. We have little doubt that Ms. Chappie was in fact confronted with a sudden emergency, and thus the instruction was justified. The giving of the instruction did not deprive Ms. Berry of presenting the case to the jury on negligence prior to the arising of the emergency.

Nor was it error to refuse the requested portion of AMI 90IB. There was neither an event nor a signal in Ms. Chappie’s path which would have justified a finding of the sort of danger contemplated by the language of the instruction.

Affirmed.

Glaze, J., not participating.


text:
    Walter A. JOHNSON & Rebecca Goetzman, Executrix of Lilly A. Johnson, Deceased v. Katherine & William CLARK
    91-271
    832 S.W.2d 254
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      McDaniel & Wells, P.A., by: John Bartlett, for appellants.

      Snellgrove, Laser, Langley, & Lovett, by: Glenn Lovett, Jr.

   David Newbern, Justice.

This is an automobile accident case in which a jury returned answers to interrogatories stating neither driver was negligent. The central issue is whether the verdict based upon the interrogatory answers is sufficiently contradicted by the physical evidence presented that a new trial should have been granted. We hold the Trial Court properly overruled the new trial motion.

Walter Johnson, the appellant, and his wife Lilly, were traveling north on Highway 49 near an intersection with Interstate 40 in Monroe County. The appellee, Katherine Clark, pulled on to Highway 49, headed north, from a roadside restaurant near the intersection with Interstate 40 at a point where there were four lanes of traffic, two northbound and two southbound.

Clark intended to enter Interstate 40 and head west toward Little Rock. To do so she had to make a right turn from the restaurant and proceed left across all the lanes of Highway 49. The distance between the point at which she entered Highway 49 and the point where she was to turn left onto the ramp was four or five car lengths. She testified she “angled across” the northbound lanes to make her turn when the impact occurred. She said she looked but saw no oncoming vehicle.

Walter Johnson testified he saw the Clark vehicle suddenly swerve in front of him. He swerved left into the southbound Highway 49 lane but was unable to avoid the collision. As a result of the impact the Johnson vehicle’s right front bumper was locked under the Clark left front fender.

Chandra Scarbrough, Clark’s 23 year old daughter, testified that the impact occurred as her mother merged left into the left northbound lane. Leon Gant, an officer who investigated, offered a diagram showing the vehicle paths and the point at which they came to rest which was slightly in the southbound inside lane of Highway 49 near the interstate highway ramp. He said he had written on the report that Clark told him at the scene that she was making a left-hand turn onto 1-40 and did not see [the Johnson] vehicle #1, causing the accident, but agreed that “causing the accident” were probably his words rather than Clark’s.

Johnson moved for a new trial on the ground that the verdict was against the preponderance of the evidence. He argues it was error to deny the motion. He contends the accident could not have occurred absent negligence, thus the jury’s answers to interrogatories showing no negligence by either party are inconsistent. He also argues the Trial Court erred in finding that he and Mrs. Johnson were joint venturers, a question we need not address as there will be no need to retry the case.

New trial and inconsistent verdicts

On review of a trial court’s denial of a motion to set aside a jury verdict on liability, the question is whether the verdict is supported by any substantial evidence. Harper v. Clark Equip. Co., 300 Ark. 413, 779 S.W.2d 175 (1989). The evidence most favorable to the appellee is given the benefit of all reasonably permissible inferences. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988). Only when there is no reasonable probability that the incident occurred according to the version of the prevailing party or where fair-minded persons can only draw a contrary conclusion that a jury verdict will be disturbed. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).

Clark testified she did not see the Johnson vehicle and she was in the proper lane when she began her turn from Highway 49 onto the Interstate 40 ramp. She said she was able to travel a short distance along the centerline of Highway 49 before beginning her turn across the southbound lanes and onto the Interstate 40 ramp. Johnson testified he was in the proper lane and Clark turned into his path because she failed to keep a proper lookout. There was thus conflicting evidence.

The jury was correctly instructed, without objection, that the fact that there was an accident does not necessarily mean there was negligence on anyone’s part. The jury evaluated and weighed the testimony as it was required to do and may have chosen to believe a portion of the testimony of each party. It is within the province of the jury to believe or disbelieve the testimony of any witness, Hodges v. Jet Asphalt, 305 Ark. 466, 808 S.W.2d 775 (1991); Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1990).

Unlike Stephens v. Saunders, 293 Ark. 279, 737 S.W.2d 626 (1987), the defendant’s testimony and arguments are not “so much at variance with the physical evidence and the testimony of the other witnesses” that the defendant’s verdict must be overturned. We cannot say the physical evidence here is that compelling.

Affirmed.


author: Per Curiam.

text:
    Frank FOX v. STATE of Arkansas
    CR 92-493
    832 S.W.2d 244
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

On March 22,1990, the appellant Frank Fox pleaded guilty to murder in the first degree. Seventeen months later in 1991, he filed a pro se “petition for writ of error coram nobis and/or petition for post-conviction proceedings.” In the petition he invoked Criminal Procedure Rule 26 and Criminal Procedure Rule 37. The trial court denied the petition, and the record has been lodged here on appeal. Appellant now seeks appointment of counsel to represent him.

When appellant entered his plea of guilty in 1990, Criminal Procedure Rule 37 was not in effect. See In The Matter Of The Abolishment Of Rule 37. And The Revision Of Rule 36. Of The Arkansas Rules Of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989). Criminal Procedure Rule 26 was likewise unavailable to the appellant since relief under Rule 26 can be granted only before sentence is pronounced. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). During that period of time when Rule 37 was not in effect, Criminal Procedure Rule 36.4 governed post-conviction procedure. See In Re: Post-Conviction Procedure, 303 Ark. 745, 797 S.W.2d 458 (1990). Rule 36.4 allowed thirty days from the date of pronouncement of sentence and entry of judgment for claims of ineffective assistance of counsel to be raised. The rule also provided that the trial judge was required to address the defendant personally and advise him or her of the thirty-day limitation on such claims.

As the appellant here was not informed when he pleaded guilty of the thirty-day limitation, the trial court elected to consider the petition for post-conviction relief timely. We agree with the trial court that appellants who were not informed of their right to proceed under Rule 36.4 should have had the opportunity to present their claim to the court, but we find that such appellants must have exercised reasonable diligence in filing the petitions. The appellant here did not exercise reasonable diligence. For this reason, appellant’s motion for appointment of counsel is denied and the appeal is dismissed. This court has consistently held that motions will not be granted which have the effect of continuing an appeal in which the appellant cannot prevail. Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Criminal Procedure Rule 37 was reinstated on January 1,1991. In The Matter Of The Reinstatement Of Rule 37 Of The Arkansas Rules Of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990). The revised Rule 37 provided that a petitioner who entered a plea of guilty must file any petition for post-conviction relief under the rule with ninety days of the date of entry of judgment. It is not an unreasonable restriction on an appellant for post-conviction relief to require that in those instances where a petitioner pleaded guilty while Rule 37 was not in effect and the petitioner was not advised of the provisions of Rule 36.4, petitions under Rule 37 will not be considered timely unless the petition was filed within ninety days of the date of the reinstatement of Rule 37. As appellant did not file a petition for post-conviction relief until August 28,1991, which was more than ninety days after Rule 37 was reinstated, his petition was untimely and he was entitled to no relief in the trial court.

States are not obligated to provide for post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551 (1987). When a state undertakes to provide collateral relief, due process requires only that the proceeding be fundamentally fair. Pennsylvania v. Finley, 481 U.S. 551; see Evitts v. Lucey, 469 U.S. 387 (1985). Due process does not require courts to provide an unlimited opportunity to present post-conviction claims, and modifications in the rules governing post-conviction procedure in criminal cases do not violate the ex post facto clause of the United States Constitution and Arkansas Constitution. Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989).

In sum, the appellant must be said to have procedurally defaulted with regard to his right to proceed for post-conviction relief in state court because, while he had not been duly informed of his right to petition for such relief under Rule 36.4 when it was in effect, he could have requested post-conviction relief under the new Rule 37 if he had done so in a timely manner after it was reinstated.

Motion denied and appeal dismissed.

       Even though Rule 36.4 did not specifically state that judgments entered after a plea of guilty could be collaterally attacked on grounds of ineffective assistance of counsel under the rule, this court has held that the rule was available to those appellants who pleaded guilty while Rule 37 was not in effect. Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991).

       If the judgment was not entered of record within ten days of the date sentence was pronounced, a petition under the rule must be filed within ninety days of the date sentence was pronounced.


text:
    Byron HOOPER v. STATE of Arkansas
    CR 91-232
    833 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered June 15, 1992

      George Mason, for appellant.

      Winston Bryant, Att’y Gen., by: Didi H. Sailings, Asst. Att’y Gen., for appellee.
   Per Curiam.

On July 13, 1990, appellant was convicted of possession of cocaine with intent to deliver and conspiracy to deliver cocaine. Appellant’s counsel, George W. Mason, filed an appeal but untimely tendered the record in this matter on November 18,1991. We granted a motion for rule on the clerk on December 9,1991, and counsel filed an abbreviated abstract and brief on February 3, 1992. On February 5, 1991, the state requested this court to compel counsel to refile an abstract and brief that complied with Supreme Court Rules 9 and 11 (f), which we granted. Counsel belatedly filed another abstract and brief, which again failed to meet this court’s appellate rules, and the state asks alternatively to order counsel to rebrief this matter again, to appoint new counsel to prepare and rebrief the case or to permit the state to prepare a more complete abstract.

We agree Mr. Mason’s abstract fails to meet the requirements of Rules 9 and 11(f), and is so inadequate that certain points of reversal submitted by the appellant cannot be reached or decided. For example, appellant raises nine points for reversal which include one that challenges the sufficiency of the evidence and another that claims the trial court was “lax in controlling the trial and admission of evidence.” Counsel’s condensed abstract of the transcript makes it impossible to decide these issues. We note that counsel has tendered a belated response to the state’s second rule 9 motion disagreeing with the state’s (and now our) analysis of his abstract. Counsel further states that the appellant is indigent and his attorney will have to have other attorneys appointed, if it becomes necessary for the entire brief (record) and all pleadings to be abstracted.

Rather than to chance further delay in this appeal by ordering another rebriefing by Mr. Mason, we hereby relieve him from further duties herein and appoint new counsel, who shall file a new abstract and brief meeting the requirements of Rules 9 and 11 (f). A new briefing schedule shall be established by the clerk’s office.

A copy of this per curiam and copies of the record and briefs filed in this appeal to date will be forwarded to the Committee on Professional Conduct for that committee’s consideration of Mr. Mason’s conduct under Rule 1.3 of the Model Rules of Professional Conduct.


author: English, Ch. J.:

text:
    Mears et al. vs. Stewart.
    Statutes: Repeal by Implication : Damages upon Dissolution of an Attachment.

    The Act of March 7th, 1867, provided for an inquest of damages and a judgment against the plaintiff and his sureties upon the dissolution of an attachment. The civil code, passed subsequently, covered the general subject of attachments, and prescribed the time, manner, and causes for which an attachment might be discharged, but contained no provision for an inquest of damages. Held a repeal of the Act of 1867.
    ERROR to Arkansas Circuit Court.
    Hon. John A. Williams, Circuit Judge.

      Brown & Ford, for plaintiffs in error.
   English, Ch. J.:

On the 14th October, 1873, Mears & Boatwright sued G. W. Stewart, on an open account for $215, before a justice of the peace of Arkansas County.

They filed with the account'an affidavit, and code form of bond for attachment, which seems to have been issued, but not returned by the constable.

On the 27th October, 1873, the defendant appeared; there was a trial by jury, and verdict and judgment in favor of plaintiffs for $191.25, and the defendant appealed to the Circuit-Court.

In the Circuit Court the defendant moved to quash the attachment on the ground of informality of the affidavit on which it was issued by the justice, etc.

The plaintiffs filed an amendment to the affidavit, but the court sustained the motion of the defendant, dissolved the attachment, ordered an inquest of damages, a jury was called, the matter submitted to them, and they returned a verdict in favor of the defendant against the plaintiffs for $240 damages, and judgment was rendered upon the verdict in favor of the defendant for the amount of the damages so assessed.

The original cause of action on which the appeal was taken ■was then tried, and verdict and judgment rendered in favor of the plaintiffs against the defendant (6th April, 1875) for $125.

The plaintiffs brought error to the judgment against them for damages.

If the-attachment was wrongfully sued out, and the defendant-damaged thereby, he had the right to resort to a common law action or a suit upon the code bond to recover damages. Drake on Attachments, 150 to 178.

But at the time this judgment was rendered, there was no statute in force authorizing the damages of the defendant to be assessed in the' attachment suit on the dissolution of the attachment, chap. 11, Gantt’s Digest.

The Act of March 7th, 1867, to amend chap. 17 of Gould’s Digest, under the head of attachments, provided that when the plaintiff failed in the attachment suit, the defendant might have a writ of inquiry to assess damages, and take judgment against the plaintiff and his sureties on the attachment bond,'etc. Acts of 1866-7, p. 294.

But this statute was not carried into Gantt’s Digest.

Chapter II, — Attachments, is made up of the provisions of the civil code, and amendments, on the same subject, except the last five sections under the sub-caption of Interpleader, which were taken from the Act of January 19th, 1861.

The Act of March 7th, 1867, was omitted from the Digest by the digester or examiner, upon the conclusion, no doubt, that the code makers had covered the whole subject, and that that act was repealed.

In Pulaski County v. Downer, 10 Ark., 590, it was said “ the authorities are abundant to support the proposition that where the legislature takes up a whole subject anew, and covers the entire ground of the subject-matter of a former statute, and evidently intend it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.”

That case arose upon a new fee act, in which the legislature had gone over the whole subject of fees, and omitted sections of a former act, and it was held that they were repealed, and properly omitted from the Digest of 1846-8.

The code makers not only went over the general subject of attachments, but they took up the particular subject of dissolving attachments, and provided when, how, and for what causes they might be dissolved, and the attached property discharged, and gave the right of appeal from an order sustaining or discharging an attachment; and here they stopped short, and did not provide for the inquest of damages, and judgment against plaintiff and his sureties in the attachment bond, upon the discharge of the attachment, as did the Act of March 7th, 1867. See secs. 453 to 468.

On the 10th of November, 1875, and after the judgment was rendered in the court below, in this case, the legislature passed an act amending the attachment law, providing for an assessment of -damages, and judgment against the plaintiff and his sureties in the attachment bond, on the dissolution of an attachment ; which may be taken as an indication of legislative opinion that there was then no law in force containing a similar provision.

The judgment of the court below, in this case, having been rendered without authority of law, must be reversed, annulled, set aside and held for naught.


text:
    Clendenin vs. Southerland.
    1. —Promissory Note: Assignment; Set off.

    A negotiable promissory note is, under the Act of April 24, 1873, governed by the law merchant, and an endorsee for value before maturity in due course of business, without notic-e, takes it free from any set off in favor of the maker or against the assignor.
    2. —Endorsement in Blank: Evidence to fix the date of admissible.

    The provision of sec. 570 Gantt’s Digest that all blank assignments shall be taken to have been made on such a day as shall be most to the advantage of the defendant, merely changes the former rule of presumption to be applied in the absence of evidence, and it is competent for the plaintiff to prove the actual date of the assignment.
    APPEAL from Phillips Circuit Court.
    Hon. Jesse N. Cypert, Circuit Judge.

      Thweatt & Quarles, for appellant.

      Tappan & PTornor, for appellees.
   English, Ch. J.:

On the 15th April, 1875, Frank Clendenin sued Angus W. Southerland, in the'Phillips Circuit Court, on a promissory note made by defendant 1st December, 1873, for $1000, payable one year after date, to John A. McKay, or order, and by him endorsed to plaintiff.

The complaint alleged that the note was endorsed and delivered to plaintiff, by McKay, the original payee, on the 21st of September, 1874. That plaintiff received the note in good faith for value, in due course of trade, before maturity.

The endorsement was in blank, and was filled up as of the date on which it was alleged to have been made (21st Sept., 1874) by the plaintiff, after the.suit was brought, and the filling of the blank averred by an amendment of the complaint.

The defendant pleaded as a setoff, a note for $360 made by John A. McKay, December 9th, 1873, payable to Donald Campbell, or order, one year after, and endorsed by Campbell, 1st of October, 1874, to defendant.

The answer alleged that this note was endorsed by Campbell to defendant for value, etc., before McKay endorsed the note sued on to plaintiff.

The plaintiff demurred to the answer, and the court overruled the demurrer.

The cause was submitted to the court sitting as a jury, on the complaint and answer, etc.

The plaintiff gave his own deposition, and also took the deposition of McKay.

Plaintiff deposed that the note sued on was assigned and transferred to him by McKay on the 21st day of September, 1874, (before its maturity) for a good and valuable consideration, in due course of business. That the consideration paid by him for the note was cash or its equivalent. That it was assigned to him in perfectly good faith. That he had no notice whatever of any offset or claim against the note when he got it, and would not have taken it, if he had known of any. That he never knew that defendant claimed any off set'against the note until about the 23rd December, 1874, when he received a letter from him dated 18th of that month.

McKay deposed (among other things not deemed material to be stated) that he transferred and assigned the note sued on to plaintiff on the 21st day of September, 1874, in regular course of business, and received full value therefor. That on his return from Arkansas, where he had seen defendant in October, 1874, he told plaintiff that the note would be promptly paid. This was after he had assigned the note to plaintiff.

On the motion of the defendant so much of each of the above depositions as purported to 'show at what time the assignment of the note sued on was made, was suppressed, and the plaintiff excepted to the decision of the court.

The remainder of each of the depositions was read in evidence on the trial.

Defendant deposed that the note pleaded as a setoff was assigned to him by Campbell (his brother-in-law) on the 1st of October, 1874. That he paid Campbell no money for the note but gave him his note for it, payable in one year, his object being to get an extension of time.

Campbell testified that at the time he gave up McKay’s note (the set off note) to defendant, there was an understanding between them that if defendant did not collect McKay’s note, witness would give.up his note, and he would not have it to pay, that he never was bound to make the McKay note good to defendant.

Plaintiff ask the court to declare the law to be:

First — “If it appears from the testimony that the plaintiff took the note sued on in due course of trade for value, without notice of any setoff in the hands of defendant, and before maturity then the law is for plaintiff, and the offset cannot be allowed the defendant.

Second — “That plaintiff may fill up a blank endorsement on the note sued on,- so as to show the day on which it was made.

Third — “That if it appear from the evidence that defendant took the note of McKay from Campbell for the purpose of setting it off against the note sued on in this case, with the understanding that if not so used, then defendant should not pay Campbell therefor, then defendant is not a holder for value, nor the creditor of McKay, and cannot setoff that note in this action.

Which the court refused.

The court made the following declaration of law for defendant:

“That the date of a blank assignment may be fixed by the defendant upon such day as shall be most to his advantage; and the assignment in this case being blank and not filled up until after suit brought is to be taken as a blank assignment so as to let in all the equities which arose during the time it was blank. And the note of Campbell, assigned to defendant, having been assigned while the assignment on the note sued on was in blank, the defendant is entitled to fix the date of the assignment on such a day as shall let in the Campbell note as a setoff against the note sued on.”

The court below allowed the offset and after deducting the sum due upon the note as a setoff from the amount due upon the note sued on, rendered judgment in favor of the plaintiff for the balance; which the defendant tendered with costs, etc.

The plaintiff moved for a new trial, which was refused, .and he took a bill of exceptions, and appealed.

First — The note sued on was negotiable, and was executed and endorsed to the appellant after the passage of the Act of 24th April, 1873, by which such paper is to be governed by the law merchant, Gantt’s Digest, sec. 566.

It was proven by the appellant that the note was endorsed and delivered to him for value, before maturity, in due course of business, and that he took it in good faith, and without notice that the appellee (the maker) had any offset, etc., against the note.

Indeed, the appellee proved that he purchased the note pleaded as a setoff after the note sued on was endorsed to the appellant.

This made a clear case against the allowance of the offset under the law merchant. Parson’s Mercantile.Law, 100-1.

Second — But the endorsement being in blank, the court below excluded the evidence of the appellant that it was in fact made before the maturity of the note, and declared, in effect, that it was an absolute presumption of law, that the endorsement was made at such time as would be of most advantage to the appellee (defendant below).

A section of the Revised Statutes provided that:

“All blank assignments shall be taken to have been made on such a day as shall be most to the advantage of the defendant.” Gantt’s Digest, sec. 570.

The statute merely changed a former rule of presumption, which was that the law, in the absence of any evidence on the subject, presumes a transfer to have been made before the bill or note was due.

Byles on Bills (by Sharswood) 288, (marg. p. 165); and cases cited in note (1). Sanger v. Sumner, 13 Ark., 288.

The meaning of the statute manifestly is, that in the absence of evidence to prove when the blank assignment was in fact made, the presumption must be that it was made on such day as shall be most to the advantage of the defendant.

Surely no such presumption arises where the holder of the bill or note proves that it was in fact endorsed and delivered to him before maturity, and to give the statute such interpretation as would, deny to him the right to make such proof would be unreasonable.

That the statute only furnishes a rule of presumption to be applied in the absence of evidence on the subject, as under the former rule, was indicated in Weaver v. Caldwell, 9 Ark., 344, where the court said: “It would be manifestly to the advantage of the defendant to suppose that the endorsement was made subsequent to the acceptance of the bill (the rule of presumption under the statute), and there is nothing in the record that conflicts with that supposition.”

The court below erred in excluding so much of the depositions of appellant, as were offered to prove the time of the endorsement ; and in refusing to make the first and second declarations of law asked by appellant, and in declaring the law to be as moved by appellee.

It is not deemed material to pass upon the third declaration of law moved by appellant, and refused by the court.

The judgment must be reversed, and the cause remanded with instructions to the court below to grant the appellant a new trial.


text:
    Chandler vs. Montgomery County.
    1. Appeal : Power of the Circuit Court when defectively taken.

    Where the record, in a proceeding that originated before a Board of Supervisors, does not show that an appeal was granted to the Circuit Court, but it appears that an authenticated transcript of the proceedings before the board was before the Circuit Court, and the cause was treated by the court and parties as if regularly there, on appeal, the court could, upon the transcript, make any appropriate order in the case.
    2. Toll Bbid&e: Ebanchise: Power of the County Court; Police power, etc.

    The County Court is empowered, under the Statute, to grant a charter to build and maintain a toll bridge, but a franchise so granted is subject to the police power of the State, and a subsequent Statute empowering the County Court to require of the toll keeper a bond, with security, to keep the bridge in repair, and pass persons and stock safely and without detention, was a reasonable exercise of the police power and did not impair his franchise.
    3. Same: Duty of County Court as to the bond of toll keeper.

    When a keeper of a toll bridge, under an order of the County Court, files a bond conditioned to keep the bridge in repair, safely cross passengers, etc., it is the duty of the Court, if the bond is good in form, and the security sufficient, to approve it, or, if defective in either respect, to point out the defect and afford him reasonable opportunity to perfect it.
    4. Same: JSCow the franchise revoked.

    The County Court is not authorized, upon the rejection of a bond filed by the keeper of a toll bridge, under Section 640 of Gantt’s Digest, to revoke his charter and order th'e destruction of the bridge. If the failure to file a sufficient bond is cause of forfeiture, it could only be ascertained and declared by a proceeding in the name of the State in the nature of Quo warranto.

    APPEAL from Montgomery Circuit Court.
    Hon. L. J. Joynee, Circuit Judge.

      A. B. Williams, for appellant.
   English, Ch. J.:

From the transcript in this case it appears:

That on the 5th day of July, 1870, the County Court of Montgomery County, granted a charter to M. M. Chandler (under chapter 171, Gould’s Digest) “ to build a toll bridge along the East side of the Caddo River, known as the Caddo Gap. Narrows, on the Arkadelphia and Mount Ida road.” The order declared that Chandler, his heirs and assigns, should have exclusive privilege of said charter for thirty years from the date of the grant; and established the rates of toll to be charged for crossing the bridge, etc.

It was also ordered that Chandler enter into bond for the completion of the bridge before the first Monday of January, 1871, etc.

At the October term, 1871, Silas P. Vaught represented to the court that he was one of the sureties of Chaudler, on the bond executed by him for the faithful building and keeping of the bridge, etc., and asked to be released; and the court made an order releasing him, and directing .that Chandler be notified to appear before the Clerk within twenty days and give additional security.

At the same term of the court, citizens appeared, and complained to the court that the toll bridge at Caddo Gap Narrows Avas insecure and unsafe for the passage of stock and vehicles; Avhereupon the court (Avithout notice to Chandler) proceeded to summon and examine witnesses, and to declare the bridge unsafe, etc., and ordered Chandler to be notified to put the bridge in good condition Avithin forty days, etc.

On the 7th of July, 1873, the folloAving order Avas made by the Board of Supervisors, (avIiícIi had been substituted for the County Court) :

“Ordered by the Board that M. M. Chandler, avIio OAAms and and keeps a toll bridge at Caddo Gap, be required to enter into bond unto the president of the Board of Supervisors, as provided by Section 19 of an act entitled ‘An Act-to establish a Board of Supervisors in each County in this State/ approved April 3d, 1873. Said bond to be given in the sum of $5,000, and filed in the office of the County Clerk, etc., Avithin thirty days from the date of the service of this order; and that the Sheriff be required to serve a copy of this order on said Chandler Avithin twenty days from this date.”

It appears that the Clerk issued a copy of the order on the loth Avhich Avas served on Chandler on the 24th of July, 1873; and on the 23d of August following, he filed in the Clerk's office a bond executed by himself as principal, and six persons as sureties, in the penal sum of §5,000, payable to the president of the Board of Supervisors, and his successors in office, conditioned (after reciting his charter, describing his bridge, etc.) that he Avould “ keep said toll bridge in good and safe condition for the passage of persons, wagons, carriages, and stock over and across said bridge, and in all things well and truly observe, perform and fullfil the laAvs of the State, etc., regulating and governing keepers of toll bridges,” etc.

On the 30th August, 1873, the Board of Supervisors held a •called session, and examined, disapproved, and rejected the bond.

For what cause the bond was rejected does not appear, in the order.

At the same meeting of the Board, the following order was made:

“■ It appearing to the Board that M. M. Chandler, having a .license to keep a toll bridge through Caddo Gap, etc., failed to fill the requirements of the law in relation thereto, and having failed to file a good and approved bond as the lawful order of ■this Board required and demanded. It is by the board ordered that the license of said Chandler be revoked, and that unless he shall on or before the first day of the next regular meeting of this Board, file a good and sufficient bond in the sum of $5,000 and in due form, the same to be approved by the president of this board in vacation, then, in the event of his failure so to do, the overseer of the road district in which said bridge is situated shall Remove said bridge as an obstruction; and further that a copy of this order be served on said Chandler, or left at his place of business, and also a copy to the overseer of the road district in which said bridge is now located.”

After the above order, the following entry appears :

“Now on this day comes S. Jones for M. M.Chandler, and gives notice that he will appeal from the order of this board in relation to the toll bridge at Caddo Gap.”
“Comes also Z. L. Cotton, attorney for the county, and states that he waives all informalities as to notice.”

A transcript of the foregoing proceedings of the County Court and Board of Supervisors, made out and certified by the Clerk was filed in the office of the Clerk of the Circuit Court on the 15th September, 1873, and the case docketed as if on appeal from the Board of Supervisors.

At the September term of the Circuit Court, 1873, and after-the transcript was filed, and the case docketed, Chandler filed a. motion for a supersedeas as follows:

“ M. M. Chandler comes and says that in violation of his-chartered privilege heretofore granted, under the laws of the State, said Supervisors have required him to enter into bond not', justified by the laws of the land at the date of his charter.
“ That because he failed to execute such bond as the Board of' Supervisors would approve, they have ordered and directed that said bridge be destroyed and removed.
“That said proceedings are in manifest violation of his-chartered privileges, of the constitution of the State, and the laws of the land.
“Wherefore he prays the court to supersede said orders and hold them for naught, and for other relief.”

On the filings of this motion, it was agreed by Chandler and; the attorney representing the county, that a temporary supersedeas might issue, and that until the next term of the court, or-until the further order of the court, Chandler might demand and. receive certain rates of toll, which are set down in the entry, and are much lower than those allowed in the original order - granting the charter.

At the February term, 1875, the attorney for the county-moved'to strike out Chandler’s motion for supersedeas, and the: court took the matter under advisement until the next term.

At the August term, 1875, the case was heard upon the transcript, and motions theretofore filed, and the court over-ruled Chandler’s motion for a supersedeas, and affirmed the judgment of the Board of Supervisors, and said judgment was made the-judgment of the Circuit Court as Fully as if set forth anew, and it, was adjudged “that said privilege, with all immunities thereto-pertaining, of said defendant, Chandler, to keep said toll bridge,. be and the same is hereby revoked, rescinded, and held for naught,” etc.

Chandler moved for a new trial, which was refused, and he excepted, and appealed to this court.

It does not appear that the Board of Supervisors granted Chandler an appeal to the Circuit Court (Gantt’s Digest, secs. 705-6, 1193), but the parties and the court seem to have treated the case as if regularly there on appeal.

An authenticated transcript of the proceedings in the inferior court was before the Circuit Court, and upon it, by consent of parties, a temporary supersedeas was granted; and the court could, upon such transcript, have made any appropriate subsequent order, which it was competent to make.

The charter of the appellant was granted to him to build and keep a toll bridge, by the County Court, under chapter 171, Gould’s Digest, and the grant vested in him, his heirs, etc., a privilege or franchise to be exercised and enjoyed for thirty years, from the date of the grant. The County Court was empowered to make such grant by the legislature.

By the Act of April 3d, 1873, abolishing the County Courts, and substituting Boards of Supervisors, the Boards were authorized to require and compel any person, then or thereafter, owning a toll bridge, etc., to give bond and good security, in such sums as the Board might deem sufficient, etc., conditioned that he would keep such bridge, etc., in good repair, etc., and so attend the same as to pass all persons, their horses, stock, carriages, etc., in safety and without detention. Gantt’s Digest, sec. 640.

This was but a reasonable exercise of the police power of the State, for the safety and protection of the community and traveling public, and was not a curtailment or infringement of the charter rights, or franchise of the appellant. Cooly on Con. Lim., pp. 576-7.

The Board of Supervisors had authority to require the appellant to give the bond prescribed by the statute, but where the bond was presented, if good in form and the sureties sufficient, it should have been approved, and if deemed defective in either respect, the Board should, in fairness, have indicated the defect, and aftbrded the appellant a reasonable opportunity to perfect the bond.

On the rejection of the bond filed by the appellant, the Board undertook to revoke his charter; and then directed that unless he filed a good and sufficient bond, on or before the next term of the court, to be approved by the president of the Board in vacation, the overseer of the road should remove his bridge as an obstruction.

The road overseer, an executive officer, was to ascertain appellant’s failure to give the bond, and destroy his property, without any judicial condemnation. This was not permissible under the Bill of Eights, (Constitution of 1868, art. 1, sec. 9). State v. Carnall, 10 Ark., 156.

The legislature did not authorize the Board of Supervisors to revoke appellant’s charter, on his failure to give the required bond. If such omission would be a cause of forfeiture, as perhaps it would, the proper mode of ascertaining the default, declaring the forfeiture, and siezing the franchise, is by suit in the Circuit Court, in the name of the State, in the nature of a quo warranto, under the provisions of chapter 133, Gantt’s Digest. State v. Carnall, ubi. Sup.; State v. Evans, 3 Ark., 588; Angel & Ames on Corp., secs. 777-8; 3 Kent Com., marg. p. 458, etc.; State v. Ashley, 1 Ark. 304; Marr, ex parte, 12 Ark., 85.

Nor had the Circuit Court power to revoke appellant’s charter, in this proceeding on appeal from the Board of Supervisors.

The judgment of the Circuit Court must be reversed, and the cause remanded with instructions to the court to supersede so much of the order of the Board of Supervisors (now County Court) as revokes the charter of appellant, and so much as directs the road overseer to remove his bridge, and to remand the cause to the County Court, that it may make appropriate orders in relation to the bond of appellant, etc.

With liberty to the State to institute a proper suit to ascertain whether the charter be forfeited, etc., if she shall think proper to do so.


author: Harrison, J.:

text:
    Hall vs. Pillow.
    Conflict of Laws: Presumption as to Foreign Law.

    In the absence of proof, the court presumes that the law of another State gives to the acknowledgment and recording of mortgages, deeds of trust, etc., the same effect as is given by the laws of this State.
    Mortgage: Removal of Mortgaged Property from another State, effect upon, the lien.

    Where a mortgage or deed of trust of personal property is duly executed' and recorded in another State, the removal of the property to this State will not displace the lien, or render it necessary to record the instrument here; and a purchaser for value will take subject to the lien.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.
    > P. O. Thweatt, for appellant.

      Tappan & Plornor, for appellee.
   Harrison, J.:

Replevin for a horse commenced before a justice of the peace,, and determined upon appeal in the Circuit Court.

The cause was tried by the court sitting as a jury upon the following agreed statement of facts:

The horse belonged to one C. D. Crump, in Grenada County,. Mississippi, who on the 1st day of April, 1874, conveyed him. and other personal property to the plaintiff in trust, to secure to T. P. Lamkin the payment of a debt to become due on the 1st day of December, 1874, and with power to said trustee upen default of payment, or if before the maturity of the debt, the grantor removed, sold or disposed of any part thereof, upon request of Lamkin to take possession of the property and sell it for the satisfaction of the debt.

The deed was duly acknowledged and recorded in said county, according to the law of Mississippi; but was never recorded in this State. Before the maturity of the debt, Crump, without the consent of either Lamkin or the plaintiff, brought the horse to Phillips County, in this State, and sold him to the defendant.

The debt was unpaid, and the suit was brought at the instance and request of Lamkin. The value of the horse was $100.

The court made the following declaration of law:

“ A deed of trust upon personal property in another State, and recorded there, but not in this State, will not, if the property is removed by the grantor to this State, and sold here to an innocent purchaser for a valuable consideration, defeat the title of such purchaser; and thereupon found for the defendant.

The plaintiff excepted to the declaration of law; and for that cause moved for a new trial. His motion was over-ruled, and he appealed.

In the absence of proof, we may presume that the law of Mississippi gives to the acknowledgment and recording of mortgages, deeds of trust, etc., the same effect as is given by the law of this State. Cox v. Morrow, 14 Ark., 603; Seaborn v. Henry & Co., 30 Ark., 469; Sherril v. Hophins, 1 Cow., 103; Legg v. Legg, 8 Mass., 99; Monroe v. Douglass, 1 Seld., 447 ; Rape v. Heaton, 9 Wis., 328; Green v. Rugeby, 23 Tex., 539 ; Smith v. Smith, 19 Grat., 545; Green, on Ev., sec. 488. Whar. Con. L., sec. 780.

The deed having been recorded in Mississippi, where Crump lived, and the property was, it was not necessary for the protection of the rights of the plaintiff and his cestue que trust, that it should have been recorded also in Phillips County, or in this State, the lien, having rightfully attached upon the horse in Mississippi, was not displaced by the wrongful act of Crump in bringing him to Arkansas. Sto. Con. L., sec. 402.

And though the defendant purchased him for a valuable consideration and in good faith, of which however, there was no evidence, he stood in no better situation than any other purchaser of property to which the seller could not make title.

The declaration of law was erroneous.

The judgment is reversed and the cause remanded with instructions to grant the plaintiff a new trial.