author: Lee Seamsteb, Chief Justice.

text:
    Spraggins v. Jeffries.
    5-856
    287 S. W. 2d 576
    Opinion delivered March 5, 1956.

      Jack Holt and John F. Park, for appellant.
    No brief for appellee.
   Lee Seamsteb, Chief Justice.

This appeal is from a judgment of the Saline Circuit Court dismissing appellants’ complaint against the appellee for rent.

The parties entered into a sales contract January 15, 1953, and on April 27, 1954, the appellants notified the appellee, by letter, that he was behind with payments on the contract and unless the payments were brought up to date by May 15, 1954, the appellants would rescind the sales contract and collect rent from appellee. Appellee moved out and delivered possession of the premises to appellants on May 11, 1954.

The sole issue in this case is the legal effect of the following paragraph in the contract, to-wit:

‘ ‘ 3. Time is the essence of this AGREEMENT, and if BUYER defaults in the payment of any installment of principal and interest for a period of 30 days, or fails to pay any taxes, assessments or insurance premiums when due, SELLER, at its option, may either declare the entire debt with interest due and payable, or rescind this AGREEMENT, and in the event of rescission all moneys paid by BUYER shall be taken and retained by SELLER, not as a penalty, but as rent of the property and the relation of the parties thereafter shall be that of landlord and tenant at the rental of $60.00 per month; and thereupon SELLER, after notice, may demand possession of the property, and BUYER agrees to surrender immediately peacable possession. No delay in the exercise of any of the options herein shall be construed as a waiver of such right, but same may be exercised at any subsequent time. Any notices required herein may be made by ordinary mail addressed to BUYER at Benton, Arkansas, unless SELLER be notified in writing of a subsequent change of address.”

The appellants contend for a reversal of the judgment that they are entitled to collect rent at the rate of $60.00 per month from the date of the contract until ap-pellee delivered possession of the premises. To maintain this position appellants cite, among other cases, the cases of Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468; Bunting v. Rollins, 189 Ark. 12, 70 S. W. 2d 40; Murphy v. Myar, 95 Ark. 32, 128 S. W. 359. In the above cases the court properly construed the contracts under consideration in the respective cases.

The vital part of the contract under consideration reads as follows:

“ * * * In the event of rescission all moneys paid by buyer shall be taken and retained by seller, not as a penalty, but as rent of the property and the relation of the parties thereafter shall be that of landlord and tenant at the rental of $60.00 per month; * *

Under the plain language of the contract the rental at $60.00 per month would be applicable after the rescission date set by appellants, as of May 15, 1954. The ap-pellee moved from the premises before that date and would not be liable for rent.

Finding no error, tbe judgment is affirmed.

Justice J. S. Holt not participating.


source: Caselaw Access Project

author: J. SeabobN Holt, Associate Justice. Ed. F. McFaddiN, Associate Justice

license: Public Domain

text:
    Shuffield v. Raney.
    852
    287 S. W. 2d 588
    Opinion delivered March 5, 1956.

      Bailey, Warren & Bullion, for appellant.

      Rex W. Perhins, Neill Reed and E. J. Ball, for ap-pellee.
   J. SeabobN Holt, Associate Justice.

September 1, 1954, appellant, Dr. Joe F. Shuffield, filed the present suit “to remove cloud on title” to the following real estate: “The "West 35 acres of even width, or all of the Southwest Quarter of the Southeast Quarter, except the East Half of the East Half of the East Half of said Southwest Quarter of Southeast Quarter of Section 13, Township 12 North, Range 9 "West, 35 acres more or less with all appurtenances thereto belonging.”

There is little if any dispute as to material facts. On January 6, 1953, appellees, Raneys, for valuable consideration executed a mortgage covering the above real estate and in addition ‘ ‘ all fixtures and appliances now used and being a part of the drug business operated under the trade name of Griffin Drug Company, now owned by grantors as the same now located in the Cleburne County Bank Building, Heber Springs, Arkansas, except fixtures of Yarnell Ice Cream Company.” This mortgage was given by the Raneys to secure a loan of $15,000 from Dr. Shuffield and was evidenced by a note of even date. There has been paid on the note $2,500.

March 18,-1954, the Raneys and Ira Fullerton, Trustee, entered into an agreement to dispose of the real estate herein involved, upon which Dr. Shuffield held a mortgage, — by means of a lottery. This agreement contained this recital: “Parties of the first part, being desirous of disposing of real estate hereinafter more fully described, to the lucky purchaser of a numbered ticket of tickets to be sold at one dollar per ticket as a chance on being the winner of the real estate more fully hereinafter described, and in furtherance of the desire of the parties of the first part to sell said tickets through the sponsorship of the Leonard Stark Post No. 3543, Veterans of Foreign Wars, Heber Springs, Arkansas as their sponsors, and whereas the sponsors of said sale, the Leonard Stark Post No. 3543, Veterans of Foreign Wars, is to receive five per cent on the sale of each and every ticket, and whereas other salesmen agreed upon and designated by the parties of the first part and the Trustee, Ira Fullerton, are to receive fifteen per cent on the sale of each ticket, and whereas the parties of the first part are to receive the remaining eighty per cent of each ticket sold, parties of the first part simultaneously with the execution of this agreement have delivered to the said Ira Fullerton, as Trustee for the winner of the lucky ticket, a warranty deed free of all incumbrances, (except that all liens, mortgages or debts, if any, will be satisfied in full before August 1, 1954) to the following described real estate, located in Cleburne County, Arkansas, to-wit: . . . who in turn, as Trustee for the holder of the lucky ticket shall immediately upon the announcement of the holder of the lucky ticket at the drawing to be held at the Band Shell in Heber Springs, Arkansas, at the Annual Reunion on August 7, 1954, execute to said holder of the lucky ticket a trustee deed conveying the above described property.” This agreement was signed by the Raneys and Fullerton, Trustee. On the same day (March 18, 1954) a deed was made by the Raneys to Fullerton, Trustee, containing this provision: “That we, Wayne Raney and Lois (or Loys) Raney, his wife, for and in consideration of one dollar and other considerations hereinafter stated and agreed upon, to us in hand paid by Ira Fullerton, Trustee, do hereby grant, bargain, sell and convey unto the said Ira Fullerton, Trustee for the holder of the lucky ticket as expressly understood by an agreement this day entered into by and between the grantors and the trustee herein, and unto his successors and assigns, the following described lands lying in the State of Arkansas and County of Cleburne, to-wit: . . .” (describing-lands here involved).

Following the execution of these instruments, tickets, or chances, were sold for $1.00 each. A drawing was had August 7, 1954, and appellee, Walter Thomas, drew the lucky number, or ticket, and a deed was made to him by the Trustee, Ira Fullerton, which contained this provision: “. . . for and in consideration of one dollar and other considerations as expressed in said deed and contract, And, whereas Ira Fullerton acquired and holds the title to said lands as trustee without declaration, and it being the desired and expressed purpose by the grantors of said lands and property to the said trustee, and it being the purpose of this trust, that the winner or holder of what is known as the lucky ticket drawn from the sale of tickets and sponsored by the Leonard Stark Post No. 3543, Veterans of Foreign Wars, Heber Springs, Arkansas, have of and receive from the said Ira Fullerton, as trastee, the lands hereinafter described, and that the terms thereof be entered and the conveyance as executed in conformity thereto, Now, therefore, I, Ira Fullerton, Trustee, do hereby declare and covenant that the title to the lands herein described was acquired for the purpose of conveying the same to the winner or holder of the lucky ticket in fee simple title, and for said purposes and none other whatever was the title to said lands acquired by me as such trustee. And, in consideration of the premises and of the trust reposed in me, I, Ira Fullerton, as trustee aforesaid, do hereby grant, bargain, sell and convey unto the said Walter Thomas, and unto his or her heirs and assigns forever, the following real estate, lying in the County of Cleburne, and State of Arkansas, to-wit: . . .” (describing land here involved).

When the above agreement and two deeds were executed Dr. Shuffield’s mortgage had not been recorded.

Trial resulted in a decree in favor of appellees and this appeal followed.

For reversal appellant insists that: “I. The defendants, Ira Fullerton and Walter Thomas, are nqt bona fide purchasers. II. The plaintiff, mortgagee, is entitled to affirmative relief.”

Our rule is well settled that an unrecorded mortgage is valid as between the parties and good except as to subsequent purchasers for value. ‘ ‘ But an unrecorded mortgage is still good and binding between the parties. It constitutes a valid lien on the property, except as to the legal rights of third parties,” Morgan v. Kendrick, 91 Ark. 394, 121 S. W. 278, 134 Am. St. Rep. 78. On the record presented we have concluded that the trial court erred in holding in effect that Dr. Shuffield’s mortgage was not superior to the rights of appellees. Dr. Shuffield was not a party to the plan or scheme of appellees that resulted in appellee, Thomas, securing a deed to the property in question for the consideration of a $1.00 lottery ticket. This consideration was illegal and amounted to no consideration at all, made so by Article 19, Section 14, of the Constitution of the State of Arkansas, which provides in short plain language: “Lotteries Prohibited.— No lottery shall be authorized by this state, nor shall the sale of lottery tickets be allowed.” We have accepted the following definition of the word lottery: “A lottery is a species of gaming, which may be defined as a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize,” Longstreth v. Cook, Sec. Ark. Racing Comm., 215 Ark. 72, 220 S. W. 2d 433, and in comment we said: “It appears therefore that to constitute a lottery it is essential not only that the element of chance is present, but also that it controls and determines the award of the prize whatever it may be. ’ ’

One who gives an illegal consideration cannot be accorded the status of a bona fide, or innocent, purchaser. See Gerdes, et al. v. Reynolds, 28 N. Y. S. 2d 622. Since appellees, Wayne and Lois (or Loys) Eaney and Fullerton, Trustee, entered into, planned and carried out the scheme to dispose of the property involved, and the Ea-neys and Fullerton, Trustee, received full value for the property, they, therefore, risked nothing by the lottery and appellee Thomas, although the consideration, $1.00, which he paid was illegal, acquired title to the property. The principle of law announced in Carey v. Watkins, 97 Ark. 153, 133 S. W. 1016, applies here. We there said: “. . . a person cannot be said to have lost his property when he receives its value in exchange for its possession. Carey received the value he placed upon his wagon, and did not risk anything on the lottery. ’ ’ Appellee Thomas ’ title, however, is subject to the lien of Dr. Shuffield’s mortgage. Inasmuch as Thomas ’ title is good as against the Eaneys, Dr. Shuffield is not entitled to all the relief sought by his complaint, which asks that the deeds to Fullerton and Thomas be declared void and canceled. Dr. Shuffield is, however, entitled to a decree establishing the priority of his mortgage lien, to the end that his rights may be protected against the possibility of a later sale by Thomas to a bona fide purchaser. The question of marshalling the various properties covered by the mortgage need not be discussed at present, as that issue will not arise unless a foreclosure of the mortgage is sought.

Accordingly, the decree is reversed and the cause remanded for further proceedings consistent with this opinion.

Chief Justice Seamster and Justice McFaddiN dissent.

Ed. F. McFaddiN, Associate Justice

(dissenting). I agree with all that the majority opinion says about the condemnation of lotteries and the fact that the Courts of this State will not aid anyone to prevail through a lottery ; but the problem in this case cannot be solved by such pronouncements. As I understand our cases, the rule is that, when a party asks the Courts to aid him, he must prove that he and those through whom he claims are clear of the stigma of lottery in the transaction in which he is asking the courts to help him. Such rule is the basis of my dissent.

Here, Dr. Shuffield is entirely clear and innocent of participating in any lottery, but the person through whom he claims title — Mr. Eaney — was not clear of such participation; and Eaney’s participation affects the claim of Shuffield because Shuffield’s mortgage tuas not recorded until after Thomas had recorded his deed and taken actual possession of the property. I emphasize that Thomas recorded his deed and went into actual possession of the property before Dr. Shuffield recorded his mortgage; and that Dr. Shuffield brought this suit, and not Thomas.

Because of the wording of our mortgage recording Statute (§ 51-1002, Ark. Stats.), the matter of a bona fide holder does not enter into this case. An unrecorded mortgage is good only between the parties. If Thomas had known all about Eaney’s mortgage to Shuffield and had paid Eaney a valuable consideration for the property before the Shuffield mortgage was recorded, then Thomas would have received a title superior to the Shuffield mortgage. An unrecorded mortgage is not binding upon a third person, though such person may have actual notice of its existence. Fry v. Martin, 33 Ark. 203; Dodd v. Parker, 40 Ark. 536; Merchants & Farmers Bank v. Citizens Bank, 125 Ark. 131, 187 S. W. 650; Bridges v. Haney, 132 Ark. 166, 200 S. W. 788; Simpson v. First Nat. Bank, 173 Ark. 284, 292 S. W. 138; Polster v. Langley, 201 Ark. 396, 144 S. W. 2d 1063.

Since his mortgage was not recorded prior to Thomas ’ possession, Shuffield’s right to recover the property is the same as Raney’s right to recover would have been. The question, then, is: could Raney have recovered the property herein from Thomas? The answer is NO; and Carey v. Watkins, 97 Ark. 153, 133 S. W. 1016, is directly in point. Carey owned a wagon and raffled it off for $45.00, intending for the winner to have it. The raffle was held. It was declared that Watkins was the winner and Watkins’ father went to Carey’s house and got the wagon, with Carey present and making no objections. Later, Carey sought to recover the wagon on the claim that Watkins did not win it. This Court held that Carey had no right to recover, saying:

“. . . the illegal contract having been executed, the law leaves the parties where they placed themselves and affords no relief to either.”

So here: Raney executed the deed to Fullerton and Fullerton to Thomas and Thomas went into possession; so certainly Raney could not have recovered if he had brought the suit. Since Thomas’ possession occurred prior to the time Shuffield recorded his mortgage, Shuf-field stands only in the shoes of Raney, and, since Raney could not recover, neither can Shuffield, because “ ... the law leaves the parties where they placed themselves and affords no relief to either.”

Now if Shuffield had been in possession of the property and Thomas had brought this suit, then Thomas could not have recovered, because “. . . the law leaves the parties where they placed themselves.” Therefore, since Shuffield is in the shoes of Raney, and since Raney could not have recovered, I think we should apply the rule stated in Carey v. Watkins (supra): . . the law leaves the parties where they placed themselves. ’ ’

Therefore, I dissent from the majority holding.

       Section 51-1002, Ark. Stats., reads: “Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the Recorder’s Office for record and not before; which filing shall be notice to all persons of the existence ■of such mortgage.”

       There are several other Arkansas cases involving lotteries: see Martin v. Hodge, 47 Ark. 378, 1 S. W. 694; Grant v. Owens, 55 Ark. 49, 17 S. W. 338; Burks v. Harris, 91 Ark. 205, 120 S. W. 979; Watkins v. Curry, 103 Ark. 414, 147 S. W. 43; and Simpson v. Brooks, 208 Ark. 1093, 189 S. W. 2d 364.

       The majority opinion quotes Carey v. Watkins to this effect: “A person cannot be said to have lost his property when he receives its value in exchange for its possession. Carey received the value he placed upon his wagon and did not risk anything on the lottery.” That quotation emphasizes the point I am trying to make. The evidence here shows that from the proceeds of the raffle Raney received somewhere between $2,500.00 and $15,000.00 for the property. Certainly that was substantial and, since he could not recover, neither should Shuffield; because his rights could be no greater than Raney’s, due to the failure to record the mortgage before Thomas acquired actual possession.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Jackson v. Smith.
    5-861
    287 S. W. 2d 571
    Opinion delivered March 5, 1956.

      Wiley W. Bean and D. B. Bartlett, for appellant.

      Richard Motley, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This is a suit by appellants, Mrs. Collins and Mrs. Jackson, to set aside ■ — on the grounds of fraud and imposition- — -a deed they executed and delivered to the appellees, Smith and Nor-vell. The Chancery Court denied the appellants the prayed relief and this appeal resulted.

Mr. James A. Poteet lived in Clarksville and had four sisters, two of whom are the appellants, Mrs. Collins and Mrs. Jackson. The other two sisters predeceased Mr. Poteet, and each left children, one child being the appel-lee, Mr. Bernice Smith, and another being the appellee, Mrs. Luther Norvell. When Mr. Poteet suffered a stroke, Mrs. Collins and Mrs. Jackson were promptly notified at their homes in California. They came to Clarksville in an automobile, accompanied by Mrs. Collins’ husband and Mrs. Jackson’s son; and arrived on Tuesday, February 23, 1954, a day before Mr. Poteet died. The Collins stayed in the Smith home, and the Jacksons in the Norvell home. Mr. Poteet was buried on Thursday, February 25th. He died intestate, and his estate consisted of án automobile and thirty acres of land.

On Friday morning, February 26th, Mrs. Collins and her nephew, Mr. Bernice Smith, had a conversation in which it was agreed that Mrs. Collins and Mrs. Jackson would convey to Mr. Bernice Smith and Mr. Luther Nor-vell (husband of Mrs. Luther Norvell) all interest in the estate of Mr. Poteet, and, in return, Mr. Smith and Mr. Norvell would pay all debts of the Poteet estate. Mrs. Jackson and Mr. Norvell also agreed to this arrangement. These conversations were on Friday. On Sunday the Collins and the Jacksons drove to Fort Smith to see some other relatives. Then on Monday, March 1st, the Collins, Jacksons, Smiths and Norvells went to an attorney in Clarksville, who advised all parties as to procedure, administration, heirship, etc. The next day (Tuesday, March 2nd) a deed was prepared wherein all the heirs of Mr. Poteet were to convey all interest in the estate to Mr. Smith and Mr. Norvell, in consideration that the grantees assumed and agreed to pay all debts of the estate of Mr. Poteet. The deed was duly signed and acknowledged by Mrs. Collins and Mrs. Jackson on Tuesday, March 2nd; and taken by them to the other grantors to likewise sign and acknowledge. The appellants took the deed to California and obtained its execution by a number of the nieces and nephews, and returned it to Mr. Smith and Mr. Norvell.

Several weeks after March 2nd, Mrs. Collins’ son, J. M. Walton, went to Clarksville from California, and learned that the Poteet thirty-acre tract had a value estimated from $7,500.00 to $12,500.00; and this suit was filed by Mrs. Collins and Mrs. Jackson to set aside the deed they had executed; and they claimed that they had been defrauded and imposed on by Mr. Smith and Mr. Norvell. As aforesaid, the Chancery decree was adverse to Mrs. Collins and Mrs. Jackson; and they have appealed, claiming: (a) that the deed is not within the “family settlement” rule; (b) that, even if the deed be a “family settlement,” it should be set aside because of fraud and imposition; (c) that the appellants were not required to investigate the value of the property; and (d) that the appellants have proved fraud and imposition practiced on them by Mr. Smith and Mr. Norvell.

That the deed from Mrs. Collins and Mrs. Jackson to Mr. Smith and Mr. Norvell is within the “family settlement” rule is too clear to admit of doubt. Pfaff v. Clement, 213 Ark. 852, 213 S. W. 2d 356, is complete authority for such conclusion. But, even as a “family settlement,” the deed cannot be upheld if the evidence shows that either fraud or imposition was practiced. In Pfaff v. Clement (supra), we quoted the language of Mr. Justice FraueN-thal in Martin v. Martin, 98 Ark. 93, 135 S. W. 348:

“The courts of equity have uniformly upheld and sustained family arrangements in reference to property toilere no fraud or imposition was practiced.” (Italics our own.)

So the real question in the Trial Court was whether Mrs. Collins and Mrs. Jackson established that either fraud or imposition was practiced on them; and the question on appeal in this Court is whether the decision of the Chancellor is against the preponderance of the evidence.

In looking at all of the facts and circumstances, the following matters are impressive:

(1) The evidence shows that neither Mr. Smith nor Mr. Norvell knew the value of the thirty acres of land. Mr. Smith was a tractor mechanic and Mr. Norvell was a carpenter and bricklayer. Although they had both lived in Clarksville many years, neither had ever been engaged in the real estate business. The last real estate transaction of either of them was in 1946 when Mr. Smith bought a lot on West Main Street in Clarksville. Furthermore, in all the conversations with Mrs. Collins and Mrs. Jackson, neither Mr. Smith nor Mr. Norvell undertook to claim any knowledge of the value of the property. So there were certainly no misrepresentations knowingly made.

(2) While Mrs. Collins and Mrs. Jackson were in Clarksville, they viewed the thirty acres of property here involved; and they had ample opportunity to consult anyone they desired regarding the value of the property.

(3) At the time of the original conversation between Mr. Smith and Mrs, Norvell on Friday morning, February 26th, the parties had been of the impression that Mrs. Collins and Mrs. Jackson owned all of the interest, since they were the only two surviving sisters of Mr. Poteet. When the parties went up to the attorney’s office on Monday, March 1st, he correctly told them that the heirs of the two deceased sisters had interests in the property; and Mrs. Collins and Mrs. Jackson both agreed to get these other heirs to sign the deed.

(4) Mr. Smith and Mr. Norvell told Mrs. Collins and Mrs. Jackson about the $3,000.00 mortgage on the land; about the approximate amount of the hospital and nurses ’ bills; and they all knew the funeral expenses. Mr. Smith and Mr. Norvell had personally guaranteed the hospital and nurses’ bills, and Mr. Smith was not positive but what he and Mr. Norvell would lose money in making the deal with Mrs. Collins and Mrs. Jackson. One witness, who was an aunt of Mrs. Luther Norvell, said that Mrs. Collins, in discussing the matter with this witness on Tuesday night, March 2nd, said that she (Mrs. Collins) was glad that Smith and Norvell had taken the deed and ‘ she hoped they made good on it and she said she wouldn ’t mind if they would make a million dollars.” Another witness, who talked to Mrs. Collins after she had signed the deed and before she went back to California, said that Mrs. Collins said she was happy and relieved that Mr. Smith and Mr. Norvell had taken over the property; and Mr. Collins was there at the time of the conversation.

(5) Mrs. Collins and Mrs. Jackson left Clarksville Wednesday morning, March 3rd, to return to California. They took the deed with them and got most of the other heirs to execute it, and th en later returned it to Mr. Smith and Mr. Norvell. Just when the deed was mailed from California is not shown; but one of the acknowledgments is dated April 3, 1954; so the deed must have been in the possession of the appellants for over a month after they left Clarksville; and that is significant, in view of the next matter to be mentioned.

(6) It was some time before March 27th that Mrs. Collins’ son, Mr. Walton, went from California to Clarks-ville to investigate the value of the Poteet thirty acres; and on that trip, Mr. Walton offered Mr. Smith and Mr. Norvell $1,000.00 to rescind the deed. Mr. Walton’s trip to Clarksville was on March 27th and he announced he was going to call his mother that night and stop the deed. Yet, on April 7th, Mrs. Collins wrote the Norvells that as far as she was concerned the deed was valid. Thus, even after Mr. Walton liad investigated the value of the property, his mother, Mrs. Collins, still wrote that she did not desire to rescind. It was not until August 6th that Mrs. Collins decided to attempt rescission; and this suit was filed on August 17, 1954.

There are many other salient facts in the record, which is over four hundred pages. The Chancellor heard the witnesses testify and then took the case under advisement, and rendered a 27-page memorandum opinion which shows study and learning regarding both the facts and the law. The real question before us is whether the findings of the Chancery Court are against the preponderance of the evidence. When we consider that neither Smith nor Norvell was posted on real estate values; that they never attempted to represent the value of this property to the appellants; that the appellants viewed the land; that Mrs. Collins’ husband was with her and Mrs. Jackson’s son was with her; that the matter was not a “hurry-up” deal but was discussed from Friday until Tuesday; that no attempted rescission was made for several months, and then only after Mr. Walton had antagonized and threatened the appellees — when we consider all these matters and the other facts and circumstances in the record — we cannot say that the Chancellor’s findings are against the preponderance of the evidence.

Affirmed.

       The deed read in part as follows: “We, Nora Poteet Collins, Nellie Poteet Jackson” (and other named heirs of James A. Potest, deceased) “for and in consideration of the sum of ONE DOLLAR ($1.00) to us paid in hand, and to each of us, the receipt of which is hereby acknowledged by LUTHER NORVELL and H. B. Smith, and, the assumption by the said LUTHER NORVELL and H. B. SMITH of the indebtedness existing on account of a promissory note heretofore executed by the said James A. Poteet, deceased, in favor of Mrs. May Kavatum, for the sum of Three Thousand Dollars, with interest at the rate of Ten per cent per annum (10%), and said note being secured by a Realty Mortgage upon a portion of the lands herein conveyed, duly recorded, in Book 32 at Page 440 of the deed records of Johnson County, Arkansas, AND, the further assumption by the said LUTHER NOR-VELL and H. B. SMITH of all other indebtedness of the said James A. Poteet, deceased, including expense of last sickness, funeral, burial, and any and all claims and demands against the estate of the said James A. Poteet, deceased, DO HEREBY GRANT, SELL AND QUITCLAIM unto the said LUTHER NORVELL and H. B. SMITH, and unto their heirs and assigns forever, the following described land, situated in the County of Johnson, State of Arkansas, to-wit: . . .” (Here follows description of the land — approximately thirty acres— and the 1949 Chevrolet car.)

       None of the other grantors in the deed has joined with Mrs. Collins and Mrs. Jackson in this suit.

       On this point they cite Million v. Taylor, 38 Ark. 428; and Richards v. Sutter, 94 Ark. 621, 125 S. W. 1018 (the full text of the opinion may be found only in the Southwestern Reporter) ; and seek to distinguish the case at bar from Pfaff v. Clements, 213 Ark. 852, 213 S. W. 2d 356.

       On this point they cite Faulkner v. Faulkner, 222 Ark. 121, 257 S. W. 2d 570.

       On this point they cite Evatt v. Hudson, 97 Ark. 265, 133 S. W. 1023.

       On this point they cite Stewart v. Clark, 195 Ark. 943, 115 S. W. 2d 887; and Barner v. Handy, 207 Ark. 833, 183 S. W. 2d 49.

       That Mr. Walton used little or no tact or diplomacy in his conversations with Mr. Smith and Mr. Norvell, and antagonized them to such an extent that they would not have dealt with him on any basis, is probably reflected from Mr. Norvell’s testimony at the time of the trial. Mr. Walton, in testifying of his visit with Mr. Norvell, quoted himself as using this language to Norvell: “Why don’t you just be fair about this thing — the way I see it you’re going to make some money ■ — -and let’s destroy those papers that have been signed and I will compensate you to the amount of five hundred dollars.” And in talking to Mr. Smith in the March visit, Mr. Walton testified at the trial that he said this to Mr. Smith: “You live in a small town. I don’t see how you can afford a case of fraud thrown at you.”

       Mrs. Collins’ letter read in part: “I guess I ought to have answered your letter sooner, Luther. I knew Merle had gone to Arkansas. He wrote me from Denver and said he was going to Tulsa, Oklahoma and was going on to Clarksville. I don’t want you or Bernice to worry about papers. I signed them, and as for my part, my signature will still be on the papers, and I hope Lillian and the three boys will sign. I am not going back on my word. Merle thinks we should have something out of it, and maybe we could if Jim had made a will; but the way he left things, I could not see anything there for me or any of us. If we were living there we would have taken it and tried to do something about it, but I felt that we would only be bringing trouble to ourselves, and I am not young any more. It would worry me just too much and I hope and pray that everything will come out all right for you and Bernice.”


author: Ed. F. MoFaddin, Associate Justice.

text:
    Southwest Casualty Insurance Company v. Wesson.
    5-921
    287 S. W. 2d 575
    Opinion delivered March 5, 1956.

      Rex W. PerMns, A. James Linder and E. J. Ball, for appellant.

      Ovid T. Switzer and W. P. Stoitzer, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This case comes to us on a motion for rule on the clerk to require him to file the transcript, which he refused because tendered too late. The record here reflects this sequence of events:

(a) On March 25,1955, appellees, Wesson and wife, obtained judgment against appellant, Southwest Casualty Insurance Company, in the Ashley Circuit Court.

(b) The appellant casualty company gave notice of appeal on April 2, 1955.

(c) No extension of time was requested for filing the record on appeal until July 9, 1955, when an order was made giving appellant the full period, of seven months from the date of the judgment, to file the record on appeal.

(d) The record was tendered in this Court on October 24, 1955, and its filing was refused as tendered too late.

(e) Then the motion for rule on the clerk was filed.

From the foregoing it will be observed that the notice of appeal was filed on April 2nd and that the 90 days, allowed by Sec. 20 of Act 555 of 1953, had expired before July 9th, when the order of extension was granted. In other words, no request for extension of time to file the record on appeal was made or granted within the 90 days from the filing of the notice of appeal, as provided in Sec. 20 of Act 555 of 1953. Under onr bolding in the case of West v. Smith, 224 Ark. 651, 278 S. W. 2d 126, the Circuit Court of Ashley County was without authority to make the extension order on July 9th; because the time for such extension order lapsed 90 days from April 2, 1955. West v. Smith is directly in point. We are asked to overrule that case; hut this we refuse to do. The case was carefully considered, and we adhere to it.

Next the appellant claims that the delay in obtaining the extension order was due to no fault of appellant’s attorneys because: (1) they relied on the promise of the court reporter that he would obtain the extension within the proper time; and (2) the court reporter thought the time did not expire until after July 9th. We cannot sustain the appellant in this claim. The order for the extension must be obtained from the Court, and not from the court reporter. Appellant’s counsel had no right to rely on the court reporter to get the order of extension. No amount of local custom can vary the Statute, which requires that the extension order be granted by the Court.

Finally, appellant says that, even under West v. Smith (supra), the rule should issue against the clerk because of an unavoidable casualty. Appellant points out that in West v. Smith we said that we had the inherent constitutional power, in an exceptional case, to allow a record to be filed after the time fixed; and appellant says that this is such an exceptional case. We cannot sustain appellant in this claim because appellant has entirely failed to show any unavoidable casualty that prevented the obtaining of a proper order of extension. The fact that one of the attorneys for appellant was out of the State for a time, and that the same attorney later was ill —such fact — did not prevent the other attorney for the appellant from attending to the matter of the extension. Both attorneys participated in the trial of the cause and both are interested in the case on appeal. Our cases, in regard to continuances because of absence of counsel, hold that, where there are two attorneys representing a party, the absence or illness of one does not prevent the other from acting for the client. See El Dorado & B. R. Co. v. Knox, 90 Ark. 1, 117 S. W. 779; Reliance Life Ins. Co. v. Hardy, 144 Ark. 190, 222 S. W. 12; Mo. & North Ark. Rd. Co. v. Robinson, 188 Ark. 334, 65 S. W. 2d 546.

Therefore, the rule on the clerk is denied.

Chief Justice Seamster and Justices George Rose Smith and Robinson dissent.

       For such procedure, see Rule No. 5 of this Court, in the Rules issued in January, 1954.


author: Minor W. Millwee, Associate Justice.

text:
    Harris v. Gillihan.
    5-867
    287 S. W. 2d 569
    Opinion delivered March 5, 1956.

      Barrett, Wheatley, Smith & Deacon, M. P. Watkins and Frank Sloan, for appellant.

      James E. McDaniel and W. B. Howard, for appellee.
   Minor W. Millwee, Associate Justice.

Appellant and appellee were married in Poinsett County in 1946 and two sons were horn to them who are now six and eight years of age. Appellant has been a professional soldier in the U. S. Army since 1940 and stationed in Japan for the past several years. When appellee indicated that she intended to secure a divorce in March, 1952, appellant obtained an emergency leave from the army in Japan and returned to Poinsett County where he filed suit for divorce and custody of the two children. Appellee entered her appearance in the suit which she did not contest and a decree was entered May 7, 1952, granting appellant a divorce on the ground of general indignities and awarding him custody of the children with the understanding that they were to be left with appellant’s stepmother, Mrs. L. P. Collins, at Harrisburg, Arkansas. A week later ap-pellee married L. B. Gillihan, her present husband, who was divorced from his first wife on May 6, 1952.

Appellant married a Japanese national, whom he had known for about a year, in November, 1953, and they have since resided in a Japanese section of Tokyo. In May, 1955, appellee learned that appellant was about to take the children to Japan to live and filed a petition to restrain such action and to modify the divorce decree, alleging changed conditions since the rendition of the decree which rendered it for the best interest of the children that she be given their custody. This appeal is from a decree granting appellee’s petition.

At the beginning of the hearing on the petition for modification of the original decree it was stipulated that appellant intended to take the children to Japan to live for approximately a year and the pleadings and much of the testimony were directed to that issue. However, at the conclusion of the testimony appellant abandoned this request and asked that the children be left in the care of his stepmother.

According to the proof, appellee resided with her present husband in Missouri, where he was stationed as a soldier, for nearly two years after their marriage. She gave this as the primary reason for her rather infrequent visits with the children, which were rendered somewhat difficult and unsatisfactory by directions of appellant to Mrs. Collins. "While there was circumstantial evidence of an illicit relationship between appellee and her present husband prior to her divorce, there was no evidence of promiscuity and appellant frankly conceded she was a good mother to their children.

There was some corroboration of appellee’s testimony to the effect that she was ill and unable to work and properly care for the children at the time of the original decree and for a year thereafter. At the time of the instant hearing she resided on an 80-acre farm near Jones-boro with her present husband who has sufficient income to properly support the children and is anxious to do so. Appellee has also regained her health and ability to work and care for the children. Although Mrs. Collins stated that she would be glad to continue caring for the children, whose support was being paid for by government allotments, she approved of the father taking them to Japan to live and there is little evidence of that strong bond of mutual affection that is frequently shown to have developed between children and natural grandparents who have had their custody for a considerable period of time.

The rule is that a decree fixing the custody of a child is final on conditions then existing and should not be changed afterwards unless on altered conditions since the decree was rendered or on material facts existing at the time of the decree, but unknown to the court, and then only for the welfare of the child. Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450; Phelps v. Phelps, 209 Ark. 44, 189 S. W. 2d 617. The chief concern in all custody cases is, of course, the welfare and best interest of the child. Where a child of tender years is involved courts are also ordinarily reluctant to deprive a mother of custody, unless it clearly appears that she is not a fit person to rear the child. We are unwilling to lay down the inflexible rule that the acts of indiscretion by a wife with a man she soon married after she was divorced forever brands her as a person unfit to have the custody of a young child where there is no evidence of promiscuity. We have held in several cases that a mother will not be denied custody of a child of tender years solely because of her infidelity to her husband where there are other circumstances which render such action detrimental to the child’s welfare. Longinotti v. Longinotti, 169 Ark 1001, 277 S. W. 41; Blain v. Blain, 205 Ark. 346, 168 S. W. 2d 807; Thompson v. Thompson, 209 Ark. 734, 192 S. W. 2d 223.

We have repeatedly pointed out that since all these custody cases present a different factual situation none of them represents a direct precedent which is absolutely controlling in another. In his contentions that appellee failed to prove any material change in circumstances that justify modification of the original decree and that she has forfeited her right to custody, appellant relies heavily on the recent case of Johnston v. Widener, 225 Ark. 453, 283 S. W. 2d 151, but in that case strong ties of affection had developed between the three children and their natural grandparents over a five-year period. Also, conditions surrounding the mother’s new home in another state were unsatisfactory and the advisability of separating the children by permitting the mother to take the youngest into the other state was a primary consideration.

While courts are always apprehensive as to the appropriate order to make in cases of this kind, we think a preponderance of the evidence supports the chancellor’s conclusion that changed conditions since the original divorce decree affecting the welfare of these young children warranted a restoration of their custody to the mother.

Affirmed.


author: G-eorge Nose Smith, J. Paul Ward, Associate Justice

text:
    Morrilton Homes, Inc. v. Sewer Improvement District No. 4.
    5-868
    287 S. W. 2d 581
    Opinion delivered March 5, 1956.

      Phillip H. Loh, for appellant.

      Townsend <& Townsend, for appellee.
   G-eorge Nose Smith, J.

This is a suit by a municipal sewer district to recover connection charges assertedly due by reason of the appellant’s unauthorized use of the district’s sanitary sewer lines. The complaint also asks that the appellant be enjoined from making additional connections without first paying a fee of $50 for each connection. The chancellor fixed the connection charge at $30. The decree gave the district a judgment for $630, representing the charges for twenty-one dwellings being served by the district, and enjoined the appellant from making future connections without paying a similar fee. An appeal and cross-appeal bring the whole case up for review.

The district was organized in 1924 and sold bonds to pay for the improvement. The unpaid bonds are in default, and it does not appear that the sewer system has been turned over to the city by the district. In 1949 the appellant bought fifty lots lying outside the district and began developing the property as a residential area. The corporation laid sewer lines to service its lots and provided an outlet by connecting its system to the district’s outfall, which leads to the disposal plant. Although the appellant’s utilization of the district’s line was approved by the state’s resident sanitarian, the weight of the evidence shows that the district’s commissioners did not authorize or consent to the connection.

There can be no question about the district’s right to impose a charge for the use of its facilities. Such a charge has been upheld in a number of cases, for an outsider can fairly be required to pay for the privilege of using a system constructed at the expense of the district’s taxpayers. See Peay v. Kinsworthy, 126 Ark. 323, 190 S. W. 565, and Sloss v. Turner, 175 Ark. 994, 1 S. W. 2d 993. In 1941 the principle was embodied in a statute. The act reads in part: ‘ ‘ The Commissioners of the district shall have the right to consent to or refuse to alloAV such connections within their discretion, and such connections shall be made on such terms as the Commissioners may dictate, provided, however, that no lands outside of the district shall be permitted to connect with the sewer line of the district except upon payment to the district of a sum equal to the charge made against similarly benefited lands within the district. ’ ’ Ark. Stats. 1947, § 20-333. It will be seen that by its terms the statute imposes a duty on the commissioners to make the charge when, as here, the land to be served is outside the district.

The chancellor is not shown to have been in error in fixing the connection charge at $30 for each lot. The appellant contends that this amount is excessive; the district thinks it inadequate. It is shown that the district’s assessment of benefits averaged $100 or more per lot. The appellant, however, laid its own mains and is utilizing the district’s system only as an outlet; so a fair connection charge should be less than the amount paid by the district’s landowners. We cannot say that the chancellor’s conclusion, based upon conflicting testimony, is against the preponderance of the evidence.

The district’s claim, however, is barred in part by the three-year statute of limitations. Ark. Stats., § 37-206. The appellant joined its system to the district’s line in March, 1950, and this suit was not filed until June, 1954. The commissioners did not learn of the connection until 1953, but ignorance of the existence of a cause of action does not suspend the running of the statute in the absence of fraudulent concealment by the defendant. Hibben v. Malone, 85 Ark. 584, 109 S. W. 1008. It is neither alleged nor proved that the appellant acted surreptitiously in making the connection in 1950. Rather the opposite, the corporation seems to have proceeded openly in the belief that it had a right to utilize the existing lines. There is no reason to think that the connection could not have been readily discovered by the exercise of ordinary diligence.

Although the appellant’s main lines were joined to the district’s outfall in 1950, the appellee’s entire cause of action did not necessarily accrue at once. The statute is explicit in committing the matter of connection charges to the discretion of the commissioners. We perceive no manifest abuse of discretion in the commissioners’ decision to make a separate charge as each newly built house is added to the sewer system. The original 1950 connection was intended to serve an indeterminate number of dwellings to be constructed in the future. It could not then be known how many homes would eventually be placed on the fifty lots, nor what the ultimate burden upon the district’s drainage lines would be. The practice of accepting new connections individually rather than in mass would enable the district to prevent its facilities from becoming overloaded and cannot be regarded as an unreasonable exercise of the commissioners’ discretion.

Of the twenty-one connections for which the district ivas given judgment beloAV, thirteen appear to have been made more than three years before suit Avas filed. In holding that the recovery of these connection charges is barred by limitations Ave do not imply that the unauthorized use of the district’s lines has given rise to a vested right that AArould prevent the district from refusing to continue the service in the future. That issue is not presented by this case.

The decree is modified to reduce the money judgment to $240. In other respects the decree is affirmed, the costs to be taxed equally.

Holt and Ward, JJ., would affirm the decree.

Paul Ward, Associate Justice

(dissenting). It seems to me that the majority opinion fails to take cognizance of some vital aspects of this case. It makes the arbitrary finding that the connection charges for some of the houses in the Morrilton Homes Addition are barred by the three years statute of limitation without discussing the evidence showing when the District knew of the connections. I am loathe to believe the majority mean to announce, as a matter of law, that a person can secretly and unlawfully connect his home with a sewer system and thereby start the statute of limitations running in his favor. The Hibben case, cited by the majority, certainly does not justify such a principle of law. It seems to me that this case merely holds that ignorance of an existing legal right or obligation does not prevent the statute from running.

The important question in this case, I believe, is: Did the Sewer District know when the earlier connections were made ? The evidence on this point was not discussed by the majority, so I shall refer to it.

The chancellor discussed the testimony on this point in detail and found that the Sewer District did not know when the connections were made. I submit the chancellor’s finding on this point was not against the weight of the testimony.

First, the act of appellant in making the main connection with the appellee district should not be confused with the later connections made by the individual home owners. Most of the testimony is about the former, and even that is not clear. Mr. Morgan, one of the organizers of Morrilton Homes, [according to appellant’s abstract] talked with the City Attorney in 1950 and told him they would either connect with the appellee district or they would build a septic tank. Later he talked with a Mr. Dilling, one of the sewer commissioners, about connecting, and Mr. Dilling “didn’t say lie would not let us connect.” One commissioner was quoted as giving permission to connect, but be denied it. At any rate, tbe important issue in tbis case is not whether the district knew about tbe main line connection in 1950 but whether they knew when each of the individual houses were connected. I find no positive testimony in appellant’s abstract showing that the sewer district knew when the houses were individually connected. On the other hand, Mr. Reynolds, one of the district commissioners, testified that he first knew about the connection about a year before the suit was brought. Mr. Hawkins, one of the commissioners, said he never knew about the connections till he heard it on the streets, and that he had never been asked by Mr. Morgan or Mr. Loh for permission to connect. As stated by appellant, the commissioners contended that “they had no knowledge [of the connections] until after the survey in 1953 and that immediately thereafter they made demand for connection charges.”

In view of the above state of the record, I submit that the decree of the trial court should be affirmed.


author: Paul Ward, Associate Justice.

text:
    Horn v. Horn, Administrator.
    5-869
    287 S. W. 2d 586
    Opinion delivered March 5, 1956.

      Melvin T. Chambers, for appellant.

      Henry B. Whitley and Wendell Utley, for appellee.
   Paul Ward, Associate Justice.

This appeal calls for a construction of Section 64, Act 140 of 1949, which act is often referred to as the New Probate Code. Said section is now Ark. Stats. (Supp.) § 62-2125 and it provides the time limit in which a will may be probated.

Appellant, Alpha Horn, is the widow of®Dr. W. H. Horn and appellee, Claude H. Horn .(administrator), is his son. Dr. Horn was first married to Bertie Lee Horn and of that union were born four children including ap-pellee. In 1938 Dr. Horn and Bertie Lee Horn each executed a will leaving all property to the other. Bertie Lee Horn died October 3,1940, and in 1942 Dr. Horn married appellant. On September 14,1954, Dr. Horn died, leaving-no children by his second wife.

According to appellant’s statement Bertie Lee Horn owned several head of cattle and other property at the time of her death, and Dr. Horn took charge of the same and treated them at all times as his own property.

On September 25, 1954, Claude H. Horn was appointed administrator of his mother’s estate, and as such administrator he took charge of all of the livestock and other property claiming the same belonged to the estate of his mother, Bertie Lee Horn. Some time thereafter appellant discovered among the papers of her husband the will of Bertie Lee Horn, and on March 24, 1955, she filed a petition seeking to have said will probated. To the above petition Claude H. Horn, as administrator of his mother’s estate, filed a demurrer on the ground that five years had passed since the enactment of Act 140 of 1949, and thus pled the five year limitation as a bar to the probation of the will. The pertinent section of said Act 140 is the one mentioned above, and it reads as follows:

“No will shall be admitted to probate and no administration shall be granted unless application is made to the court for the same within five years from the death of the decedent; this section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.”

The trial court sustained appellee’s demurrer, and appellant has appealed.

Appellant states, and appellee admits, that prior to the passage of said Act 140 there was no limit to the time in which a will might be probated. It is appellant’s contention that the statute above quoted is not retroactive and that, therefore, she had the right under the old law to probate the will of Bertie Lee Horn. In support of this argument appellant cites and quotes from Hudson v. Hudson, 219 Ark. 211, 242 S. W. 2d 154. In the cited case, the court, after referring to said Act 140, among other things, stated: “. . . the statute in that respect is not retroactive in effect.” The court also stated: “The Probate Code provision on limitation can operate prospectively only.” Notwithstanding the above quoted excerpts apparently, to some extent, support appellant’s contention, yet the opinion as a whole is far from conclusive. In the cited case, the will was admitted to probate notwithstanding the fact that the testator had died some fifteen years previously. The will was correctly offered for probate, however, less than five years after the effective date of said Act 140. The court, in the cited case, had no occasion to pass upon the exact question here presented. Other decisions of this court impel the conclusion that appellant had no right to probate the will in question since her petition was filed more than five years after the effective date of Act 140 of 1949.

In the case of Trapnall, et al. v. Burton, et al., 24 Ark. 371, the court had occasion to construe a recently enacted statute limiting the time requisite to create a bar to the recovery of real estate to seven years. Previously thereto the time limit had been fixed by statute at ten years. It was there held that the new limitation statute would apply to old causes of action which had not expired on the date the new statute became effective. In speaking of the new statute the court said: “It applies to old cases, but not till the expiration of the fixed time from and after it takes effect.” “If there was a cause of action existing, not barred by the old statute, but to which the new one applied, it could be pleaded. ’ ’ At page 388 the court summed the matter up in these words: ‘ ‘ The former law governs until the time fixed by the new law expires, after its passage, and then the new law applies to all cases not then barred by the old law. ’ ’

In the case of Duke v. State, 56 Ark. 485, 20 S. W. 600, the court was dealing with a statute limiting the time to enforce certain liens. There the court, in considering a question similar to the one here presented and in referring to another decision, made this statement on page 498 of the Arkansas Reports:

“ ‘A statute of limitations may undoubtedly have effect upon actions which have already accrued as well as upon actions which accrue after its passage.’ And it was there held that, in the absence of a contrary provision, the period of limitation fixed by the statute would be computed as to causes of action existing when it was passed, from the time when they are first subjected to its operation. ’ ’

Appellant cannot be heard to say that she had a vested right under the old probate law to an unlimited time in which to file a petition to probate the will. The right she had under the old law was not one which could not be changed or limited by a new act of the legislature. This rule was clearly stated in the case of Johnson v. Beede, 186 Ark. 588, 54 S. W. 2d 413. There appellant filed a petition to be exempt from a stock law, contending he had six months to do so under an old law. The court held that his time was fixed by a new act [Act 44 of 1931] which limited the time to three months. In speaking of appellant’s contention the court said:

“This argument would be sound if amendatory Act 44 of 1931 swept away any contractual obligation or title, legal or equitable, to the enjoyment of - property. The amendatory act operated upon a remedy only by changing the time from six to three months in which appellants might file petitions to exempt their townships from the provisions of the general stock law from the date of the adoption thereof. One does not have a vested right in remedies or matters of procedure. ’ ’

We do not know, and need not be concerned in this case, upon what grounds the probate court allowed appel-lee to take out letters of administration upon the estate of Bertie Lee Horn. It will be noted that the Ark. Stats. (Supp.) § 62-2125, copied above, not only limits to five years the time in which a will may be admitted to probate but it also limits to five years the time in which letters of administration may be granted.

It follows from what we have said above that the trial court was correct in sustaining appellee’s demurrer.

Affirmed.


author: Sam RobiNSoN, Associate Justice. Ed. F. McFaddiN, Associate Justice

text:
    Whittecar v. Cheatham.
    5-870
    287 S. W. 2d 578
    Opinion delivered March 5, 1956.

      Cole & Epperson, for appellant.

      McMillan & McMillan and Otis H. Turner, for ap-pellee.
   Sam RobiNSoN, Associate Justice.

Robert C. Whitte-car, Jr., a minor, was injured while riding in an automobile driven by appellee, Bernard Cheatham. Young Whit-tecar, by his father, filed this suit, alleging that Cheatham had negligently operated the automobile, and that such negligence resulted in Whittecar’s injuries. After Whit-tecar had completed the introduction of his testimony in chief, the defendant Cheatham moved for a directed verdict; the court granted the motion. It is apparent the motion was granted on the theory that Whittecar was a guest in Cheatham’s automobile, and, because of our guest statute, he could not recover. Ark. Stats., §§ 75-913-14-15.

The sole issue here is whether, according to the undisputed evidence, Robert Whittecar, Jr., was a guest in Cheatham’s automobile within the meaning of our statutes. At the time he was injured, Robert was fifteen years of age; he attends school at Magnet Cove; he was in the seventh grade, and was a member of the Junior basketball team. The appellee, Mr. Cheatham, was basketball coach, and he taught “Junior and Senior High history.” He taught Robert history as well as coaching him in basketball. During basketball practice between 11:00 A. M. and 12:00 noon on the day Robert was injured, Mr. Cheatham told him there would be a basketball game that afternoon at Benton.

Robert testified:

“Q. Where did he tell you to meet?
A. He told us to meet him down at the gym after school was over. ’ ’
* & # * #
1 ‘ Q. When you got down to the gym after school was out that afternoon, what kind of transportation was there for you?
A. We didn’t — Mr. Cheatham told us we was to all go in his car. ’ ’
& * # * #
‘ ‘ Q. Did Mr. Cheatham have anything to do or say about the seating arrangements; where the boys sat?

A. Yes, sir, he moved one other big boy in front and one other middle sized boy in front. They were sitting in the back seat.

Q. How many people were in the front seat when yon first got into it?

A. There were three.

Q. Three hoys or three, all told?

A. Three all told, and then he moved one more boy up there.”

There were ten boys in the car altogether; they went to Benton and played a game of basketball; Robert participated in the game, and Mr. Cheatham coached. On the way back to Magnet Cove after the game, Mr. Cheat-ham was driving the automobile when he had a head-on collision with another car, and Robert was injured. According to the undisputed facts, can it be said that Robert was a guest of Mr. Cheatham within the meaning of our statutes? The guest statutes are in derogation of the common law and should not be extended beyond a correction of the evil which induced their enactment. Ward v. George, 195 Ark. 216, 112 S. W. 2d 30. And in that case,. it is also said: ‘‘ One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. If, in its direct operation, it confers a benefit only on the person to whom the ride is given, and no benefits, other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes; but, if his carriage tends to the promotion of mutual interests of both himself and the driver and operator for their common benefit, or if it is primarily for the attainment of some objective or purpose of the operator, he is not a guest within the meaning of such enactments. Of course, a passenger for hire is not within their operation, regardless of whether the passenger or someone else pays or promises to pay for the transportation. ’ ’

Ordinarily, the issue of whether one is a guest is a question of fact. Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906. This rule applies where there is a dispute as to the facts, as in Corruthers v. Mason, 224 Ark. 929, 277 S. W. 2d 60. But, where there is no dispute as to the facts, it becomes a question of law as to whether one is a guest within the meaning of the statutes. Arkansas Valley Cooperative Rural Electric Company v. Elkins, 200 Ark. 883, 141 S. W. 2d 538; Payne, Administratrix v. Fayetteville Mercantile Company, 202 Ark. 274, 150 S. W. 2d 966; Ward v. George, 195 Ark. 216, 112 S. W. 2d 30. In the case at bar, at this point, there is no dispute as to the facts. Robert was a student in school; Mr. Cheatham, his teacher in history and coach in basketball, instructed him as to making the trip to Benton. In directing Robert as to the trip to Benton, it does not appear that Mr. Cheatham was acting beyond the scope of his authority as basketball coach. Robert was told by the coach what car to enter and where to sit in the automobile. It does not appear that Robert had any choice as to whether he would go to Benton to play basketball; had he refused without some good excuse, he probably would have been guilty of insubordination and subject to being expelled from the team. Such a consequence would have been very harmful to him, as it cannot be said a fifteen year old boy’s physical education is unimportant.

Appellee cites a number of cases to sustain his contention that Robert was a guest. Although some of the cases cited are authority for the proposition that certain undisputed facts show that the relationship of guests existed, according to those particular facts, none are in point with the facts in the case at bar with the exception of Casper v. Riggins, 54 Ohio App. 21, 6 N. E. 2d 3. That case appears to be closely in point. A student who was a member of a debating team was riding with his instructor ; they had been to a debate and were on the way home when the mishap occurred, while the instructor was driving. If anything, the evidence in that case was much stronger as proving that the student was not a guest of the instructor, but, nevertheless, the court held that the relationship of guest existed. The case was decided by the Court of Appeals of Ohio, Butler County, in 1935, hut not a single authority is cited in support of the view there expressed. Later, in the case of Vest v. Kramner, 158 Ohio St. 78, 107 N. E. 2d 105, decided by the Supreme Court of Ohio in June 1952, it was held that a Boy Scout, while on a trip with the Scoutmaster, was not a guest. Casper v. Higgins was not mentioned.

It will be recalled that, at the time the court directed a verdict in the case at bar, appellant’s evidence was undisputed. It shows that Robert, in making the trip, was acting on instructions of his coach who, in turn, was acting within his authority as coach. It was Robert’s duty as a student to comply with the reasonable directions of his coach. It cannot be said that, in the circumstances shown here, Robert was the guest of the coach within the meaning of our guest statute.

Reversed, and remanded for new trial.

Mr. Justice MoFaddiN concurs.

Ed. F. McFaddiN, Associate Justice

(concurring). I concur in the result reached in this case — i. e., that the judgment should be reversed and the cause remanded for a new trial. But the majority opinion contains this language near the conclusion:

“It was Robert’s duty as a student to comply with the reasonable directions of his coach. It cannot be said that, in the circumstances shown here, Robert was the guest of the coach within the meaning of our guest statute. ’ ’

The only thing this Court was asked to do was tu hold that the Trial Court was wrong in declaring Robert Whit-tecar to be a guest. But the majority has swung to the other extreme and has stated that, as a matter of law— under the facts here — Robert Whittecar was not a guest. I think that, even under the facts here, it was a question for the jury to decide as to whether Robert Whittecar was a guest or a mere occupant-under-orders in the car.

Even where the evidence is undisputed, inferences and conclusions to be drawn from such evidence are still matters for the jury. We have many times so declared. In Grand Lodge v. Banister, 80 Ark. 190, 96 S. W. 742, we said :

“. . . for if the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then they were properly submitted to the jury for determination. Judges should not, under that state of the case, substitute their judgment for that of the jury. St. L., I. M. & S. Ry. v. Martin, 61 Ark. 549.”

A score of cases on the rule, that it is for the jury to draw the inferences from the evidence, are abstracted and quoted in West’s Arkansas Digest, “Trial,” Key No. 142.

So here, I conclude that the status of Robert Whitte-car is a question for the jury to decide. Of course, on a new trial, the facts may be somewhat different from those in the present record and the case may be submitted to the jury. My only purpose in registering this concurring opinion is to continue to express my view that it is for the jury to draw inferences from the evidence.


author: Lee Seamster, Chief Justice.

text:
    Wargo v. Wargo.
    5-873
    289 S. W. 2d 879
    Opinion delivered March 12, 1956.

      Hose, Meek, House, Barron & Nash, for appellant.

      James M. Smith, E. E. Hopson, Jr., and DuVal L. Burkins, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal from a decree of the Desha Chancery Court, which dismissed the appellants’ complaint.

On December 11, 1952 the appellants, Percy Wargo and Andrew Wargo, Jr., filed this suit against their brother, Timothy Wargo, his wife and their mother, Victoria Wargo. Mrs. Victoria Wargo is the widow of Andrew Wargo, Sr., and the appellants and Timothy Wargo are the sons and only heirs at law of Andy War-go, Sr., deceased.

The appellants in their complaint allege that they are the owners, in possession and that they have held such possession adversely for more than seven years of six separate designated tracts of real estate, located in Desha County, Arkansas. They also claim that they are entitled to have their title to the lands quieted and confirmed in them. They also allege that they are the owners of certain farm machinery and cattle located on the premises and ask that their title to such personal property be quieted in them.

They further allege that their father, Andrew Wargo, Sr., died June 10, 1952, and that the record title to all of said property was held by him at the time of his death.

On January 1, 1952 the appellants also filed in said court their petition for an injunction against appellee, Timothy Wargo. They alleged that Timothy Wargo had filed a petition in Desha Probate Court to have an instrument in writing probated as the last will and testament of Andrew Wargo, Sr., deceased. A copy of this instrument was attached to the petition and as pointed out therein, the purported will disposed of all the property claimed by the appellants in this suit, as well as other property.

They further alleged that if the will was probated it would cast a cloud npon all the property claimed in said suit by the appellants.

The probate and chancery cases were tried before the court and both matters were disposed of on the same date. The two cases are here for decision and the probate case is today decided in a separate opinion.

The appellants contend, for reversal of the trial court’s decree, that the appellants acquired title to the land in question by reason of a resulting trust, created by them purchasing the lands in the name of their father, entirely out of money supplied by them. The evidence on the part of the appellants is to the effect that in the fall of 1935, at a time when the appellants were young men in their early twenties, their father made them a proposition. He said, “If you boys want to stay here and take care of mother and me, clear the rest of this land and take care of the herd of cattle, you can have everything you make above the operating expenses and maintenance of the home.” The appellants contend that they accepted the proposition and that they have carried it out up until the time of the suit. Their testimony was corroborated by their mother, Victoria Wargo. They contend that they did business in their father’s name.

The proof on the other hand is that their father, the deceased, continued to operate his property in the same manner that he had always done. He was the head of the family and if the family needed money he would go to the bank and borrow it on his own note. In other words, he proceeded to finance and supervise the operation of the farm. Over a period from about August, 1936 until the year 1944 the deceased bought each of the six tracts of land claimed by the appellants. The ones he paid cash for, he took a deed in his own name, and wrote a check on his own bank account and paid therefor. Some of the land was bought on credit. He, alone, signed the contracts of purchase, made the down payment out of Ms money, and made tibe other payments by check from his account in the hank, and took the title to the real estate in his own name.

The last tract that he bought, in 1944, he purchased from Mrs. Zellner. He -had a law suit about this tract of land in 1948. Two of his sons, Timothy and Percy Wargo, were witnesses in the trial of this case and Mr. Wargo established the fact that he had purchased said land, by a valid contract, from Mrs. Zellner and the court held in his favor.

There is other evidence that, at the time the deceased bought the first tracts of land, he acquired the money to pay therefor, by selling timber from land he owned on an island situated in the Arkansas River. He also sold timber off of the land claimed by the appellants herein, and entered into written contracts and signed timber deeds for the sale of said timber and collected the money therefrom. He also made oil and gas leases on this land during his lifetime and collected the proceeds from said leases.

On September 5, 1946 the deceased made a will, and in that will he gave to his two grandsons, Timothy Wargo, Jr., and Andrew Wargo, III, who are the sons of Timothy Wargo, a 160 acre tract of land in Section 16, which is now claimed by the appellants.

On December 31, 1949 the deceased made the will that has been probated by the lower court and in that will he gave the grandsons the same tract of land he had given them in the 1946 will, together with a remainder interest in a part of the home place. In the 1949 will he gave to his son, Timothy, land in Section 16 and land in Section 15, the two tracts in said sections which are now claimed by the appellants, in this suit. This suit was filed after the 1949 will was offered for probate. It is evident that the appellants were disappointed in the way their father disposed of his estate by his will.

The appellant, Andrew Wargo, Jr., since the year 1941 had his own separate bank account. He had a herd of cattle that he branded with his own private brand, which was different from Ms father’s brand, and also different from Timothy’s cattle brand, as Timothy also had a separate herd of cattle.

At the time the deceased made his 1949 will he had 388 head of cattle which carried his separate brand. It is generally agreed that the widow, Mrs. Victoria Wargo owned 75 head of these cattle, which she claimed all along belonged to her, even though, they carried the same brand as her husband’s cattle.

The appellee, Timothy Wargo, built a home in 1935 about 40 feet from the family home, on land belonging to the deceased. He lived in his home, except for a few months during a period of two or three years when he was away hauling logs. From 1941 to 1947 he lived, with his family, in the family home and his youngest son was born while he was living with the rest of the family.

Percy and Andrew Wargo, Jr., have lived in the family home at all times, except for a three year period when Andrew Wargo, Jr., was in the armed services. During that time Timothy looked after Andrew Wargo, Jr.’s, hogs and cattle and from the sale of such stock he deposited $2,000 to Andrew, Jr.’s credit in his separate bank account.

As the family operations expanded the deceased bought additional farm machinery and he bought a bulldozer which he purchased in person and paid for by check out of his bank account, and Timothy also bought considerable farm machinery, two tractors, a corn picker, ■power saws and other equipment which he used on his property and which was also used on the home place. In fact, the family used each other’s property when convenient and they hired considerable help in the operation of the farm. Over a period of some three or four years Timothy Wargo’s wife weighed the cotton during the cotton picking season and kept the records for the family at a time when they would have as many as a hundred cotton pickers at one time.

Late in the year 1948 or early 1949 a disagreement arose between Timothy and the appellants, which, in fact, was very trivial, but lias resulted in a further breach by reason of this law suit.

There is no doubt but what the deceased in the provisions of his will attempted to keep the family together. He made a provision for his widow and three sons each to have a life estate in the three acre tract set off for them. This was the land on which his home was built, Timothy’s home was built, three barns and other outbuildings and cattle lots were constructed. He also very carefully kept a road open on the farm from his home place and between the lands given to Timothy and to Percy and Andrew, Jr., so that there would always be an open roadway from the home place to all parts of the farm. He gave to the appellants, 1,040 acres of land in a body. He gave to his two grandsons 288 acres of land, 128 acres of which, were subject to a life estate in his widow. He gave to Timothy 447 acres of land, making a connected farm not only of Timothy’s tract, but Timothy’s children’s land was also connected with their father’s tract of land.

Among other things, the widow was willed all of the cattle, the land on the island, and all other property the deceased owned and not specifically devised, which included $1,300 worth of stock in a feed mill and a life insurance policy for $2,000. The appellants received all the farm machinery belonging to the deceased, with the exception that Timothy was given a one-third interest in the bulldozer and sawmill, and the right to use the shop-tools in the blacksmith shop.

The deceased, in his will, designated all of this property as his property. Until the time of his death, he assessed all this property in his name, and had personally paid the taxes thereon until the year he died.

The evidence falls short of creating a resulting trust in appellants to any of this land owned by the deceased. Oral testimony of an agreement to create a trust falls within the statute of frauds, and where a trust is not manifested by any writing and no fraud has been practiced in obtaining the title, a resulting trust can only arise from the payment of the purchase price at the time of the purchase. It can never arise out of an agreement. See Bland v. Talley, 50 Ark. 71, 6 S. W. 234; Red Bud Realty Co. v. South, 96 Ark. 281, 131 S. W. 340; Pumphrey v. Furlow, 144 Ark. 219, 222 S. W. 31, and Castleberry v. Castleberry, 202 Ark. 1039, 155 S. W. 2d 44.

Since the deceased owned the legal title to all the property involved and the record shows he paid for it out of his own bank account, oral evidence of a separate agreement under such conditions would not be admissible to attach an express trust in favor of the appellants to said land. Spradding v. Spradding, 101 Ark. 451, 142 S. W. 848.

Oral evidence is admissible to establish even an express trust in personal property. The appellants in this case have failed to show by clear and convincing evidence, the right to have a trust declared in their favor in the personal property owned by the deceased.

It is agreed by all the parties and witnesses that the deceased was adjust and honorable man. He was always careful to live up to and meet all of his obligations. He had a great affection for all of his family. He provided, to the best of his ability, and as he saw it, for each and all of them in his will.

Finding no error, the judgment is affirmed.

Justice George Rose Smith not participating.


text:
    Wargo v. Wargo.
    5-895
    287 S. W. 2d 882
    Opinion delivered March 12, 1956.

      Rose, Meek, House, Barron & Nash, for appellant.

      DuVal L. Purkins, for appellee.
   Lee Seamster, Chief Justice.

On June 10, 1952, Andrew Wargo, Sr., died testate survived by his widow, Victoria Wargo, and Timothy, Percy and Andrew, Jr., his three adult sons and his sole heirs at law. Until their father’s death, Percy and Andrew, Jr., were unmarried. Timothy was married and had two minor sons, Timothy Wargo, Jr., and Andrew Wargo, III. Bessie Ann McCreary Bryan was a niece of Mrs. Victoria Wargo and she had lived in the home of Mr. and Mrs. Andrew Wargo, Sr.

Prior to his death, Andrew Wargo, Sr., executed his last will and testament on December 31, 1949, in the presence of Judge James M. Smith, and his son, Robert M. Smith, both attorneys at law. E. E. Hopson, another attorney at law, assisted Judge James Smith in the preparation of Wargo’s will. After its execution by Wargo, the will was placed in a sealed envelope, endorsed: ‘ ‘ Last Will and Testament of Andy Wargo.” Thereafter, at Wargo’s request, Judge Smith delivered this instrument to the probate cleric of Desha County for deposit. The clerk accepted the instrument and gave a receipt for it. Two carbon copies of this will, that had been duly executed by Wargo, were retained by Judge Smith and E. E. Hopson.

Shortly after Wargo’s death, the probate cleric notified the widow and each of the heirs and beneficiaries that the will was in his custody. Within 30 days thereafter, the widow, three sons and niece of Andrew Wargo, Sr., met with attorneys, Judge James Smith and E. E. Hopson, in a room adjoining the office of the probate clerk. The probate clerk opened the envelope containing the will and Attorney Hopson read the context of the instrument to all parties present. At this time, the two carbon copies of the will that had been duly executed by Wargo were produced by the two attorneys, and were given to members of the Wargo family during the reading. After the will was read, the probate clerk was asked to return to the room, the will was replaced in its envelope and the clerk was instructed to retain the will in his custody until further notice, where the will was retained until the trial of this case.

On October 16, 1952, Timothy Wargo filed the will for probate. Thereafter, on December 15, 1952, Percy and Andrew Wargo, Jr., filed objection to the probation of the will. The will was duly admitted to probate as the Last Will and Testament of Andrew Wargo, Sr., on June 28, 1955. Prom the order probating the will is this appeal.

For reversal, the appellants set out the following points:

I

Andrew Wargo’s will resulted from the undue influence exercised by Timothy Wargo and is, therefore, invalid.

II

Andrew Wargo was incompetent at the time he made the will in question and the will, therefore, is invalid.

III

The integrity of the purported will in question was destroyed and the will, therefore, was not entitled to probate.

(a) The envelope containing the will deposited with the Probate Clerk shows conclusively on its face that the will offered for probate was not the will originally deposited with the Clerk.

(b) The envelope containing the will was not opened by the Probate Court, as required by statute.

(c) Deposit of a will is not required by statute, but if compliance with the statute is attempted, then the statute must be strictly followed.

(d) The will bears evidence on its face that it is not in the form which the testator finally understood that he was signing.

The evidence reveals that Judge James Smith prepared a will for Andrew Wargo, Sr., on September 5, 1946, in which Wargo devised the following: To his widow he left all of his cattle; to his two grandchildren, Timothy, Jr., and Andrew III, he left 160 acres of land in Section 16; to his wife’s niece, Bessie Bryan, he left $500 in cash; to his three sons, Percy, Andrew, Jr., and Timothy, he left the residue of his estate, both real and personal, share and share alike. Wargo also directed that his estate be held in trust for a period of ten years after the death of his wife and also directed that the farming operations on his property be continued as therebefore conducted and the earnings or losses be shared on an annual basis, among his three sons.

The 1949 will provides in substance as follows:

First. Directs the payment of debts.

Second. Devises to his wife, Victoria Wargo, a life estate in the S 1/2 of the S 1/2 of Section 14, Township 10 South, Eange 1 West, west of the river and north of the section line road, with the remainder to Andrew Wargo, III, and Timothy Wargo, Jr., with the direction that the land be not sold, pledged or mortgaged until the younger shall have arrived at the age of 35 years.

Further bequeaths to his wife all his cattle and the proceeds of a life insurance policy of $2,000.

Third. Devises to Tim Wargo the N 1/2 of the N 1/2 of Section 23, Township 10 South, Eange 1 West, west of the river and south of the section line road, subject to a life estate in a tract of land 300 feet north and south by 450 feet east and west in his widow and three sons.

Further devises to Tim Wargo the N 1/2 of the S 1/2 of Section 16, Township 1 South, Range 1 West, and the SE 1/4 of Section 15, west of the section line road.

Fourth. Devises to Andrew Wargo, III, and Timothy Wargo, Jr., equally, the S 1/2 of the S 1/2 of Section 16, to be held intact until the younger one is of lawful age.

Fifth. Devises to Andrew Wargo, Jr. and Percy Wargo, equally, the SW 1/4, the S 1/2 of the NW 1/4 of Section 10, Township 10 South, Range 1 West; the SE 1/4, the S 1/2 of the NE 1/4 of Section 9, Township 10 South, Range 1 west; the NE 1/4, the E 1/2 of the NW 1/4 of Section 16, Township 10 South, Range 1 West; the NE 1/4 of Section 15 north of the section line road; and the NW 1/4 of Section 15, Township 10 South, Range 1 West.

Sixth. Gave to Tim, Andrew and Percy equally the bulldozer and its equipment and a sawmill located on the SE 1/4 of Section 15, Township 10 South, Range 1 West.

Seventh. Gave to Andrew and Percy equally all farm implements and machinery, except as above given, including all tractors and other farm machinery and equipment, except that the shop and blacksmith shop -equipment should be available equally to all sons and to his widow.

Eighth. Gave a life estate to the three sons and to his widow in a tract of land 300 feet north and south by 450 feet east and west in the N 1/2 of the N 1/2 of Section 23, Township 10 South, Range 1 West, in the building, shop and repair equipment thereon.

Ninth. Devises to Andrew Wargo, III, and Timothy Wargo, Jr., subject to the life estate of his widow, and S 1/2 of the S 1/2 of Section 14, Township 10 South, Range 1 West, west of the river and north of the section line road, with the direction that it be not sold, pledged or mortgaged until the youngest shall have arrived at the age of 35 years.

Tenth.. Gave to Bessie Anne Bryan the sum of $500.

Eleventh. Gave residue to his -widow.

Twelfth. Nominated his widow executrix without bond, and in the alternative, his sons as joint executors.

Executed by Andy Wargo on December 31, 1949, with the regular attestation clause signed by Robert M. Smith and James M. Smith, as witnesses.

There was no testimony in the record to show that Timothy Wargo had exercised any undue influence upon the deceased, in regard to the preparation of the will, or that he had any knowledge of its contents until it was opened by the probate clerk and was read to the family. Due to the lack of evidence, we cannot say that Timothy exercised undue influence upon the deceased to procure the execution of the will.

In regard to appellants’ second point, that the deceased was incompetent at the time he made the will in question, there was not sufficient evidence of record to support the appellants’ allegations. In fact the preponderance of the evidence shows that the deceased was of clear mind, mentally alert, had a knowledge of his properties and a concern for the deserts of his loved ones. The burden of showing lack of mental capacity and undue influence in making the will rests upon the appellants. They failed to do so in this case. Werbe v. Holt, 218 Ark. 476, 237 S. W. 2d 478; Simpson v. Burge, 216 Ark. 132, 224 S. W. 2d 830.

Finally, we can find no merit in appellants’ third point. The testimony shows that the deceased, after long deliberation and consultation with his attorneys, executed this will by signing all of its pages and showed his approval to all of the terms and conditions of the will. Judge James Smith testified that at the direction of the deceased, he deposited this will with the probate clerk sometime in the early part of January of 1950 and he paid the clerk one dollar and received a receipt for the will. This receipt was delivered to the deceased. The probate clerk testified that Judge Smith deposited this will with him on or about the eleventh day of January, 1950. The clerk also testified that he wrote on the envelope containing the will these words, “Delivered by Judge James Smith, July 18, 1949.” The clerk offered as explanation for inserting the wrong date on the envelope, the fact that he had in his vault at that time the will of another party, upon which he had endorsed the same date, July 18, 1949. The proof conclusively shows that the will in question was filed with the probate clerk sometime in January, 1950.

The proof shows that the probate clerk opened this will in the presence of the parties. After the reading of the will by the attorneys, the will was replaced in the envelope and custody was retained by the probate clerk until introduced in evidence.

Section 60-415, Ark. Stats. 1947, pp., provides that the probate clerk, who is the custodian of the probate records, shall act as a depository for anyone who may wish to leave his will with him for safe keeping. Should the clerk and the parties comply with all the provisions of this section of the probate code, it would, no doubt, be helpful in establishing the validity and integrity of a will so deposited with the clerk. The failure of the clerk or the parties to comply strictly with all the provisions of this section in handling the will would not necessarily destroy its integrity.

In this case two duly executed carbon copies of the will in question were furnished to the parties at the time the will was opened by the clerk and read to the parties by one of the two attorneys who had prepared the will for the deceased. Due proof of the execution of the will was made by the subscribing witnesses, and the evidence of the attorneys who prepared the will and who also deposited it with the probate clerk establishes the validity and integrity of the will beyond doubt.

We find that the probate court properly admitted the will to probate. The case is affirmed.

Justice George Rose Smith not participating.


author: Ed. P. MoFaddiN, Associate Justice.

text:
    Donley v. State, ex rel. Lewis.
    5-846
    287 S. W. 2d 886
    Opinion delivered March 12, 1956.

      Martin, Dodds S Kidd, for appellant.

      Frank Holt and Jack Holt, Jr., for appellee.
   Ed. P. MoFaddiN, Associate Justice.

The question for our decision is when the time for appeal begins to run in a case like this one. The appellant, L. C. Donley, was charged with being the father of an illegitimate child. The proceedings were under § 34-701 et seq. Ark. Stats. There was a hearing in the Pulaski County Court on January 7, 1955; and, at the conclusion of the hearing, the Court announced that the petition would be granted. But this statement was entirely oral: the Court made no written order or notation of any kind. The attorney for the mother prepared an order and took it to the County Judge, who signed it and had it entered on January 20, 1955, at which time it was entered nunc pro tunc for January 7th.

On January 27,1955, Donley duly prayed an appeal, which was granted. The County Court transcript was duly filed in the Circuit Court on February 8, 1955. A motion to dismiss the appeal was filed by the State on the ground that the County Court ■ judgment was on January 7th and the appeal was not filed until after the expiration of the thirty days allowed for appeal, as held in the cases of Epperson v. Sharp, 222 Ark. 456, 261 S. W. 2d 267; and Howard v. State, 223 Ark. 634, 267 S. W. 2d 763. Prom the Circuit Court order dismissing the appeal from the County Court, Donley has brought the case to this Court.

We hold that the thirty days allowed for appeal began on January 20, 1955 — the first day there was filed in the County Court any written order or judgment, or notation as to a judgment. The situation here is similar to that in Poe v. Walker, 183 Ark. 659, 37 S. W. 2d 866. There the Chancery Court had a hearing on February 17, 1930, and made a finding of fact; but no notation thereof in writing was made upon any Court record until May 9, 1930, at which time a decree was entered conforming to the previous finding. The transcript on appeal was filed in this Court on November 8, 1930. The law then allowed six months for appeal. If the time for appeal had been dated from the oral finding of February 17, 1930, then the appeal was filed too late. We held that the time for appeal should date from May 9, 1930, when the first written notation was made. Mr. Justice FRANK Smith used this language:

“While it does appear that the cause was submitted to and heard by the court on February 17, 1930, at which time the court’s finding on the facts was indicated, yet it also appears that no memorandum was made in the order book or judge’s docket or on any other record of the Pulaski Chancery Court showing a final disposition of the case and the relief granted until May 9, 1930, when the decree to be entered was approved by the presiding judge and entered of record.
“It is required by § 2140, Crawford & Moses’ Digest, that appeals and writs of error shall be prosecuted within six months next after the rendition of the judgment, order or decree sought to be reviewed, and this statute was construed in the case of Chatfield v. Jarrett, 108 Ark. 523, 158 S. W. 146, to mean that the time for appeal begins to run from the date of the rendition or pronouncement of the judgment, order or decree, and not from the entry thereof upon the records of the Court. But by § 6276 Crawford & Moses’ Digest, it is provided that ‘the judgment must be entered on the order book, and specify clearly the relief granted or other determination of the action.’ In the recent case of McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44, we said that: ‘There are authorities to the contrary, but we hold that, when a decision has been reached, announced by the court and sufficient memorandum on the chancery docket to show a final settlement of the case, it is a final judgment although it has not been spread in full upon the record.’ Here the first written memorandum prepared or authorized by the presiding judge was written May 9, 1930, and, as the appeal was perfected within six months of that date, we hold that it was taken within the time required by § 2140, Crawford & Moses’ Digest.”

The appellee relies on Chatfield v. Jarralt, 108 Ark. 523, 158 S. W. 146, but if there be any possible conflict between that case and Poe v. Walker (supra), then the latter case must control.

Section 2 of Act 555 of 1953 says that in all civil cases in circuit, chancery and probate courts a notice of appeal must be given “. . . within thirty days from the entry of the judgment or decree appealed from, unless a shorter time is provided by law. ’ ’ The filing of the judgment commences the running of the 30-day period. In the case at bar, nothing was filed until January 20th, and the time for appeal must begin on that date. Of course, the County Court, sitting in bastardy cases, is not governed by the Act 555 of 1953; but that Statute is cited only to show that Poe v. Walker points the way to the Legislative intent shown in Act 555.

The judgment of the Circuit Court dismissing the appeal from the County Court is reversed and the cause is remanded to the Circuit Court with directions to reinstate the appeal of Donley and for further proceedings not inconsistent with this opinion.

       He filed petition, affidavit and bond on that date, all in accordance with our two recent cases: Epperson v. Sharp, 222 Ark. 456, 261 S. W. 2d 267; and Howard v. State, 223 Ark. 634, 267 S. W. 2d 763.


author: Ed. P. McFaddiN, Associate Justice.

text:
    Wood v. Wood.
    5-876
    287 S. W. 2d 902
    Opinion delivered March 12, 1956.

      Thorp Thomas, for appellant.

      Harry G. Robinson, for appellee.
   Ed. P. McFaddiN, Associate Justice.

This appeal stems from a child custody case between the parents of a little 6-year old hoy. In January, 1954, the Pulaski Chancery Court awarded Mrs. Wood (present appellant) a divorce; the custody of her son, Don Randall Wood, then four years of age; and support money for him of $75.00 per month. The decree expressly gave Mr. Wood (present appellee) the right of visitation. On April 27, 1955, Mr. Wood filed petition to obtain custody of his son, and alleged a change in conditions. The Chancery Court heard appellee’s petition on July 15, 1955; and made a temporary order directing Mrs. Wood to return the child to the jurisdiction of the Pulaski Chancery Court and to the temporary custody of Mr. Wood until the future custody could be determined. Prom that temporary order of July 15, 1955, Mrs. Wood brings this appeal.

I. Appealability. We bold that the order for temporary custody is appealable. In Walker v. Eldridge, 219 Ark. 35, 240 S. W. 2d 43, we beld that any decree awarding or changing tbe custody of a child is sufficiently final to permit an appeal. So, even though the order in this case was expressly stated to be temporary, nevertheless it was appealable.

II. Notice Of Nearing. Mrs. Wood claims that she did not receive due and timely notice of the hearing of July 15th and, therefore, she asks that the order for temporary custody be reversed. The record reflects that Mr. Wood filed his petition on April 27th; that, without permission of the Pulaski Chancery Court, Mrs. Wood took the boy to Missouri, where she still had him; that a letter was sent to Mrs. Wood on July 6th, advising her of a hearing to be held on July 12th; that Mrs. Wood’s attorney was notified on July 7th that a hearing would be held on July 12th; that on July 12th Mrs. Wood’s attorney appeared for her in the Pulaski Chancery Court and questioned the sufficiency of the notice of hearing and also asked for a continuance; and that the Court continued the hearing from July 12th to July 15th, and heard the matter on the last mentioned date.

We have repeatedly held that a request for continuance is an entry of appearance. Sager v. Jung & Sons Co., 143 Ark. 506, 220 S. W. 801; J. C. Engleman, Inc. v. Briscoe, 172 Ark. 1088, 291 S. W. 795; Chapman & Dewey Lumber Co. v. Bryan, 183 Ark. 119, 35 S. W. 2d 80; and Auto Sales Co. v. Mays, 191 Ark. 884, 88 S. W. 2d 330. Here, the request for continuance by Mrs. Wood’s attorney entered her appearance, and it was certainly proper for the Court to direct her to return the child in accordance with the temporary order here made. Mrs. Wood was before the Court by her attorney because of the motion for continuance. Her claim, that she did not have sufficient time to prepare her defense, need not be considered because the only order the Court made on July 15th was a temporary order.

■III. Other Questions. Since the main purpose of the order here involved was to obtain return of the child to the jurisdiction of the Court, after which there would be a hearing on the matter of future custody, we see no need to mention the other matters discussed in the briefs. The question of who shall have the future custody of the child is still for determination by the Chancery Court.

Affirmed.

Mr. Justice Robinson not participating.

“Q. (Mr. Robinson continuing) : If. the Court in his wisdom should see fit to award custody, temporary custody of this child, to you until the matter can be completely litigated, do you feel you can furnish it a Christian home and put the child in school and attend to it for the best interests of the child?
“A. I would.
“Q. Would you like to do that?
“A. Yes.”

       The decree from whence comes this appeal reads in part: “It is Therefore Considered, ordered and decreed that custody of Don Randall Wood, the minor child of the parties hereto, is hereby temporarily given to his father, James D. Wood, that the award heretofore given by this Court for the care and maintenance of said child is hereby set aside; that the plaintiff, Elizabeth V. Wood, is hereby ordered and directed to return the person of the said Don Randall Wood to the jurisdiction of this Court within fifteen days after receiving a true copy of this order.”

       The prayer of the pleading filed by Mrs. Wood’s attorney prayed that the “. . . petition be dismissed because of lack of notice, and, in the alternative, there shall be allowed a continuance of sixty days in which to prepare a defense of this action.”

       It was shown that Mrs. Wood’s aunt and uncle agreed with Mr. Wood and the Court that they would keep the little boy until the custody matter was fully heard. It was shown that the boy had been with this uncle and aunt most of the time since the divorce decree; and Mr. Wood’s attorney asked these questions of the uncle: