author: BenNETt, J.

text:
    Fleming v. Johnson, et al.
    Probate Courts — Jurisdiction.—It was competent for the probate courts, under the Constitution of 1830, and act approved December 24, 1846, to order guardians to sell the real estate of their wards, at public or private sale, as the court in its discretion might direct.

      Coubts — Discretionary power of — When, by constitutional or legislative authority, discretionary power is conferred upon a court, its exercise is a judicial act, and cannot be controlled by a superior or appellate court on appeal, unless it has been grossly abused.
    Sales— Confirmation cures defects. — The confirmation of a sale, made in pursuance of an order of court, cures all defects or irregularities, unless it is attacked directly.
    ADMINISTRATOR’s Sale — When presumed regular. — Probate courts are superior courts, and the regularity of their proceedings are presumed ^ and when the validity, derived under a guardian’s or administrator’s sale, comes in question, in a collateral suit, this court will only look to see if the probate court had jurisdiction — unless error be patent upon the face of the proceeding.
    Purchasers at Administrator’s Sale. — Where the probate court has jurisdiction of the subject matter, the papers and proceedings in the case upon which, an order of sale is had, are presumed to have been regular, and a purchaser, at a guardian’s or administrator’s sale, will not be bound to look further back than the order of the court, or to inquire as to its mistakes.

      Guardians — lor what appointed. — A guardian for an infant is appointed solely because of the infancy, and no inquiry is made as to sanity.

      Appeal from Scott Circuit Court.

    Hon. E. I). Ham, Circuit Judge.

      Garland Nash, for appellant.
    It is submitted, that the appellant proved every thing in the court below, that the law required of him. See Daniel v. Le-fevre, 19 Ark. SOI.

    The probate court had no power to grant an order of sale to be made, unless publicly. Gould’s Dig. chap. 81, sec. 17, et seq; Ih. chap. J, sec. 18S, et seq ; and all proceedings of this kind must be in strict accordance with law. 18 Ark. 4-4-9; 19 ib. 516; Probate Court Law and Practice, by John W. Clinton, p. 4^9; Ib. 286-290.

    Jurisdiction of another court must always be shown by the record from that court. 2 Arle, 60; 8 Ib. 582; 1 Greenleaf Ev. 540-1.

      English, Gantt English, for appellees.
    The constitution of 1886 and.the act of December 23, 1846, gave power to the probate court to grant orders to guardians to sell the real estate of their' wards, and left the manner and terms of such sales to the discretion of the court. See Art. VI. Sec. 10, Const. 1886; Act 28d December, 1846; and that discretion could not have been controlled by a superior court, in a direct proceeding, on appeal, unless it had been grossly abused. See Redmond, guard v. Anderson, 18 Ark. 451; George v. Norris, 23 Ark. 129; Sadler v. Rose, 18 Ark. 600; Nelson wifev. Green, 22 Ark. 867. Much less could a sale, ordered in the exercise of that discretion, and completed, and confirmed by the court, as in this case, be declared void in this collateral proceeding. Borden v. State, 6 Eng. 519; Sturdy v. Jacoway, 19 Ark. 516; Marr, ex-parte, 7 Eng. 84; Rogers v. Wilson, 6 Eng. 507; Bennett v■ Owen, 6 Eng. 177; Thompson v. Tolmie, 2 Peters, -157; Grignari’s Lessee v. Aston, 2 flow. U. S. 338, and cases cited, full and in point. Schnider et al. v. McFarland et al., 4 Wend. 139; Atkins and wife v. Kinnar, 2 Wallace U. S. 210; Jackson ex dem. McFail tt al. v. Crawfords, 12 Wend. 533.

    The probate court had power to make an order for private sale, where the Statute left the manner’of the sale to its discretion. See Jackson, ex dem. Bear v. Irwin, 10 Wend. 44¶; Florentine v. Barton, 2 Wallace, TJ. S. 210; Gilmore v. Rogers, 41 Penn. State R. 121. Though evidence and other papers on which the court acted judicially, may not be of record or on file, it is sufficient that the jurisdiction of the subject matter appear from the record entry of the order of sale. See Grig-

      nari’s Lessee v. Acton, 8 How. U. S. 388, and cases above cited. And the contents of a lost or destroyed record may be proven by parol. Davis, ad. v. Petit et al. 6 Eng. {11 Ark.) 84-9.

   BenNETt, J.

This was an action of ejectment brought in the name of William Warren Fleming, as a person of unsound mind, by his guardian, Nancy J. Fleming, against Raphel M. Johnson, Charles Robinson, Taring Jasenburger, William Harris and James H. Harris, for lot No. 1, block No. 8, in Fort Smith, Arkansas. This action was commenced in Sebastian and removed, by change of venue', to Scott circuit court, where it was tried on the general issue. Verdict and judgment for defendants. Motion for a new trial overruled. Exceptions and appeal by the plaintiff.

When the title of the plaintiff in ejectment is controverted under the general issue, he must prove, 1st. That he had the legal estate in the premises at the time of the commencement of the suit. 2d. That he also had the right of entry; and 3d. That the defendant, or those claiming under him, were in possession of the premises at the time when the suit was commenced. See 2 Greenleaf, sec. 304; Daniel et al. v. Lefevre, 19 Ark. 202.

At the trial, appellants produced and proved a transcript from the records of the probate court of Sebastian county, Fort Smith District, showing that, on the 8th day of January, 1859, Nancy J. Fleming, the mother of the plaintiff, was appointed his guardian — her petition representing him to be a person of unsound mind, and incapable of conducting his own affairs. Also a deed from John Rogers, the original proprietor of the city of Fort Smith, and wife, to John Pearson, bearing date 27th April, 1843, for the lot in controversy. Also ■a deed, of the same date, from John Pearson and wife, to the plaintiff. The plaintiff also proved that the defendants were in possession of the premises at the time of the institution of the suit, and closed.

The defendants then offered in evidence a certified transcript of the record of orders of the probate court of Sebastian, showing that, on the 15th day of January 1856, William W. Fleming, on his own petition, was appointed the guardian of his son, William Warren Fleming, a minor, under the age of 14 years.

The defendants also offered in evidence a certified transcript of the records of same court, wherein William W. Fleming,, as guardian of William Warren Fleming, presents his petition for the sale of real estate, belonging to said* minor, William Warren Fleming, described as follows, on the plat and plan of the city of Fort Smith: lot Ho. 1, in block Ho. 8, measuring seventy feet front on Garrison Avenue, by one hundred feet on Ozark street. ' Also the defendants offered the order of said probate court on the petition, which, among other things, is in words as follows : “It is therefore ordered by the court here that the said William W. Fleming be, and he is hereby authorized and directed to sell the áforesaid lot Ho. 1, in block Ho. 8, in the city of Fort Smith, and execute to the purchaser or purchasers thereof, a deed or deeds of conveyance, to him or them, of all the,'right, title, or interest of the said Wil-iam Warren Fleming; and the said guardian of the said William Warren Fleming, is hereby authorized and directed to sell said lot at private sale: provided, he shall not sell the same at less than two thousand dollars, not less than two-thirds to be paid down, and the residue in one, two and three years, bearing interest from date.”

The defendants then offered in.evidence an order of the same court, made April 22,1856, which order states that “W. W. Fleming files his report, in the matter of William Warren Fleming, a minor, whereby it appears that he.has, according to the order of a previous court, that is to say, at the January term, 1856, of this court, sold to R. M. Johnson, lot Ho. 1, in block 8, in the city of Fort Smith, at private sale, for the sum of two thousand dollars, and has received the sum of eight hundred and fifty dollars, and has taken notes with good security for the payment of the residue, in one, two and three years, with interest from date, and prays that the report may be confirmed. Whereupon, it appearing that the previous order of the court has been complied with, and that said sale is in accordance with law and said order, it is considered that said sale be, and the same is hereby confirmed and that said report be approved” Also an order, entered up at the October term of the probate court, wherein it appears that the account current of "William Fleming, as guardian of William Warren Fleming, was approved and confirmed.

In addition to the usual certificate of authentication of the transcript of the record of the probate [court, embracing the above orders, the clerk of the court further certifies that he had made diligent search, in his office, for the original letters of gaurdianship, bond of guardian, petition for the sale of the real estate, and the account current in the matter of the guardianship of William Warren Fleming, and that all the original papers and records thereof, were destroyed or lost, as he believed, during the war, and they were not to be found in his office.

The bill of exceptions states that the plaintiff objected to the introduction of the transcript of the above orders, on the following grounds:

First. Because the order of sale, authorized the sale of the premises therein specified, at private sale, and not at a public vendue, as prescribed by law.

Second. Because it did not appear upon the face of the order' of sale, that it was authorized by any statute, in force in this State or otherwise; or that the court making it, had jurisdiction of the subject matter.

Whereupon defendants, to show that the court acquired jurisdiction, called a witness, by whom they proved, against plaintiff’s objection, the loss of the petitions of said William Warren Fleming, for the appointment of a guardian for said William Warren Fleming and for the order for the sale of said premises — and also, the loss of the account current, mentioned in the record, and that the petition set forth the facts, recited in the order; and thereupon, the court permitted the paper, purporting to be a transcript of the order, and account etc., etc., to he read in evidence to the jury, to which the plaintiff excepted, etc. The defendants then produced, and offered to read in evidence, a deed hearing date, the 31st of January, 1866, executed by William W. Eleming, as guardian of William Warren Fleming, to defendant, Raphel M. Johnson, for the said premises, duly acknowledged and recorded, etc., etc. To»the reading of which to the jury, the plaintiff objected, on the following grounds:

. First. Because it did not appear that the grantor therein, had authority to sell or convey the said premises.

Second. Because the recitals therein show that the premises were sold at private sale, and not at public vendue; and

Third. Because there is nothing to show that the premises were appraised before they were sold, or sold for two-thirds of their appraised value; and further, because it is not shown that the order of the sale- therein recited, was authorized by law. But the objections were overruled, and the deed permitted to be read to the jury; to whieh the plaintiff excepted.

The deed recites the order of sale above copied, and shows, on its face, a sale in compliance with the order in all respects. After introducing the deed, the defendants closed.

The plaintiff then offered to prove, that William Warren Fleming was insane, from the time he was six or seven years of age, down to the time of the trial; to which the defendants objected, on the ground that it was inadmissible and irrelevant; and the court refused to permit the introduction of such proof, and the plaintiff excepted. Plaintiff proved that he was born on the 14th day of April, 1842. Plaintiff was permitted to introduce, against the objection of the defendants, a copy of a bond, hearing date 81st day of January, 1856, (same date of guardian’s deed), executed by William W. Fleming, to defendant, Johnson; and also a covenant executed by defendant Johnson, to William W. Fleming, bearing same date of said bond, which are both set out in the bill of exceptions.

The bond from Fleming to Johnson is in the penal sum of $4,000. It recites the sale and conveyance of the premises in controversy, by William W. Fleming, as guardian of his son, William Warren, under the order of probate court, price, terms, mode, and time of payments; and that as a further security and inducement for Johnson to make the purchase and accept the conveyance of Fleming as such guardian. The substance of the covenant is, after reciting the bond, that if Fleming’s son, on coming of age, should not make the conveyance stipulated for in the condition of the bond, Johnson, his heirs, etc., would not, nevertheless, consider the condition of the bond broken, so long as he or they should not be disturbed by the said William Warren, or any person claiming under him. Plaintiff also read in evidence a bill of sale fora negro woman and child, executed by defendant, Johnson, to William W. Fleming, dated 8th of January, 1856, reciting $800, as the consideration. Also proved, by a witness, that defendant Johnson, sold William W. Fleming a negro woman and child, for $850, in part payment of said premises.

Defendant, Johnson, was then sworn, on the part of the defense, and testified that William W. Fleming proposed to sell the premises to him after all the improvements thereon had been burned down; that they were not worth, then, exceeding $2,000, and that he agreed to purchase them, if the said Fleming could make a title to them; and that finally he agreed to purchase them at that price, as he wanted to. erect a store house on them — he, William W. Fleming, undertaking to make a title; and it vras agreed that he, Johnson, would sell him a negro woman and child at $850, in part payment of the premises. That accordingly, he, Johnson, sold him the negroes and executed the bill of sale to him, above mentioned, which was to go'in part payment of the premises; that is. to say, the price of the negroes was to go in part payment of the $2,000. That subsequently, he, William W. Fleming, procured an order of the court of probate to sell the premises, and executed to him the deed above mentioned. That soon afterwards he sold two thirds of said lot for $1200. Six hundred of which was paid in stone work, upon the house erected by him on said lot. That said William W. Fleming sold the negro woman and child, in two or three months, after the execution of the bill of sale to him, for $1100. The defendants also proved that, at the time Johnson purchased the premises, they were worth from twelve to eighteen hundred dollars, which was all the testimony in the case.

The plaintiff asked the court to instruct the jury :

First. That the sale of the premises by William W. Fleming to defendant, Johnson, if made at private sale was void.

Second. That the order of sale made by the probate court was illegal and void, because it authorized the sale to be made at private sale.

Third. That the deed, executed under the order of sale, was void also, for the reason that the recitals in it show that the sale was made at private and not at public sale.

Fourth. That if the jury believe from the evidence, that the order, for the sale of the premises, read in evidence by defendant, was procured by fraud, and that defendant, Johnson, purchased the premises with a knowledge of the same, they should hold the order of sale void and inoperative.

Fifth. That in determining whether the order of sale was procured fraudulently, the jury will take into consideration all the attending circumstances.

Sixth. That if the jury believe from the evidence that the premises in controversy were sold by plaintiff’s guardian for any thing, other than money, they should regard the deed from the guardian to the defendant, Johnson, void, and as passing no title to the premises.

The court refused to give the first, second and third instructions, moved by 'plaintiff, but gave the fourth, fifth and sixth. In refusing to give the first, second and third instructions, plaintiff excepted.

The court, ¡it the instance of the defendant, gave in charge to the jury the following instructions:

First. That if the jury believe from the evidence, that William W. Fleming was guardian for the said William Warren Fleming', duly appointed by the probate court of Sebastian county, and as such, made application to the probate court of Sebastian county for the sale of the lands in controversy, and filed and presented his petition to said court, verified by his affidavit, that his ward was possessed of the real estate in controversy, and that the same could not bo made available, to the said plaintiff, in its then condition, without the outlay of a large sum of money, which, in his opinion, should not he used for that purpose, and that he was unable to advance the same for his ward, and that, at that time, he could sell said real estate for a good price, and as the value of real estate was then fluctuating, he believed it to be the* interest of .his said ward to sell the same and invest the same in negro property, or in improved real estate; and that said petition was verified by the affidavit of a disinterested person, of known good character; and that said probate court, upon said petition, decided that said real estate, under the then existing circumstances, was not available to said minor, and that his estate would he benefitted by the sale thereof; and authorized and directed the said guardian to sell the same, and to execute to the purchasers thereof, a deed thereto, conveying all the right, title and interest of said William Warren Fleming, and make return of his proceedings to said court, and that the said guardian was authorized to sell said lands at private sale, provided he should not sell the same for less than one third, to be paid down, and the residue in one, two and three years, bearing interest from date; and that in compliance with said order, and whilst the said William Warren Fleming was still a minor, he, said guardian, sold said real estate to said Raphel M. Johnson, and executed to him a deed of conveyance thereto, in accordance with the terms of said order; and that such sale was reported to said probate court of Sebastian county and confirmed by said court, they should find for the defendants.

Second. If the jury find, from the evidence, that William W. Fleming, in his individual capacity, purchased a negro woman and child from defendant, Johnson, at $850, and after-wards, in making the sale of»the property in question, his guardian agreed to advance the price of payment for said property, and did actually account for that amount, in his report to and settlement with the court, such a transaction would not render the sale invalid.

Plaintiff files motion for a new trial, for the following reasons:

First. That the verdict was not sustained by sufficient evidence.

Second. That the verdict was contrary to law “and the eternal principles of right and justice.”

Third. That the court erred in permitting the transcript of the record and proceedings of the Sebastian probate court,- introduced by defendant, to be read in evidence.

Fourth. That the court erred in permitting the deed from William W. Fleming, as guardian of plaintiff1, to defendant, Johnson, to be read in evidence to the jury.

Fifth. That the court erred in excluding testimony offered by the plaintiff.

Sixth. That the court erred in giving the instructions called for by defendants, and in refusing the instructions called for by the plaintiff.

The admission, by the court below, of the transcript of the order of the probate court, for the sale of the premises, etc.; the admission of the guardian’s deed, executed to Johnson, under and in pursuance of the order of sale; the refusal of the court to give to the jury the first, second and third instructions, moved by the appellant; the giving of the first instruction asked by the appellees; and the third, fourth and sixth grounds assigned for a new trial, present but one principal question, and that is, whether the probate court had power to authorize the guardian to sell the property of his -ward at private sale.

The order of the probate court, for the sale of the real estate in question, was made on the fifteenth day of January, 1856, and it is to this time our attention is directed, to learn what was the statute law of the State governing the disposition of the property of minors. Secs. 180 and 181, of chap. 4, of Gould’s Digest, reads as follows: “ The probate court shall have power, upon the proper affidavit being filed, as hereinafter provided for, to grant orders to executors, administrators and guardians to sell any estate, not otherwise provided for.”

“ The executor, administrator or guardian who may make application for the sale of real estate, shall first make affidavit that the said real estate cannot, under present circumstances, be available to the estate, and that said estate will be benefitted by said sale, showing the reason why; and shall present the affidavit of some disinterested person of known good character, verifying the same facts, set forth in his or their affidavit; whereupon, the court may grant an order for the sale of said real estate, which sale shall be conducted as the court may direct, and upon terms approved by the court.”

These sections are a part of an act of the' Legislature, approved December 24,1846, and were in full force and effect at the time of the sale. By this enactment, the probate court had power to grant orders to guardians to sell the real estate of their wards, “which sale shall be conducted as the court may direct, and upon terms approved by the court.” The power of the court to order a private sale, under the act, or a public sale, at discretion, does not admit ©f serious doubt. Although the probate courts, in making orders to guardians to sell lands under the act, might, in the exercise of the discretion given them by the act, as to the mode of sale, direct the guardian to sell, after appraisement, and at public sjile, to the highest bidder; or the court might fix the value of the property itself, and direct the sale to be public or private, at discretion,. the whole matter, under the act, being at the discretion of the court.

The constitution of 1836, under which the sale in question occurred, conferred upon the probate court “such jurisdiction in matters relating to the estates of deceased persons, executors, administrators and guardians, as may be prescribed by law, until otherwise directed by the General Assembly.” Art. 6, sec. 10. The act of December 23, 1846, gave power to the court to grant orders to sell real estate of their wards upon the prescribed petition and affidavits, but left the manner and terms of such sales to the discretion of the court. In Jackson, ex-dem, Bear v. Irwin, 10 Wend., 447, Savage, Chief Justice, said: “It is objected that the lot should have been sold at public sale. The statute of 1801, which we have been considering, gives no direction as to the manner in which sales should be made; they might be at public or private sale, in the discretion of the executors or administrators, who were to make the sales. Were it not for the act of 1813, I apprehend that objection would not have the appearance of plausibility.”

The Judge then proceeds to show that in the revision of 1813, there was a pi’ovision relating to the surrogate’s powers, that no lands or' tenements should be sold by virtue of such order of sale, unless such sale be at public vendue, etc. Ho then decides that the private sale in question was made under the act of 1801, and not under the act of 1813, and hence was valid.

In Florentine v. Barton, 2 Wallace, 217, Justice Greer said: “ There may have been many reasons why it would be for the benefit of the estate and creditors, that the land should be sold at private and not public sale.”

The above decisions, we think, fully sustain our position, that, under the statute in force at the time this sale was made, the court could order such an one as its discretion would dictate, whether public or private. When, by constitutional or legislative authority, a court is left with discretionary ¡Dower to act in certain cases, the lawful exercise of that discretion is a judicial act, which, even in a direct proceeding, cannot he controlled by a superior or appellate court, on appeal, unless it has been grossly abused. It is a general rule that the confirmation of a sale, made in pursuance of an order of court, cures all defects or irregularities, and its validity is put beyond question by that fact, unless it is attacked directly. See Simond’s Estate, 19 Penn., 439; Jacob’s Appeal, 23 Penn., 477; Bland v. Manchester, 24 Miss., 62; Ewing v. Vaurman, 19 Wisconsin. Then, again, it has been repeatedly declared by this court that probate courts are superior ones. If such be the case, all reasonable presumptions of law are in favor of the regularity of their proceedings, the record of which, beyond which this court cannot look, in this case, shows it had jurisdiction, and furnishes satisfactory grounds upon which to presume that it was lawfully exercised.

We are fully of the opinion that when a title, derived under an administrator or guardian’s sale comes in question in a collateral suit, and not in a direct proceeding to review the order of sale, etc., this court can only look to see that the probate court had jurisdiction of the subject matter of the order, etc., and will not inquire into errors or irregularities, unless patent upon.its face. For, when the jurisdiction of the subject appears,-the proceedings are presumed to have been regular, and we think it is sufficient that the jurisdiction of the subject matter appears from the record entry of the order of sale, though the evidence, and other papers on which the court acted judicially, may not be of record or on file. As to attacking a title, acquired under an order of a probate court, in a collateral proceeding, the court in the case of Jackson ex. dem. Jenkins v. Robinson, 4 Wend. 436, say: “However extraordinary or erroneous be the determination and proceeding of a court of limited authority, if it acts within its proper jurisdiction as to the subject matter, place and person, its judgments or decrees cannot be impeached or invalidated in a collateral action.”

This was an action of ejectment, in which the plaintiff was solely i’elying upon an administrator’s deed, made in pursuance of an order of sale in the surrogate’s court, which, the defendant sought to overturn, by offering to prove that, by the inventory, affidavit and papers, presented to the surrogate, by the administrator, on his application for the order of sale, it did not appear that, at the time of such application, any debts remained due from the estate of the intestate, etc., which evidence was objected to and overruled by the judge; which rulings were sustained as seen above. Also in the case of Jackson ex. dem. John McFail et al. v. Crawford, which was also an action in ejectment, in which plaintiff claims, as heir at law of John McFail, and the'defendant is in possession, under title derived from an administrator’s sale, by virtue of a surrogate’s order. The right of the parties depended entirely upon the validity of the sale. The court say: “upon the surrogate obtaining jurisdiction over the subject matter, that, in deciding whether there is personal property sufficient to pay the debts, he acts judicially, and if he should decide erroneously in respect to it, or should make a mistake as to any other matter submitted to his examination and decision, it would not affect his jurisdiction; that the proceeding would not on that account be void, but voidable only; that, they could not be impeached for any irregularity before the surrogate, in a collateral action, but must be corrected on appeal.” “The court will intend that the court below had proper evidence to justify his decree, which being unappealed from, is conclusive. 6 Cowan, 494. His decision is res judicata, and can not be collaterally questioned.” 6 Johns. C. R. 381.

“The record of the proceedings, in a court of limited jurisdiction, regular and correct on the face of it, cannot be impeached in a collateral action.” 8 John R. 50; 8 Cowen, 178. “The judgment of a court of exclusive jurisdiction, directly on the point, is conclusive.” 1 Phillips, Ev. 242. “Nothing which might have been insisted on, by way of appeal, can be urged in answer to the evidence furnished by the decree.” 1 Starkie’s Ev., 253.

Judge Scott, in the very able and elaborate opinion given in the case of Borden et al. v. State, etc., after having argued the question as to the status of probate courts, and in what light their judgments should be held, says: “We feel warranted, therefore, not only on the score of authority, but for cogent reasons of public policy, to fix these courts upon the footing of superior courts.” Also, “entertaining these views and so holding the law to be as to the two foregoing propositions, we have-but to say, as to the supposed error in the case before us, that the general and well settled rule of law in such case, is, that when the proceedings of such a court are collaterally drawn in question, and it appears on the face of them, that the court had jurisdiction of the subject matter, such proceedings are voidable only, although there may be obvious errors, and, therefore, we can judicially see only what the court has done, and not whether it has proceeded in verso online, erroneously, according to the proof before them or what they have omitted or ought to have done.” See also, Marr. Exparte, 7 Eng. 84; Rogers v. Wilson, 6 Eng., 507; Bennett v. Owen, 6 Eng., 177; Sturdy v. Jackoway, 19, Ark., 516.

This principle runs through all these cases, and hundreds of others that might bo cited. Then, shall it be said that after the probate court, in the exercise of that discretion, which the statute has given it, has entered upfits order of sale, if properly ■within its jurisdiction, and it has been completed and confirmed by said court, as in this ease, that such order of sale and confirmation may be declared void, and held for naught in a collateral proceeding? We think not. Under such circumstances, to hold the doings of the court were a nullity, would be, to say the least of it, going a great way. Here was a subject matter legitimately and peculiarly within the jurisdiction of the probate court. An application by a guardian for the sale of lands belonging to his ward, brought regularly before the court — that application considered and decided upon, and that too, with a sufficient margin in the record for the presumption, that facts were established by facts, to fully authorize. the order given, and without any objection to it in point of ^correctness, much less of power.

But it is urged by appellants, that the defendants below could not by witnesses show jurisdiction in a court, when the ‘ record offered did not establish it — inasmuch as jurisdiction of another court must always be shown by the records from that •court. Jurisdiction has been thus defined by the Supreme Court of the United States, in 6 Peters, 709. “The power to hear and determine a cause is jurisdiction; it is coram judice whenever a case is presented, which brings this power into action.” In 12 Peters, 718, the court say, “Any movement by a court, is necessarily the exercise of jurisdiction; so to exercise any judicial power over the subject matter and the parties, the only question’s, whether on the case before the court their action is judicial or extra-judicial, with or without the authority of law, to render a judgment or decree upon the right of litigant parties. If the law confers the power to render a judgment or decree, then the court had jurisdiction.” There can be no doubt of the jurisdiction of probate courts in all matters relating to estates of deceased persons or minors, under the Constitution of 1836, or the law of 1846. In making any order in relation to the same, the courts are presumed to have adjudged any question necessary to justify such order or decree. The order of sale in this instance clearly sets out that the guardian presented his petition, verified by affidavit, setting forth that his ward was possessed of certain real estate, and ■described the same; also alleges facts as reasons why it would he to the interest of his ward, why it should be sold. All these were statutory requirements, and were fully complied with. The order was made, and the presumption is that the court had all the original papers before them for adjudication. The court is not bound to enter on re,cord the evidence on which any fact is decided. The proceedings on which an action of the court is founded, are usually kept on separate papers, which are often mislaid or lost. A purchaser, under such a sale, is not bound to look further back, than the order of the court, or to inquire as to its mistakes. A different doctrine would (especially after a lapse of a number of years) render titles under judicial sales wortliless, and a “mere trap to the unwary.”" These propositions are discussed at great length and fully decided in the case of Gignari’s Lessee v. Astor, 2 How. P. 338. Any further argument would he superfluous. Even if it were necessary to have produced the original petition, affidavits, etc., upon which the order was founded, in order to show jurisdiction, this has been met by the introduction of parol evidence to establish the loss of the account current, mentioned in the record entry, and that the petition set forth the facts recited in the order. The clerk of the court testified that he had made diligent search in his office lor the original letters of guardianship, bond, petition, etc. The degree of diligence, says the court in the case of Simpson v. Watson, 45 Maine, 288, “That is required to establish the destruction or loss of a written instrument, or to prove the non-existence of a record, will depend much upon circumstances. When the transaction to he established is of ancient date, and only one appropriate place of deposit exists for the preservation of such instrument or record, and there is no suggestion that they may be found elsewhere, and that place of deposit is carefully examined Avithout success, an inference of unrecoverable loss or destruction would thereupon arise, while if the transaction were of recent date, such an inference might not be authorized, though, the surrounding facts were of a similar character.” Although in the case before us, the search for the missing papers and records does not appear to have been of a very extended character, yet when we reflect that it referred to a transaction, happening before the late civil commotion, and that in many instances, during that period, the records and papers belonging to the courts were removed from their former place and carried many miles away, the evidence of loss or non-existence of missing papers and records was such as would authorize any court to admit parol evidence to establish their contents, or resort to evidence of an inferior character.

Another point raised by the appellants is, that the- court erred in excluding the proof that the ward of the guardian was insane from the time he was six years of age, down to the time of the trial. It appears that the appellant, 'William Warren Fleming was horn April 14,1842. His fathei’, William W. Fleming, was duly appointed guardian by the probate •court on the 15th of January, 1856, when he, the son, was under the age of fourteen years. The order for the sale of the lot was made at the same term of the court, and the report of the sale was made, approved, and the sale confirmed at the April term following

The matter in issue on the tidal was the validity of the sale; and it was immaterial and irrelevant whether the appellant was sane or insane, when his father was appointed his guardian, or when the order of sale was granted, or when the sale was made, confirmed, etc., he being all the while an infant. The probate court appoints a guardian for an infant, solely because of the infancy, and no inquiry is made as to sanity. The law regards the infant, whether sane or insane, as incapable of acting for itself, and provides for it to he placed under a guardianship, which continues until it is of age, and then this guardianship ceases. Gould’s Digest, chap. 81 p. 570. The law also provides for the appointment of guardians for adult persons, when found, upon proper inquest, to be insane, etc. Gould’s Digest, chap. 89, p. 605. The two kinds of guardianship are as distinctas the two statutes which provide for them. The latter begins where the former ends, after the infant is of age.

The only remaining question is that of fraud, as raised by the fourth, fifth and sixth instructions, given by the court to the jury, on the part of the appellant and the second instruction given by appellees. This, we think, was fairly left to the jury to determine. If that question could he inquired into Aere, in a collateral proceeding, the evidence utterly failed to show any; on the contrary the evidence shows that the order was regularly and with the utmost fairness obtained. There is nothing throughout the whole record that tends in the least to show fraud or unfairness in the sale.

There is no error in the record, and the judgment must be affirmed.


source: Caselaw Access Project

author: McCluke, C. J.

license: Public Domain

text:
    Curtis v. The State.

      Verdict — Where different grades charged.— In an indictment charging a public offense of different grades, or containing several counts charging-different grades of the offense, a general verdict of “guilty, as charged in the indictment,” not finding the degree of the offense, it will be presumed that the jury found in favor of the higher grade of the offense charged.

      Appeal from Clark Circuit Court.

    Hon. T. G. T. Steel, Circuit Judge.

      J. L. Witherspoon, for appellant.
    We submit that the court erred in overruling the motion for a now trial. See Chap. Dig. 120; 2 Wharton, 294.7, and Stewart v. State, 13 Ark. 74.9. Fraudulent practice is not a felony under our statute; 224, Chaps. New Dig. There are no grades in it as in larceny; McKenzie v. State, 6 Eng, 594; People v. Haynes, 14 Wendell, 572 3; 11 Wend. 18. Criminal and penal statutes must be construed strictly, and that construction given them that is most favorable to the defendant; 4 John. N. Y. E. 296; Sedgwick on Statutory Law, 324-5 and 333; 1 Bish. Crim. L. 4 ed. secs. 205,220-1, 234-5 and note, and secs. 249, 250 and 251; Shay v. The People 22 N. Y. 317; Secs, 10 and 11, p. 202. chap. Neto Dig.; 2 Bish’

      Grim. L , sec. 31p5. The grade of offense should he found by the jury. 1 JBish.' Grim. Proceed, sec. 835; 2 II. sec. 138; 722, 724, and note; 6th Ed. Whar. Grim. L. 1868; Loch v. State, 32, W. T. 106.

      Montgomery, Attorney General, for appellee.
    “The j urisdiction of circuit courts extends to all crimes excejit certain affrays, and assaults and batteries.” Tucker ex-parte, 25 Ark. 567; Code p. 261, sec. 10. Eor statutory exactment, see Chapters of Digest, page 224.
   McCluke, C. J.

Curtis was indicted in the circuit court of Clark county, for fraudulent practices; tided, found guilty and sentenced to the penitentiary for two years. A motion for a new trial was made upon the following grounds:

Eirst. Because said verdict is against the law and the evidence.

Second. Because the court instructed the jury contrary to law, or made remarks in regard to the law of the case, which were erroneous, and were taken by the jury as instructions.

Third. Because the panel, from which the jury was selected, was selected by the sheriff, who was not sworn by the court as required by section 19, of the new Digest, under the head of “Jurors.” The motion for a new trial was overruled and the defendant excepted. In the absence of a bill of exceptions we are unable to say whether the verdict was against law and evidence, or whether the jury were erroneously instructed. The third ground for anew trial is not made a cause for a new trial under the Code.

The only question in the case that now remains is, did the court err in refusing to arrest the judgment? The 272d section of the Code declares: “The only grounds upon which a judgment shall be arrested is. that the facts stated in the indict-xnent do not constitute a public offense within the jurisdiction.” There is no question but the circuit court had j urisdiction of the offense. (25 Ark. 567.) The only question before the court is, does the indictment charge a public offense? It is urged, with some vehemence, that the verdict of the jury does not fix the value of the property obtained by the fraudulent practice, and that, in as much as the prisoner is to be punished as for a larceny, for this species of crime, the finding of the jury should also state the value of the property, to the end that the punishment for grand or petit larceny may be inflicted, and as there is no such finding in this case, the court below ought to have presumed the property to have been of less value than twenty-five dollars, and inflicted the penalty accordingly. This question, under the Code, cannot be raised in arrest of judgment, as it says : “The only ground upon which a judgment shall be arrested is, that the facts stated in the indictment, do not constitute a public offense within the jurisdiction of the court.” In the case of Tepper v. The Commonwealth of Kentucky, (1 Met. 9), an attempt was made to reverse the judgment on the ground that the court had no jurisdiction of the case, and the Supreme Court of the State said: “It no where appears that the appellant objected to the jurisdiction of the court before which he was tried; but if he had, and had saved the point by exception, it could not avail for reversal in this court. * * * Such motion (in arrest of judgment) cannot go behind the indictment. The only inquiry, permissa-ble upon it, relates to the sufficiency of the indictment.”

The Code says: “an indictment must contain the title of the prosecution — the name of the court in which the indictment is presented — the names of the parties, and a statement of the acts constituting the offense, in ordinary and concise language, in such a manner as to enable a person of common understanding to know what is intended,” sec. 121.

Section 128 of the Criminal Code says: “The indictment is sufficient if it can be understood therefrom :

First. That it was found by a grand jury of a county, impaneled in a court having authority to receive it, though the name of the court is not accurately stated.

Second. That the offense was committed within the jurisdiction of the court, and at some time prior to the time of finding the indictment.

Third. That the act or omission charged as sthe offense, is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case.”

This indictment is not susceptible to objection for any of the causes mentioned in the first and second clauses of section 128, and if to objection at all, it is on the ground that the offense is not stated with sufficient certainty to enable the court to pronounce judgment on conviction.

The verdict of the jury is, that “We, the jury, find the defendant guilty in the manner and form as charged in the indictment.” The only inquiry then for the court below, was, does the indictment charge an offense, and if so, what is the punishment applicable to it? That it charges an offense there can be no question. But the appellant insists, that in as much as the finding of the jury does not disclose the value of the goods obtained by the fraudulent practice, the court can not render a judgment, because it is not known whether the jury found the appellant guilty of obtaining twenty-five dollars value of property, or more, and that the value of the property obtained determines the judgment to be pronounced.

In the case of Conkey v. The People (5 Park Crim. Rep. 36,) there were three counts in the indictment: 1st, rape; 2d, assisting Herrington to commit a rape; and 3d, an assault with intent to commit a rape. The verdict of the jury was, that “ they find the prisoner guilty of the offense charged in the indictment.” It was claimed that such verdict found the prisoner guilty of all the offenses charged, without specifying which; but the court held, that in effect it was a general verdict and that in such case, the practice was to pass judgment on the count charging the highest grade of offense — that if the jury liad intended to have found the prisoner guilty of one of the inferior grades of the offense, they would unquestionably have employed language expressing such an intention. (Whar. Crim. Law, sec. 3048; 12 Serg. & Rawle, 69.)

The indictment, in this case, charges a public offense within the jurisdiction of the court, the penalty attached to which, on conviction, would be such as is imposed for grand larceny. The finding of the jury is responsive to this charge, and the judgment of the court is in entire harmony with the verdict. The fair presumption is, that if the jury had found that the property obtained was less than twenty-five dollars, in value, they would so have returned. The absence of any such find-' ing, coupled with the fact that they find the prisoner guilty “ in manner and form as charged in the indictment,” precludes the idea, that they found the value of the property taken to be of less value than twenty-five dollars. In murder, it is the duty of the jury to find the degree; hut this is only so, because of statutory invasions of the common law, as to that offense. On an indictment for murder, at common law, a general verdict of guilty was followed by a judgment upon the highest grade of offense; hut if the jury so elected, they could find for any of the lower grades and the judgment was pronounced upon the grade so found. In all cases, where the finding was for a less grade than that charged in the indictment, (at common law,) the practice has been for the jury to depart from a general verdict of guilty, arid to enumerate the grade, and in all cases, where there has been no departure from the general verdict of guilty, the judgment has always attached to the highest grade charged. An application of these rules, to the case at bar, convinces us that there is no inconsistency between the verdict and the judgment, nor is the judgment at variance with the offense charged in the indictment. The judgment will he affirmed.


author: G-Reog, J.

text:
    Knott v. Knott.

      Appeal from Jefferson Circuit Court.

    Hon. "Wm. M. HaRmson, Circuit Judge.

      Yell, for appellant.

      Bell f Carlton, for appellee.
   G-Reog, J.

Tliis ivas an action of debt, by petition, brought in the Jefferson circuit court, at its November term, A. D. 1865, for the in-forcement of the payment of certain notes. The notes were executed on the first of February, A. D. 1859, and their consideration were slaves. The notes wore not stamped, as required by the United States revenue law, until a short time before they were offered in evidence, upon the trial of the case. Judgment was rendered for plaintiff, from which this appeal was taken.

The only questions raised by the bill of exceptions are; first, as to the validity of the contract; and, second, as to whether the notes were evidence of the obligation on the part of the defendant, before they were stamped. Both of these questions have been determined by this court; the first, by the decision in the case of Jacoway, adm’r. v. Denton, 25 Ark., 625; and the second, by the decision in the case of Bumpass et al v. Edward R. Taggart.

These decisions are conclusive of this case.

Judgment affirmed, with costs.

HaRRIson, J., being disqualified, did not sit in this case.

Hon. John 'Whytock, special Supreme Judge.


author: Bennett, J.

text:
    White v. Ward and wife.

      Trustees — Purchase by, / raudulent. — Tlie purchase, by a trustee or agent, of the property of which he has the sale, or in which he represents another, whether he has an interest in it or not, carries fraud on the face of it.
    Any sncli purchase is an abuse of such confidence and relationship, and any title, benefit or advantage derived therefrom, by the purchaser, is, in equity, fraudulently acquired, and inures to the benefit of the cestui que trust, or principal.

      Appeal from Jefferson Circuit Court.

    Hon. Heney B. Mouse, Circuit Judge.
    Grace, Garland Nash, for appellant.

      Bell 'Garitón, for appellees.
   Bennett, J.

Complainant filed her bill in chancery, in the Jefferson circuit court, against Ward and wife, the appellees, to set aside and cancel a deed made to them, when, as the complainant avers, John C. Ward, one of the defendants, bought the land •with her money, and fraudulently took the deed to himself and his wife, when it should have been made to Mrs. White.

Ward’s defense is, that complainant was owing him, and besides was in debt to his wife for money unaccounted for, while she was guardian of Mrs. Ward; and that Mrs. White, the complainant, assigned her bond for title to Ward, and directed her vendor to make the deed to Ward and wife. The cause, upon the hearing before the chancellor was dismissed, and complainant appealed.

Without stating the testimony minutely, as detailed by the several witnesses, the following is about the true state of the case:

The complainant, Mrs. White, the mother of Sarah F. S. Ward, about the month of October, 1860, purchased a tract of land, situated in Jefferson county, Arkansas, for which, she was to pay thirty-six hundred dollars — eighteen hundred dollars of which she paid in cash, and for the balance, she executed her note, payable at a future day, she taking a bond for title to the property purchased. J. 0. Ward, one of the defendants, and son-in-law of complainant, was a merchant, and had business-transactions in his store with Mrs. White, and was her general agent and confidential adviser, and by him Mrs. White transacted her business. When the agent of Peirson Simpson came for payment of the residue of the purchase money, he was referred, by Mrs. White, to Ward for settlement. In fact, when said agent of Simpson came to the house of complainant, he brought a letter or note from the said John 0. Ward to the complainant, requesting the complainant to make no arrangement with him, the agent, but to send him back to him, Ward, and he would settle with him, which the complainant did. Mrs. Ward positively asserts that, through the influence of Ward, he got her to assign the bond for title to him, which she never read, or heard read, upon the express statement by Ward that it was all right and proper. Ward asserts that Mrs. White either read the assignment, or that he sent it to her and she signed it, but is not positive. Ward also seeks to hold the land under a claim of indebtedness to his wife, by Mrs. White, after completing the purchase by and with Mrs. White's means or credit.

Erom the above statement of the case, there can be no doubt but that Ward was acting as the agent of Mrs. White in the settlement of the note and the making of the deed to the property. The rule of equity is, (in every Code of jurisprudence with which we are acquainted), that a purchase by a trustee or agent of the particular property of which he has the sale, or in which he represents another, whether he has an interest in it or not, per interpositem personam, carries fraud on the face of it. See Lord Hardwicke v. Vernon, 4 Ves. Jr. 411; Same 14 Ves. Jr. 504; Michand et al. v. Girad et al., 4 How. 553. This general rule stands upon the great moral obligation to refrain from placing persons in relations which ordinarily excite a conflict between self-intferest and integrity. It restrains all agents, public and private. The value of this prohibition is most felt, and its application is more frequent in the private relations in which a vendor and purchaser may stand toward» each other. This disability, to purchase, also arises in consequence of that relation between agent and principal which imposes on the one a duty to protect the interest of the other, from the faithful discharge of which duty, his own personal interest may withdraw him. In this conflict of interest, the law wisely interposes. It acts not on the possibility, that in some cases, the sense of duty may prevail over the matters of self-interest, hut it provides . against the probability in many cases, and the danger in all cases, that the dictates of self-interest will exercise a predominant influence and supersede that of duty. It therefore prohibits a party from purchasing on his own account, that which his duty or trust requires him to sell on account of another, and from purchasing on account of another, that which he sells on his own account. In the case of Wormley v. Wormley, 8 Wheat. 421, the U. S. court declared that no rule is better settled than that a trustee cannot become the purchaser of the trust estate. It had been previously ruled in the case of Prevost v. Gratz, 6 Wheat. 481, and afterwards, in Ringo et al. v. Burns et al. 10 Peters, 269, “That if any agent discovers a defect in the title of his principal to land, hp cannot misuse it to acquire a title for himself; and if he does, he will be held as a trustee, holding for his principal. In the case of Church v. Marine Insurance Company, 1 Mason. 341, it was held, “ That an agent or trustee cannot, directly or indirectly, become the purchaser of the trust property which is confided to his care. The law will not suffer any man to earn profit or expose him to temptation of a dereliction of his duty, by allowing him to act, at the same time, in the double capacity of agent and purchaser, either at a public or private sale.”

The purchase of the land by Ward, while he Avas acting as agent for Mrs. White, either as a trustee or agent, must inure, in equity, to Mrs. White’s benefit. Ward could not defraud her by getting her to assign the bond for title to him, a-nd by reason of said assignment, he could procure the deed to the property in his own or his wife’s name, whereby he was directly or indirectly to be benofitted.

As to the manner in which the assignment was obtained by Ward, there can be no doubt that the defendant, Ward, necessarily must have had a great, if not an undue influence or control over the complainant; so much so, that the parties were not, at the time, treating on equal terms. A contract obtained from one party, so much in the power of the other, cannot be sanctioned, if confidence has been abused — if the weaker one has been overreached, or the inference is plain that advantage has been taken of age and imbecility — or the partiality of a parent or relation has been artfully made use of to strip her of her property — and possibly reduce her to dependence and want.

Mrs. White states she signed the assignment of the bond for title, without reading it or knowing of its contents, and solely upon the representation of Ward, that it was “all right and proper;” not knowing it was transferring all her rights and title to the land. The only inducement to perform thisact was, the declaration of the person in whom she had confided for a number of years. It is evident that Ward had the entire confidence of his mother-in-law. Every motive of duty, not only as an agent, but of a relative, required him to speak the truth and not falsely. Nor can there be any ground for upholding this deed, on the principle that Ward was “procuring a home for Mrs. White,” or that he intended for Mrs. White to live with him on the place as long as she lived, if she desired, or that he (Ward) was doing Mrs. White a great favor to secure a home for her, and save the place from the creditors.” All these are simply declarations of Ward’s, which must be considered as relating to the future; and they can have no effect in supporting the present deed. Nor will the law allow Ward to settle his accounts with Mrs. White, whether individual, or on account of the guardianship of his wife, in this way. There have been provided proper tribunals for the adjudication of all such claims. Wherefore, from the examination of the whole ease, there is little difficulty in deciding that Ward procured the assignment of the bond for title, and consequently obtained the deed under such terms as he desired, through undue influence and fraud. And whatever interest he or his co-defendant may have, by reason of said deed, in the land, belongs of right to said complainant. See 3 Cowen, 537; 14, Vesey, 273; 1st Story’s Eq. sec. 238, 257; 9 How. 55.

From a full review of the facts in the case, and a careful examination of the law applicable to them, we are satisfied that there is error in the decision of the court below and the same is hereby reversed. A decree will be entered here, divesting the title of the defendants to the lands mentioned -in the bill out of them, and investing the same in the complainant.


text:
    Waymack v. Heilman, et al.

      Equity — Parol evidence. — The rule tliat parol evidence is not admissible to contradict, vary or materially affect a written contract, is not contravened by the admission of such, evidence to show a failure, a want, or an illegal consideration in a written contract.
    Confederate Money — A contract, the consideration of which was Confederate money, is illegal and void.

      Appeal from Pulaski Chancery Court.

    Hon. T. D. W. Yonley, Chancellor.

      Clark 'Williams, for appellant.

      Wassell £ Moore, for appellees.
   Bennett, J.

In October, 1864, John II. Rosenbaum executed to Micajah Waymack, the appellant, bis writing obligatory for $500, and a mortgage on lands, in the county 'of Pulaski, to secure the sum. Rosenbaum died, leaving the appéllees his heirs at law.

In 1866 Waymack filed his bill to foreclose the mortgage; appellees answered the bill, setting up, as a defense, that the consideration of the writing obligatory and deed of mortgage was “Confederate money,” lent and advanced to Rosenbaum by appellant. The bill was dismissed for want of equity; complainant brought error. There are but two questions presented by the bill, answer and proof.

First. Is the proof adduced sufficient to sustain the aver-ments in the answer?

Second. Is a contract, the consideration of which is Confederate money, illegal and void?

The first is a question of fact, the second a question of law.

The answer was supported solely by the deposition of Henry C. Heilman, the son of the defendant, Mrs. Heilman, who testified “that he saw Mr. Waymack, the complainant, at the house of the defendant, Mrs. Heilman, and he proposed to sell her a mortgage on John Rosenbaum’s tract of land. He (Way-mack) said that John Rosenbaum had made the mortgage to him for $500, in Confederate money, and he offered to sell it to her (Mrs. Heilman,) for half the amount in greenbacks.”

This was all the testimony in the case. It is urged by appellants that parol evidence cannot be introduced to show consideration, as the action is founded upon a written instrument.

We can see no point in this objection. Although it is a settled principle, both in the English and American courts, that parol evidence is not admissible to contradict, vary or materially affect, by way of explanation, a contract in writing, upon the ground that written evidence is of a higher grade than the mere verbal declarations of witnesses, and consequently when parties have agreed upon terms of a contract, which is after-wards reduced to writing, the verbal agreement is merged into-the written contract. Yet it has been often held as no violation of these doctrines, or if so, in terms as well settled as these doctrines themselves, that although, upon the face of the instrument in writing, the usual expression of consideration, such as “for value received,” may be found, yet the maker may show, as against the payee, or other person standing in the same situation, that the note or bond was given without consideration, or that the consideration has failed, or that fraud, in respect to it, was practiced upon him by the other party and under some circumstances, that the consideration was illegal. The American cases to this point are collected by the learned annotators upon Phillips’ Evidence, Cowen & Hill, Ed. 3 vol. 158-172.

The rule which forbids the admission of parol evidence to-contradict or vary a written contract, is not infringed by any evidence of known and established usage respecting the subject to which the contract relates. See Vaugine et al. v. Taylor et al., 18 Ark. 65; Clinton v. Estes, 20 Ark. 216, and cases there cited.

The question of admissibility having been disposed of, it remains but to ascertain whether the testimony presented sustains the answer. The evidence, though weak, we think was sufficient for the chancellor to have found that the consideration of the note, for the security of which the mortgage was executed, was for Confederate money.

"Was such a contract illegal and void? We deem this question as res adjudicata. The language of this court in the case of Latham v. Clark, 25 Ark. 574, is conclusive.

The doctrine seems now to be pretty well settled that the courts, in cases where the contract is founded upon an illegal consideration, will leave the parties where it finds them, giving no relief and no countenance to claims of this sort.

Finding no error in the proceedings of the court below, the decision will be affirmed.


author: McClure, C. J.

text:
    Palmer v. McChesney.

      Mandamus — Hearing upon. — Under section 519, Code of Practice, the hearing upon mandamus is to be by the court, and not by the judge at chambers.
    Special Judge — Election of. — Under section 758, the clerk is not authorized to hold an election for a special judge at chambers.

      Appeals — What requisite. — Appeals only lie from the final orders or judgments of the circuit court, and only from such final orders or judgments as cannot be corrected, on motion, in the court below, and not then, until the question has been submitted to and overruled by the inferior court.

      Appeal from Independence Circuit Court.

    Hon. Elisha Baxter, Circuit Judge.

      Watkins £ Bose, for appellant.

      Montgomery £ Warwick, for appellee.
   McClure, C. J.

This cause comes here from Independence county. It appears, from the transcript in the case, that McChesney, as school trustee, presented to the judge of the Independence circuit court, at chambers, a petition for a mandamus, the prayer of which was to compel the appellant to pay over to him certain money collected as school funds. The defendant demurred to the petition; the judge overruled the demurrer, and the appellant answered. It is not necessary to say anything about the matters set up in the answer, only that ■ the multitude of counsel evinced great ignorance of the law.

The appellant filed with the clerk an affidavit, under the provisions of section 758, stating that he did not believe that the judge would give him a fair and impartial trial, together with a motion for a special judge, which motion was overruled by the court. Thereupon the judge awarded a mandamus against the appellant, and Palmer prayed an appeal to this court, and filed a supersedas bond. All these proceedings occurred at chambers. Section 517 of the Code says: “The court shall hear and decide all questions of law or fact arising on the-motion, and the granting or refusing of the writ shall be the final order in the motion.”

Section 518 says: “During the pendency of the motion, the court, or judge, in vacation, may make temporary orders for preventing damages or injury to the applicant, until the mention is decided.”

Section 519 says: “ The .writ of mandamus, as treated of in this chapter, is an order of a court, of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law,” etc.

The language of the Code, just quoted, goes to show, clearly, that the hearing upon mandamus is by the court, and not by a judge at chambers. At a hearing at chambers, it very seldom happens that there are any attorneys present, save such as are employed in the ease. IIow, then, can the clerk, under the provisions of section 758, hold an election for special judge, of the practising attorneys of the court, not engaged in the case ?

Appeals only lie to this court from the judgment or final order of the circuit court, (section 566), and they only lie in relation to such final orders and judgments as cannot be corrected, on motion, in the lower court, and not then, until the inferior court has had the question submitted to it, and has overruled the same. (Section 886.)

The transcript, in this case, does not purport to be the copy of the record of any court of this State, and, of course, does not show the final order or judgment of any court.

The case will be stricken from the docket.


text:
    English & Wilshire v. Chicot County.

      County — Powers of — how construed. — Counties are political corporations, and as such, their powers are strictly construed.
    Auditinu accounts. — The power to audit and settle claims for or against a county, must he confined to such claims as the county had authority to contract.
    Subscription to Railroad Stock:. — The power to subscribe the internal improvement fund of a county, to the capital stock of a railroad company, does not carry with it the power to make the county responsible in her political character.
    Cannot issue bonds in payment; — The act of January, 25, 1855, authorizing counties, “having or controlling internal improvement funds or credits granted to it by the State, ’ ’ to subscribe to the capital stock of any valid, duly authorized railroad company, did not authorize the counties to issue bonds of the counties in payment thereof, which, by any possibility would have to be paid by the tax payers of the county.

      Appeal from Chicot Circuit Court.

    Hon. H. B. MoRSB, Circuit -Judge.

      .English, Gantt <f- English, for appellants.
    The county court of Chicot had authority to subscribe the internal improvement fund of that county; see sec. 52, chap. 101.,p. 713, Gould’s Dig.; and that the Mississippi, Ouachita and Red River railroad company, was a valid and duly authorized railroad company; see State v. same, 20 Ark., 4,95, on quo warranto. Having authority to subscribe for stock, the power to issue its bonds, for stock taken, follows as’an incident. Sey-bert v. City of Pittsburg, 1 Wallace TJ. S., 372; 2 ib., 110; Com-, monwealth ex rel., Ribneth v. Council Pittsburg, 41 Penn.^State R. 278; and the presumption, is, that the bonds were regularly issued; Ilartrup v. Madison City, 1 Wallace, 291. Even if there were irregularities in issuing the bonds, they are nevertheless valid in the hands of bona fide holders; Mercer Co. v. Racket, 1 Wallace, 83; ib.,392.

      Garland Nash, for appellees.
   McClure, C. J.

It appears from the record, in this case, that the county of Ohicot issued ten, $1000 bonds, in May of 1860, to the Mississippi, Ouachita and Red River railroad company, payable five years after the date thereof, with interest thereon, payable annually, at the rate of eight per cent, per annum.

The bonds numbered 2, 8, 4, 6, 7, and 8, have the following endorsements thereon, respectively :

‘‘Pay to the order of Lloyd Tilghman, E. & C. Wilson, Secretary and Treasurer, M. O. and R. R. R. R. Co.”
Pay to the order of English and Wilshire for collection.
A. M. TILOIIMAN, Executrix.

In April of 1868, English & Wilshire presented these bonds to the county court, and asked an order for the payment of the principal and interest of these bonds. The county court re. fused to make an order for the payment of the bonds, and English & Wilshire prayed an appeal to the circuit court, which was granted. The action of the county court was sustained by the circuit court and they appealed to this court.

It appears from the record, that certain citizens of Ohicot county presented a petition to the county court to subscribe the internal improvement fund of the said county to the capital stock of the Mississippi, Ouachita and Red River railroad company, for the purpose of enabling said company to complete said road, “to a point west of the Mississippi overflow, on the high lands of Drew county.” In response to this petition the county . court “ordered, adjudged, and decreed, that said county of Chicot, do subscribe to the capital stock of said railfoad company, the sum of ten thousand ($10,000,) dollars, for the payment of which the internal improvement fund of said county, not already appropriated by order of this court, is hereby appropriated.”

“And it was further ordered, adjudged, and decreed, that said county of Ohicot shall issue, under the bond and seal'of the county judge, attested by the clerk of the court, under his official seal, ten bonds, each, for tlie¡sum of $1000, payable in five or ten years from date, as the county attorney of this county shall deem most proper, bearing eight per cent interest, payable annually.”
“And it was further ordered, adjudged, and decreed that all of the internal improvement fund of said county, now iñ the hands of the internal improvement commissioner, and not already appropriated by this court, or that may hereafter come into the hands of said commissioner, with all interest that may accrue on the same, is hereby set apart and appropriated as a. fund to meet and liquidate the principal and interest of said bonds, as the same may become due.”

And it was further “ordered, adjudged, and decreed, that the subscription is ordered upon the condition that said railroad company will receive said bonds at par, in payment for stock in said railroad,” and the county attorney was authorized and empowered to represent the interest of the county, etc.

On the 23d of July, 1860, the county court had a settlement with the internal improvement commissioner, and it was ascertained that said commissioner had the sum of $8,669 86 of the internal improvement fund on hand. On the 5th of November, 1861, the internal improvement commissioner made another report to, and settlement with the county court, and from this report it appears that he received $9,864 60, of internal improvement fund since his previous settlement.

Thus it will be seen, that the commissioner received $18,534 46, which was specifically set apart for the express purpose of paying the bonds now in controversy.' The fifth section of the act of January 22,1855, authorized “the county court, of any county, to subscribe to the capital stock of any vatlid and duly organized railroad company, incorporated under any act of this State,” the internal improvement fund, and to appoint an agent to represent the interest of the county. The proceedings we have detailed at some length, seem to have been taken under the provisions of this statute.

Of the $18,534 46, the county court ordered the commissioner to cancel the bonds of the county, held by him, to the amount of $6,000 00, and that $6,000 of the capital stock of the railroad company be deposited in lieu thereof. Whether more than $6,000 00 of railroad stock was issued’to the county does not appear; nor does the subsequent settlement of the commissioner show any other payment for railroad stock.

The question arising in this case is; did the act of January 22, 1855, authorize the county court to issue the bonds of the county, in payment of railroad stock? The bonds issued by the county court, and that are now in controversy, read as' follows: “The county of Chicot acknowledges to be indebted to the Mississippi, Ouachita and Red River railroad company, in the sum of one thousand dollars, which sum the said county of Chicot promises to pay to the order of said railroad company, five years after date, with interest thereon, at the rate of eight per cent, per annum, payable annually.” This bond, as will be observed, says nothing about the internal improvement fund being pledged to its payment, but at its head, it says, that it is “issued by an order of the county court, at the April term 1860.”

The law referred to, authorizes counties “having or controlling internal improvement funds, or credits granted to it by the State,” to subscribe to the capital stock of any valid and duly organized railroad company. The authority conferred by this act, as will be observed, is not that counties having internal improvement funds may issue bonds; but that counties having internal improvement funds may “subscribe to the capital stock of any duly organized railroad company of this State.” It was not the intention of the framers of the act of January 22, 1855, to authorize the county court of any county in the State, to subscribe for stock in a railroad and issue bonds of a county in payment thereof that, by any possibility, would have to be paid by the tax payers of the county. It seems to have been the intention of the framers of the act, that the amount of stock which a county might subscribe for, should not exceed the amount that the internal improvement fund of the county would pay.

But to return to the question; did this act authorizing counties to “ subscribe” for railroad stock, authorize the county court to issue bonds of the county to pay for it? In the enumeration of powers that belong to county courts, as fixed by section YII of Gould’s Digest, chapter forty nine, (317,) we do not find that county courts are authorized to issue the bonds of the county for any purpose. . Counties are political corporations and are- created for specific purposes, which are well known. The county court stands in the same relation to the county, as do the board of directors to a private corporation. The powers of a corporation are construed strictly, and the act, creating it, is never construed to include only the exercise of such unexpressed powers as are absolutely necessary to carry into effect.such as are expressly delegated. The power to tax the tax payers of Chicot county to pay for stock subscribed to a railroad company is not given by any statute within our knowledge, in force at the time these bonds were executed, and in the absence of any such statute the county court did right to reject the claim. But let us look, at the question in another light and admit for the purpose of the argument, and we admit it for the purpose of the argument only, that the act authorized the county court to issue the bonds of the county, and pledged the internal improvement fund to their redemption; what then is the condition of the bondholders? We have said that the bond declares on the face of it, that it was “issued by an order of the county court, at the April adjourned term, 1860.”

The question now arises, is not every holder of the bonds bound to take notice of the order of the court, and the conditions under which they were issued ?

By the terms of the order, authorizing- the issue of the bonds, it is very clear that the county court intended the holders of the bonds, at maturity, should look to the internal improvement fund, and not to the tax payers of the county, for payment.

The order of April 26,1860, is as follows: “And it is further ordered, adjudged and decreed that all of the internal improvement fund of said county, now in the hands of the internal improvement commissioner, and not already appropriated by this court, or that may hereafter come to the hands of said commissioner, with all interest that may accrue on the same, is hereby set apart and appropriated, as a fund, to meet and liquidate the principal and interest of said bonds, as the principal and interest may, respectively, fall due.”

This was a specific appropriation of all the money belonging to that fund, which was then in the hands of the commissioner, and all that might .thereafter come into his hands; and the county court had no more authority to direct this fund, after having thus appropriated it, from that specific purpose, than its members' had to divide it among themselves. From the moment the county court made the order, the commissioner of the internal improvement fund became a trustee for the bondholders, and the county court no longer had control 'of the fund.

If the commissioner obeyed the order, there is, according to his own showing of money received, the sum of $21,039 36, in his hands, with which to pay this debt. If he has disobeyed the order, it furnishes no reason why the tax payers of Ohieot county should now pay the bonds; nor does his disobedience furnish the county court with any legal excuse or reason for allowing it as a claim against the county, to he paid by future taxation. This claim is not a debt against the county, because, at the time the bonds were given, there was no law authorizing the creation of any such debt, as a county debt; nor is there any law, that we are aware of, that would authorize the county court to audit and pay a claim that they had no authority to incur under the laws of the State, and which they have not since been authorized to do.

It is urged that the act of January, the 22d, 1855, authorized the counties of this State, having internal improvement funds, to subscribe to the capital stock of a railroad company, and that the authority “to subscribe,” carried with it, as an incident, the right and power to issue bonds in payment thereof; and the case of Seybert v. The City of Pittsburg, (1, Wal., 272,) is cited as an authority in point. We do not so regard it.

In that case, counties and cities were authorized to subscribe to the capital stock of a railroad company, “as fully as an individual;” and the court held, that as an individual, by agreement with the company, could have given his bond for subscription, so could the city. The language of the act, under which these bonds were issued, did not authorize the counties to subscribe “as fully as an individual;” it simply authorized counties to use the internal improvement fund, belonging to the county, in payment of the stock subscribed. In other words, the act of January, 1855, did not authorize the county court, of Chicot county, to use the credit of the county in payment of subscriptions to the capital stock of a railroad company; it simply authorized the county court to subscribe the proceeds of a specific fund. If the object of this proceeding was to obtain an order from the county court directing the commissioner of internal improvement to pay the bonds and accrued interest thereon, out of the money in his hands, it ought to have so slated. An allowance of this claim by the county court, as a just and valid claim against the county, is beyond the scope and power of that body. The county court is authorized to audit and settle claims against the county; but, in the exercise of this power, they must confine themselves to the allowance of such claims as the county had authority to contract.

The power to subscribe the internal improvement fund of a county, to the capital stock of a railroad company, does not carry with it the power to make the county responsible in her political character.

The judgment of the circuit court is affirmed.


author: McCluRE, C. J.

text:
    Chicot County v. Tilghman, Ex’rx
    County couet — With what powers vested. — The county court is vested, by law, with power to “audit, settle and direct the payment of all claims against the county.”
    Aeeea.Ii eeom.-— Appeal from, the decision of the county court, in allowing or rejecting a demand against the county, lies only by the party or parties interested in the rejection or allowance, and not by citizens who are not interested.

      Appeal from the County Court of Chicot County.

      Garland £ Nash, for appellant.
    Tlie Supreme Court has appellate jurisdiction over the final orders and judgments of the county court, unless in cases where the appeal is given to the circuit court. See Code, p. £3, sections 15 and 16.

    The appellate jurisdiction of the circuit court, over the orders and judgments of the county courts, does not embrace a case like this. See Code, p. %5, sec. 19.

      English, Gantt $ English and Reynolds, for appellee.
    Neither under the Constitution of 1836, nor 1864, would an appeal lie directly from the county court, to the Supreme Court. The circuit courts had appellate jurisdiction from all orders or judgments of the county court, etc., etc. Gould’s Digest, sec. 15, chap. 4-3, p. 318; also sec, 16. See Code Civil Practice, chap. 1, see. 15, referring to exceptions in sec. 16. See also sec. 19, chap. 2 Code.

    The mere omission of the Code to provide for an appeal to the circuit court in such eases, does not operate as a repeal of statutes in force, allowing such appeals.
   McCluRE, C. J.

It appears from the record in this case, that Mrs. Tilghman, as executrix of Lloyd Tilghman, deceased, presented an ac-eount, for allowance, against the county of Chicot. The account was for the allowance of the principal and interest upon a certain bond that read as follows:

“Ho.- STATÍ 03? ARKANSAS.
Bond of the county of Chicot, issued by an order of the county court, at the April adjourned term, 1860, for $1000. ,
The county of Chicot acknowledges to be indebted to the Mississippi, Ouachita and Eed Eiver railroad company, in the sum of one thousand dollars, which sum the said county of Chicot promises to pay to the order of said railroad company, five years after date, with interest thereon, at the rate of eight per cent, per annum, payable annually.
In witness whereof, etc.
(Signed.) A. II. DAVIS, Judge. [Seal.]
(Signed:) B. E. Stephenson, Clerk.”

The claim was allowed and the county clerk directed to draw a warrant on the county treasurer for $1,760, it being the principal and interest due on said bond. During the pendency of the claim before the county court, the county attorney made some motions and filed a demurrer, all of which were overruled, and exceptions taken. The court then adjourned for two weeks, after the expiration of which time it met, when the county attorney, on behalf of himself and other citizens of the county of Chicot, prayed an appeal, which the county court rejected. Application was then made to the clerk of this court for an appeal and supersedeas, which was granted.

Section seven, of chapter 49, of Gould’s Digest, (317,) in speaking of, the powers of the county court, says, the court-shall have the following powers: * * * “to audit, settle, and direct the payment of all demands against the county.” The 16th section of the same chapter provides that “ appeals shall be granted from all orders or judgments of the county court, making allowances; or refusing to make allowance to any individual or individuals, made in the county court.”

These provisions of the law are in force, and by them this case must be determined. As has been seen, the county court was vested, by law, with the power to “ audit, settle, and direct the payment of all demands against the county.” From the judgment of the county court in auditing, settling and directing the payment of demands against the county, an appeal is given; but this appeal only.extends to such persons as may have an interest in the claim, and who feel aggrieved by the allowance or rejection of their demand; it has no reference to the citizens of a county who are not interested in the allowance of the claim. The idea of a county appealing from the allowance of a claim made by its county court, is simply ridiculous. The county court represents the county. An individual presenting a claim against the county, if the county court should only allow a part of his demand, or should reject it altogether, has the right of appeal; but should the county court allow a larger claim than a half dozen tax payers might think politic, such an allowance does not authorize them, nor confer on them the right to use the name of the county and appeal the cause to this or any other court, especially, in a case, where the county court has shown that it did not desire the ease appealed.

Inasmuch as no appeal would lie in this case, directly to this court, either at the instance of the county court itself or volunteer appellants, it is hereby ordered that the appeal and supersdeas, granted by the clerk of this court, be set aside, and the cause is ordered to be stricken from the docket.


text:
    Chicot County v. Tilghman, Ex’rx.

      Appeal from the County Court of Chicot County.

      Garland § Nash, for appellant.
    English, Gantt English, and Reynolds, for appellees.
   The opinion of the court in the case of Chicot County v. Tilghman, ex'rx., decided at the present term, settles the question in this case.


author: G-kego, J.

text:
    Haynes, adm’r. v. Wells.
    Fbeby Franchise — A ferry franchise is a grant from the State, and it cannot be created by parties and made transferrable and descendable in fee, or absolutely, as individual property, separate and apart from the land.
    To whom: Limited — The right of a ferry license is limited, by statute, to the owner or party rightfully in possession of the land on the river, and is regulated by the proper authorities for the public good.
    Jueisdictioh op County Court — In matters of — Whether the establishment of a ferry is for the public convenience, except where inhibited by statute, is a question for the proper county court, and its decision is absolutely binding upon every one, unless exceptions be taken and the judgment reversed or set aside.

      Appeal from Perry Circuit Court.

    Hon. W. U. May, Circuit Judge.

      Garland Nash, for appellants.
    It is clear that Wells’ attempt to carry on the ferry, was in direct violation of law. Gould’s Dig chap. 70, sec. 1, et seq., and it is perfectly evident that this ferry franchise in Haynes, or his estate, was property which the courts would protect. See Brearley v. Norris, 82 Ark. 514; 18 lb. 19; 20 lb. 561; lb. 578. But the ease of Conway v. Taylor, Excrs. 1 Black (Tl. 8.) Reps. 603, et seq., settles all questions here for Haynes; and this case, with the authorities there cited, show that an injunction was the only adequate remedy Haynes had by which to protect his rights here. ‘2 Eden on Injunctions, by Waterman, 271-2 and notes.

      Clark Williams, for appellee.
    There is no franchise in this State separate from the ownership of lands. Cloyes v. Keatts, 18 Ark. 19. See also, Gould’s Dig. chap. 70, sec. 2, as revised by the act of April 6, 1869; see Acts 1869, p. 119. A ferry right is a franchise belonging to tlie sovereign power; see Day v. Stetson, 8 Oreenlf. 865; 15 Pickering, 21$; Alreyv. Harris, 5 Johns. 175; People v. Babcock, 11 Wend. 586; and no one can establish, a ferry without per- ' mission of the sovereign power. Stark v. McG-owen, 1 Nott $ M. 887; Zane v. Zane, 2 Virginia cases IS.

   G-kego, J.

The appellant brought his bill in equity, in the Conway circuit court, to enjoin the appellee from running a ferry, on the Arkansas river, at Lewisburg. He alleges that Thomas Haynes, in his life time, owned the exclusive right of way and privilege of a ferry landing; that such privilege, on each bank of the river, had been conveyed to him by the owners of the soil; that he had been licensed by the proper authorities to exercise such privilege, etc., and that he and his legal representatives had so exercised it, exclusively, for over seven years, up to the time when the defendant set up a rival ferry, which was within less than one mile of his ferry; that complainant was no party to defendant’s application for license, when the same was granted to keep and run such rival ferry; that said defendant claimed to be the owner of the soil at the landings of his ferry, hut that at the time he purchased said lands, he knew the ferry privilege, as aforesaid, properly belonged to the complainant, and he prays that the defendant be enjoined and restrained from keeping such ferry.

The defendant responded that Thomas Haynes, in his lifetime, had no valid or legal right to keep, use or control such ferry privilege; he admits that Haynes run a ferry for several years, but alleges that the landing was on the real estate of the defendant, and that .Haynes and his legal rejjresentatives were tenants of his, and that they paid him an annual renting, for that privilege; ho denies that he ever had undisputed possession. He admits that Haynes and Gray, who claimed the lands, conveyed -to Thomas Ilaynes a right of way to a ferry landing, but says that they had no ferry rights that they could convey; that a right of way or ferry privilege, could not carry with it a ferry franchise against the owner of the lands, and that he owns the lands and has a license procured, over the resistance of complainant and his counsel, from the proper authorities, and that by virtue of his ownership of the lands adjoining the river, and his license, he is rightfully exercising* such ferry privilege; and he submits, by way of demurrer, that there is no equity in complainant’s bill; that he-has shown no title, etc.

Replications were entered and the case set for hearing; depositions were taken, and at the May term, 1870, the case was heard upon the bill, answers, replications, exhibits and depositions.

The court found in favor of the defendant and dismissed the bill for want of equity, and decreed costs against the complainant, from which he appealed to this court.

The complainant showed that certain owners of the lands conveyed to his intestate a right of way and ferry privilege, but shows no conveyance of the soil or any interest therein.

The conveyances seem to have been made upon the supposition that the ferry franchise was individual property that would descend or might be transferred without regard to the claims of the State, or any right in the lands.

Our statute declares that “Every person owning the land fronting on any public navigable stream, shall be entitled to the privilege of keeping -a public ferry over or across such navigable stream,” etc. Sec. 2, of chap. 70, Gould’s Digest.

Section 7, of the same chapter provides, that any one, wishing to procure a license, shall show that he is lawfully in the possession of such land, etc. On this point, see 16 B. Monroe, 699.

The bill of complaint makes no averment of any right, pos-sessory or otherwise, in the lands on either bank of the river. The statute limits the right of a ferry license to an owner or some one rightfully in possession of the lands, and it was not in the power of the parties to create a ferry franchise, an in-corporal hereditament, transferable and descendable, separate and apart from the real estate, wherewith it was allowed. Cloys v. Keatts, 18 Ark. 19; Conway v. Taylor's Ex’rs. 1 Black. 603, and cases there referred to.

The statute law, as found in the chapter above referred to, inhibits the granting of a ferry license to run a ferry within one mile of an established ■ ferry, except'at or near cities or towns, where the public convenience may require it.

The bill in this case shows that the license herein complained of, was to carry on a ferry at the town of Lewisburg; whether or not a second ferry created at the town of Lewisburg is for the public convenience, is a question to be determined by the proper county court, and when so determined by such court, it is absolutely binding upon every one, unless exceptions had been taken to that decision and the judgment of that court set aside. Lindsey v. Lindley, 20 Ark. 573.

We are of opinion that a ferry franchise cannot bo held and conveyed as individual property, absolute and separate from the real estate; such franchise is a grant from the State and has not been made to pass any title absolutely, or in fee, to-any private parties, and the same is subject to regulation by the proper authorities for the public good; and a privilege of a grant to individuals, under the statute, is to those owning, or rightfully possessed of lands on the river.

Finding no error, the decree of the court below is affirmed.


text:
    Reynolds v. Craycraft, assignee of Walker.

    Practice. — Where there is no judgment on the finding, there is nothing to appeal from.

      Appeal from Chicot Circuit Court.

    .Hon. Heney 33. Mouse, Circuit Judge.

      'Garland -<f Nash, for appellant.

      Watkins Rose, for appellee.
   This cause comes here from Chicot county. It appears that ■the cause was submitted to the court, sitting as a jury, upon, an agreed state of facts. The court found for the appellee. Reynolds appealed to the Supreme Court. The'finding of the ■court, as has been stated, was for the appellee. There was no judgment on the finding; this being true, there is nothing to appeal from.

The cause will be dismissed.


text:
    Citizens’ Bank of Louisiana v. Walker.

      Injunction — Dissolution of. — The dissolution of a temporary injunction, before a hearing on complaint and answer, is not such a final order as that an appeal will lie from it.

      Appeal from Chicot Circuit Coiut.

    IIon. Henry B. Morse, Circuit Judge.

      Garland Nash, for appellant.
    The dissolving of the injunction was not an interlocutory order in ibis case; it was a final order, as the injunction wag-all and everything in the case, and in such case an appeal will lie. 25 Ark., 1¡.20, and cases cited; 6 Leigh. (Va.), 196-7; Paige-18; 2 Daniel Gk. Pr., 1193-9.

      Hice Benjamin, for appellee.
    This court has no jurisdiction in appellate cases, only upon-a final judgment or decree. An order to dissolve an injunction is not a final order, judgment or decree, and cannot bo-appealed from until the case is finally decided. See Rodman v.. Foitner, admr., etc., 2 Met., (Hy.) 835; also Ilerndon v. Higgsy 15 Ark , 389; Johnson v. Alexander, 6 Ark., 802.

   McClure, C. J.

This cause comes hero from Chicot county. The appellants, filed their complaint in the Chicot circuit court setting up some-irregularities in the levying of a school tax, and asked that Walker, the collector, be restrained from collecting said tax, “until the final hearing of the cause,” and that, upon the final hearing, the injunction be made perpetual.

The appellants applied to two justices of the peace, and a temporary injunction was obtained restraining the appellee from attempting to collect said district school tax, until further-ordered by the circuit court.

At the April term of the circuit court, the appellee answered: the. complaint of the appellants, and filed a motion to dissolve the injunction, granted by the two justices of the peace, on the ground “that justices of the peace do not possess the power or jurisdiction to grant an injunction in actions originally-brought in the circuit court.”

The order of the court, on this motion, is as follows: “Ordered that the motion to dissolve the injunction be sustained.” To which order and ruling of the court the plaintiff excepte and appealed to court.

As will be observed, there was no hearing of this case on. its merits, or upon the complaint and answer. The bearing was upon a motion to dissolve an injunction, granted by two justices of the peace. The appellant urges that this is a final order, and may be appealed from. We do not assent to any such proposition. There has been no hearing on the complaint and answer; nor is there any judgment ¿gainst the appellant. Whether the tax was legally or illegally levied (and it is only on the disposition of this question that this case will be disposed of, on its merits), has not been adjudicated or determined by the court below. That issue is yet pending in the circuit court; when it is disposed of, the determination of the court, at that time, can be reviewed here, in a proper manner.

If the appellant had desired a reinstatement of the temporary injunction, until the case was disposed of on its merits, the ingenuity that obtained an injunction from the justices of the peace, ought certainly have found the remedy provided by sections 321 and 322.

The motion to dismiss is sustained, and this cause will be stricken from the docket. „