text:
    BANK OF EVENING SHADE v. Gene F. LINDSEY et ux
    82-84
    644 S.W.2d 920
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983
    [Rehearing denied February 14, 1983.]

      David Hodges and Phil Farris, for appellant.

      Harkey, Walmsley, Belew ir Blankenship, by: Leroy Blankenship, for appellees.

      Rose Law Firm, by: Herbert C. Rule, III and Gary J. Garrett, for amicus curiae on behalf of the appellant.

      Owens, McHaney 6“ Calhoun, by: James M. McHaney, for amicus curiae Arkansas Bankers Association on behalf of appellant.
   Steele Hays, Justice.

This litigation began when Mr. and Mrs. Gene Lindsey, appellees, filed suit against the Bank of Evening Shade, appellant, alleging the bank had charged eighteen percent interest on an April 11, 1980 loan of $20,607.20, which they claimed was excessive under the Federal Deposit Insurance Act, and seeking judgment of twice the amount of interest paid. The bank answered that eighteen percent interest was permissible under the Depository Institution Deregulation and Monetary Control Act of 1980, Public Law 96-221, which became effective on April 1, 1980. The bank then counterclaimed to foreclose a deed of trust securing the note and encumbering the Lindsey home in Evening Shade. The case was transferred from law to equity and the Lindseys asserted the defense of usury, claiming the loan was not covered by the Monetary Control Act and, hence, void under Article 19, Section 12 of our Constitution of 1874. During trial the Lindsey complaint was dismissed for failure of proof and the foreclosure suit was tried solely on the issue of usury.

After the case was closed counsel for the Lindseys wrote the bank that they had elected to rescind the transaction under the Truth-in-Lending Act, 15U.S.C. 1601, etseq., and over the bank’s objection the Chancellor reopened the case for the limited purpose of taking proof on the rescission issue.

The evidence was generally undisputed that Mr. and Mrs. Lindsey had had two notes at the bank at ten percent interest secured by first and second mortgages on their home. The notes had been renewed several times and became due in March, 1980. There were discussions aimed at renewal and refinancing and the bank informed the Lindseys it would not renew at ten percent, but would make a new loan at eighteen percent, which it believed was permissible under the newly enacted Monetary Control Act, which became, effective April 1, 1980. Mr. Lindsey questioned the rate of interest, but nevertheless he and his wife signed a new note at eighteen percent dated April 11, 1980, equal to the amount due on the existing notes and from which the old notes were paid off. The note was secured by a deed of trust covering the Lindsey home and other properties.

The Chancellor recognized that we have upheld the constitutionality of the Monetary Control Act of 1980 in the case of McInnis v. Cooper Communities, Inc., 271 Ark. 503, 611 S.W.2d 767 (1981) but he held the loan did not come under the act because he believed it applied only to loans which originated after the effective date of the act, April 1, 1980, and not to existing loans which were merely renewed after April 1. Since he found the loan was not exempted, he held it to be usurious and void. He added that if he were wrong on the usury question, he found the bank had not given proper notice to the Lindseys of their right to rescind the transaction under the Truth-in-Lending Act. On appeal, we disagree that the note was usurious or that the bank failed to give sufficient notice to the Lindseys and we reverse.

I.

The pertinent part of the Monetary Control Act, § 501, reads:

The provisions of the constitution or the laws of any state expressly limiting the rate or amount of interest... shall not apply to any loan, mortgage, credit sale, or advance which is (A) secured by a first lien on residential real property . . . (B) made after March 31, 1980.

The Lindseys argue that theirs was not a new loan, but simply a consolidation and renewal of old loans and, therefore, not covered by the act. We find convincing authority to the contrary.

Pursuant to § 501 (F) of the act, the Federal Home Loan Bank Board is authorized to “issue rules and regulations and to publish interpretations governing the implementation of this section.” The deference that must be given such administrative rulings is stated in Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980). In reversing a Court of Appeals ruling that had rejected a Federal Reserve Board’s interpretation of a Truth-in-Lending provision, the Supreme Court held that, “Unless demonstrably irrational, Federal Reserve Board Staff opinions construing the Act or Regulation should be dispositive ...” Milhollin at 567.

The Federal Home Loan Bank Board has issued interpretations of the type of transaction involved in this case, and it is clear from those interpretations that on the facts of this case, the loan by the bank would qualify for exemption under the Monetary Control Act. A staff opinion interpreting the same provision of Public Law 95-161 (the temporary predecessor to Public Law 96-221) dealt with the effect of this section on renewals of short term mortgage notes which became due during the statutory preemption period. The Board stated:

In our view, a lender would not be permitted to raise the interest rate if it is already obligated to refinance the note after maturity . . . etc. If however, the lender making such a short-term loan would not have an absolute obligation to renew or refinance a note falling due during the statutory preemption period the renewal would be the making of a new loan for the purposes of Pub. L. 161. In these circumstances, a lender would be authorized to charge interest at a rate in excess of that specified by state law. 45 FR 15921, March 12, 1980.

The Board has issued opinions for § 501 of Public Law 96-221, affirming that position. (See opinions No. S 26, March 9,1981, and No. S52, September 1,1981.) We find the interpretations rational and persuasive. In this case, the loans were due in March 1980, and the bank was under no obligation to renew them. Under the above interpretation of § 501, we find the appellees’ loan qualified under the act.

The appellees also argue that the legislative history of Public Law 96-221 indicates that the purpose of the act was to provide adequate housing by creating sources to finance that housing, and was not intended for other purposes. The appellees’ loan was not used to acquire their home and thus they contend the loan would not come within the exemption. We cannot agree with that conclusion. The language in § 501 gives ho indication that the purpose for which the loan is to be used has any bearing on qualification for the exemption. The plain language of the act states the interest lirhit of a state “shall not apply to any loan...” The purpose and scope of the act as stated in 12 CFR 590.1 gives no cause for so restrictive a reading and simply states the purpose is “to ensure that the availability of [these] loans is not impeded in states having restrictive interest limitations.”

Although we have found the legislative history not to support such a narrow purpose, we need not consider the history when the language, as in this statute, is unambiguous. In H. Wetter Mfg. Co. v. U.S., 458 F.2d 1033 (1972), when the government introduced legislative history to show what Congress intended, the Court, quoting from an earlier opinion, stated:

We may not under the guise of construction, find a Congressional intent that is contrary to the clear language employed by it. Where a statute is unambiguous, it should be given effect according to its literal language. Wetter at 1035.

We find the language applying the act to “any loan” unambiguous, and find no need to consider the legislative history. The loan to the Lindseys was a first lien on real property and, as provided in the act, was exempt from the interest ceiling of ten percent under our constitution.

II.

This case was tried solely on the issue of usury. Rescission came into the case entirely as an afterthought. The Truth-in-Lending Act requires a written notice to the borrower that he has three days following any transaction which results in a mortgage on real property to notify the creditor that he elects to cancel. If the notice is not given the right to cancel continues.

During the trial the bank routinely introduced a number of documents which accompanied the transaction with the Lindseys, including a Rescission Statement which gave the required notice of their right to cancel. It was received without objection and attracted scant interest during the trial. It was a printed form with blank spaces for the appropriate dates and was proper in all respects except that it was dated April 7 and gave April 10 as the deadline for cancellation. Since the note was dated April 11,1980 and the Lindseys testified that all the papers were signed on the same day, there is an obvious discrepancy between the dates of the Rescission Statement and that of the note and deed of trust.

Approximately a week after trial, while the court was awaiting briefs on the issue of usury, counsel for the Lindseys wrote the bank to say the Lindseys had elected to rescind on the theory that the Rescission Statement was defective — it told them, in effect, that they had three days from April 7 in which to cancel and, thus, their right to cancel lapsed on April 10, the day before the transaction was entered into.

The Chancellor permitted the case to be reopened for a brief hearing and received the cancellation letter in evidence, commenting that he regarded it as neither highly material nor relevant. However, when he announced his decision in the usury issue, he added that if he was wrong on that point, he also thought the Rescission Statement amounted to no notice at all. None of the several issues relevant to rescission were dealt with in the final order, except for the denial of damages and attorneys’ fees provided for by the Truth-in-Lending Act.

On appeal, the bank argues that the Rescission Statement was sufficient, that the loans to the Lindseys were for business purposes, which the Truth-in-Lending Act exempts, and that the Chancellor erred in reopening the case for an issue not dealt with in the pleadings or the proof, except coincidentally.

We are not inclined to second-guess the Chancellor’s decision to reopen the case, as that power is necessarily broad, except to note that a complex and undeveloped issue was introduced and left largely unresolved in specific terms. There is no finding as to whether the loans were for business purposes and, therefore, exempted under the Truth-in-Lending Act, although the only proof we find is entirely consistent with the bank’s argument. Nor are the equities considered, though we have held the right of rescission under the Truth-in-Lending Act is governed by equitable principles. Nietert and Goodwin v. Citizens Bank and Trust Co., 263 Ark. 251, 565 S.W.2d 4 (1978): Turner v. West Memphis Federal Savings & Loan Association, 266 Ark. 530, 588 S.W.2d 691 (1979). In Turner we said:

A review of the federal cases decided under the Truth-in-Lending Act leads us to conclude an action to rescind is an equitable proceeding and the Court should look not only at the violations by the creditor but should consider the course of action taken by the debtor. From reading a history of the legislation it is apparent the Act was directed at loan sharks and fly-by-night operators.

However, we need not settle these issues, as we believe the Rescission Statement was not fatally defective, because it is clear the Lindseys were not misled by what amounted to a single and obvious mistake in the date. Mr. Lindsey’s testimony provides the plausible explanation for the discrepancy. He said: “We were supposed to sign that (referring to the Rescission Statement) two or three days before, but we signed them all the same day,” (p. 78) meaning April 11. Presumably the bank neglected to update the Rescission Statement and if it were at all doubtful whether the Lindseys were misled or confused because of it, then the onus of that oversight would have to rest on the bank and not on the Lindseys, but it is clear there was no misconception. “Mr. Lindsey acknowledged receiving the Rescission Statement and that he understood it. (T. p. 78):

Q. This is apparently a rescission statement that’s dated April 7, 1980. Do you have a recollection as to that?
A. Yeah, we signed this the same day as the loan.
Q. Well, the loan was signed on April the 11th, was it not?
A. We signed it on the same day.
Q. But now this advised you that you under the Federal Law have a right to cancel the transaction without penalty or obligation in three business days from the date or any later day on which all material disclosures required under the truth in lending act have been given to you. Did you understand that to be the situation in this rescission statement?
A. Yes, I understood it.

That conclusion is strengthened when the Rescission Statement itself is examined. It is in bold type with handwritten dates, and tells the Lindseys they have three days from April 7, 1980, or any later date on which all material disclosures required under the Truth-in-Lending Act have been given:

RESCISSION STATEMENT
THE BANK OF EVENING SHADE
EVENING SHADE, ARKANSAS
Notice to customer required by Federal law:
YOU HAVE ENTERED INTO A TRANSACTION ON April 7,1980 WHICH MAY RESULT IN A LIEN, MORTGAGE, OR OTHER SECURITY INTEREST ON YOUR HOME. YOU HAVE A LEGAL RIGHT UNDER FEDERAL LAW TO CANCEL THIS TRANSACTION, IF YOU DESIRE TO DO SO, WITHOUT ANY PENALTY OR OBLIGATION WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE OR ANY LATER DATE ON WHICH ALL MATERIAL DISCLOSURES REQUIRED UNDER THE TRUTH IN LENDING ACT HAVE BEEN GIVEN TO YOU. IF YOU SO CANCEL THE TRANSACTION, ANY LIEN, MORTGAGE, OR OTHER SECURITY INTEREST ON YOUR HOME ARISING FROM THIS TRANSACTION IS AUTOMATICALLY VOID. YOU ARE ALSO ENTITLED TO RECEIVE A REFUND OF ANY DOWNPAYMENT OR OTHER CONSIDERATION IF YOU CANCEL. IF YOU DECIDE TO CANCEL THIS TRANSACTION, YOU MAY DO SO BY NOTIFYING THE BANK OF EVENING SHADE AT EVENING SHADE, ARKANSAS, BY MAIL OR TELEGRAM SENT NO LATER THAN MIDNIGHT OF April 10,1980. YOU MAY ALSO USE ANY OTHER FORM OF WRITTEN NOTICE IDENTIFYING THE TRANSACTION IF IT IS DELIVERED TO THE ABOVE ADDRESS NOT LATER THAN THAT TIME. THIS NOTICE MAY BE USED FOR THAT PURPOSE BY DATING AND SIGNING BELOW.
I HEREBY CANCEL THIS TRANSACTION.
(Date) (Customer’s Signature)

It would require the utmost contortion in reasoning to interpret the Rescission Statement as telling the Lindseys that they have a legal right under federal law to cancel the transaction they are about to enter into, except that to do so, they must notify the Bank of Evening Shade by midnight on April 10, the day before, of their intent to cancel.

To his credit, and in spite of his stake in the outcome, Mr. Lindsey was not willing to say he thought his right to cancel had already expired when he signed the note on April 11, as he did not renounce his quoted testimony at the post-trial hearing. Mr. Lindsey’s explanation for the mistake in dates, coupled with his own assertion that he understood the Rescission Statement, convinces us it was error to disregard it. We reverse the order of the Chancellor and remand the case for appropriate orders consistent with this opinion.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Dr. George W. DOWLING v. Aulden ERICKSON
    82-155
    644 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983

      Little, McCollum ir Mixon, by: James G. Mixon, for appellant.

      Walker, Campbell ir Young, by: Ronald D. Young, for appellee.
   Steele Hays, Justice.

The appellant owns land that completely surrounds land owned by the appellee, purchased from a third party. Having no access to his land from any public road, appeliee filed a petition in county court, pursuant to Ark. Stat. Ann. § 76-110 (Repl. 1981), to establish a road across appellant’s land. Section 76-110 sets out the procedures for estabishing a road when an owner has no access to his land. The county court approved the petition and appointed three viewers who fixed a roadway and the amount of appellant’s compensation. Appellant appealed to the circuit court which affirmed the county court. On appeal, appellant contends § 76-110 is unconstitutional because it is only for private use, whereas the Arkansas Constitution grants the right of eminent domain only for public use. We uphold the constitutionality of the statute.

We have held several times that a road established under §76-110, although referred to in the statute as a private road, will be deemed a public road, because anyone who has occasion to use the road may do so. Bowden v. Oates, 248 Ark. 577,452 S.W.2d 831 (1970); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906); Roberts v. Williams, 15 Ark. 43 (1854).

Appellant argues that the right of eminent domain cannot be exercised unless it is in fact for use by the public, citing City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967). The appellant, however, misconstrues the term “public use in fact’’, as used in that case. In Raines, the City of Little Rock had issued revenue bonds and levied taxes pursuant to Amendment 49 and implementing legislation (Ark. Stat. Ann. §§ 19-2702 — 19-2719 [Repl. 1956]), and was attempting to condemn property for an industrial park in conjunction with a port authority. We said that cities may exercise eminent domain only as expressly granted by the constitution or statutes and such grants are to be strictly construed against the condemnor. We held that neither Amendment 49 nor implementing legislation delegated to the cities the right of eminent domain for an industrial park. The right must be given for a use that in fact directly benefits the public. The point the appellant makes is misguided. The distinction between public and private use is qualitative — not quantitative. In discussing Ark. Stat. Ann. § 76-110, the court in Pippin, supra, states:

The character of a road, whether public or private, is not determined by its length or the places to which it leads, nor by the number of persons using it. If it is free and common to all citizens, it is a public road though but few people travel upon it. (our italics).

Appellant also argues that our decision in Arkansas State Highway Commission v. Alcott, 260 Ark. 225, 539 S.W.2d 432 (1976) forces the conclusion that a road established by § 76-110 is for private use only. In that case the AHC sought to condemn land belonging to Alcott in order to restore access to property belonging to Corbin that had become landlocked as a result of highway construction. The AHC had proceeded under Ark. Stat. Ann. § 76-532 (Repl. 1981) which allows the Highway Commission to condemn for purposes of highway construction. We said:

The evidence adduced by [The AHC] clearly shows that this taking was not for a public use. To the contrary, it was for the purpose of providing a private driveway and this the State cannot do.

Whether or not a use is public is a question for judicial determination. City of Little Rock v. Raines, supra. In Alcott, even the Highway Department conceded the condemnation was solely the Corbin’s driveway. Other testimony from the AHC acknowledged it had taken that approach because it was cheaper than paying damages for Corbin’s property. In contrast, there was no evidence in the present case to show that the road to appellee’s property would not be for public use, and there has been a long established presumption under this statute that the road will be for public use. There is no similar precedent under § 76-532 when condemning for highway purposes. Additionally, it is clear that the AHC had other alternatives open to it, but simply chose what it saw as the less costly route. An individual who is landlocked and proceeds under § 76-110 has no other alternatives available to him. If he were not granted access to his land under such a statute, he would have no remedy.

Appellant notes that Bowen v. Hewitt, 227 Ark. 568,299 S.W.2d 827 (1957) holds that a road established under § 76-110 can be acquired through adverse possession, and since Ark. Stat. Ann. § 37-109 provides that no public road can be.acquired through adverse possession, it follows that a road under § 76-110 cannot be a public road. We disagree with that reading of Bowen, where we said only that a road established under § 76-110 can be abandoned if not used for seven years by the party who petitioned for the road. There is a significant difference between abandonment and adverse possession and to read abandoned to include or mean adverse possession would be a distortion of the law announced in that case.

We think the result reached here is not inconsistent with dictum in Raines, where we said the right of property is before and higher than constitutional sanction. Granted, in one sense we are employing the process of condemnation against one property owner to serve the needs of another property owner for what is, in part, a private use — an access road. But that result is, we believe, justified by a balancing of equities, in that the imposition on the first owner is relatively slight in comparison to the benefit to the second, and, more importantly, it serves legitimate public interests: the creation of a road available to the public and the transformation of land which would otherwise remain useless into potentially valuable and productive property.

The judgment is affirmed.

Hickman, J., dissents.


author: Steele Hays, Justice. Darrell Hickman, Justice,

text:
    Thomas G. YOUNG v. ENERGY TRANSPORTATION SYSTEMS INC. OF ARKANSAS
    82-160
    644 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983

      Richard L. Peel, for appellant.

      Friday, Eldredge ir Clark, by: Michael G. Thompson, for appellee.
   Steele Hays, Justice.

Energy Transportation Systems of Arkansas (ETSIARK) is an Arkansas corporation wholly owned by ETSI Pipeline Project, a joint venture — a Delaware partnership formed for the purpose of constructing and operating a coal slurry pipeline from Wyoming to various states, including Arkansas. The partnership consists of five separate foreign corporations, each of which is duly qualified to conduct business in the State of Arkansas. ETSIARK, the appellee, filed a complaint against the appellant, Thomas Young, to condemn a pipeline easement across land owned by appellant pursuant to Ark. Stat. Ann. § 73-1901. The court below granted the easement.

The appellant raises two points on appeal: 1) the appellee cannot condemn on behalf of a foreign joint venture, 2) the appellee is not a pipeline “company” within the meaning of Ark. Stat. Ann. § 73-1901.

It has been clearly settled that a domestic subsidiary of a foreign corporation can be granted the power of eminent domain to condemn on behalf of a foreign parent corporation. Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S.W.2d 1028 (1929); Starr Farms, Inc. v. S. W. Electric Power Co., 271 Ark. 137, 607 S. W.2d 391 (1980). The only issue we are faced with in this case is whether there is any significant difference when the parent company is a partnership and not a corporation. The appellant raises only one possible difference — that corporations, unlike partnerships, are subject to substantially more regulation and control by the state.

We do not find this to be a significant difference in the present case. The firms in this joint venture are a partnership of foreign corporations all authorized to do business in this state. Under the Arkansas Uniform Partnership Act, liabilities of the partnership run to each member individually as well as to the firm as a whole. Consequently should the partnership incur any liabilities, prosecution or suit could be taken against the individual member corporations. Additionally, in affirming a foreign corporation’s right to condemn through its domestic subsidiary, we held in Starr, supra, that “the privilege granted a foreign corporation to do business in this state would be practically nullified if it were restricted from doing the act which was necessary to the prosecution of the business...” We find the principle applies with equal force to this situation — where there are several foreign corporations, all qualified to do business in the state, but operating as the parent company in the form of a partnership.

The appellant next submits that the appellee is not a “company” within the meaning of Ark. Stat. Ann. § 73-1901. He argues that the right of eminent domain cannot be granted without statutory authority, and that the statute granting the right of eminent domain must be strictly construed. He contends that “company” must be read to mean “corporation.” And had the legislature intended others besides corporations to have this right, it would have expressly so stated in the enabling legislation.

While we agree with the appellant’s statements on the general principles of statutory authority and eminent domain, we do not arrive at the same conclusion. Basic guidelines for interpretation of statutes provide that we give words their ordinary and usually accepted meaning. Hicks v. Arkansas State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976); Canal Insurance Co. v. First National Bank, Fort Smith, 268 Ark. 356, 596 S.W.2d 709 (1980). When the General Assembly uses words which have a fixed and well ](nown legal significance, they are presumed to have been used in that sense. Fernwood Mining Co. v. Pluna, 138 Ark. 459, 213 S.W. 397 (1919). Black’s Law Dictionary defines “company” as:

Union or association of persons for carrying on a commercial or industrial enterprise; a partnership, corporation, association or joint stock company.

Webster's New World Dictionary defines "company” as:

A group associated for same purpose as to form a commercial or industrial firm.

firm is defined as:

1) a business company or partnership of two or more persons, distinguished from corporation in that a firm is not legally recognized as a person apart from the members forming it.
2) popularly, any business company whether or not incorporated.

It is also settled that it is presumed the legislature in enacting the law did so with the full knowledge of the constitutional scope of its powers and or prior legislation on the same subject. McLeod, Commissioner of Revenues v. Santa Fe Trail Transportation Co., 205 Ark. 231, 168 S.W.2d 413 (1943). Ark. Stat. Ann. § 73-115 (promulgated in 1919) provides for the jurisdiction of the Arkansas Public Service Commission and Arkansas Transportation Commission to extend to and include, among others, pipeline companies. The statute goes on to read:

And for the purpose of this act, and in the construction of this act, every person, firm, association, company, partnership or corporation or other organizations engaged in the operation of any public utility above indicated, shall be deemed to be a company within the meaning of this act.

Ark. Stat. Ann. § 73-1901 is not part of the Act referred to in the above section, but was promulgated after § 73-115 in 1921. Although in construing a statute reference may be had to other laws on the same general subject matter, Sargent v. Cole, Judge, 269 Ark. 121, 598 S.W.2d 749 (1980), we don’t find this argument conclusive in this case. Both statutes deal with the general subject matter of regulation and operation of pipeline companies but regulatory measures could lend themselves to a broader reading, whereas a statute on eminent domain must be read strictly. However, the eminent domain statute was passed within a short time after the definitional statute, it is of the same general subject matter, and the word in question is commonly used in the generic sense. We don’t find this argument dispositive, but we do find it persuasive in reaching our conclusions.

With the above principles in mind as applied to this case we read the word “company” within § 73-1901 to be used in the generic sense. By contrast, to accept the appellant’s contention that we read the word “company” as “corporation” would be a strained interpretation. A forced interpretation for the purpose of extending or limiting the meaning should be avoided. See Hicks v. Arkansas State Medical Board, supra.

Appellant also argues that Art. 12 § 92 of the Arkansas Constitution suggests the right of eminent domain is limited to corporations. We do not read that section with such implied restrictions and to do so would be contrary to our interpretation of the general grant of eminent domain to the state in Art. 2 § 23.

By virtue of our Constitution the State’s right of eminent domain is conceded, and the legislature as the representative of the State’s sovereignty, or the agency to which the legislature has granted the power, has the right to take any kind of private property for public use. Cloth v. Chicago Rock Island and Railway Co., 97 Ark. 87 (1910) and see Eminent Domain 29 CJS § 2, 3. (Emphasis added).

Nor do we agree with appellant’s last argument that the legislature in the first instance has no authority to grant the right of eminent domain to individuals or partners. Although there is authority to the contrary, the legislature may confer on an individual or a partnership the power to condemn private property for public purposes. Eminent Domain 29A CJS § 27; Nichols on Eminent Domain 1 § 3.21[2]. We find the statement in Cloth, supra, to be in harmony with this approach, and our legislature has confirmed its agreement by granting such powers to individuals for public use. See Ark. Stat. Ann. § 76-110; § 35-801.

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

Darrell Hickman, Justice,

dissenting. This is an eminent domain case and the majority is consistent with past judicial approaches which are liberal and approve most claims of the power of eminent domain. The legislation which is the basis of the asserted power of eminent domain is arbitrary at the least, vague at best, and cannot in my judgment be the basis of the proposed condemnation. If the General Assembly intended what has been approved, then it was neglectful of its duty.

What has been approved is that a corporation, a subsidiary in fact of a foreign partnership, has filed articles declaring it has the power of eminent domain. There is no claim by the corporation that it is a pipeline company; indeed, in all candor the corporation declares its purpose is to simply condemn rights of way over Arkansas land and then transfer the property to the foreign interests, that will undoubtedly construct a pipeline. What will happen thereafter can only be speculated upon. My point is that the General Assembly has not passed an act authorizing this pipeline, declaring it in the public interest, defining the conditions under which it can condemn Arkansas land, and limiting or expanding its authority or power in any way. It is a claim for a blank check which has been duly signed by the majority.

Surely somewhere we have gone astray. To begin with, Arkansas recognizes this sovereign right of eminent domain as resting in the General Assembly. At the same time it recognizes “[T]he right of property is before and higher than any constitutional sanctions...” ARK. CONST, art. 2, §§ 22 & 23. Such constitutional provisions allowing the exercise of eminent domain should be liberally construed in favor of the property owner. Delaware, L. & W. R. Co. v. Morristown, 276 U.S. 182 (1927). Both parties concede the only authority the corporation can claim for its exercise of the power of eminent domain is under Ark. Stat. Ann. § 73-1901, passed in 1921 with an emergency clause. It reads in its entirety:

All pipeline companies operating in this State are hereby given the right of eminent domain and are declared to be common carriers, except^pipelines operated for conveying natural gas for public utility service. All gas lines or companies operating within the State who render a domestic or general service to the public in furnishing and sale of gas are hereby required to buy or furnish from the lowest or most advantageous market. Failure to do so shall deprive them of the difference in price between such market and the one of which purchases are made.

It is fundamental that such statutes must be strictly construed in favor of the landower because they are in derogation of the common law. City of Little Rock v. Sawyer, 228 Ark. 516, 207 S.W.2d 30 (1958).

Does this statute mean any corporation can file articles of incorporation with the Secretary of State declaring itself a pipeline company, and then proceed to condemn land, without any limitations or restrictions whatsoever, and then build a “pipeline” for any purpose? Does it mean any corporation claiming to be a “pipeline” company, no matter what will be carried (water to Texas would be a cruel example) has a forehand stamp of approval? Evidently that is so because that is what the majority has approved.

The fault does not lie with the appellee corporation because, no doubt, if it were required to obtain specific authority to build a coal-slurry pipeline it would probably be found to involve a proper public purpose. The fault lies in the historical attitude of the legislature and courts towards the exercise of the power of eminent domain. When this state and country were expanding and developing, “progress,” being deemed wise, was aided and encouraged by a liberal attitude toward the exercise of the power. Precedents, both legislative and judicial, while giving lip service to holding the power in check, actually allowed the power to run unrestrained. No longer can we afford that luxury. Land, trees and water are being rapidly depleted and changed from their natural state; “progress” can no longer be automatically equated with the public good.

At the least it is time to give more than lip service to the law. Rather than construe the constitution and acts of the General Assembly liberally to favor the exercise of the power of eminent domain, as we have done and continue to do, it is time to restrict the exercise of this power as it should have been restricted from the beginning.

The statute in issue, in my judgment, cannot be used by a corporation contemplating building a pipeline because it is too arbitrary and vague. The General Assembly cannot by fiat make any use of property a public use; any attempt to do so arbitrarily can be declared invalid by the courts. Walker v. Shasta Power Co., 160 F. 856 (9th Cir. 1908). In fact, the statute makes no declaration a pipeline is for a public purpose, or defines what kinds of pipelines are for a public purpose.

When a fertilizer pipeline was to be constructed in Arkansas, a specific grant of authority was obtained from the General Assembly. See Ark. Stat. Ann. § 73-1904. At the very least that is the type of legislation I would require for a “pipeline” to use this most powerful legal authority. Otherwise, a private individual or company and not the General Assembly nor the courts, decides when, where, and how the power of eminent domain will be used. That is the ultimate corruption of a power reserved solely for a sovereign state.

Our hands have not been idle in this matter. In Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S.W.2d 1028 (1929), and Southwestern Gas & Electric Co. v. Patterson Orchard Co., 180 Ark. 148, 20 S.W.2d 636 (1920), we did approve, in a sense, the legal approach used by the appellee corporation. And in Starr Farms, Inc. v. Southwestern Electric Power Co., 271 Ark. 137, 607 S.W.2d 391 (1980), we said the Patterson decisions had become a “rule of property,” which is another way of saying we were probably wrong but it is too late to change; but, in those cases the subsidiary was a bona fide electric utility company subject to existing regulations of an Arkansas agency. There is no such control over the subsidiary in this case. It declares its authority; it decides how it will exercise its authority, how much land it will need, and where it will go. That is not to say it will, when operating, be free from regulation, but its use of the power of eminent domain, the central issue in this case, is decided and formulated by it — not the General Assembly.

I would not permit the corporation to proceed under Ark. Stat. Ann. § 73-1901; I would require a specific grant of authority from the General Assembly since that is what the law requires.

Adkisson, C.J., and Purtle, J., join in this dissent.

       All pipeline companies operating in this State are hereby given the right of eminent domain and are declared to be common carriers, except pipelines operated for conveying natural gas for public utility service.

       No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.

       The act may have been passed because a pipeline operating in Arkansas needed a statute to condemn property, hence the emergency clause.


author: Per Curiam.

text:
    Jerry Hardy McCROSKEY v. STATE of Arkansas
    CR 80-151
    644 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983
    Appellant, pro se.

      Steve Clark, Atty. Gen., by; Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner Jerry Hardy McCroskey was convicted of aggravated robbery and sentenced as an habitual offender to a term of 20 years imprisonment in the Arkansas Department of Correction. The Court of Appeals reversed the conviction. McCroskey v. State, 266 Ark. 806, 586 S.W.2d 1 (Ark. App. 1979). He was retried, convicted and sentenced as an habitual offender to a 30 year term. We affirmed. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980). Petitioner now seeks permission to proceed in the circuit court pursuant to A.R.Cr.P. Rule 37.

Petitioner challenges the sufficiency of the evidence on which he was convicted, but insufficiency of the evidence is not a proper ground for postconviction relief. Rule 37 affords a remedy when the sentence in a case was imposed in violation of the Constitution of the United States or of this State or is “otherwise subject to collateral attack.” Rule 37.1. Challenges to the sufficiency of the evidence are a direct attack on the conviction which must be made on direct appeal. As such, the issue is not cognizable under Rule 37. Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974).

The only other allegation raised by petitioner is that the trial court “committed constitutional error” in accepting a stipulation in the second stage of his two-step trial to the effect that he had been convicted of three prior felony offenses. He states that he was not asked if he agreed with the stipulation or whether he was represented by counsel in the prior proceedings. No other evidence of the convictions was entered in the record.

On direct appeal from another subsequent conviction, in which petitioner’s prior convictions were also established by stipulation, petitioner successfully raised this same argument. In that case, we reversed the judgment and remanded the cause for a new trial unless the prosecutor elected to assume the burden of proving at a hearing that petitioner voluntarily and intelligently agreed to the stipulation and that he was in fact represented by counsel in the earlier cases. McCroskey v. State, 272 Ark. 356, 614 S.W.2d 660 (1981). Petitioner apparently expects similar relief even though he now raises the issue in a petition for postconviction relief rather than on direct appeal. Rule 37, however, was not intended to substitute for appeal. Rule 37 does not permit a petitioner to raise questions which might have been raised at trial or on the record on direct appeal, unless the questions are so fundamental as to render the judgment void and open to collateral attack. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Even questions of constitutional dimension are waived if not raised in accordance with the controlling rules of procedure. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981); Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied, 268 Ark. 315, 599 S.W.2d 729 (1980). See also Moore v. Illinois, 408 U.S. 786 (1972). In this Court, contentions not argued by the appellant on first appeal are waived. Collins, supra, citing Sarkco v. Edwards, 252 Ark. 1082, 482 S.W.2d 623 (1972). Even though petitioner asserts that his sentence and judgment are void because of the stipulation, he does not contend that he was not convicted of the prior felonies or that he was not represented by counsel in the earlier proceedings. He does not in fact allege that any undue prejudice arose out of the proceedings. He clearly does not demonstrate that his sentence and judgment are void. Accordingly, he is not entitled to postconviction relief.

Petition denied.


text:
    Robert L. BARTON v. STATE of Arkansas
    644 S.W.2d 272
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

According to the pro se motion for belated appeal before us, petitioner Robert L. Barton filed a pro se petition for postconviction relief under Rule 37 in the trial court. It was denied. The trial court notified petitioner of the denial by letter dated April 28, 1982. The trial court also advised him by letter dated May 5,1982, that his next option was to proceed to the Supreme Court. Nevertheless, “through ignorance of the law,” he sought federal habeas corpus relief rather than filing a notice of appeal to this Court. When the federal court denied relief on the ground that he had failed to exhaust state remedies, he filed this motion for belated appeal.

The motion is denied. Just as a convicted defendant may waive his right to appeal by failure without good cause to file a notice of appeal, a petitioner whose Rule 37 petition is denied may also waive his right to appeal. Petitioner concedes that he was informed by the trial court that his next step was to proceed in the Supreme Court. He has shown no good reason for not doing so.

Motion denied.


text:
    James CLEMONS v. STATE of Arkansas
    644 S.W.2d 272
    Supreme Court of Arkansas
    Opinion delivered January 10, 1983

      Guthrie, Burbank &r Dodson, by: David F. Guthrie, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

James Clemons was convicted and sentenced to a term of ten years for being an accomplice to aggravated robbery. His attorney, David F. Guthrie, gave a notice of appeal but did not file the record within the period allowed. His attorney has admitted that the late filing of the record was a mistake on his part. The error is good cause to grant the motion for a rule on the Clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: George Rose Smith, Justice.

text:
    Mary Ann BOYD and ASHLEY, DREW & NORTHERN RAILWAY COMPANY v. Homer PIERCE et al
    82-180
    644 S.W.2d 927
    Supreme Court of Arkansas
    Opinion delivered January 17, 1983
    [Rehearing denied February 21, 1983.]

      Arnold, Hamilton ir Streetman, for appellants.

      William E. Johnson, for appellees.
   George Rose Smith, Justice.

In 1912 the appellees’ predecessors in title, Arthur Pierce and his wife, signed a printed form of Right of Way Deed conveying to the appellant railway company a 100-foot easement across a 40-acre tract and also an easement or conditional fee in a 200x680-foot strip lying along the north side of the right-of-way easement. The railway company is still using the 100-foot easement for its main line. That easement is not in controversy.

This litigation involves the 200-foot strip. In 1980 the appellees brought this suit to establish absolute title to the strip, on the theory that the railway company had abandoned its estate in part of the strip by conveying that part to the other appellant, Mary Ann Boyd, in 1978, and had abandoned its estate in the rest of the strip by ceasing to use it for railway purposes. The chancellor construed the 1912 deed as having conveyed an easement in the disputed strip. He held that the easement in both parts of the strip had been abandoned and entered a decree sustaining the appellees’ title to the entire strip. For reversal Miss Boyd argues she has title to her part of the strip because it has not been used for railway purposes for more than 50 years. The railway company argues, upon an opposite theory, that its part of the strip has always been used for railway purposes and hence has not been abandoned.

The chancellor’s decision was right. The 1912 printed form of deed conveyed primarily a 100-foot right of way across the Pierces’ 40 acres. Between the granting clause and the habendum, however, the draftsman inserted in longhand, after the description of the 40 acres, the following words: “Also a strip on the north side of said right of way 200 feet wide by 680 feet long____Said grounds to be used only for railroad purposes.” Quite evidently the additional grant was inserted to provide a site for the Fountain Hill depot, which was maintained for many years before the depot bulding was sold to a third person and removed less than three years before this suit was brought in 1980.

We do not see that it makes a bit of difference whether the grant of a limited estate in the 200-foot strip is construed as an easement or as a conditional fee. Under either interpretation the strip was to be used for railroad purposes. As long as any part of it was so used, the Pierce family had no clear-cut right to assert its underlying claim to the property. See Campbell v. Southwestern Tel. & Tel. Co., 108 Ark. 569, 158 S.W. 1085 (1913). Thus the key issues are how long the property was used for railroad purposes and when it ceased to be so used.

There was no physical separation, such as a fence, between the east part of the strip, the “gin lot,” now claimed by Miss Boyd, and the west part, the “vacant lot,” claimed by the railway company. As in any instance of possible hostile possession of land, the Pierces were chargeable with notice of only such claims as were reasonably apparent from the uses being made of the property. The Fountain Hill railway station was on the strip, or on the adjoining right of way, until it was removed in 1977. The cotton gin on the gin lot was built under a lease from the railway company and was served by a spur track. That track was taken up perhaps three or four years before this case was tried. Presumably the lease and spur tract were profitable to the railway company and were arguably for railway purposes within the terms of the 1912 deed. But in 1978 there was a clear abandonment of part of the property for railway purposes, when the railway company conveyed the gin lot to Miss Boyd. After that there was no visible indication that the rest of the property — the vacant lot — was being used for railway purposes. At the trial the railway company produced no proof that it had any immediate or future plan to use the vacant lot in the furtherance of its business. The chancellor was justified in concluding that by 1978 the railway company had permanently abandoned its right to use the property. The Pierces were accordingly entitled to clear their title and regain possession.

The appellees’ request for the cost of a supplemental abstract is denied.

Affirmed.


author: Frank Holt, Justice.

text:
    Jean PEDDICORD v. Gerald PEDDICORD
    82-186
    644 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered January 17, 1983
    [Rehearing denied February 14, 1983.]

      Tripper Cronkhite, for appellant.

      Davidson, Horne, Hollingsworth, Arnold & Grobmyer, P.A., by: Cyril Hollingsworth, for appellee.
   Frank Holt, Justice.

The parties to this lawsuit were divorced in Texas in 1970. The divorce decree incorporated by reference a property settlement that provided, inter alia, that the appellee would make semi-monthly payments to appellant for the remainder of her life or until she remarries. The appellee ceased making these payments in 1973. The appellant obtained judgments in Texas for the arrearages in 1974 and in 1978. The 1974 judgment was affirmed in Peddicord v. Peddicord, 522 S.W.2d 266 (Tex. Civ. App. 1975). She has not obtained satisfaction of those judgments.

The appellant, who is now domiciled in Pulaski County, filed a petition for registration of foreign judgments, pursuant to Ark. Stat. Ann. § 29-801 et seq. (Repl. 1979), in Pulaski Chancery Court on February 19, 1982. A summons and a copy of the petition were sent to the appellee via return receipt mail, and the return receipt bears the signature of the appellee. The appellee did not appear and the chancellor granted the petition. As requested in the petition, the chancellor not only registered the foreign judgments, he also held that the divorce judgment called for periodic payments of alimony under the laws of the State of Arkansas and that garnishment for the arrearages of alimony could issue under the laws of Arkansas.

The appellee receives retirement pay from the United States Navy. After the registration of the Texas judgments, the appellant sought garnishment of the appellee’s retirement pay and a judgment of garnishment was entered against the Department of the Navy on April 19, 1982. On April 22,1982, the appellee appeared specially and moved to have the registration of the foreign judgments set aside and vacated pursuant to ARCP Rule 60 (b) and (c). He also moved for an injunction pendant lite to suspend the garnishment proceedings. The trial court vacated and set aside his prior registration of foreign judgments order, finding that it did not have personal jurisdiction over the appellee and it was not appropriate for the court to construe the Texas property settlement agreement as alimony. The court also vacated and set aside the writ of garnishment. The court, however, ordered the Texas judgments to be registered as judgments quasi-in-rem but refused to construe them as alimony.

The appellant’s first and second arguments for reversal are closely related. She asserts that the chancellor erred in holding that it was not appropriate for the court to “construe” the Texas judgments and that the chancellor erred in setting aside the first order which construed the arrearages to be alimony under Arkansas law. The reason it is important to determine whether the arrearages are “alimony” is that the United States has waived sovereign immunity and consented to be subject to garnishment proceedings for “alimony payments.” 42 U.S.C § 659 (a).

It is undisputed that the statutes and public policy of Texas do not sanction an award of alimony. Francis v. Francis, 412 S. W.2d 29 (Tex. 1967). It is also undisputed that the Texas Court of Civil Appeals has recently ruled the type of settlement presented here is not to be construed as alimony within the meaning of 42 U.S.C. § 659. Shaw v. Shaw, 623 S.W.2d 148 (Tex. Civ. App. 1981). Thus, it appears that the appellant is asking the courts of Arkansas to construe her Texas judgment in a manner that the courts of Texas would refuse and to provide her with a method of enforcing those judgments that would be denied her in Texas. Article IV, § 1 of the Constitution of the United States requires us to accord full faith and credit to the Texas judgments. We are required “to give to the judgments of other states the same conclusive effect between the parties and their privies as is given such judgments in the state in which they were rendered.” Leflar, AMERICAN CONFLICTS LAW § 63 (Third Ed. 1977). We find no authority which requires us to give out-of-state judgments an effect that they would not be given in the state in which they were rendered.

In view of our holding we deem it unnecessary to discuss the other arguments.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Paul RIVIERE, Secretary of State et al v. Joe H. HARDEGREE
    82-287
    644 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered January 17, 1983

      Steve Clark, Atty. Gen., by: Curtis L. Nebben, Asst. Atty. Gen., for appellants.
    Appellee, pro se.

   Darrell Hickman, Justice.

The determinative question to be answered in this case is whether the General Assembly created one or two separate judicial circuits to serve the area of Garland, Polk and Montgomery Counties. The legislation says that one circuit is called the Eighteenth Circuit-East and consists only of Garland County; the other, named Eighteenth Circuit-West, encompasses Polk and Montgomery Counties. While designating these two “circuits,” the General Assembly only made an appropriation for one prosecuting attorney. The Pulaski County Circuit Court held two circuits were created and the constitution requires a separate office of prosecuting attorney for each circuit. The decision was correct.

The suit was tried on a stipulation of facts. Robert “Bob” Ridgeway, a resident of Garland County, Arkansas, was the 1982 Democratic nominee for prosecuting attorney in all three counties. Before 1977, Garland County had been a separate circuit unto itself. Polk and Montgomery Counties had been in the Ninth Circuit. Act 432 of 1977 (Ark. Stat. Ann. § 22-365 [Supp. 1981]) designated anew the various judicial circuits in the entire state. The relevant portion of Act 432 reads:

Eighteenth Circuit-East. The Eighteenth Circuit-East shall be composed of the county of Garland. The qualified electors of the Eighteenth Circuit-East shall elect one (1) circuit Judge and one (1) chancellor to serve the Eighteenth Circuit-East, each of whom shall be a resident of the Eighteenth Circuit-East.
Eighteenth Circuit-West. The Eighteenth Circuit-West shall be composed of the counties of Montgomery and Polk. The qualified electors of the Eighteenth Circuit-West shall elect one (1) circuit-chancery judge to serve the Eighteenth Circuit-West who shall be a resident of the Eighteenth Circuit-West.
The judges of the Eighteenth Circuit-East and the Eighteenth Circuit-West may by agreement temporarily exchange circuits or hold court for each other, as they deem necessary or appropriate.

While there is no mention of the office of prosecuting attorney for either or both circuits, the General Assembly did make an appropriation for one prosecuting attorney in a separate act. Ark. Stat. Ann. § 24-111 (Supp. 1981).

The Arkansas Constitution plainly requires that each judicial circuit be served by a prosecuting attorney. ARK. CONST, art. 7, § 24 reads:

The qualified electors of each circuit shall elect a prosecuting attorney, who shall hold his office for the term of two years, and he shall be a citizen of the United States, learned in the law, and a resident of the circuit for which he may be elected.

Therefore, the critical question the trial court had to decide was whether the legislation created separate judicial circuits. All others questions are necessarily answered. ARK. CONST, art. 7, § 13 reads:

The State shall be divided into convenient circuits, each circuit to be made of contiguous counties, for each of which circuits a judge shall be elected, who, during his continuance in office, shall reside in and be a conservator of the peace within the circuit for which he shall have been elected.

Act 432 provides in unmistakable language that Eighteenth Circuit-East “shall be composed of Garland County,” and that Eighteenth Circuit-West “shall be composed of the counties of Montgomery and Polk.” It could not be made more plain that one “circuit” serves Garland County, another circuit Montgomery and Polk Counties.

However, it is argued that the entire area was intended to be only one circuit. That argument is advanced for three reasons: The Act contains language that provides for exchange of circuits by agreement; the fact that an appropriation was made for only one prosecuting attorney, and the way the General Assembly treated a similar situation in the Ninth Circuit. None of those arguments can outweigh the clear language we have quoted. The statute must be given its plain meaning. Hicks v. Arkansas State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976). In the Ninth Circuit there was also created an “East” and “West” Circuit, and language specifically provided that both East and West would be served by one prosecuting attorney. This language was changed by Act 834 of 1979 to provide for one prosecuting attorney for Nine-West and for Nine-East. The fact a similar change was not made regarding Eighteen East and West is cited as evidence the General Assembly intended to create only one circuit named the Eighteenth Judicial Circuit. We do not have before us any question about the Ninth Circuit and the mere fact the legislation is silent about a prosecuting attorney for the two Eighteenth Circuits is irrelevant. Two circuits were created and ARK. CONST, art. 7 § 24 requires each circuit have an office of prosecuting attorney. This provision is self-executing. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968).

Consequently, the other questions raised are easily answered. Joe H. Hardegree was duly qualified as a write-in candidate for prosecuting attorney in Polk and Montgomery Counties, and received the most votes of any write-in candidate. Although Robert “Bob” Ridgeway from Garland County received far more votes in those counties as the Democratic nominee, he was not eligible to run or serve in those two counties, which are a separate judicial circuit from the one in which Ridgeway resides. Therefore, the trial court was correct in declaring that the Secretary of State must certify Joe H. Hardegree as prosecuting attorney for the Eighteenth Circuit-West.

Affirmed.


text:
    Richard Phillip ANDERSON v. STATE of Arkansas
    CR 82-69
    644 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered January 17, 1983

      William M. Cromwell and Sam Hugh Park, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This is a companion case to Perry v. State, 277 Ark. 357, 642 S. W.2d 865 (1982). Perry was found guilty of capital felony murder and sentenced to death for the murder of Kenneth Staton and Suzanne Ware. Staton owned a j ewelry store in Van Burén, Arkansas, and Ware was his daughter. They were killed when Perry and Anderson robbed the store on September 10, 1980.

Anderson was found guilty of murder in the first degree and sentenced to life imprisonment and a $15,000 fine. The evidence of his guilt was overwhelming, and essentially his defense was evidence in mitigation — that he did not know Perry was going to kill anyone during the planned robbery — and that he could not receive a fair trial. He raises ten arguments of error on appeal, all of which are meritless and we affirm his conviction.

Anderson met a young woman named Chantina Ginn at a carnival in Kansas. Together they followed the carnival to Arkansas and camped at the Horseshoe Bend camping ground at Beaver Lake. Anderson and Ginn were traveling on his 1978 Harley-Davidson motorcycle with Florida license plates. At the campground Anderson and Ginn met Perry who was camped with a woman named Laura Lee. Perry used the name of Damon Peterson. The day after they met, Perry asked Anderson if he wanted to participate in the robbery of a jewelry store in Van Burén, Arkansas. Anderson agreed and they left the campground on September 8, 1981, on the motorcycle. They each had a black motorcycle helmet, carried some rope, and Perry carried a wig. They checked into the Terry Motel in Van Burén, and then Anderson went to Staton’s Jewelry Store located in the Cloverleaf Plaza Shopping Center. On the 10th of September, at about 5:00 p.m., they robbed the store, taking innumerable rings, watches, and other jewelry. Anderson went in first to get the attention of the owner or clerks. Perry then came in the store. Anderson, as instructed by Perry, drew a loaded .38 pistol and held it on Staton; then Perry drew a .22 caliber pistol which had a silencer attached. They led Staton and Ware to a back room, tied and gagged them, and Perry shot them twice in the head. Anderson said Perry told him he shot them because he did not want to leave any witnesses. They gathered the jewelry in lightweight orange duffle bags, took the cash from the register, money from Staton’s wallet and even his wedding ring.

They used Ware’s Suzuki jeep to drive to where the motorcycle was parked. Then Anderson got on his motorcycle and met Perry at an apartment complex. They arrived back at the campground about 9:00 p.m. the third night after they had left. The jewelry and cash were sorted and divided and an attempt was made to burn all the tags and boxes. The police found remnants, however, and the State offered them as evidence. The next day Perry and Anderson went to Rogers, Arkansas, where they traded Perry’s Cadillac for a Plymouth. Then all four went to Fayetteville, stored the motorcycle, two helmets and Perry’s pop-up camper at Fayetteville Self-Service Storage and went to Florida. In Florida Anderson became involved in a fracas involving some shooting, was arrested and released on bond. He jumped his bond and went to Canada. He was arrested in Vancouver, British Columbia, on January 14th, 1981, for suspicion of armed robbery of a bank. After several interviews he eventually told the authorities of the Van Burén robbery and murders. Ultimately he waived extradition and was tried in Fort Smith, Arkansas, beginning on the 6th day of October, 1981. Besides the confession there was an abundance of evidence which supported these facts.

Anderson’s main argument of error focuses on the amount of pre-trial publicity this case received in the Fort Smith-Van Burén area and the fact this publicity permeated the community. He argues that the denial of his request for a continuance made it impossible for Anderson to receive a fair trial by an impartial jury.

There was a good deal of publicity about this case in the local community as we discussed in Perry v. State, supra, and the trial was moved from Van Buren across the river to Fort Smith at Anderson’s request. Also, most of the prospective jurors admitted some knowledge about the murders and knowing the fact that two men were involved. Anderson himself was interviewed on television and said he did not kill anyone. An order was entered preventing him from further interviews during Perry’s trial. The State sought the death penalty against Anderson and so qualified the jury. This meant there was an extensive and prolonged voir dire of veniremen to find a jury that could afford Anderson a fair trial. Anderson’s trial took place one year after the crime, and two months after Perry was tried. The trial court, giving both counsel considerable leeway in questioning the veniremen, made certain that no juror was allowed to be seated who, in its judgment, could not set aside any information he had about the case and fairly and objectively judge and weigh the evidence, rendering a fair punishment if necessary. A considerable lapse of time had occurred since the crime was committed and we can find no reversible error in the denial of the request for the continuance. A defendant is not entitled to a trial before a jury composed of people completely ignorant of the alleged crime. Irvin v. Dowd, 366 U.S. 717 (1961); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. den. 449 U.S. 1057 (1980). That would be virtually impossible in this day and time. People are immediately, graphically, and thoroughly informed of such crimes by radio, newspapers, and television.

The question is always, was the defendant denied a fair trial because of pre-trial publicity; did he have a jury that could give him a fair trial. Swindler v. State, supra. We conclude Anderson received a fair trial by an impartial jury.

When this case is compared to cases cited by Anderson as authority for his argument there is no comparison. The notorious Sam Shappard case is cited as an example. Sheppard v. Maxwell, 384 U.S. 333 (1966). There are few if any similarities between Anderson’s case and Sheppard’s. The first trial of John Edward Swindler which occurred in this same vicinity is hardly comparable, where the trial took place within six months of the killing, and jurors admitted knowing of Swindler’s previous crimes. In Swindler, one juror had worked with the father of the victim for seventeen years; and another juror had worked for the United States Marshal’s office for eight years. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978). None of that is present in this case.

It is suggested the trial judge injected himself into the voir dire process and improperly rehabilitated certain prospective j urors. What happened is that the defense was able to get certain prospective jurors to make statements that might subject them to challenge, if their answers were taken at face value. The judge did nothing improper in this case. In fact, he performed his duty as a trial judge should to see that veniremen understood their role under the law. In Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981), we defined the proper role of a trial judge in such a case:

The judge is supposed to direct the process, being given great discretion to insure that no undue advantage is gained. Sometimes the attorneys tend to take over the voir dire process and confuse the jurors. See Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980). Sometimes, especially in a death case, the judge has to step in, after the attorneys have questioned prospective jurors, to insure fairness. In the case of McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979), for example, we approved the actions of a judge who clarified answers regarding the death sentence after both counsel had questioned a prospective juror. Even so, the judge cannot, in effect, step from the bench and aid either party and he cannot unfairly limit either party’s right to seek twelve people who can render a fair and impartial verdict.

The trial judge did not act improperly in this case.

An extensive effort was made in the jury selection process to know exactly what each prospective juror knew of the case and his inclination toward the death penalty. A study of the record produces no basis on which to find the trial court abused its discretion in allowing a juror to sit or in refusing to disqualify one for cause. There may be room for argument in some instances such as in the questioning of juror Allen Gushea who seemed inclined to prefer the death penalty for "cold-blooded” murder. But that position was clarified by the trial court’s impartial questions. Actually, since Anderson received a life sentence instead of death, and was not convicted of capital murder, but instead only murder in the first degree, most of Anderson’s arguments relating to the jury’s prejudice lose their force.

Anderson also argues that it was error for the trial court to refuse to sequester the jury because of the crime that had occurred in the community during his trial. On appeal we are not told by Anderson what that crime was, or how it could have prejudiced the jury against him. The court agreed to and did admonish the jury against watching, reading, or listening to any news. Whether to sequester the jury is within the discretion of the trial judge. Ark. Stat. Ann. § 43-2121 (Repl. 1977); Perry v. State, supra; Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977).

Anderson’s counsel did ask the court to remove the trial to a site beyond the judicial circuit which is composed of only two counties: Sebastian where Fort Smith is located, and Crawford where Van Burén is located. The trial judge said he could not do that under the present law, and that statement was not entirely correct. If the question is whether a defendant can or cannot receive a fair trial, as required by the fourteenth amendment to the United States Constitution, then conflicting law must give way to a defendant’s right to due process. As we observed in Perry v. State, supra, if the trial court determines a defendant cannot receive a fair trial, then it has the power to remove the case to some county in an adjoining judicial circuit. The trial court made no such determination, and we find on review of the record Anderson did receive a fair trial; that is, he was tried by a jury that met constitutional standards. Therefore, the court’s statement cannot be a basis on which to reverse the conviction; nor do we find that the second motion for a change of venue should have been granted.

Anderson made two statements to Canadian authorities, one in writing and one to a man planted in Anderson’s cell by the authorities. He argues that these statements were inadmissible because the Canadian authorities did not tell Anderson he had a right to an attorney. He argues that he was a frightened foreigner in a strange situation and the statements, if given in the United States, would have been inadmissible and, therefore, they should be inadmissible in the Arkansas case against him. He cites two federal cases which recognize that our law does not prevent a confession in a foreign country from being admitted simply because of lack of procedures dictated by Miranda v. Arizona, 384 U.S. 436 (1966); United States v. Nolan, 551 F.2d 266 (10th Cir. 1977) cert. den. 434 U.S. 904 (1977) and United States v. Heller, 625 F.2d 594 (5th Cir. 1980). In Heller, supra, the fifth circuit court of appeals found two exceptions to that rule: If the foreign authorities were acting as agents for their American counterparts, of which Anderson conceded there is no evidence, or if the interrogation is “shocking.” Of course there is nothing at all in the record in this case that shocks us. There is not even any suggestion Anderson was harmed, threatened or mistreated in any way. So the court properly introduced the statements.

Anderson also argues that his inculpatory statements to Arkansas law enforcement officials, made subsequent to his Canadian statements, should also be suppressed because they were tainted by the illegality of the Canadian statements. We do not find that the Canadian statements were illegal, so the subsequent statements are not. Neither do we find that Anderson did not make a voluntary and knowing waiver of his rights to remain silent and have an attorney present when he made the statements to the United States’ officials. Anderson’s only basis for arguing that the American statements were not voluntary is that he was not told that death was a possible penalty for the crime of which he was suspected. Miranda v. Arizona, supra, does not require such a warning, and we will not expand Miranda by so holding, as Anderson asks us to do.

Photographs, the same as those used in the trial of Perry, were introduced in Anderson’s trial. See Perry v. State, supra. The defendant was charged as one of two defendants in the brutal, senseless murders and the ultimate penalty was sought. The photographs merely showed the bodies of the two victims as they were found after Anderson and Perry left them. They were not so highly prejudicial as to deprive Anderson of a fair trial.

The State solicited from Staton’s widow a statement that Staton had to use crutches and it is argued this was irrelevant evidence used merely to inflame the jury. We cannot say beyond a reasonable doubt this evidence amounted to reversible error. Actually the jury seemed to fairly judge Anderson and accept his statement that he did not know Perry would kill anyone; he was charged with capital felony murder, but only found guilty of first degree murder. Anderson’s approach to his guilt in this matter ignores another possible view of his conduct. Anderson agreed after casually meeting a total stranger to take a loaded gun and rob a jewelry store; he agreed to do exactly what Perry told him, being the first to pull his gun in the robbery. In view of these facts his legal guilt in the murders cannot be diminished by what he conceives as innocence on his part.

We have reviewed the transcript for any other prejudicial errors, as we are required to do, and have found none.

Affirmed.

       ARK. CONST, art. 2, § 10 permits a change of venue only to another county in the same judicial district.


author: John I. Purtle, Justice.

text:
    Marvin Louis AKINS v. STATE of Arkansas
    CR 82-119
    644 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered January 17, 1983

      Richard N. Moore of Dodds, Kidd, Ryan ¿r Moore, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted by a jury of the crime of aggravated robbery, in violation of Ark. Stat. Ann. § 41-2102 (Repl. 1977), and of battery in the first degree, in violation of Ark. Stat. Ann. § 41-1601 (Repl. 1977). He was sentenced to consecutive terms: life imprisonment for aggravated robbery and 20 years imprisonment for first degree battery. On appeal he argues: (1) the trial court erred in not granting a new trial because of a tainted in-court identification by a witness; and, (2) the trial court erred in convicting him of aggravated robbery and first degree battery, both of which arose out of the same conduct.

We agree that the conviction of both offenses cannot stand in view of the provisions of Ark. Stat. Ann. § 41-105 (Repl. 1977). Therefore, the conviction of battery in the first degree and the sentence therefor will be set aside.

Appellant was charged with the offense of aggravated robbery in that he employed physical force upon the victim through the use of a deadly weapon, a pistol. He was also charged with battery in the first degree by use of the same pistol which was employed in committing the aggravated robbery. There is no dispute that the person who robbed the victim shot him while following the same course of conduct which constituted the aggravated robbery. The battery occurred when the victim attempted to use his own pistol to prevent the robbery. The robber and his victim engaged in a shoot-out but only the victim was injured. His injuries were severe and he was hospitalized for a time.

After the conclusion of the trial appellant’s attorney learned from a witness that the deputy prosecuting attorney had called witnesses Richards and Hooks outside the witness room and allegedly exhibited to them a picture of the appellant for the purpose of enabling them to identify the appellant when they testified before the jury. A motion for new trial was made based upon the alleged improper conduct of the deputy prosecuting attorney. A hearing on the motion was held and the deputy prosecuting attorney denied the allegation. Also, witness Richards denied seeing a photograph of the appellant before he testified. During the trial on the merits of the case Hooks had been unable to identify the appellant. Therefore, there is no damage even if he did see a picture of the appellant. On the other hand, Richards made an in-court identification. During his testimony in the trial Richards made inconsistent statements to the jury. The victim also made inconsistent statements and misidentified a photograph of the appellant. Although both Richards and the victim made apparent errors in the identification process, both made positive in-court identifications of the appellant. This was all brought to the attention of the trial court during the hearing on the motion for new trial. The matter of a new trial is within the discretion of the trial court. We do not reverse the decision of the trial court unless appellant can meet the burden of proving that the trial court’s decision was clearly erroneous. Tedder v. Blackmon’s Auctions, Inc., 274 Ark. 241, 623 S.W.2d 516 (1981). In the present case, this burden was simply not met by appellant.

We recognize there has been some confusion in situations where more than one offense was committed during a single course of conduct. Ark. Stat. Ann. § 41-105 (Repl. 1977) reads in part:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the' other, as defined in subsection (2). . .
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(b). . .

We interpret this statute to prohibit multiple sentences when the same conduct results in more than one offense. An accused may be convicted of only one offense when the proof required to prove the offense necessarily included proof of another. The purpose of this statute is to allow a conviction of a lesser included offense when the accused is not convicted of the greater offense. In the present case the appellant was convicted of both the greater offense and the lesser included one. The plain meaning of the words used in this statute provides there may be only one conviction. Since the record clearly establishes a basis for both convictions, we must reverse one of them. The statute makes no provision as to the procedure to follow when there has been more than one finding of guilt resulting from the same conduct. In Wilson v. State, 277 Ark. 219, 640 S. W.2d 440 (1982), we held that the lesser penalty should be set aside in situations such as exist in the present case. We affirm our holding in Wilson and set aside the 20 year sentence and conviction for battery in the first degree.

The information charged battery in the first degree by use of the pistol which was used to commit the aggravated robbery. Therefore, the facts of the present case required proof of thé aggravated robbery, the underlying felony, in the course of proving battery in the first degree which was alleged to have been committed during the course of a felony. Under the informations here in question the greater offense was actually included in the lesser offense. We are not unaware of our decision in Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982), wherein we held that it was possible to commit aggravated robbery without committing first degree battery. In Foster the appellant did not raise the question of lesser included offenses pursuant to Ark. Stat. Ann. § 41-105. The issue raised by appellant Foster was that of double jeopardy. Although we held that aggravated robbery could be committed without committing first degree battery, we have an opposing situation before us here. In the present case the aggravated robbery is actually included in the proof required to sustain the charge of battery in the first degree.

Appellee relies heavily on the case of Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980); cert. denied, 450 U.S. 1043, However, no mention is made of Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982), wherein we granted Rule 37 relief and set aside one of the convictions in the first Rowe case. We agree with the appellee that the present case requires a decision in conformity with the Rowe cases. Since one offense was set aside in Rowe II, we do likewise in the present case.

We have reached the same result in a number of other cases including Swaite v. State, 272 Ark. 128, 612 S. W.2d 307 (1981) . In the case of Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982) , we addressed the issue by stating:

We affirm the conviction and sentence of capital felony murder but set aside the lesser included offenses of kidnapping and aggravated robbery in connection with offenses against Donald Lee Teague. Ark. Stat. Ann. § 41-105 (1) (a) and (2) (a) (Repl. 1977) prohibit the entry of a judgment of conviction on capital felony murder or attempted capital felony murder and the underlying specified felony or felonies.

The line of cases following Swaite and Hill holds that when a criminal offense by definition cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a). Therefore, we set aside the conviction and penalty imposed for first degree battery and affirm the conviction and penalty for aggravated robbery.

Affirmed in part; reversed in part.


author: Robert H. Dudley, Justice.

text:
    CORNISH WELDING SHOP and TRADERS INSURANCE COMPANY v. George GALBRAITH, Employee
    82-236
    644 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered January 17, 1983
    [Rehearing denied February 21, 1983.]

      Brown, Compton ir Prewett, Ltd., by: Floyd M. Thomas, Jr., for appellant.

      Denver L. Thornton, for appellee.

      Adkisson, C.J., would grant rehearing.

   Robert H. Dudley, Justice.

Respondent, George Galbraith, was injured on August 1, 1971 when a piece of steel lodged in his left eye. That same day he sought medical treatment. He was unable to work for a period of five weeks and was paid temporary total disability benefits pursuant to our Workers’ Compensation Act. On October 2, 1971, the object was surgically removed. His ophthalmologist’s report stated “it is possible that this lens opacity may mature later on and the patient would have occupational vision lost left eye.” On May 1, 1972, respondent was paid a lump sum for forty percent permanent partial disability to the left eye. Almost two years later, in February, 1974, respondent suffered the complete loss of sight in the left eye. On February 5, 1975, almost three years after payment of compensation for the permanent partial disability, respondent filed a claim for compensation for complete loss of the eye. The Court of Appeals, in an unpublished opinion, found the inj ury was compensable and remanded the case to the Workers’ Compensation Commission for consideration of the issues of a latent injury and the statute of limitations. Galbraith v. Cornish Welding Shop et al, September 30, 1980. Upon remand the Workers’ Compensation Commission found the claim was filed within the period of limitations and awarded respondent additional benefits for the complete loss of sight in the eye. The Court of Appeals then affirmed the commission. Cornish Welding Shop et al v. Galbraith, 6 Ark. App. 115, 639 S.W.2d 68 (1982). We granted certiorari pursuant to Rule 29 (1) (c) to determine whether there was error in interpreting the applicable statutes. We reverse the Court of Appeals and dismiss the claim because it is filed outside the period for additional compensation.

The statute of limitations at issue is as follows:

Additional Compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of the injury, whichever is greater. . . .

Ark. Stat. Ann. § 81-1318 (b) (Repl. 1976).

It is uncontradicted that the claim was not filed within one year from the date of the last payment of compensation. However, both the Workers’ Compensation Commission and the Court of Appeals held that the claim was brought within two years from the date of the injury.

Arkansas is an “injury state” because we have long interpreted the applicable statutes as meaning that the date of accident and the date of injury are not necessarily the same. Ark. Stat. Ann. § 81-1302 (d), (n) (Repl. 1976); Donaldson v. Calvert-McBride Printing Company, 217 Ark. 625, 232 S.W.2d 651 (1950). Injury means the state of facts which first entitled the claimant to compensation, so that if the injury does not develop until some time after the accident, the cause of action does not arise until the injury develops or becomes apparent. It was upon the concept of a latent injury that the Court of Appeals and the Workers’ Compensation Commission found the claim was filed within two years from the date of the injury. However, there was no latent injury. The respondent knew he was injured on the date of the accident, August 1, 1971. In May, 1972, his ophthalmologist’s report stated that there was a permanent partial disability to the eye and that he might lose occupational vision of the eye. An operation was performed on the inj ured eye. He filed a claim for benefits and was compensated for a permanent partial disability. The injury was patent, at the latest, by May 1972, when the ophthalmologist made his report. From that time forward it was not a latent injury. In Sanderson & Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796 (1949), we said: “[W]hen the substantial character of the injury becomes known, then the claimant must file his claim within a specified period of time, or be barred thereafter by the statute of limitations.” Likewise, this claim for additional compensation in this case is barred because the two year statutory period of limitation from the date of the inj ury expired long before the February, 1975, filing of this claim.

Reversed and dismissed.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    James and Daisy HEFFNER d/b/a HEFFNER CARPET v. Dave Widsom HARROD d/b/a An Attorney at Law
    82-181
    644 S.W.2d 579
    Supreme Court of Arkansas
    Opinion delivered January 17, 1983
    [Rehearing denied February 14, 1983.]

      Law Of fices of Paul Johnson, by: John Lloyd Johnson, Jr., for appellants.

      Wright, Lindsey ¿r Jennings, for appellee.
   Steele Hays, Justice.

James and Daisy Heffner filed suit on May 21,1981 against Dave Widsom Harrod, a lawyer, alleging they had sold $3,546.79 worth of carpet to Harrod’s client, Myers Munnerlyn, a house builder; that when Munnerlyn’s check in payment was returned because of insufficient funds they filed a materialman’s lien; that Harrod wrote to the Heffners on March 29,1977 to say that if they would release their lien he would, as their agent, obtain the money owed them by Munnerlyn from the prospective purchaser; that they relied on written and oral representations from Harrod and released their liens, but were never paid. They alleged that Harrod intentionally deceived them, that he breached a fiduciary duty as a lawyer and agent by collecting the money and refusing to account; that he was guilty of professional misconduct and negligence, of breach of oral and written contracts, and of conversion. They asked for compensatory and punitive damages.

Harrod pleaded the statute of limitations as a defense and moved for summary judgment, which the court granted with respect to any cause of action to which a one year, two year or three year statute of limitations would apply, finding that the Heffners stopped relying on the alleged representations of Harrod as a matter of law prior to May 25,1978 when they retained a lawyer to recover the money. The court denied summary judgment with respect to the claim of breach of a written contract and held the Heffners would be permitted to introduce evidence relevant to all claims raised by their pleadings, that the case would be submitted to the jury on special interrogatories to enable the court to determine whether the case sounded in contract or in tort and if in tort, the Heffners would be barred from the recovery of damages.

The Heffners have raised a number of issues on appeal and argue that Harrod is estopped from asserting the statute of limitations as a defense. However, we do not reach the merits of these issues, as we find the appeal to be premature for the lack of a final order, a jurisdictional requirement which we are obliged to raise even when the parties do not. Arkansas Savings and Loan Association v. Corning Savings and Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972), McConnell v. Sadie, 248 Ark. 1182, 455 S.W.2d 880 (1970).

Here, the court did not dismiss the parties from the court, nor discharge them from the action, nor conclude their rights to the subject matter in controversy. It did, acting on the motion for summary judgment, make findings of fact and conclusions of law which narrowed the issues raised by the amended complaint, but whether error occurred is subject to later review, when and if the case is appealed. The trial court did not grant summary judgment in the whole case, but simply determined what it thought to be the controverted issues and continued the case for a jury trial. This procedure is contemplated by ARCP Rule 56 (d) and is not the equivalent of a final determination of the case so as to constitute an appealable order.

We have said frequently that in order for a judgment to be appealable it must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy. Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S.W.2d 937 (1966), Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943). This attempted appeal illustrates the reason for the rule that an order must be final to be appealable: if this appeal were allowed and these preliminary issues reviewed, the case would necessarily be remanded for trial and if subsequent errors occurred, or were alleged, the case could be appealed a second time, resulting in two appeals where one would suffice. See Rule 2, Arkansas Rules of Appellate Procedure.

In McConnell v. Sadie, supra, we said:

Cases cannot be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may be taken, but not before. McPherson v. Consolidated Casualty Co., 105 Ark. 324, 151 S.W. 283 (1912).

In Arkansas Savings and Loan Association v. Corning Savings and Loan Association, supra, we said:

We have also said that an appeal will not lie from an interlocutory order relating only to some question of law or matter of practice in the course of the proceeding leaving something remaining to be done by some court having jurisdiction to entertain the same and proceed further therewith. Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967).

We take this opportunity to point out that the trial judge may well have intended his order to be tentative rather than final, as he made express provision for the introduction of evidence in trial “relevant to all claims for relief stated by the plaintiffs”, which we think is consistent with the wording of ARCP Rule 54 (b), which reads in part:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims ... shall not terminate the action as to any of the claims .. .and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties, (our italics).

Note 2 of the Reporter’s Notes to Rule 54, provides:

2. Under FRCP 54 (b), the practice is to wait until all claims have been finally determined before entering judgment on any particular claim. The purpose is to prevent piecemeal appeal while portions of the litigation remain unresolved. There may be situations, however, where a particular claim should be finally determined before the entire case is concluded. Accordingly, the trial court may direct the entry of a final judgment on fewer than all claims involved upon the express determination that there is no good reason for delay. Thus, a party will always know whether a judgment in a Rule 54 (b) situation is ripe for appeal. Unless this determination has been made by the trial court, there can be no appeal. RePass v. Freeland, 357 F.2d 801 (C.C.A. 3rd, 1966); Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (C.C.A. 6th, 1973).

The trial court made no such finding and the order is not final and not appealable; it is subject to revision at any time prior to final judgment.

Appeal dismissed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority opinion. The appeal was dismissed because the majority decided that the order was not appealable. The appeal resulted from the action of the trial court in granting a summary judgment in favor of the appellee. The trial court dismissed the appellants’ claims for damages against attorney Harrod based on tort and contract.

Both attorneys involved in the appeal agreed that the appeal was based upon an appealable order. Nevertheless the majority reached outside the abstract and briefs and decided the order was not appealable. It seems to me that important aspects to be considered in reaching a decision are the Rules of Appellate Procedure which this court promulgated and adopted. Rule 2 reads in part:

(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court;
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;
3. . . .
4. An order which strikes out an answer, or any part of an answer, or any pleading in an action;

It appears to me that Rule 2 plainly allows an appeal in the present case from the action of the trial court in dismissing appellants’ claims against attorney Dave Wisdom Harrod based upon tort or contract. The trial court’s decision and the majority decision today mean that appellants cannot present evidence that Harrod converted money to his own use which was paid to him to be delivered to the appellants. They may not even be able to argue that the attorney’s letter of March 29,1977 amounted to a contract in writing upon which they relied. We have held many times that a summary judgment, beingan extreme remedy, should only be granted when it is clear there is no issue of fact to be litigated. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89(1979). In the present case it is my opinion that there are factual matters upon which reasonable people could reach opposite decisions. I think the appellants should be granted a full opportunity to present their claims that an attorney has misappropriated their money. However, the majority opinion will allow the case to be tried without the right of the appellants to present any evidence that the attorney is responsible in either tort or contract except by proffer. When the case comes to us on the next appeal, I hope we will decide that this material constituted proper evidence and at that time reverse the case and return it for a new trial. Had we reached the merits of the present argument it would not be necessary to have the issue before us on a second appeal.