author: CaRletoN Harris, Chief Justice.

text:
    Paul D. BOWSHER v. Tom F. DIGBY, Judge
    5-4393
    422 S. W. 2d 671
    Opinion delivered January 8, 1968

      Harry E. McDermott Jr., for petitioner.

      Darrell Dover, for respondent.
   CaRletoN Harris, Chief Justice.

This litigation relates to the constitutionality of Act 101 of the Arkansas General Assembly of 1963 (Ark. Stat. Ann. § 27-2501 through 27-2506 [Repl. 1962]). Rector-Phillips-Morse, Inc., hereinafter called Rector, instituted suit in the Pulaski County Circuit Court (3rd Division) against Paul D. Bowsher, petitioner herein, asserting that it was a licensed real estate broker, engaged in the business, inter alia, of selling land belonging to others for a commission. The complaint alleged that Bowsher, a resident of the state of Ohio, was the owner of certain lands lying in Pulaski and Perry Counties, and that Bowsher had authorized the plaintiff to sell this land, and had agreed that if an offer were obtained for an option to purchase at a price not less than $100,000.00, petitioner would accept the offer, and grant the option “provided that the option would not be for more than six (6) months and further provided that defendant would receive at least $3,500.00 consideration for the granting of the option to be his whether or not the option was exercised.”

The complaint further asserts that the plaintiff obtained an offer in compliance with these requirements, and submitted same to petitioner, but that he refused to accept the offer, and had since conveyed the property to a third party, thereby breaching his agreement with Rector. The prayer sought a judgment in the amount of $10,000.00, or whatever amount the proof might reflect it entitled to under its contract. A copy of the complaint and summons was sent by the sheriff of Pulaski County to Bowsher in Ohio by way of certified mail in compliance with the statute, heretofore mentioned. Thereafter, Bowsher appeared specially for the purpose of challenging the jurisdiction of the court of his person under the service of said summons, and he prayed that the service be quashed. Rector filed its response, contending that the court had personal jurisdiction under the statute here in question, because of Bowsher’s ownership of the real estate. Subsequently, Bowsher replied, contending that the application of the statute was unconstitutional under the due process and equal protection clauses of the state and federal constitutions, it being his position that the mere ownership of land was not sufficient to give a court jurisdiction of a cause of action allegedly arising out of that ownership, without there being other contacts, or business transactions, within the state. On hearing, the court overruled Bowsher’s motion, and directed him to plead further. Thereafter, Bowsher filed his petition for writ of prohibition wherein we are requested to prohibit the Pulaski Circuit Court from proceeding further in this cause. The question, therefore, which confronts us is whether, under the facts set out in the complaint, the Pulaski Circuit Court has personal jurisdiction of the non-resident defendant.

The pertinent portion of Section 27-2502 provides as follows:

“1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person ’s
(a) transacting any business in this State;
(b) contracting to supply services or things in this State;
(c) causing tortious injury by an act or omission in this State;
(d) causing tortious injury in this State by an act or omission outside this 'State if he regularly does or solicits business, or engages in any other persistent course of conduct in this State nr derives substantial revenue from goods consumed or services used in this State;
(e) having an interest in, using, or possessing real property in this state; or
(f) contracting to insure any person, property, or risk located within this State at the time of contracting.
2. When jurisdiction over a person is based solely upon this section, only a (canse of action) (claim for relief) arising from acts enumerated in this section may be asserted against him. ”

The instant action is not based in any wise upon a theory of jurisdiction arising from Subsection (a), but respondent relies entirely on Subsection (e). We agree that prior to the passage of Act 101 of 1963, known as the long-arm statute, the court would not have had any jurisdiction over the petitioner under the ground herein asserted;.it would have been necessary to establish that the petitioner was doing business in the state of Arkansas. Petitioner’s argument is that the constitution guarantees immunity from a suit in a foreign state unless the non-resident has established minimal contacts within the state, and the ownership of land, standing alone, is not sufficient to grant jurisdiction.

Apparently, at least three other states, Illinois, Wisconsin, and Pennsylvania, have passed long-arm statutes ■ which bear a provision comparable to our own Subsection (e), though it appears that the Pennsylvania statute covers only actions for physical injuries arising from the property. Our own statute is quite similar to that of Illinois. One case has been reported. Petitioner says:

“There have been no reported cases in any state, including these three states, where a Court has held that the bare ownership of real estate is sufficient to give Court jurisdiction.”

It is contended that the Illinois case of Porter v. Nahas, 182 N. E. 2d 915 (1962), cited by respondent, is not in point because of the difference in the facts. There, the owner of a Chicago apartment building sued former tenants to recover damages alleged to have been occasioned by the tenants ’ use of the apartment in violation of the terms of the lease. Personal service was had on the defendants in New York. The defendants appeared specially, and moved to quash the service of summons, and the trial court upheld the defendants ’ position, and granted the motion. On appeal, the Appellate Court of Illinois, First District, Second Division, reversed the trial court, stating:

“* * * We think that the cause of action comes within Sec. 17 (1) (c) which embraces all causes of action arising from ‘the ownership, use, or possession of any real estate situated in this State.’ The complaint alleges that the defendants were in ‘possession’ of an apartment on the first floor of plaintiff’s building in Chicago for four years under the terms of a two-year lease, which was renewed for an additional two years, that on its termination defendants surrendered possession of the apartment in badly damaged condition in violation of their express obligation under the lease to return the premises in as good condition as received, and that plaintiff has the right to recover the damages thereby suffered and attorney’s fees.

“It is to be noted that the requirements for jurisdiction are in the disjunctive. Section 17 (1) (c) applies if any one or more of the three grounds for jurisdiction exists, namely, ‘ownership,-’ ‘use’ or ‘possession.’ A tenant under a lease of real estate is in possession and using the real estate.”

Here, though petitioner has not lived in this state (which, appellant says, distinguishes the instant case from Porter), he does own real property within the boundaries of Arkansas, and it seems logical to presume that he has paid real e'state taxes, and, as pointed out in the brief for respondent, undoubtedly looked to Arkansas law and our courts for the protection of his interest in this property. Quite a lengthy article appears in Volume 73, Harvard Law Be view (1959-60), on “The Due Process Clause and Personal Jurisdiction.” Included in this article is a short discussion which is pertinent to the instant case, and which is found at Pages 947-48, as follows:

“The ownership, use, or possession of real property has, in a few states, been treated by statute as a sufficient basis of jurisdiction in personam for certain actions related to the property. Decisions under such a statute have been reported only in Pennsylvania, where the statutory provision covers only actions for physical injuries arising from the property. The Pennsylvania law is thus nothing more than a limited single-act tort statute. Presenting more constitutional difficulty is a statute like that of Illinois, which allows the property right to he a sufficient basis of jurisdiction for any action related to the property. Such a generalized provision would, however, also appear to be constitutional, even in the extreme situation in which a nonresident owner and another non-resident contract outside the state with respect to the property, because of the state’s recognized interest in the title to land within its borders in addition to the defendant’s substantial relationship with the state.”

While the validity of the Illinois statute has not been before the United States Supreme Court, that court has furnished guidelines to be followed in the constitutional exercise of personal jurisdiction over non-residents. We refer to the cases, inter alia, of International Shoe Co. v. Washington, 326 U. S. 310 (1945), and McGee v. International Life Ins. Co., 355 U. S. 220 (1957) In International Shoe, it was held that a course of activity, consisting merely of the solicitation of business by salesmen, admittedly less than the doing of business in Washington, was sufficient to enable that state to subject the foreign' corporation to personal jurisdiction based on constructive service. The court said that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

In McGee v. International Life Insurance Company, supra, a resident of California was issued a policy of insurance by a foreign insurer. Upon his death, the beneficiary was successful in a suit in California against tlie defendant, a Texas insurance company, (which, had assumed the obligation of the original insurance company). The company was not served in California, and the jurisdiction of the California court was based on a state statute subjecting foreign corporations to suit in that state on insurance contracts with residents of California, even though such companies could not be served with process within the borders of the state. A judgment was obtained, and subsequently, the beneficiary instituted suit on the California judgment in a Texas state court, but was denied relief on the ground that the California judgment was void under the Fourteenth Amendment because of lack of service upon the company within California. The Court of Civil Appeals of Texas affirmed, but the United States Supreme Court reversed the decision, holding that the service had been sufficient for the purpose of the due process clause, and that the beneficiary’s suit had been based upon a contract which had substantial connection with California.

Let us now turn to our own court decisions. In American Farmers Insurance Company of Phoenix, Arizona v. Thomason, Guardian, 217 Ark. 705, 235 S. W. 2d 37, Dr. Robert A. Leñar, Distinguished Professor of Law (at that time an Associate Justice of this court), mentioned that, following the holding in International Shoe, a statute, Act 347 of 1947, Ark. Stat. Ann. § 27-340 (1947), providing for service in Arkansas on this theory, was enacted by the General Assembly. This court passed upon this statute in the case of Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240, holding that Act 347 was not intended to change the rule concerning the breaking of the' journey of interstate shipments as announced in earlier cases. Less than three months later, this court, in Chapman Chemical Company v. Taylor, et al, 215 Ark. 630, 222 S. W. 2d 820, held that service on the appellant, a foreign corporation under the provisions of Act 347, was valid. Some confusion resulted, it appearing that possibly the two cases were somewhat in conflict, and in Aldridge v. Marco Chemical Company, 234 Ark. 1080, 356 S. W. 2d 615, we held service good on Marco Chemical Company, a foreign corporation by virtue of service under Act .347, and, as to any conflict between Rodgers and Chapman, added:

“* * * While we think the facts in this case are distinguishable from the facts in the Rodgers case, we do not predicate, nor base this opinion, upon that premise. Actually, we are of the view that the Chapman case, in effect, overruled the Rodgers case, though it did not specifically so state. Therefore, as a matter of removing all doubt, we explicitly state that the Rodgers case can no longer be relied upon as authority for foreign corporations to evade the jurisdiction of our courts- in factual situations similar to the one at bar.”

It is thus clear that this court has taken the liberal view.

Appellant asserts that Act 101 is discriminatory as between residents and non-residents, and is therefore unconstitutional. In his brief, he states:

“* * * This alleged cause of action is transitory against a resident. It can be brought in any county in which the defendant resides or can be found. However under this new long-arm statute the bare ownership of land in any county gives any other county in the state jurisdiction. Thus this suit could have been brought in any county in Arkansas.”

Appellant then cites the case of Forsgren v. Gillioz, 110 F. Supp. 647, an action based on contract, wherein Judge Miller stated that a construction of Act 347 of the General Assembly of 1947 (heretofore discussed), which would render it applicable to contract actions would be unconstitutional because it would discriminate between residents and non-residents as to venue. Of course, this holding by the learned federal judge related only to our earlier act, and, in fact, was rendered ten years before the passage of Act 101. Subsection (E) of Section 1 of Act 10,1 sets forth a method for the forum to comply with any objection as to venue which a nonresident might have, by providing that when the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just. In the instant litigation, it would appear that the action was commenced in the logical county, for it was brought in Pulaski County, where a part of the land in question is located. While the site of the action is not controlled by Ark. Stat. Ann. § 27-609 (Repl. 1962), since it is not an action for the recovery or partition of real property, for an injury to real property, or for the sale of such property under a mortgage, lien, or other encumbrance, the cause is based on a purported transaction arising out of the ownership of real estate partly located in Pulaski County. It may be that petitioner will be somewhat inconvenienced by having to defend an action at any place other than his home county in Ohio, but it would. not appear that he will be any more inconvenienced by being made a defendant in Pulaski County than if he were made a defendant in any other county in the state. As Justice Oliver Wendell Holmes stated in his dissent in Power Manufacturing Co. v. Saunders, 274 U. S. 490 (1927):

'‘In order to enter into most of the relations of life people have to give np some of their constitutional rights. If a man makes a contract he gives up the constitutional right that previously he had to be free from the hamper that he puts upon himself.* * *

“ * * * A foreign corporation merely doing business in the state and having its works elsewhere will be more or less inconvenienced by being sued anywhere away from its headquarters, but the difference to it between one county and another is likely to be less than it will be to a corporation having its headquarters in the state.”

Petitioner also asserts that the subsection here in question is unconstitutional under the Declaration of Eights, Article 2 of the Constitution of Arkansas, asserting that that subsection is in conflict with Sections 2, 3 and 8. Section 2 provides that all men are created equally free and independent, and have certain inherent rights, among these being the acquirement, possession and protection of property. Section 3 states that all persons are equal before the law, and Section 8 deals with criminal charges (not involved in this litigation). We find no merit in this contention.

Summarizing, petitioner owns real estate in this state. He depends upon the laws and courts of Arkansas for protection of this property and his rights therein. He allegedly entered into a contract relating to this particular property. Arkansas has an interest in providing an effective means of redress for its residents against persons or corporations outside the state who allegedly have violated a contract relating to this realty. Many times, necessary witnesses will be found in tbe locality of the party alleging a breach. While there may be inconvenience to petitioner in defending the suit in this state, there would be as much inconvenience to respondent in bringing the action in Ohio.

Writ denied.

FoglemaN, J., not participating.

      It will be noted that this language, though not identical in wording with our Subsection (e), has the same meaning and effect.

        Porter v. Nahas, supra, was decided subsequent to the publication of this article.

      In Hanson v. Dencka, 357 U. S. 235 (1958), the court held that a Florida state court lacked in personam jurisdiction over a foreign trust company, because sufficient contacts were not established by the evidence.

      The court held that, as to personal injury and personal property damage actions, the act was constitutional, since it provided substantially-.the same venue provisions to non-residents as are applied to residents. This decision was rendered in’ March, 1953, and in November, 1953, our court, in Hot Springs School Dist. No. 6 v. Surface Combustion Corp., 222 Ark. 591, 261 S. W. 2d 769, held that Act 347 (Sections 2 and 3) applies to actions on contact in certain instances.

      It. also appears that Rector-Philíips-Morse, Inc., has its place of business in Little Rock, Pulaski County. This fact is mentioned in' respondent’s brief, and is not disputed by petitioner. However, the pleadings do not, apparently through oversight, reflect this particular fact, and it is accordingly not considered in reaching our conclusions.

      The question, of whether the ownership of real property in this state is sufficient to confer personal jurisdiction in an action not related to any transaction concerning such real estate is not at issue in this cause.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    FARMERS COOPERATIVE ASSOCIATION, INC., v. Perry PHILLIPS
    5-4434
    422 S. W. 2d 418
    Opinion delivered January 8, 1968

      Crouch, Blair & Cypert, for appellant.

      Little, Enfield & Lawrence, for appellee,
   George Rose Smith, Justice.

On February 25, 1964, tlie parties to this suit executed a written contract under which Phillips was to grow broilers for the Co-op during the remainder of the calendar year 1964. Phillips brought this action upon the theory that the Co-op had violated the contract by failing to supply him with a batch of 40,000 baby chicks in early October. Phillips asserted that he was unable to obtain chicks elsewhere until December, so that he lost the profits he would have made upon one batch of chickens. Other facts are stated m our opinion on the first appeal and need not be repeated here. Farmers Cooperative Assn. v. Phillips, 241 Ark. 28, 405 S. W. 2d 939 (1966). The second, trial resulted in a verdict and judgment for Phillips in the sum of $1,442.80.

For reversal the Co-op first argues that it was entitled to a directed verdict, on the twofold ground that there was no substantial evidence that it had breached the contract and that Phillips failed to adduce competent proof of the amount of his damages.

There are two answers to this contention. First, our prior opinion became the law of the case and is controlling upon this appeal even though we should now think it to have been erroneous (which we do not imply). United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43, 195 S. W. 392, 1 A. L. R. 1259 (1917). In that opinion we held that the complaint stated a cause of action, which necessarily means that the Co-op was under an implied obligation to furnish chicks in October. Hence the jury could find that its failure to do so was a breach of the agreement. On the matter of damages, Phillips testified that he would have received about $1,-800 for the missing batch of chickens and that his only expense would have been a monthly electric bill of from $25 to $30. That detailing of his expenses supplies the proof that was absent on the first appeal. Upon the issue of Phillips’ duty to mitigate his damages we need only point out that the burden Of proof was upon the Co-op, whose evidence at most raised a jury question about Phillips’s ability to obtain chicks elsewhere. Williams v. Hildebrand, 220 Ark. 202, 247 S. W. 2d 356 (1952).

Secondly, the Co-op moved for a directed verdict at the close of the plaintiff’s case, but it did not renew the motion when it completed its own proof. In that situation the asserted error was waived. Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S. W. 2d 306 (1963).

Next, it is argued that the court should have allowed the Co-op to prove that under the custom prevailing in the trade a grower such as Phillips was not bound by a contract like the one in issue. That proof was rightly excluded. A custom may be shown to explain an ambiguity, but it cannot be invoked to defeat the express terms of the contract. Batton v. Jones, 167 Ark. 478, 268 S. W. 857 (1925). Obviously a party to what appears to be a binding contract cannot be permitted to show that by custom other parties to similar contracts have considered them to be of no binding force.

Much the same reasoning applies to the Co-op’s final contention, that the court erred in refusing its offer to prove that it was not uncommon for a supplier of baby chicks to go for as much as twelve weeks without being able to furnish chicks to its growers. That testimony was not relevant. By the law of the case the Co-op was bound to supply Phillips with baby chicks. Proof that other suppliers had at times been unable to perform their contracts would not justify the jury in concluding that in this case the Co-op should be excused from doing what it had agreed to do, to Phillips’s damage.

Affirmed.


author: Lyle Brown, Justice.

text:
    Thomas JOHNSON Jr. v. STATE of Arkansas
    5327
    422 S. W. 2d 417
    Opinion delivered January 8, 1968

      James D. Storey, for petitioner.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for respondent.
   Lyle Brown, Justice.

The petitioner, Thomas Johnson Jr., is serving a ten-year term in a federal penitentiary, having 'been convicted in January 1966. At the time of that conviction there were several felony charges pending against him in the Pulaski Gounty Circuit Court. He filed a pleading in the circuit court on May 6, 1966, asking that he be given a trial on the charges there pending. No action has been taken on his petition and Johnson asks here that the trial court be directed to dismiss the charges and remove the detainer filed against him with the federal authorities.

Under the authority of Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S. W. 2d 162 (1955), petitioner is entitled to relief. Two full terms of the Pulaski Circuit Court have elapsed since petitioner made his request for a trial. During that period the prosecuting attorney did not see fit to institute proceedings calculated to effect Johnson’s return for trial. The State’s right to prosecute has expired.

Respondent urges that Johnson’s petition to the trial court was not a petition for trial. The handwritten petition was headed “Motion for writ of Habeas Corpus Ad Prosequendum.” Technically, he should have petitioned for a writ, of procedendo ad, judicium. Given a literal interpretation, the title of his motion indicated that he was asking for a writ to issue to remove him to Pulaski ¡County so he could be prosecuted. Furthermore, in the text of his motion, he asked that a writ be issued “granting him an immediate transfer to Little Rock, Ark., for the purpose of a fair and speedy trial.” The intent of the petition is clear.

The petition is granted. Johnson is entitled to a dismissal of the charges and a recall of the detainer filed with federal authorities, all arising from cases numbered 63718, 63719, 64268, 64308, and 64471.


author: J. Fred Jones, Justice.

text:
    Georgea Black McKINLEY v. Harlan H. HOLLEMAN et al
    5-4429
    422 S. W. 2d 665
    Opinion delivered January 8, 1967

      George E. Pike, for appellant.

      McKnigkt & Blackburn, for appellees.
   J. Fred Jones, Justice.

The appellant, Georgea Black McKinley, owned a large tract of land in Jefferson County and in February 1964 sold it to M & H Farms, Inc. for $850,000.00. The sum of $150,000.00 on the purchase price was paid in cash. A note was executed for the balance of the purchase price in the amount of $700,000.00, a deed was executed and delivered and a lien was retained in the deed to secure the payment of the balance of the purchase price according to the terms of the note, as follows:

“On or before the first day of March 1965, 1966, 1967, 1968, 1969, the sum of Fourteen Thousand and No/100 Dollars ($14,000.00), being interest on the principal sum of $700,000.00 purchase money indebtedness computed at the rate of 2% ; On or before the first day of March of the- year 1970, the sum of 2% of the principal indebtedness, together with interest on the unpaid principal computed at the rate of 5%% per annum, and on or before the first day of March of the years 1971, 1972, 1973, 1974, 1975, 1976, 1977, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988 and 1989, alike sum of 2% of the principal indebtedness plus interest as shall have accrued from the last balance of principal indebtedness computed at the rate of 5%% per annum, with the remaining indebtedness and accrued interest becoming due and payable on or before the first day of March, 1990. All installments of principal and/or interest not paid when due shall bear interest after due date at the rate of 10% per annum, the entire debt becoming due and payable at once in the event default continues for a period of sixty days. It is expressly stipulated and agreed that the amounts payable above have been stipulated based upon the present cost of living index as generally published in. the Federal Reserve Bulletin issued- by the Federal Board of Governors of the Federal Reserve System of Washington; and commonly known as the Bureau of Labor Statistics Index of Consumer Prices, and at the time of payment of any amount of principal herein named, the seller shall increase the installment payment by the same percentage as the cost of living index has increased from the date of delivery of the deed until payment of the installment of principal. This procedure shall be continued throughout the term used for collection of the installment payments. In the event the cost of living index decreases, the installment payments shall be binding in a lesser amount; this agreement being binding upon the parties hereto, their administrators, heirs and assigns.
“This note is payable on or before due date with interest computed on the deferred balances until date of payment.”

In May 1965, M & H Farms, Inc. entered into a contract to sell the land to Jack Osborn et al for more than twice the amount M & H paid for it. M & H Farms, Inc. was subsequently dissolved and the assets, including title to the land purchased from Mrs. McKinley, were vested in appellees as stockholders in M & H Farms, Inc. At the closing of the sale to Osborn et al, appellees attempted to pay the entire balance of the note to Mrs. McKinley and a dispute arose between Mrs. McKinley and appellees as to the terms of the promissory note. It was appellees’ contention that $700,000.00 plus accrued interest was the balance owed, and Mrs. McKinley contended that an additional sum of $47,-402.59, representing the increase in the consumer price index, figured on the entire balance of the $700,000.00, was due in addition to the $700,000.00 balance on the note.

By agreement of the parties, this $47,402.59 was paid into an escrow account subject to disposition under court decree following judicial construction of the provision of the note, and by agreement, the sale to Osborn et al was completed. In construing the provisions of the note, the chancellor found as follows:

“ [T]hat the Cost of Living Index provision contained in the Offer and Acceptance, Installment Promissory Note, and Warranty Deed was not intended to apply to the pre-payment of the entire purchase price nor would it have been applicable until the first day of March, 1970, the date the installment payments were to commence; that the Cost of Living Index provision was not intended to provide an increase or decrease in the total purchase price of the property but was intended to provide only the method of payment of the installment principal payments coming due in March of the year 1970 and thereafter; that since the provision is not applicable under the facts of the case no ruling is necessary concerning the validity of the Cost of Living Index provision as contained in the instruments; that the escrow fund held by the First National Bank of DeWitt, Arkansas, under the Escrow Agreement, should be delivered by the bank to the Plaintiffs; and that the parties to this litigation should pay their own expenses.”

The chancellor held that the promissory note had been paid in full and directed the First National Bank of DeWitt, as escrow agent, to pay the escrow account to appelleés. On her appeal to this court Mrs. McKinley relies on the following points for reversal:

“The court erred in the ruling that the cost of living index provision contained in the offer and acceptance, installment promissory note and warranty deed was not intended to apply to the prepayment of the entire purchase price.
“The court erred in the ruling that the cost of living index provision was not intended to provide an increase or decrease in the total purchase price of the property, but was intended to provide only the method of payment of the installment principal payments coming due in March, 1970 and thereafter.
“The court erred in the ruling that under the facts of this case the cost of living index provision is not applicable as contained in the instruments.”

The question presented in this case is clearly pne of interpretation of the meaning of the language used in the offer and acceptance contract as carried forward in the provisions of the promissory note and deed of conveyance. We are of the opinion that the language used is susceptible of no other logical interpretation than that given to it by the chancellor, and that the decree of the chancellor should be affirmed.

This property was under a five year lease when it. was sold to M & H Farms, Inc. and the lease was assigned to M & H. The note is clear that only interest at 2% of the $700,000.00 principal indebtedness and amounting to $14,000.00 per annum, was to be paid for the first five years. The note is also clear that beginning on or before March 1, 1970, the payments of 2% were to continue but were to be applied on, and credited to, the principal indebtedness instead of interest, and the interest rate was to increase from 2% to 5%% per annum on the unpaid balance. There is no question that the principal indebtedness, at all times referred to, was $700,000.00.

The amount of payment on principal- which was to begin on or before March 1, 1970, was not only designed to produce a steady annual receipt of payment on principal for a period of twenty years, but was designed to produce payments that would have the same purchasing-power that $14,000.00 had at the inception of the transaction. In an attempt to accomplish this purpose, the note provided as follows:

“The "seller shall increase the installment payment by the same percentage as the cost of living index has increased from the' date of delivery of the deed until payment of the installment of principal. This procedure shall be continued throughout the term used for collection of the installment payments. In the event the cost of living index decreases, the installment payments shall be binding in a lesser amount.” (Emphasis supplied.)

It is obvious,, that except for possible changes in the consumer price index,, the annual payments on principal at 2% of the principal indebtedness would have remained constant at $14,000.00 each year for the twenty year period from 1970 until 1990 when the balance of $420,000.00 with interest at 5% 7° on tnat amount for one. year, would have become due and payable. In the event, however, that the consumer price index should change or fluctuate during the twenty year period the payments on principal were being made, the "annual payments on principal would not have remained constant at 2% of the principal indebtedness of $700,000.00. In the event of change in the consumer price index, the percentage of such change would be added to, or subtracted from, the 2% or $14,000.00 annual payments on the principal indebtedness, thereby insuring that the comparatively small payments on the principal over the years would at all times have the same purchasing power as $14,-000.00 had when the note was executed. The 5%% interesl raté on the remaining' balance remained the same throughout, and is not involved here.

It is difficult to imagine how the parties could have set out their intentions any plainer than was done in this note. Installment payments are referred to throughout. There are only two items making up the “installments payments.” (1) The 2% of the principal indebtedness amounting to $14,000.00 each year unless increased or decreased by a change in the consumer price index. (2) The interest as shall have accrued from the last bal: anee of principal indebtedness computed at the rate of 5%%• It would, therefore, appear that the installment payments of 2% of the principal indebtedness amounting to $14,000.00 annually, would be all the parties could have had in mind as being subject to change by the consumer price index when this note was executed.

The substance of ail tiie oral testimony is to the effect that Mr. McKinley, now deceased, was concerned about, and attempted to insure, the same purchasing power of the installments over the term of the note, as 2% of $700,000.00 had when the note was executed. The 5%% interest rate was based on the balance each year after the principal payment was deducted and the prin-eipal payment each year was based on 2% of the principal indebtedness ($700,000.00), plus or minus the percentage of the rise or fall in the consumer price index.

Appellant insists that she and Mr. McKinley anticipated, and had discussed the possibility, that the sale of this land might bring in over a million dollars. Had the note been paid according to its terms over the entire period of twenty years, the sale of this land would have brought in well over one million dollars. The interest for 1970 alone would have amounted to $38,500.00, and assuming that no change had occurred in the consumer price index that would have affected the $14,000.00 paid each year in reduction of principal, the interest alone for the year 1990 would have amounted to $23,100.00. So it is readily seen that interest alone over the full term of the note might have amounted to over a half million dollars.

There is no question that the appellees had a right to pay the full principal indebtedness at any time, and this they did before the first installment on the principal indebtedness came due.

The decree of the chancellor is affirmed.

Eyed, J., disqualified and not participating.


text:
    J. M. (Sam) SOWARDS v. Mavis SOWARDS
    5-4421
    422 S. W. 2d 693
    Opinion delivered January 8, 1968

      Shaver, Tackett & Jones; By Nicholas H. Patton, for appellant.

      Don Steel, for appellee.
   J. Fred Jones, Justice.

This appeal is from a Howard County Chancery Court decree in which the appel-lee, Mrs. Sowards, was granted an absolute divorce on her complaint alleging personal indignities against Mr. Sowards. Mr. Sowards relies on the following points for reversal:

“The evidence is not sufficient to support the Court’s awarding a divorce upon the grounds of personal indignities.
“If the testimony of the Plaintiff is deemed sufficient to set forth personal indignities there is no other testimony to corroborate the testimony of the Plaintiff.”

Appellant and appellee were married in 1947 and one daughter was horn as a result of the marriage. At the time of the trial appellant was sixty-two years of age, appellee was forty-five, and the daughter was seventeen. The record in this case is fairly clear that if appellant and appellee ever had any real affection for each other, it gradually turned into mere tolerance which has finally broken down into contempt under the accumulated weight of small indignities which real affection would have survived. As appellant and appellee drifted apart, appellee and the daughter became closer and appellant felt more and more left out and ignored by both of them. When the appellant was unable to purchase with money and gifts the affections of his wife and daughter, he could not conceal hurt feelings and resentment and attempted to alleviate his frustrations by demanding from the appellee and the daughter more than he was willing, or knew how, to give.

After the complaint was filed by appellee, the record indicates that appellant indicated a desire for a reconciliation and that everyone, including the attorneys as well as the chancellor, encouraged a reconciliation. But the appellant went about effecting a reconciliation by laying down specific ground rules for the appellee and their daughter to follow in order to effect a reconciliation, when all of the time, appellee was the one who wanted the divorce and appellant was the one who wanted the reconciliation. The appellee simply required that appellant “change his attitude,” but neither the appellant nor the appellee agreed to make any changes — except in each other, and neither recognized the need for any change in themselves. So the chancellor was obviously right in concluding that appellant and appellee would not live together again.

We now come to the question of whether or not ap-pellee proved such indignities as would entitle her to a divorce. Although the appellant and appellee had occupied separate bedrooms for about seventeen years, the insurmountable difficulties that ,both parties appear willing to recognize seem to have originated from a family lawsuit between the appellant and his brothers and sisters over property, some year or so prior to their separation in July 1966. Appellee testified that appellant demanded that she testify as a witness for him in that lawsuit, even though she felt that appellant was wrong. The appellant testified that he only wanted the appellee present in the court room with him since his brothers and sisters had their spouses present, and that he was hurt, disappointed and humiliated that she refused to go with him to court.

Appellee and the daughter testified, and appellant admitted, that he had on two occasions threatened to leave home and abandon the appellee and the daughter, if the daughter did not start showing more affection for him. Appellee and the daughter both testified that while they would be watching television programs in the den of their home, appellant would change the channel or station even though he had. an additional television set in his bedroom. Both appellee and the daughter testified that appellant remarked late one evening that it was about time for the appellee and the daughter to start roaming around (referring to appellee playing bridge and the daughter going on dates). Appellee and the daughter both testified that appellant objected to appellee receiving telephone calls from her friends.

Perhaps appellant’s general attitude is best evidenced by his demands as a condition in effecting a reconciliation after the separation. Mrs. Wilson’s testimony corroborates that of appellee, that during the course of Mrs. Wilson’s efforts, at appellant’s request, to help effect a reconciliation between appellant and ap-pellee, the appellant announced that he would be the master of the house, that he would quit playing dominoes, hut that appellee’s bridge playing would be limited to one night each week. Mrs. Wilson’s exact testimony on this point is as follows:

“He said ‘I’ll tell you what I’ll do, Duchess. If you and Kay come home I’ll quit playing dominoes and you are to play bridge once a week and stay off the telephone.’ He said this gossiping and playing bridge, gossiping over the telephone and all that had to stop. . . . He would be master of the house.”

The appellee testified that after the lawsuit appellant had with his brothers and sisters, he demanded that she and the daughter have nothing whatever to do with his relatives and forbade them even speaking to his relatives,- that at the time of separation, on July 4, 1966, when she and the daughter returned from a 4th of July weekend at Camp Albert, appellant had gone to Texas leaving a very sarcastic note indicating that he had finally carried out his previous threats of deserting them. Appellee testified that appellant slept a lot during the day and became furious when awakened for any reason at all; that the appellant had developed a strong hatred for anyone who disagreed with him, including his own people, and would talk about his hatred for people all the time. Appellee testified that she had to be very careful about what subject she brought up to keep appellant from flying into a rage at the mention of the name of someone he did not like; that he liked no one and hated everybody. Appellee testified that because of appellant’s actions she had become very nervous and her health had become impaired; that since their separation her condition had improved. Most of this testimony was corroborated by the daughter.

The record reveals much as to the personalities and temperaments of the parties to this divorce action. The record also indicates that the chancellor was personally acquainted with the appellant and the appellee in this ease. In any event, the chancellor was in a position to observe the demeanor of the parties and the witnesses as they testified, and was in a better position to weigh and evaluate the testimony and therefore in a better position than we are to determine what does or does not constitute such indignities between these particular parties in this particular case as to render the marriage between them intolerable to one of them.

Although we are not unmindful of the fact that chancery cases are tried de novo on appeal, we will not disturb the findings of the chancellor unless they are against the preponderance of the evidence. (Greer v. Greer, 193 Ark. 301, 99 S. W. 2d 248; Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S. W. 2d 577.) On reviewing the evidence, we are also in accord with a quote from Snyder v. Snyder, 233 Ark. 188, 343 S. W. 2d 420, which states:

“This case affords a classic application of the well organized statement that the Judge, seeing the witnesses, is in a better position to decide the credibility than is an appellate court, which merely sees the words on the page.”

In Ham v. Ham, 224 Ark. 228, 272 S. W. 2d 446, we said:

“In a genuinely contested case the corroborating proof may be relatively slight, since the purpose of this requirement is to prevent collusion.” (Citing Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078.)

It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential in a divorce suit. Nor is it necessary that the person to whom the divorce is granted on the grounds of indignities be wholly blameless. (Coffey v. Coffey, 223 Ark. 607, 267 S. W. 2d 499; Haley v. Haley, 44 Ark. 429.)

We conclude that the chancellor’s decree is not clearly against the preponderance of the evidence in this case and should be affirmed.

Affirmed.

Brown, J., not participating.


text:
    Alice M. Tucker and Carlos L. TUCKER v. John T. HASKINS
    5-4296
    422 S. W. 2d 696
    Opinion delivered January 8, 1968
    [Rehearing denied February 5, 1968]

      Eugene C. Fitshugh, for appellants.

      H. B. Stubblefield, for appellee.
   J. Fred Jones, Justice.

In February 1965, John T. Haskins, a practicing attorney, together with his secretary, Barbara Campbell, and one Bill Stamper, formed a corporation named “Arkansas Products & Equipment, Inc.” The authorized capital stock of the corporation was one million shares, having a par value of ten cents (10c) each. Haskins subscribed to ten thousand shares, Stamper subscribed to ten thousand shares, and Campbell subscribed to one share.

Haskins testified that Campbell and Stamper waived their subscriptions when the articles were issued; this is admitted by Campbell but denied by Stamper. In any event, the only stock issued consisted of ten thousand shares issued to Haskins for which, according to his testimony, he paid $1,000.00 in cash and $1,000.00 in service. Haskins went into the wholesale rug. and carpet business as a one-man corporation with himself as attorney and sole owner and with Stamper as general manager.

In April 1966, Haskins entered into a contract with Carlos L. Tucker and his mother, Alice M. Tucker, to sell all of the outstanding stock in the corporation to the Tuckers for $4,765.83 to be paid in equal monthly payments of $150.00 each. Haskins agreed to continue on as corporate attorney on a contingent fee basis of $100.00 per month. A substitute stock certificate for the ten thousand shares was issued to the Tuckers, they took over the assets and assumed the liabilities of the corporation. Among the liabilities assumed were several thousands of dollars in debts personally guaranteed by Haskins. The Tuckers personally assumed this indebtedness by separate guaranty agreements. Apparently when the creditors of the corporation started demanding payment of the accounts guaranteed by the Tuckers, Mr. and Mrs. Tucker refused to pay Haskins or the creditors and attempted to repudiate the entire transaction. Has-kins filed suit in chancery for specific performance and the creditors of the corporation intervened as party plaintiffs on their guaranty agreements. Trial resulted in a decree in favor of Haskins and the intervenors against the Tuckers, and the Tuckers have appealed from that decree.

The entire record consisting of 321 pages is designated by appellants on appeal, but only the oral testimony at the trial is abstracted in their brief. The record includes 40 pages of supplement in the form of deposition, some eight pages of amended complaint, four pages of answer and counterclaim, two pages of amendment to counterclaim, numerous exhibits including the contracts between the parties and letters of repudiation, a number of interventions and five pages of the decree appealed from, none of which were abstracted by the appellants.

We appreciate the expense involved in preparing records for appeal to this court and we do not like to dismiss appeals without reaching the merits. We are forced to take such action, however, when the appellant fails to abstract such portions of the record that will enable us to understand the questions presented for decision. There are seven individual members of this court who must form separate individual opinions on the merits of each case before us on appeal. This can only be accomplished by separate and independent inquiry into the facts submitted and by separate inquiry into the law applicable to the facts in each case. The litigants, as well as the trial court and practicing attorneys, are entitled to .the separate and independent consideration by each member of this court of the questions presented on appeal, but the volume of work on this court does not permit each of the seven members the time that would be required to gleen the facts and issues in a case on appeal from a single, and usually disorganized, transcript ,of the record from a trial court. That is the reason for multiple copies of briefs on appeal and that is the reason for appellate procedure Buie 9 (d).

The first sentence in Buie 9 (d) is as follows:
“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. ’ ’

Appellants have abstracted none of the record except a part of the testimony. Without examination of the original transcript it is impossible for us to determine, with any degree of confidence, exactly what is involved in this case, and as we have said many times before, we are unable to consider this appeal on its merits since appellants have failed to comply with Rule 9 (d). (Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265; Love v. State Farm Mutual Auto. Ins. Co., 241 Ark. 161, 407 S. W. 2d 118; Allen v. Overturf, 236 Ark. 387, 366 S. W. 2d 189; Routen v. Van Duyse, 240 Ark. 825, 402 S. W. 2d 411; Walden v. Mendleson, 240 Ark. 1019, 403 S. W. 2d 745; Holt v. Moody, 234 Ark. 245, 352 S. W. 2d 87; Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21.)

The decree of the chancellor is affirmed.


author: CoNley Byrd, Justice,

text:
    John Allen THORNTON v. STATE of Arkansas
    5310
    422 S. W. 2d 852
    Opinion delivered January 8, 1968
    [Rehearing denied February 12, 1968]

      Terral, Rawlings, Matthews & Purtle, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   CoNley Byrd, Justice,

Upon a plea of guilty, appellant John Allen Thornton was sentenced to three years in the penitentiary for burglary and three years in the penitentiary for grand larceny, both sentences to run concurrently. In this appeal he relies upon the following points:

I

That the court erred in sentencing the appellant to more than the minimum sentence upon the plea of guilty.

II

That his sentence should have been suspended because the alleged co-defendant entered a guilty plea and received a suspended sentence.

III

That the appellant did not understand he was entering a guilty plea nor the consequence thereof.

The record shows that appellant, together with Charles Clifford Durden, was charged with the crimes of burglary and grand larceny in that on December 17, 1966, he feloniously entered the building of Standard Furniture Company and carried away therefrom property in the aggregate value of more than $35. By another information he was charged with the crimes of burglary and grand larceny in that on January 14, 1967, he fel-oniously entered the building of the Brandon Furniture Company and carried away therefrom property in the aggregate value of more than $35. On April 3 he appeared in court with his attorney and pleaded not guilty. On July 19 he appeared in court with the same attorney, changed his plea to guilty and received the two concurrent three-year sentences.

Ark. Stat. Ann. § 41-1003 (Repl. 1964) sets the penalty for burglary at not less than 2 nor more than 21 years. Ark. Stat. Ann. § 41-3907 (Repl. 1964.) sets the penalty for grand larceny at not less than 1 nor more than 21 years. Ark. Stat. Ann. § 43-1222 (Repl. 1964) provides that a court may permit withdrawal of a guilty plea at any time before judgment. Ark. Stat. Ann. § § 43-2324 (Repl. 1964), -2326 and -2331 (Supp. 1967) provide for suspended sentences. It is within the discretion of the trial court to fix sentences, within the limits prescribed by law, to suspend sentences and to permit withdrawal of a guilty plea at any time before judgment. There is nothing in the record to show any abuse of this discretion by the trial court.

Actually the record does not show that the co-defendant, Charles Clifford Durden, received a sentence different from that given appellant, but even if it did it would still be a matter within the discretion of the trial court to give different sentences to different persons charged with the same offense.

Nor is appellant’s third point supported by the record. Until the contrary is shown? we will assume that a person who appears in court with an attorney of his choice has ample opportunity to understand when he has entered a plea of guilty and the consequences thereof.

Affirmed.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Frank M. HAMBUCHEN et ux
    5-4372
    422 S. W. 2d 688
    Opinion delivered January 15, 1968

      John R. Thompson, Rilly Pease, Louis A. Dodrill, for appellant.

      Guy H. Jones and Clark & Clark, for appellees.
   George Rose Smith, Justice.

This is a condemnation suit in which the Highway Commission is taking 3.18 acres out of an 8.7-acre tract owned by the appel-lees. At the trial the condemnor’s theory, supported by the testimony of its expert witnesses, was that the construction of the proposed highway would enhance the value of the uncondemned portion of the Hamhuchens’ tract to such an extent that they would actually benefit by the taking. The jury rejected that theory, fixing the landowners’ just compensation at $30,000. The Commission urges two points for reversal.

First, it is contended that the court erred in refusing to allow the Commission to introduce an option contract, which had expired before the date of trial, by which Humble Oil & Refining Company had paid $400 to the Hambuchens for an option to purchase the 8.7 acres for $85,000. The agreement was executed on May 20, 1966, which was less than three weeks before this condemnation action was filed. It is evident that the parties anticipated the condemnation, for the contract provided that if any part of the premises had been condemned before the sale was consummated, the Ham-buchens would assign to Humble the right to receive any condemnation award that might be made.

We find it necessary to explain at what stage of the trial the condemnor sought to introduce the option agreement. The landowners, having the burden of proof on the issue of value, rested their case after having produced only two witnesses. Both were experts in appraising real estate. One testified that the value of the tract before the taking was $85,750 and that the value of the remainder after the taking was $43,650. The other put the before and after values at $85,300 and $43,000.

The Commission opened its defence by calling Hambuchen himself as its initial witness. Counsel first elicited the information that Hambuchen had paid $16,-000 for the 8.7-acre tract, acquiring it by three separate purchases made in 1955, 1961, and 1962. Counsel then offered the Humble option contract, which Hambuchen and his wife admittedly had signed. Upon objection the court ruled that the contract was not admissible, for the reason that Humble had allowed it to expire before the date of trial.

The Commission’s attorneys readily concede that ordinarily offers to purchase are not admissible. As we pointed out in Hinton v. Bryant, 232 Ark. 688, 339 S. W. 2d 621 (1960), isolated offers to purchase are mere hearsay declarations of third persons, not made under oath and not subject to coss-examination.

Here, however, the Commission insists that the option contract was admissible to prove its theory that the condemnation and highway construction actually benefited the landowners. We are not certain that we fully understand the appellant’s argument. To avoid any possibility of misstatement we quote the essential language in its brief:

Obviously, the appellant’s purpose in calling Mr. Hambuchen as its witness was to put evidence before the jury of enhancement to the remainder of the appellees’ land after condemnation. The option which the Hambuchens had given to Humble Oil Company was a vital part of this proof. The enhancement would have been very obvious to the jury had they known of the option. Mr. Hambuchen had purchased land. a few years prior to the condemnation proceedings for a total amount of $16,-000.00 which could now be sold to Humble Oil Company for $85,000.00, a difference of $69,000.00. An investment of $16,000.00 for a total of 11 years with a net return of $69,000.00 is a tidy profit indeed. The fact that the Arkansas State Highway Department is constructing an Interstate Highway near Mr. Hambuchen’s land has made him $69,000.00 richer, yet the trial court ruled that it would be prejudicial to introduce such testimony....
Appellant should have been allowed to elicit testimony from Mr. Hambuchen about the option which he had entered into with Humble Oil Company for $85,000.00. Such testimony is admissible in an eminent domain proceeding as an admission against interest. ...
It can easily be seen bow inflated offers could be conjured up by a landowner who wanted to inflate the value of his land in a condemnation proceeding. But a bona fide offer of a substantial amount by a substantial corporation could hardly be falsified, and in this case the existence of the option was admitted by the landowner and a copy introduced of record. The exclusion of evidence as to the option ... constituted reversible error and was highly prejudicial to the appellant’s theory of enhancement.

There are two patent defects in counsel’s train of reasoning. One, the option agreement, standing alone, had no tendency to prove that the enhanced value of the land was attributable to the proposed construction of the highway. The only two preceding witnesses had said that the construction actually damaged the Hambuchens by more than $40,000. The Commission’s expert witnesses had not yet taken the stand. We fail to see how the jury could have inferred from the naked option contract that the enhanced value was attributable to the interstate highway.

Two, counsel’s entire argument plainly rests on the assumption that the jury were entitled to conclude from the contract that Humble valued the land at $85,000. Why else would counsel say that “a bona fide offer of a substantial amount by a substantial corporation [there is no proof to that effect] could hardly be falsified”? Yet, as we have already seen, the contract was not competent proof of Humble’s evaluation of the land, being neither under oath nor subject to cross-examination.

We are not convinced by the suggestion that the option agreement was admissible as a declaration by the Hambuchens against their interest. That might be true if they were contending that the 8.7 acres were worth substantially more than $85,000. In that event it would doubtless be proper for the Commission to prove that they had shown their willingness to sell for a much smaller figure. For instance, in Hersey v. Merrimack County Mut. Fire Ins. Co., 27 N. H. 149 (1853), the owner contended that an insured dwelling house had been worth $600. The court rig’htly permitted the defending insurance company to prove that shortly before the house burned down the plaintiff had offered to sell it for $250. That offer, when laid beside the plaintiff’s trial testimony, was clearly a declaration against his pecuniary interest. There is, however, no parallel in the case at bar, for Hambuchen expressed no opinion about the value of his land before the taking, and his witnesses gave substantially the same figure as that contained in the option.

The Commission’s second point for reversal is that the court erred in instructing' the jury that the Commission had the burden of proving that the highway had enhanced the value of the property remaining after the taking and that the benefits were of a special and peculiar nature, not shared by the general public. We have so held; so there was no error. Martin v. Raulston, 239 Ark. 769, 394 S. W. 2d 133 (1965).

Affirmed.

Byrd, J., dissents.


author: Paul, Ward, Justice.

text:
    CITY OF EUREKA SPRINGS, Arkansas v. Bruce BRIGHTMAN et al
    5-4443
    422 S. W. 2d 681
    Opinion delivered January 15, 1968

      Oliver L. Adams Jr., for appellant.

      M. D. Anglin, for appellees.
   Paul, Ward, Justice.

This appeal calls for a determination of the force and effect of a municipal Resolution invoking certain provisions of the Housing Authorities Act. Set out below is a summary of the pertinent background facts which are not in dispute.

On March 31, 1966, the Commissioners of Eureka Springs adopted Resolution No., 94 declaring the need for a Housing Authority in the City. On May 18, 1967 the City published the Resolution in a local newspaper. On June 15, 1967 a petition, signed by the required number of electors, calling for a referendum on the Resolution was presented to the clerk. The City clerk refused to file the petition on the ground that it was not timely filed as required by Amendment 7 of the Arkansas Constitution — i.s&. “within thirty days after the passage of such a measure by a municipal council.” On August 7, 1967 the petitioners (by proper pleadings) asked the Circuit Court to compel the City Commissioners to call an election. The Circuit Court held that Resolution 94 was general and permanent in nature, that it should be considered as an “Ordinance” which required publication before final enactment, and that an election must be called. The City now prosecutes this appeal.

For a reversal the City (appellant) relies on only one point:

‘ ‘ The only issue on appeal is one of law, i. e. whether or not Resolution 94 as passed by the City Commissioners of Eureka Springs, Arkansas, was a Resolution, or, in fact, an Ordinance?”

For reasons hereafter stated, it is our conclusion that the' holding of the trial court must be affirmed.

Among other things Amendment No. 7 provides:
“Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. ”
# #
“Fifteen percent of the legal voters of any municipality . . . may order the referendum . . . upon any local measures.” (Emph. supplied.)
# # *
“In municipalities . . . the time for filing an initiative petition shall be fixed . . . for a referendum petition at not less than thirty days ... of the passage of such measure . . . .” (Emph. supplied.)
“The word ‘Measure’ as used herein includes . . . resolution ... or enactment of any character.” (Emph. supplied.)

Ark. Stat. Ann. § 19-2404 (Repl. 1956) — being § 1, Act 36 of 1949 — in parts pertinent here, reads:

“. . . all by-laws or ordinances of a general or permanent nature . . . shall be published in some newspaper of general circulation in the corporation.”

It is our opinion that Resolution. 94 was of both a general and a permanent nature. It is general in that it necessarily affected all the people of the City. It was certainly permanent in that it would be effective until repealed. In the case of City of El Dorado v. Citizen's Light and Power Company, 158 Ark. 550, 250 S. W. 882, this Court discussed ordinances of a “general or permanent nature” and made the following statement:

“Of cornee all ordinances enacted by city councils are not permanent in the sense that they cannot be repealed, but those which endure until repealed are deemed to he permanent . . . . ”

It is our judgment, in view of what.has been pointed out above that Resolution 94 was in fact an ordinance which had to he published and that the referendum petition in this case was timely filed.

Affirmed.


text:
    Jack R. BELL, Sr. v. The STATE of Arkansas
    5315
    422 S. W. 2d 668
    Opinion delivered January 15, 1968

      Willis L. Plant, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee
   Lyle Brown, Justice.

This is a Rule 1 case. Appellant, Jack R. Bell, Sr., was convicted in April 1966, of first degree murder. There was no appeal. His present petition for release alleges certain constitutional rights to have been violated. That petition was denied and Bell appeals.

In 1964 Bell, while on parole from the Arkansas penitentiary, went to Florida. A parole violation warrant was issued for his return. He was taken into custody in Florida and waived extradition to Arkansas as a parole violator. At that time Bell was also under suspicion of having committed a murder in Monroe County, Arkansas. However, that suspicion was not revealed to Bell at the time of his apprehension in Florida. Shortly after the return trip to Arkansas began, Bell, without being questioned or coached by the officers, revealed to them that he had committed the homicide but explained it was in self-defense. Because of that admission he was returned to the jail in Monroe County rather than to the penitentiary. Other pertinent facts will be related as we list and discuss the points here raised by appellant.

1. Appellant contends that the officers should not have permitted him to make the oral confession on the return trip without first advising him of his constitutional rights; that the confession made was used against him in the trial of the case. First, we point out that the Miranda warnings are not applicable. Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Bell’s trial was begun before June 13, 1966, the effective date of the Miranda warning requirements. Second, it is undisputed that Bell volunteered the information that he committed a homicide. In the Bule 1 hearing one of the returning officers so testified. Bell corroborated the officer in these words: “I voluntarily told them and it was not a killing, it was justified homicide. ’ ’ His was a spontaneous admission, as was the situation in Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653 (1967).

2. It is next asserted that “the legal rights of the appellant were violated by officers Davidson and Belch-er, when they took him into custody in Florida, well knowing that he would face a murder charge, by not advising him of that fact and his rights as to extradition.”

When Bell waived extradition as a parole violator no murder charge was pending against him. In fact he was not so charged until some four months after his return. At the time of his extradition it is true he was suspected of having committed a homicide but that fact is of no aid to appellant. As respects interstate extraditions (as contrasted with international extraditions) a defendant can be tried for a crime other than that for which he was extradited. Lascelles v. Georgia, 148 U. S. 537, 13 S. Ct. 687 (1892), cited with approval in Frisbie v. Collins, 342 U. S. 519, 72 S. Ct. 509 (1952). See Elmore v. State, 45 Ark. 243 (1885).

3.Appellant was prosecuted under an Information filed by the prosecuting attorney in lieu of a grand jury indictment. The constitutionality of that procedure is

questioned but the point is without merit. Coleman v. State, 242 Ark. 751, 415 S. W. 2d 549 (1967).

4. This point is that “the court erred in not obtaining witnesses for the appellant, who would have, testified 'the deceased had no money, eliminating the motive for the robbery.” At the Bule 1 hearing. Bell testified that at the trial he asked of the court and the sheriff that certain witnesses (whom he does not now name) be brought into court to testify in his behalf and they were not produced. That was all the evidence to support the contention. The trial court found no merit in' the contention. Judge Waggoner presided both at the trial and at the Bule 1 hearing. Mr. Plant was Bell’s court-appointed counsel at both hearings. Had there been any truth-iii-fact in the allegation those officers would have been aware of it. Bell was free to.call either or both as witnesses, along with the sheriff. The failure to produce an available witness who assertedly had knowledge of Bell’s communication creates a presumption that the testimony, if produced, would be unfavorable. Watts v. State, 222 Ark. 427, 261 S. W. 2d 402 (1953).

The proper procedure for obtaining witnesses is to obtain subpoenas. Their issuance is routine and a matter of record. Bell produced no such instruments at the hearing. Since Bell and the deceased traveled through several states immediately prior to the homicide it could well be that most, if not all, of his desired witnesses were beyond the immediate jurisdiction of the court. If Bell in fact requested witnesses, when did he make the request? Was it timely? We cannot tell from the record. The burden was on Bell, not only to show that he requested witnesses, but that it was done in the manner provided by law, that the request was timely made, and that the witnesses were amenable to subpoena. His proof is wholly lacking.

5. Bell’s final contention is that the court erred in not bringing him to trial at an earlier date. Under Ark. Stat. Ann. § 43-1708 (Repl. 1964), he was entitled to he brought to trial before the end of the second term after the charge was filed. When an accused, is incarcerated the State has the burden of showing the failure to bring him to trial within the statutory period was due to lack of time to try the case or was delayed at the request of the prisoner. Beckwith v. State, 238 Ark. 196, 379 S. W. 2d 19 (1964). The record shows he was in court on April 29, 1966, entered a plea of not guilty and agreed to the case being passed. He was thereafter tried on the fourth day of the next term. His plea and agreement to pass were in the second term following the . iling of the charge. The record refutes Bell’s final point.

Affirmed.


text:
    George SIEBERT et ux v. Josephine BENSON, Next Friend of Mark Edward Gann
    5-4348
    422 S. W. 2d 683
    Opinion delivered January 15, 1968

      William I. P-urifoy and G. T. Bennett, for appellants.

      W. B. Howard and Jack Segars, for appellee.
   Lyle Brown, Justice.

We are here concerned with the custody of a four-year-old boy, Mark Edward Gann. The Sieberts, appellants here, obtained an interlocutory order of adoption. Mark’s mother (who had abandoned the child at birth) entered her- appearance in that proceeding and gave her consent. However, Josephine Benson, appellee, with whom Mark had resided continuously since birth, was not a party to the proceeding. A.few weeks after the adoption Mrs. Benson intervened in the probate court proceedings in protest. At the same time, she filed a petition for a writ of habeas corpus in the Chancery Court to regain immediate custody of Mark. Hon. Gene Bradley, as judge of the Probate Court and as judge of the Chancery Court, consolidated Mrs. Benson’s intervention and petition for writ of habeas corpus for trial purposes. The interlocutory order of adoption was set aside on jurisdictional grounds. Mrs. Benson was awarded custody of the child in the habeas corpus proceedings. The Sieberts have appealed from both orders.

Mark was born to Margaret Gann on January 13, 1963. She had been separated from her husband for the previous five years, although they lived in rather close proximity in Sharp County. During the latter stages of her pregnancy Margaret became ill, apparently from lack of medical attention. Mrs. Josephine Benson, who lived a few miles from Margarét, learned of Margaret’s condition and went to her aid. Mrs. Benson regularly received a government pension as a war widow; she re'-ceived monthly payments from the sale of a farm; and she owned .a home located on twenty-five acres on which she gardened and raised a modest amount of stock. Mrs. Benson obtained for Margaret immediate and competent medical attention at Imboden and Mark was borii there in a medical clinic. All expenses were paid by Mrs. Benson.

Margaret related to Mrs. Benson that the child was illegitimate; that she had the burden of two other children; and that she would not be able to properly care for the new baby. In her sense of gratitude to Mrs. Benson, who was without children at home, Margaret insisted that Mrs. Benson take the child as her own. She accepted the child and took it to her home on the day it was born. As soon as Margaret was able to travel she left for California and has since resided there. Mrs. Benson has once visited Margaret, taking Mark with her. The two women have corresponded intermittently since Mark’s birth,

Mrs. Benson has a married daughter residing in Memphis. In traveling from Sharp County to Memphis to visit her daughter, Mrs. Benson would travel through Jonesboro. There the Sieberts operated a nursery; On a return trip from Memphis late in October 1966, Mrs. Benson stopped at the nursery and purchased some fruit trees. Mr. Siebert was attracted to Mark ««and gave him a soda. The foursome — Mr. and Mys. Siebert, Mrs. Benson, and Mark — had a visit of some two . hours. The Sieberts have six children, all girls. Their ultramodern home is located at the nursery. In the course of the visit. Mrs. Benson related Mark’s history. There was conversation about the possibility of the Sieberts adopting Mark. The Sieberts testified Mrs. Benson was agreeable; Mrs. Benson denied it. She did agree that Mark could s;pend the night with the Sieberts. Mrs. Benson continued 'to her home in Sharp County and stayed overnight There she picked up a pony trailer and returned for Mark. They proceeded to Memphis to get the child’s pony.

The next day Mr. and Mrs. Siebert, after talking with their attorney, proceeded to Sharp County. There they obtained the name and address of Mark’s mother in California. A waiver and entry of appearance _was mailed her. When executed and returned, the instrument was to be filed in adoption proceedings in the Probate Court of Craighead County. Instead of returning the instrument to Sieberts’ attorney, Margaret Gann wrote Mrs. Benson that some parties in Jonesboro were trying to adopt Mark.

When an immediate reply was not received by the Sieberts, they contacted Margaret by telephone in California. As a result of that conversation Mr. Siebert wired her the .funds to fly to Memphis. There the Sie-berts met her and brought her to Jonesboro by automobile. She was agreeable to the adoption and executed the entry of appearance. That was November 3, 1966. On that same day Mrs. Benson and Mark were enroute. from Memphis to their home in Sharp County. As soon as Margaret Gann agreed to the adoption, Siebert scurried to Sharp County, expecting to find Mark and return him. to Jonesboro, Craighead County, where the adoption petition was to be filed the next day.

Mr. Siebert met Mrs. Benson a,nd her foster child on the highway near Hoxie, Lawrence County, and hailed them. Siebert explained that they were having a children’s party at the school that night; that he would like very much to take Mark to the party; that Mark could spend the night with the Sieberts and they would return him to Mrs. Benson the next day. He did not mention the adoption proceedings. Nor did he relate that Mark’s mother had been flown in from California. It was under those circumstances that Mrs. Benson permitted Mark to return with Siebert.

When Mrs. Benson completed her journey home, she found the letter Margaret Gann had written her from California, advising that someone in Jonesboro was trying to adopt the child. Mrs. Benson immediately set out for Jonesboro to get Mark. She first went to the school and found there was no party; she called the sheriff but she had no papers and he could be of no help; she rushed to the Siebert home; admittance was refused her; she forced a locked door, along with the doorframe, and entered; an altercation ensued; the sheriff was called; Mrs. Benson was advised that Mark’s mother had signed adoption papers and that she had best go home. To that request she conformed. It was past midnight.

Mrs. Benson returned to Jonesboro the next day. She interviewed the sheriff, an attorney, and a Catholic priest, all without success. While she was so engaged, the parties to the adoption were on their way to Blythe-ville, some fifty miles away, to present the adoption papers to the probate judge. The adoption was granted. Mrs. Benson had no knowledge of those proceedings.

Except for the Sieberts-Benson conversation about adoption, the facts we have thus far digested from a voluminous record may be said to be uncontroverted. The other pertinent facts relate to (1) Mrs. Benson’s execution, in the afternoon of November 4, of a “settlement” document which purported to give her consent to the adoption; and (2) the alleged unfitness of Mrs. Benson as the custodian of the child. Those matters are highly controverted. Some twenty witnesses testified and it is apparent that a number of them had opinionated feelings.

(1) Mrs. Benson’s Execution of the “Settlement” Document. Her interviews with others having proved fruitless, Mrs. Benson went to the office of Siebert’s attorney, who had returned from the trip' to Blytheville. There she reiterated her protest about the child being taken away from her. The attorney apprised her of the interlocutory order, showed her Margaret G-ann’s signature on the waiver, and advised her that in his opinion she could not regain possession of the child. Mrs. Benson explained her expenditures on the mother during and preceding Mark’s birth and indicated that she should be reimbursed. After conferring by telephone with Sie-bert, the attorney gave Mrs. Benson a check for $500. The attorney says she broached the subject of money; Mrs. Benson says the attorney suggested it. She executed an affidavit acknowledging receipt of the money and stated that she consented to the adoption which had already been granted.

The two witnesses disagree as ' to the purpose of Mrs. Benson’s trip to the attorney’s office. The attorney says it was primarily to obtain reimbursement. ‘ ‘ She was obviously moved and she cried some while in my office.” However, he quoted her as saying she thought the adoption was the best for Mark. Then, so he says, she broached the subject of reimbursement. The substance of Mrs. Benson’s extended testimony in that regard is that she had been completely frustrated in two hectic days of fruitless efforts; that she was exhausted, crying, and “so upset I couldn’t read” the affidavit; and that she would not have signed it except for the attorney’s assuring her that the adoption was completed and legal. (When Mrs. Benson filed her petitions she authorized her attorney to return the $500.)

In his oral opinion the trial judge stated that he accepted Mrs. Benson’s explanation “as to why she received the money.” It should be added that a consent to adoption may, under proper circumstances, be withdrawn before the final order. Martin v. Ford, 224 Ark. 993, 277 S. W. 2d 842 (1955).

(2) The Fitness of Mrs. Benson to Have Custody of the Child. The Sieberts produced testimony that on at least three occasions Mrs. Benson initiated suggestions of adoption. Those statements were allegedly made to the Sieberts, Bob DePriest, and Mrs. Honeycutt (Mark’s grandmother). Mrs. Benson denied having made any such suggestions.-Mrs. Honeycutt’s testimony drips with prejudice. Mr. DePriest stated that the child was permitted to spend a few days in Ms home; at the end of three days Mrs. Benson came after him; adoption was discussed and Mrs. Benson declared she could not give up the boy.

Mrs. Honeycutt and Mrs. Gresike (Mrs. Honey-cutt’s employer) charged Mrs. Benson with the use of vulgarity and with “boarding men friends.” Each also testified as to an occasion when Mrs. Benson appeared to be under the influence of drugs or alcohol. Another testified as to Mrs. Benson’s irregularity in church attendance. Another witness from the Bureau of Vital Statistics produced records to show that Mrs. Benson had attempted to obtain a birth certificate for Mark and listed, herself as the mother of the child.

Mrs. Benson called three neighbors as witnesses. They described her as a. hard worker, a good housekeeper, attentive to Mark’s needs, and of good behavior. It, was testified that different men did, at various times, work for, and board with, Mrs. Benson. The neighbors saw no acts of misconduct.

The trial court described the attack on Mrs. Benson’s character as being based on “more or less innuendo.” The court 'commented on the absence of any testimony to' show that Mark “was ever exposed to any immoral matters.”

So much for the facts; The trial consumed several days and a four-hundred page transcript was accumulated, We have recited only those facts which are considered essential to an understanding and resolution of the issues. We now turn to particular rulings of the trial court, the three points advanced for reversal, and to a brief comment on one point raised by appellee.

1. The Sieberts contend the trial court should not have set aside the interlocutory order of adoption on jurisdictional grounds. The petition was filed November 4, 1966, and the order was entered on the same day. The probate judge held that on the date the petition was granted (a) the trial court had no jurisdiction.over the presumptive father, Franklin Grann, Jr., and (b) Mrs. Benson, who stood in loco parentis to the child, was not made a party, nor did she enter her appearance and give consent.

Ark. Stat. Ann. § 56-103 (1947) requires the petition for adoption to state the name of the person having custody of the one to be adopted. Mrs. Benson had physical custody of Mark from the day of his birth until the day before the petition for adoption was filed. That fact was well known to the Sieberts. They did not disclose it to the court. They gained possession of the child through concealment of a vital fact, namely that it was being obtained for the purpose of instituting adoption proceedings the following day. We hold that Mrs. Benson’s custody should have been revealed to the court and that she was entitled to notice. This court has held that one having custody of a child is so entitled. Miller v. Younger, 222 Ark. 663, 262 S. W. 2d 146 (1953). Although Mrs. Benson surrendered possession temporarily and under a concealment of fact, equity dictates that the manner of gaining possession should not sever her custody.

When the child was bom, Margaret Gl-ann had for seven years been the lawful wife of Franklin Gann. It is true they had been separated for some five years, living, however, in close proximity. The trial court found that the fact of separation did not destroy the strong legal presumption that Gann fathered this child. Thomas v. Barnett, 228 Ark. 658, 310 S. W. 2d 248 (1958). No competent proof of non-access appears in the record.

True it is that the interlocutory order of adoption recites that the child is illegitimate. However, the marriage status of Margaret and Franklin Gann was not made known to the court until the second hearing.

Summarizing, the trial court found that as of the date of the interlocutory order, Mrs. Benson stood in loco parentis, and that Gann was in law presumed to be the father of the child, making them necessary parties to the suit; and that their absence from the suit voided his jurisdiction. Since we conclude that Mrs. Benson was a necessary party to the proceedings, we do not reach the propriety of the ruling with respect to the presumptive father.

2. Appellants contend the chancery court erred in assuming jurisdiction of the habeas corpus proceeding. At the time Mrs. Benson applied for the writ of habeas corpus, the adoption proceedings were pending in the probate court and that forum, say appellants, could have afforded Mrs. Benson adequate relief.

A collateral attack upon an order of adoption, made by petition for writ of habeas corpus, is permissible. It is available to one in interest who was not made a party to the adoption proceedings. However, in the habeas corpus proceeding, the only appropriate inquiry is whether the probate court had jurisdiction to enter the order of adoption. Hughes v. Cain, 210 Ark. 476, 196 S. W. 2d 758 (1946).

Mrs. Benson had a clear right, by habeas corpus proceeding, to go into chancery court and seek to regain custody of the child which had been spirited away from her possession. The proceeding in probate was primarily one concerning adoption. It may well be that the probate court, in setting aside the adoption proceedings, might have eventually awarded some type of custody to Mrs. Benson. Yet the proceeding most certain to give her immediate custody of the child was habeas corpus. It is an extraordinary writ which demands the child be forthwith produced. The hearing is given priority. The identical procedure was followed in A. v. B., 217 Ark. 844, 233 S. W. 2d 629 (1950).

3. Appellants contend that the award of custody to Mrs. Benson was contrary to the greater weight of the evidence; that the court has placed the child in custody of one totally unfit to be so entrusted; and that the record clearly shows the best interest of the child would he served by placing him in the custody of Mr. and Mrs. iSiehert.

While it is axiomatic in custody cases that the welfare of the child is of prime importance, there are other considerations. Of one of those conditions, Justice Eakin had this to say in Verser v. Ford, 37 Ark. 27 (1881):

“It is one of the cardinal principles of nature and of law that, as against strangers, the father, however poor and humble, if able to support the child in his own style of life, and of good moral character, cannot, without the most shocking injustice, he deprived of the privilege by any one whatever, however brilliant the advantage he may offer. It is not enough to consider the interests of the child alone. ’ ’

As a foster mother, Mrs. Benson is in the category of being the only parent Mark Edward Gann has ever known; the Sieberts are in the category of strangers. Tlie mutual love that exists between Mrs. Benson and Mark is not questioned. To the contrary, the record is replete with evidence of their mutual devotion and constant companionship. Mrs. Benson called np sufficient physical strength to bodily knock in a locked door and its facing, which stood between her and the child she had nurtured from birth. Only love could have given her that extra strength.

Is Mrs. Benson morally fit to have the custody of Mark? The trial court answered that question in the affirmative. We are unable to say that he abused his- discretion. As recited, the evidence was highly conflicting. Some twenty witnesses testified and it is apparent that some of the key witnesses had preconceived opinions. In cases so fiercely contested the vantage point of the chancellor becomes all the more apparent. In no situation could the personal observations and judgment of the trial court be more valuable.

Appellee questions the right of the Sieberts to appeal from an order setting aside an interlocutory decree of adoption. Ark. Stat. Ann. § 56-111 (1947) is cited. The answer is that the Sieberts did not appeal from an interlocutory order but from a final order of January 12, 1967. That order was a final decree denying the prayer for adoption on the ground of lack of jurisdiction.

Affirmed.

      That attorney withdrew from further participation as the Sie-berts’ attorney, presumably because he was to become a key witness in the resistance of Mrs. Benson’s intervention.