text:
    Sherman GRANT v. STATE of Arkansas
    CR 79-156
    589 S.W. 2d 11
    Opinion delivered November 5, 1979
    (In Banc)

      John W. Achor, Public Defender, by: James Phillips, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Sherman Grant was found guilty of murder in the first degree and sentenced to a term of 40 years’ imprisonment. His appeal raises only one ground for reversal, even though it is stated in two points. Basically, his contention is that the trial court erred in denying his motion to suppress incriminating evidence discovered and seized by a police officer in a bedroom he occupied in the home of his foster parents, Rufus Cyrus, Sr. and Dorothy Cyrus. The ground on which the motion was based was that the warrantless search of the room was unreasonable because the written consent given by Rufus Cyrus, Sr., was invalid for two reasons — first, because he had no authority to consent to a search of Grant’s room, and second, because his consent was not voluntarily given. Since we find no basis for overturning the finding of the trial court denying the motion to suppress, we affirm.

Detective David Garner, as a member of the homicide and robbery division of the Little Rock Police Department, was assigned on February 13,1978, to investigate a homicide at 7408 Preston Drive in Southwest Little Rock. He arrived at the scene at 12:40 a.m. and obtained information that caused him to go to the Cyrus residence at 2201 South Battery Street in Little Rock. When he arrived there he found Detective Quattlebaum and Patrol Officers Middleton and Williams. Garner said that two of them were on the second floor of the residence where Grant’s room was located, standing with Grant, awaiting Garner’s arrival. They conducted no search. On the basis of the information he had obtained, Garner took Grant into custody and conveyed him to the Little Rock Police Department. The other officers remained at the Cyrus residence.

Because he wanted to obtain the advice of the prosecuting attorney as to further procedure, Garner made no attempt to conduct a search at the Cyrus residence. While at police headquarters, he called the prosecuting attorney and asked whether he should try to get a search warrant or to obtain consent of the father to the search. Based upon the advice he was given, Garner returned to the Cyrus dwelling without attempting to obtain a search warrant. The search was conducted after Cyrus had executed a form bearing the title, ‘ ‘ Consent to Search, ” by which he gave his consent to the search.

When completed, the document bore the signature of Rufus Cyrus, Sr., and Detective D. Garner and Officer S.M. Williams signed their names as witnesses. Otherwise, the document read as follows:

2-13-78
(Date)
2201 S. BATTERY
(Location)
I, RUFUS CYRUS SR., having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, hereby authorize officer DET. D. GARNER, _, OFFICER S. WILLIAMS of the Little Rock Police Department to conduct a complete search of my premises/auto located at 2201 S. BATTERY. These Officers are authorized by me to take from my premises/auto any letters, papers, materials or other property which they may desire.
This written permission is being given by me to the above-named officers voluntarily and without threats or promises of any kind.

(The portions which are capitalized were handwritten into blanks in the form.)

After this form was executed, the officers went into the room which had been occupied by Grant and found a .45 caliber Colt automatic pistol, two clips of .45 caliber bullets, one containing five rounds and the other seven, 31 rounds of .45 caliber ammunition in a box and eight rounds of .32 caliber ammunition.

We do not agree with appellant’s argument that only he could give consent to a search of the room. We held in Asher v. City of Little Rock, 248 Ark. 96, 449 S. W. 2d 933 that one having joint possession or equal authority with another over the premises may authorize a warrantless search. The only argument advanced by appellant is that Asher is distinguishable because, even though Grant paid Cyrus no rent for the room, he paid board and everything in the room belonged to Grant. We do not think these distinctions are sufficient to show that the consent given by Cyrus was invalid. Under Rule 11.2 (c), Arkansas Rules of Criminal Procedure, consent justifying a search and seizure, in the case of a search of premises, may be given by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent. Garner testified that the two-story building appeared to be a one-family house and that he was told by Cyrus that it was Cyrus’s house. Officer Susan Williams testified that Garner was told that Grant was the foster son of Cyrus by Cyrus himself. Cyrus testified that the house was his. He said that Grant had lived with him since Grant was five years old, except for a one-year period during which he was employed by United Parcels. Mrs. Cyrus also testified that she washed Grant’s clothes and sometimes put them in the dresser drawer in his room.

The search based on a voluntary consent by Cyrus would be valid under Rule 11.2, which validates consent by any person who, based upon circumstances as they appear to the officer conducting the search, is apparently entitled to give or withhold consent. Although this rule relieves the searching officer of any criminal or civil liability, it does not, standing alone, govern admissibility of things seized during the search. See Commentary to Article IV, Arkansas Rules of Criminal Procedure. The standards for suppression of evidence are set out in Rule 16.2. In Comment I to this rule, it is pointed out that a motion to suppress may be based upon the fact that consent was not given by any person authorized to give consent. The Limitation on Rule 11.2, however, does not mean that the appearance of authority to give consent is not an important factor in determining validity of consent to search, if the searching officers could reasonably believe in good faith that the one giving consent had authority to do so. United States v. Peterson, 524 F. 2d 167 (4 Cir., 1975); cert. den. 423 U.S. 1088, 96 S. Ct. 881, 47 L. Ed. 2d 99; United States v. Sells, 496 F. 2d 912 (7 Cir., 1974).

The question here is whether the search was in violation of the Fourth Amendment to the United States Constitution. That amendment only prohibits, and the exclusionary rule only applies to, unreasonable searches. Norris v. State, 259 Ark. 755, 536 S.W. 2d 298.

We cannot find any basis for reversing the trial court’s holding that the consent was authorized. We held in King v. State, 262 Ark. 342, 557 S.W. 2d 386, that the mother-in-law of an accused had the authority, as owner and co-occupant of the premises, to consent to a warrantless search of her premises. In Robinson v. State, 256 Ark. 675, 509 S.W. 2d 808, we quoted Asher to the effect that there can be no doubt that an occupant who has a proprietary interest in a building can consent to entry by police officers, a search of the premises and seizure of evidentiary material found there. See also, Giles v. State, 261 Ark. 413, 549 S.W. 2d 479, cert. den. 434 U.S. 894, 98 S. Ct. 272, 54 L. Ed. 2d 180.

The validity of the consent under the Fourth Amendment standards, however, cannot rest upon the ownership of the premises. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed. 2d 242 (1974). Instead, it rests upon mutual use of the property by persons generally having joint access or control for most purposes. The pertinent question is whether the one giving consent possesses common authority or other sufficient relationship to the premises.

There could be little doubt under our earlier decisions about the authority of Cyrus to consent to this search. See Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113. Our decisions were in accord with pre-Matlock decisions in other jurisdictions. A child, either dependent or emancipated (having reached his majority) does not have the sáme constitutional right or expectation of privacy in the family home that he might have in a rented hotel room, and the rights of the father were held to be superior to those of the child, so that the father’s consent to a search of the child’s room was sufficient to render a warrantless search reasonable. State v. Kinderman, 271 Minn. 405, 136 N.W. 2d 577 (1965), cert. den. 384 U.S. 909, 86 S. Ct. 1349, 16 L.Ed. 2d 361. See also, People v. Wood, 31 N.Y. 2d 975, 293 N.E. 2d 559 (1973); United States v. DiPrima, 472 F. 2d 550 (1 Cir., 1973); United States v. La Vallee, 417 F. 2d 523 (2 Cir., 1969), cert. den. 397 U.S. 1002, 90 S. Ct. 1150, 25 L.Ed. 2d 413; United States v. Stone, 401 F. 2d 32 (7 Cir., 1968); Vandenberg v. Superior Court, 8 Cal. App. 3d 1048, 87 Cal. Rptr. 876 (1970).

In this family situation we think the constitutional standards are met, as they were in King, a post-Matlock case. Quite a number of jurisdictions have adhered to basic pre-Matlock principles in a family situation, such as we have here. In People v. Johnson, 23 Ill. App. 3d 886, 321 N.E. 2d 38 (1974), it was held that a mother’s consent to a search of the room of a son, who was married but living in a house owned by his father and mother and not with his wife, was sufficient basis for a warrantless search. The consent of a mother who was head of the family to a search of her son’s room in a family home jointly owned by the mother and son was held valid by Matlock standards in State v. Forbes, 310 So. 2d 569 (La., 1975).

Since it is clear that Cyrus, in addition to being the owner, of the premises which constituted and were maintained as a single family dwelling, was the head of the single family household and had not surrendered or relinquished exclusive control of the Grant bedroom or the ability to designate what use could be made of it, by lease or otherwise, he maintained the right to access and control over the entire premises, and had authority to consent to a search of the bedroom. See United States v. Peterson, 524 F. 2d 167 (4 Cir., 1975), cert. den. 423 U.S. 1088, 96 S. Ct. 881, 47 L. Ed. 2d 99, in which the court found reinforcement in Matlock. See also, Maxwell v. Stephens, 348 F. 2d 325 (8 Cir., 1965), cert. den. 382 U.S. 944, 86 S. Ct. 387, 15 L. Ed. 2d 353, reh. den. 382 U.S. 1000, 86 S. Ct. 532, 15 L. Ed. 2d 490, which the Fourth Circuit Court of Appeals found particularly persuasive in arriving at its result in Peterson. It is not contended that the fact that Grant was a foster son makes any difference — and it doesn’t. In any such situation, the status of one in loco parentis and a natural parent should be the same.

Viewing the totality of the circumstances, we cannot say that the trial court erred in holding that Cyrus had authority to consent to the search.

This brings us to the question of voluntariness of the consent given. Appellant argues that, when we view the totality of the circumstances, we cannot find that the state has met its burden of proving by clear and positive testimony that consent had been freely and voluntarily given. The alleged circumstances are: (1) the lack of limitation in the form of the scope of the search as to time, area or items to be seized; (2) the failure of the consent form to advise Cyrus that his consent could be withdrawn or limited at any time prior to completion of the search; (3) several police officers were present, some of whom carried weapons; (4) the request for consent was made at 3:30 a.m., a short time after the. foster son had been taken to jail after having been arrested without a warrant; (5) the police had drawn their weapons in making the arrest; (6) when arrested, appellant insisted that his room could not be searched without a warrant, and Detective Garner said that he would get a warrant; (7) Garner returned and produced a paper which at “the head of it said ‘warrant,’ ” which he asked Mrs. Cyrus to sign; (8) after she and Cyrus both refused to sign this paper, Garner said, “Well, I’ll get a warrant to search the whole house;” (9) the piece of paper exhibited was not the one Cyrus signed; (10) Cyrus was frightened when he signed the paper; (11) neither Mr. or Mrs. Cyrus had any comprehension of what they were signing; and (12) it would have been easy to have obtained a search warrant.

Even though, in reviewing a trial judge’s ruling on a motion to suppress evidence, we make an independent determination based upon the totality of the circumstances, we will not set aside the trial judge’s finding unless we find it to be clearly against the preponderance of the evidence. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139; McGuire v. State, 265 Ark. 621, 580 S.W. 2d 198. In our determination, considerable weight is given to the findings of the trial judge in the resolution of evidentiary conflicts. State v. Osborn, supra. We must, of course, defer to the superior position of the trial judge to pass upon the credibility of witnesses. State v. Osborn, supra; Whitmore v. State, 265 Ark. 419, 565 S.W. 2d 133.

When we view the conflicts in the evidence and defer to the trial court’s superior position in determining questions of credibility, many of the circumstances relied upon by appellant to constitute the totality must be disregarded. Detective Garner testified that none of the officers had drawn his weapon at the time of the arrest and that no guns were drawn at any time while Garner was at the Cyrus house. Officer Susan Williams did not believe that any of the officers who first entered the Cyrus residence drew a weapon at the time they entered and said that, to her knowledge, no weapons were drawn at any time. Rufus Cyrus testified that the officers did not have their guns drawn when they came in the house.

Detective Garner could not recall Grant’s having told him that he would have to have a search warrant before he could search the house. Garner said that there had been no conversation whatsoever between him and Grant about a search of the house. Officer Susan Williams did not hear Grant make such a statement. Only the Cyruses testified that they heard this alleged statement. Grant did not testify at the suppression hearing.

Garner testified that he read the “Consent to Search” form that was introduced in evidence to Cyrus and that Cyrus signed that form. Officer Williams testified that she saw Cyrus sign the form that was introduced and that she signed it as a witness. The testimony of Cyrus and his wife that the paper Garner brought back with him after Grant’s arrest was headed with the word “Warrant,” and not “Consent to Search,” and that the piece of paper Cyrus signed was shorter than that introduced, probably was not very convincing. Even though Cyrus insisted that he had signed a piece of paper different from the form introduced, he admitted that he had given the officers permission to search Sherman’s room. He admitted that much of the content of the paper he signed was the same as part of that of the form introduced. He also verified his signature on the form introduced, but claimed that the exhibit was a photostatic copy. The writing in the blanks and the signatures on the exhibit obviously are not photostatically copied.

There is no evidence of any general search of the entire house. Mrs. Cyrus said that the officers searched the kitchen and Grant’s room. Garner testified that when he returned from the police department he told Cyrus that he wanted to search for a weapon. There is no indication that there was any search for anything except weapons and ammunition. Garner said that he read the form introduced to Cyrus and that Cyrus signed it. The testimony of Susan Williams corroborated that of Garner.

A statement that Cyrus could withdraw his consent or limit the search as provided by Rule 11.5, Arkansas Rules of Criminal Procedure, was certainly not required, and the failure of the officers to so advise Cyrus did not invalidate the consent. Pace v. State, 265 Ark. 712, 580 S.W. 2d 689. It would be illogical to require this advice, since there is no requirement that advice that consent may be withheld be given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).

This case is quite unlike Moore v. State, 261 Ark. 274, 551 S.W. 2d 185. The consent by the parents in Moore was oral, if given at all. There two police cars containing four officers surrounded the parents’ home. Two officers entered the front door. At least one of them had drawn a weapon at the time of entry. There was evidence that the conduct of the officers was different here. Not only was there evidence that none of the officers drew a weapon while in the Cyrus house or when entering it, Detective Garner had first called the Cyrus house by telephone and advised Cyrus that Grant had been involved in a shooting and that police officers would be coming to the house. When Garner said that he would like to talk to Grant, Cyrus invited Garner to “come on.” When the officers came, they asked permission to enter. The officers who first arrived waited until Garner came before undertaking any action, except to prevent Grant’s escape. No attempt was made to conduct any search at the time of the arrest or even while Garner was away, although two officers remained at the Cyrus residence. Only after Garner’s return was there any discussion of a search. It is interesting to note that State’s Exhibit 9 was a sales receipt to Grant for the weapon involved which was found by Mrs. Cyrus in a wastebasket near Grant’s bedroom door at 8:00 a.m., long after the police had left.

In attempting to show that Cyrus was frightened by the presence of the officers, Rufus Cyrus testified that six policemen and four detectives were present, and that six policemen were in uniform and two dressed in civilian clothes. Mrs. Cyrus said that at least five detectives came into the house. Their efforts to describe the numerous officers were not convincing. There is no reason to believe that more than the four officers mentioned by Garner and Williams were present. According to Mr. Cyrus, only Officer Williams and one other officer remained in the house during the period of approximately one hour while Garner was away. He said they simply sat down in his den and talked during this period. We cannot help recognizing that there are practical difficulties in obtaining a search warrant at 2:30 a.m.

When we give regard to the trial court’s resolution of conflicts in the evidence and of credibility, appellant’s chain of circumstances is broken into fragments. We cannot say that the holding of the trial court was clearly against the preponderance of the evidence, so the judgment is

Affirmed.

Harris, C.J., not participating.


source: Caselaw Access Project

author: Frank Holt, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    ARKANSAS STATE MEDICAL BOARD v. Garnett LEONARD
    79-233
    590 S.W. 2d 849
    Opinion delivered November 5, 1979
    [Rehearing denied December 10, 1979.]

      Eugene R. Warren and Cearley, Gitchell, Bogará, Mitchell & Bryant, for appellant.

      McArthur & Lassiter, P.A., for appellee.
   Frank Holt, Justice.

Appellant charged appellee with grossly negligent malpractice in prescribing Schedule II drugs in violation of Ark. Stat. Ann. § 72-613 (e) (g) (Supp. 1977) and with violation of both the State and Federal Controlled Substances Acts. Appellant issued an order directing appellee to appear before the Board (34 days later) and show cause why his license to practice medicine should not be revoked. On the date set for the hearing, appellee renewed his request for a continuance, insisting that the large number of prescriptions in question required additional time for trial preparation. Appellant granted appellee’s request for a continuance on the condition that appellee refrain from prescribing Schedule II drugs pending the hearing. Appellant, however, refused appellee’s request for a closed hearing unless compelled by the courts to do so. Thereupon, appellee filed a petition for a writ of certiorari in the circuit court seeking a reversal of appellant’s order restricting his prescribing practices and refusal to hold a closed hearing. The court ruled that the Board had no authority to restrict appellee’s prescribing practices prior to the hearing on the show cause order and that the appellee could continue his practice without restriction until a hearing was held before the Board. The court also ordered that the hearing be closed.

Appellant first contends that the lower court erred in holding the physician-patient privilege mandated a closed hearing. Ark. Stat. Ann. § 28-1001, Rule 503 (b) (c) (Repl. 1979), which codifies the privilege, provides:

(b) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
(c) The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.

The policy behind this privilege is to encourage patients to communicate openly with their physicians and to prevent physicians from revealing the infirmities of their patients. Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720 (1914); 81 Am. Jur. 2d, Witnesses, § 231; 8 Wigmore, Evidence § 2380 (McNaughton rev. 1961).

In insisting on a closed hearing, appellee argues that he only seeks to preserve the confidentiality of his patient and that this can result only from a closed hearing. It is true that appellee, by oath and statute, must guard or preserve the confidentiality of his patient so long as the patient claims the privilege. However, any right appellee has to invoke the privilege exists whether the hearing is open or closed. Further, the assertion of the privilege in an open hearing may or may not necessitate closing the hearing while certain matters are discussed. As appellant correctly observes, there is “but slight connection between the patient-physician privilege rule and the question of an open or closed hearing.” In our view, Rule 503 (b) (c) does not, contrary to appellee’s assertion, mandate that a hearing be initially closed. Consequently, the court erred in holding that the mere existence of the privilege mandated a closed hearing. As pointed out by the appellee, the applicability of the Freedom of Information Act was presented to the trial court; however, that issue is not raised here by appellant.

Appellant next asserts that the court erred in holding that the Board had no authority to restrict appellee’s prescribing practices by granting him a continuance on the condition that he not prescribe Schedule II drugs in the interim. When appellee initially requested a continuance, the Board advised that its policy was not to continue a hearing where a physician was charged with excessive prescribing of Schedule II drugs unless the physician agreed not to prescribe Schedule II drugs in the interim. On the hearing date, the Board reiterated its policy and then granted the conditional continuance. There is nothing in the record indicating whether the continuance was by agreement, as asserted by appellant, or that the condition for a continuance was with appellee’s acquiescence. No written order was entered.

The Board clearly has the authority to revoke or suspend a physician’s license if it finds that the physician has committed an act, as alleged here, which is defined to be “unprofessional conduct” by the statute. § 72-613. The Board also has the authority to summarily suspend a license pending a hearing if it finds that emergency action is required and ‘ ‘incorporates a finding to that effect in its order. ’ ’ Ark. Stat. Ann. § 5-712 (Repl. 1976).

It is true that appellee’s license to practice medicine was not suspended under either of the above statutes. Here the Board, as an agency of the State, granted appellee’s renewed request for a postponement of the scheduled hearing upon the condition he refrain from prescribing a certain class of narcotics in the interim. The Board’s position is that the drugs being prescribed had a high potential for abuse which could result in severe psychic or physical dependence and addiction. Public policy requires strict regulation and close scrutiny of the dispensation of narcotic drugs. Hosto v. Brickell, 265 Ark. 147, 577 S.W. 2d 401 (1979). Here the Board, although apparently prepared at the hearing to hear evidence on the charges enumerated in its show cause order, granted appellee’s renewed request for a continuance merely to accommodate appellee for additional time to prepare his defense. Suffice it to say that granting of the continuance here was a matter of grace and not a right. We are of the view that the court erred in holding the Board had no authority to temporarily restrict appellee’s prescribing practices as a condition to granting a continuance.

Reversed and remanded.

Harris, C.J., not participating.

Purtle, J., dissenting in part.

John I. Purtle, Justice,

dissenting. I concur with the majority in holding appellant is not entitled to have a completely closed hearing in this matter. No doubt the trial court will protect appellee and his patients from being forced to openly divulge confidential information which is privileged. Whether numbers are used to identify patients or truly privileged information is prohibited from being made public by other means does not require the entire proceeding to be closed.

I dissent from that part of the majority opinion which allows the Board to revoke appellee’s license prior to a hearing. Ark. Stat. Ann. § 72-613 (Supp. 1977) provides the Board may suspend a license if it finds the holder of the license has committed certain acts. There has been no such finding here as was pointed out by the trial court. Appellee requested a continuance, which the Board apparently granted without any written findings of any nature. At this point the appellee has not been found to have violated any law, rule or regulation. In my opinion, he stands exactly as he did before a complaint was filed. In effect, the Board revoked his license without a full and fair hearing as required by Ark. Stat. Ann. § 62-614 (Supp. 1977). The Board is further required to reduce the evidence to writing, which record must contain some evidence to support their finding. Hake v. Arkansas State Medical Board, 237 Ark. 506, 374 S.W. 2d 173 (1964). Neither did the Board comply with Ark. Stat. Ann. § 5-712 (Repl. 1976) by issuing an order based upon findings of fact.

When appellee appeared at the hearing and requested a continuance, the Board had the right to agree to a continuance upon certain conditions, grant the continuance outright or conduct a hearing. Instead, they issued a unilateral order that it granted the continuance upon condition. The condition was that they would take the doctor’s license to prescribe certain drugs pending a hearing. There is no statutory authority for such action. Therefore, I am of the opinion appellee should have the right to continue full practice until he has had a full and fair hearing.


author: Frank Holt, Justice.

text:
    Eva PASCALL v. Stanley E. SMITH
    79-250
    588 S.W. 2d 701
    Opinion delivered November 5, 1979

      Gibson & Gibson, P.A., by: R. Bynum Gibson, Jr., for appellant.

      Holmes, Holmes & Trafford, by: George Holmes, for appellee.
   Frank Holt, Justice.

The appellant and appellee were divorced in 1965. In 1975 appellee brought this action to quiet title to certain real property, which they have owned as tenants by the entirety before and since the divorce. Appellee based his claim on adverse possession and, in the alternative, sought a partition and sale of the property. Appellant counterclaimed for partition and sale. The trial court, after hearing evidence on the issue to quiet title only, overruled appellant’s demurrer to the evidence. We dismissed appellant’s appeal without prejudice, because there was no appealable order. Pascall v. Smith, 262 Ark. 523, 558 S.W. 2d 150 (1977). On remand, the chancellor awarded title to the land to the appellee on his claim of adverse possession. In Pascall v. Smith, 263 Ark. 428, 569 S.W. 2d 89 (1978), we remanded the action, and in accordance with our opinion, the court sustained appellant’s demurrer and dismissed appellee’s plea to quiet title. Appellee nonsuited his partition complaint and filed a reply to the appellant’s counterclaim for partition, asserting that the property was not subject to partition because of the “homestead’ ’ exception provided in Ark. Stat. Ann. § 34-1801 (Supp. 1979). Appellant’s motion to strike the reply as being filed “too late” was overruled by the court. The chancellor found that the statute prevented partition and, therefore, denied appellant’s counterclaim. Hence this appeal.

Appellant first contends that the lower court erred in finding that the appellee had not waived his right to defend the partition action. The thrust of her argument is that since appellee initially filed (3 years previously) a partition action, appellee had waived his right or is estopped to raise the “homestead” exception set forth in § 34-1801. The statute provides in pertinent part:

Any persons having any interest in and desiring a division of land held in joint tenancy, in common, as assigned or unassigned dower, as assigned or unassigned courtesy [curtesy], or in coparceny, absolutely or subject to the life estate of another, or otherwise, or under an estate by the entirety where said owners shall have been divorced either prior or subsequent to the passage of this Act, except where the property involved shall be a homestead and occupied by either of said divorced persons . . .

Prior to the submission of this cause to the court, appellee had the absolute right to nonsuit his partition plea. Ark. Stat. Ann. § 27-1406 (Repl. 1979); St. Louis, I.M. & S. Ry. Co. v. Ingram, 118 Ark. 377, 176 S.W. 692 (1915); Lewis v. Brown, 232 Ark. 983, 341 S.W. 2d 772 (1961); and 27 C.J.S. Dismissal and Nonsuit § 20. Therefore, by filing and subsequently nonsuiting his partition plea, appellee did not waive his right nor was he estopped to raise the homestead exemption under § 34-1801.

Appellant argues that since the divorce failed to award possession of the property to either party, the appellee cannot claim the homestead exception in § 34-1801. Appellant’s reliance on Best v. Williams, 260 Ark. 30, 537 S.W. 2d 793 (1976), is misplaced because that case involved the applicability of the constitutional homestead exemption to a partition action and not the exception provided in § 34-1801. Here it appears undisputed that the appellee has lived on the property as his homestead for the past 52 years and in exclusive possession since their divorce in 1965. We hold that the chancellor correctly concluded that the homestead exception in § 34-1801 prevents partition of the property.

Affirmed.

Harris, C.J., not participating.


author: Darrell Hickman, Justice.

text:
    Shirley Wilson GREENWOOD, Guardian v. Lillie F. WILSON, Administratrix
    79-248
    588 S.W. 2d 701
    Opinion delivered November 5, 1979
    (In Banc)

      J. Marvin Holman, for appellant.

      Benny E. Swindell, for appellee.
   Darrell Hickman, Justice.

The issue before us is the validity of a will. John F. Wilson signed an instrument on the morning of July 7, 1976, while a patient at St. Mary’s Hospital in Russellville. That instrument, which was in the handwriting of his second wife, Lillie, left all his property to her if she survived him. Wilson died a month later.

The validity of that will was contested by the testator’s first wife, Shirley Wilson Greenwood, on behalf of a minor adopted child of the first marriage.

The appellant Greenwood claimed that the instrument was invalid because of undue influence exercised by Lillie Wilson and because of Wilson’s lack of mental capacity to make a will.

The Probate Court of Johnson County held the will valid. On appeal only two issues are raised: Whether the findings of the probate judge were against the preponderance of the evidence and whether the testimony of Lillie Wilson about statements Wilson made regarding his intent were admissible. The first issue requires consideration, the second none because Uniform Rules of Evidence, Rule 803(3), permits such statements concerning present intent. See State v. Abernathy, 265 Ark. 218, 577 S.W. 2d 591 (1979).

The law to be applied to this case has been settled for years. On appeal we review the case de novo and will affirm the order of the probate judge unless it is against the preponderance of the evidence. Orr v. Love, 225 Ark. 505, 283 S.W. 2d 667 (1955); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W. 2d 665 (1963). (Similar cases decided after July 1,1979 will be affirmed unless the findings are clearly erroneous according to Rules of Civil Procedure, Rule 52, which is the same standard as “clearly against the preponderance of the evidence.’’ This review criterion, however, does not affect the burden of proof that is imposed on parties in the trial of certain causes. See Note 2, Reporter’s Notes to Rule 52.)

Generally, the burden of proving undue influence and the lack of mental capacity would be on the party challenging the will. Sullivant v. Sullivant, supra; Orr v. Love, supra. However, because this will was drafted by Lillie Wilson, the primary beneficiary, there is in effect an offsetting rule which places on her the burden to prove beyond a reasonable doubt that her husband had both the mental capacity and the freedom of will and actions required to render a will legally valid.

As early as 1858 we said in McDaniel v. Crosby, 19 Ark. 533 (1858):

When a will is written, or proved to be written by a person benefited by it, or by one standing in the relation of attorney or counsel, and who is also benefited by it, — these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.

Continuing, the Court quoted favorably from a case of another jurisdiction:

... it is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid.

That has been our rule ever since.

In Orr v. Love, supra, we approved this language and also stated:

The presumption of undue influence is not one of law but is a presumption of fact and subject to rebuttal. . . . The question of undue influence and mental capacity are so closely interwoven that they are considered together.

In Sullivant v. Sullivant, supra, we again approved the standard of proof to be one beyond a reasonable doubt.

In the case of Hiler v. Cude, 248 Ark. 1065, 455 S.W. 2d 891 (1970), we were asked to hold that our decision in Orr meant that the burden of proof shifted where a proposed will is drafted by a beneficiary. That same argument is made by the appellant Greenwood. That is, normally a contestant must prove undue influence and mental incapacity; whereas a beneficiary-drawn will must be shown beyond a reasonable doubt to be free from undue influence and made by a mentally capable person.

We clearly held in Hiler that the burden did not shift and that the two rules did not conflict:

We adhere to the rule that the burden of proving mental incompetency, undue influence and fraud which will defeat a will is upon the party contesting it. We hold this burden, in the sense of the ultimate risk of nonpersuasion, never shifts from the contestant. This does not however, conflict with the rule concerning the burden of going forward with the evidence or burden of evidence. As stated in 29 Am.Jur. 2d, 156, Evidence Section 125: ‘In short, the burden of proof, in the sense of the ultimate risk of nonpersuasion, never shifts from the party who has the affirmative of an issue, although the burden of going forward with the evidence may shift at various times during the trial from one side to the other as evidence is introduced by the respective parties.’

Obviously, a proponent of a will, who is a beneficiary and who drafted or caused to be drafted a will, does not enjoy the usual legal advantages given to a document otherwise drawn. For example, a person is presumed to be sane. First Christian Church v. McReynolds, 194 Or. 68, 241 P. 2d 135 (1952). Also, a proponent of a will only has to show by a preponderance of the evidence the necessary and essential matters to get a will admitted to probate. C.J.S., Wills § 383 et seq. (1957); T. Atkinson, Wills § 101 (2d ed. 1953).

In a will such as that before us, because proof of mental capacity and the lack of undue influence must be proved beyond a reasonable doubt, those advantages, which make it relatively easy to admit a will to probate, obviously do not exist.

It is a burden that one ought to have who is a primary beneficiary of a document drafted or caused to be drafted by that beneficiary. As we said in McDaniel v. Crosby, supra, “. . . these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.”

Lillie Wilson admitted she wrote out the will because she said John Wilson’s hands were shaky and he had an I. V. (intravenous tube) in his hand.

Wilson was hospitalized on July 5th for liver failure. She wrote the will on July the 6th, and it was signed on the morning of July 7th. It reads:

I, John F. Wilson being of sound mind hereby tells that this is my last will and Testamony. This is to disregard any other wills made before. To my wife Lillie F. Wilson I leave all my property 78.2 Acres more or less and personal possions. She is to be responsible for the estate of my unborn child due Sept. 1976. In the event she dies my brother Jimmy D. Wilson is to be over my childs estate. If the child dies my nieses Deanna Wilson and Donna Wilsons will be last aires excluding 4 acres of land to my mother and Fatherinlaw — Betty Underwood shall have two acres & Charlie Woodard two acres. Jimmy D. Wilson will be in charge. This being of course if Lillie is not living. To my adopted son Antonnty Jack Wilson I leave the sum of one dollar because he has been took care of with settlements & my social security.
/s/ John F. Wilson (illegible) 7/7/76
/s/ Cheryll A. Shinn, Medical Records 7/7/76
/s/ Sharon C. Bell, Medical Records 7/7/76

There is no doubt the burden was on the appellee to prove beyond a reasonable doubt that John Wilson was not unduly influenced and that he had the mental capacity to make this will.

Undue influence has been defined this way:

As we understand the rule, the fraud and undue influence which is required to avoid a will must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution. (Quoting from 3 Elliott on Evidence, § 2696): ‘The influence of the husband over the wife, that of the wife over the husband, of the parents over the children, and of the children over the parents, are legitimate, so long as they do not extend to positive dictation and control over the mind of the testator. ’ Puryear v. Puryear, 192 Ark. 692, 700 (1936).

Mental or testamentary capacity has been uniformly defined as:

... (a) the ability on the part of the testator to retain in memory without prompting the extent and condition of property to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him of those whom he excludes from his will. Hiler v. Cude, supra, 1076.

We find the appellee did not prove beyond a reasonable doubt Wilson had the mental capacity to execute a valid will. The chancellor’s findings in that regard are against the preponderance of the evidence.

Four witnesses testified for the appellee, two employees of the hospital, a doctor and the appellee, Lillie Wilson.

Lillie Wilson testified that she and John Wilson were married in February, 1975, and that she gave birth to his childin October, 1976,55 days after Wilson’s death. She said Wilson was sick and she had him admitted to the hospital on the 5th of July, 1976. He told her he wanted a will and she wrote down on a piece of paper what he told her. She talked to a lawyer the morning of the 6th and received some advice after which she drafted the will, which we have reproduced, in her own handwriting. She said she was told by the lawyer that Wilson could not be under the influence of drugs when he signed the will.

She called Dr. Ernest King and told him that her husband wanted to make a will and he could not be under the influence of drugs when he signed the will. She said the doctor replied “ O.K. ” and agreed to meet her at the hospital early the next morning. She said she arrived at 8:00 a.m. and saw a sign on the door which read, “Withhold Wilson. ’ ’ The doctor came in about 8:30 a.m. and said he would send two secretaries to witness the signature. She said the secretaries had to come back three times because Wilson had diarrhea and was in the bathroom. She said she read the will to Wilson and he signed it.

She was not asked specifically about Wilson’s mental condition.

The two secretaries testified that they both signed the document at Dr. King’s request.

Cheryll Shinn, a medical transcriptionist, said she signed it sometime between 9:15 and 9:45 a.m. She said that her boss, Sharon Bell, was there and another woman whom she could not identify. She was asked:

* * *
Q. Did he appear to be of sound mind at the time he signed this?
A. I really couldn’t answer that.
Q. Was there anything he did or said —?
* * *
A. I really couldn’t answer that.
Q. Was there anything he said or did that indicated to you that he was not of sound mind?
A. No, sir.
Q. Did he appear to be under any undue influence or coercion at the time he signed this document?
A. No, sir, he did not. . . .

Shinn said she was present only two or three minutes. She testified she did ask Wilson if that was exactly what he wanted to do and he replied it was.

Sharon Bell, a medical records administrator, testified that she was present three or four minutes and could not recall any conversation. She could not identify the wife as being present although she thought there was another person in the room. She said this was the only time she saw this patient.

Dr. Ernest King, who did not admit Wilson to the hospital but treated him while he was there, said Wilson was suffering from severe hepatic failure — liver failure. He said that Wilson was ‘ ‘ acutely ill, critically ill, morbidly ill. ” King testified that he went to Wilson’s room between 8 and 9 a.m. on the 7th of July and talked to Wilson about ten minutes. He said he did not give him a physical examination but he was satisfied that Wilson had the capacity to make a will. That is, that he knew about his property and knew what he wanted to do with it. He was not present later when the will was signed in the presence of the secretaries.

He admitted during cross-examination that Wilson was very ill the night before and had had hallucinations. Dr. King said his knowledge about Wilson’s hallucinations prompted him to order a consultation with a psychiatrist for the 8th of July. He said he had seen him in the afternoon of the 6th but not during the night. He said he did not remember or “have in his information” the fact that early the morning of the 7th Wilson was walking the halls and picking bugs off the wall. He verified that Wilson was given 50 milligrams of Demerol and 50 milligrams of Visteril the morning of the 7th. Demerol is a narcotic and Visteril is a tranquilizer.

He admitted the records showed that on the morning of the 7th at 7:30 there was a note that Wilson was out of bed, walking the halls, confused and picking bugs off the bed table, in a condition that King agreed would make Wilson incapable of making a valid will. Dr. King said that he did not think Wilson was confused when he talked to him thirty minutes or so later.

He was asked about a nurse’s written observation that at 11:00 a.m. on the morning of the 7th, Wilson was “shaking all over, continues to be confused. Dr. King notified.” He agreed Wilson would not have been competent at 11:00 a.m. He said he did not remember seeing Wilson that morning; he did not think he did because he had seen him off and on for several days and this was nothing new. He said it had been two years since the event and he could not recall any conversation that took place with Wilson on the morning of the 7th. Other doctors also attended Wilson.

Barbara Hays, a nurse who came on duty about 6:30 a.m. on the morning of the 7th, made the 7:30 a.m. note. It read:

Out of bed. Walking in halls. Confused. Picking bugs off bed table when no bugs seen by . . . personnel.

She observed this conduct personally. She confirmed that the record showed that at 5:50 a.m. on the morning of the 7th Wilson received 50 milligrams of Demerol and 50 milligrams of Visteril. She testified that the records showed that on the afternoon Wilson was admitted, which was the 5th of July, he had a convulsion. The record reflected that several times the I. V. tube had been pulled out on the 6th and 7th of July. Wilson also had a bowel movement in his bed.

She made the medical observation and note that at 11:00 a.m. on the 7th he was shaking all over and continued to be confused. She personally observed this conduct. She noted that Dr. King was notified. She made the note at 10:30 on the 8th of July that Dr. Linda Bell, a psychiatrist, was notified of a consultation. She noted that on the 9th of July he continued to be confused. On the 10th of July she made the note that Wilson was coherent when she spoke to him.

There is no doubt that Wilson, when admitted to the hospital, not only suffered from severe physical problems but also from withdrawal symptoms commonly known as the D. T. ’ s. One report stated that he had been using a half gallon of wine a day; another two gallons of wine a week.

Dr. Steven Bradley Finch, a specialist in psychiatry, was called as an expert witness by the appellant. His conclusion, after studying the medical reports and record, was:

A. I have formed a conclusion from my examination of the medical records. My conclusion is that this man in all likelihood was suffering from an organic psychosis as well as his physical disorders and that this was probably related to an alcohol ingestion. It is my further opinion that between the date of admission on July the 5th until the evening of July the 9th or the morning of July the 10th, that the patient was unable to carry a stream of thought to its logical conclusion. And that his judgment was impaired to the extent that he probably could not make a logical judgment.

Reviewing the evidence, it is undisputed that Wilson suffered severely and suffered from hallucinations. A person may hallucinate without outward signs of hallucination. Dr. King admitted he was not competent at 7:30 a.m. and 11:00 a.m. according to hospital records. The great weight of the evidence is he was not mentally competent on the morning of the 7th to make a valid will.

It is possible that he had a lucid interval when he signed the will. Yet the preponderance of the evidence is otherwise. Dr. King, the only witness for appellant on mental capacity, was not present when the will was signed. Neither attesting witness nor Lillie Wilson testified positively about his mental capacity.

The medical records, the testimony of the nurse and Dr. Finch’s testimony clearly demonstrate Wilson’s condition.

The question must be asked then, where is the evidence beyond a reasonable doubt that Wilson had the mental capacity to make a will? It is not present. We would have to presume that Wilson was in a lucid interval, not confused or suffering from hallucinations or drugs at the precise time he signed the document. We are unwilling to make that presumption in the face of the evidence in this case.

The probate judge’s findings are against the preponderance of the evidence and the cause is reversed with directions to dismiss the order admitting the will to probate.

Reversed.

Harris, C.J., not participating.

Byrd, J. dissents.


author: John I. Purtle, Justice.

text:
    Doyle Anthony JONES v. STATE of Arkansas
    CR 79-102
    589 S.W. 2d 16
    Opinion delivered November 5, 1979
    (In Banc)

      Michael Dabney, Public Defender, for appellant.

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

The Circuit Court of Washington County denied appellant’s petition to set aside his guilty pleas pursuant to Rules of Crim. Proc., Rule 37.1 (d) (1976). On appeal it is urged that the trial court erred in refusing to sustain the petition which alleged ineffective assistance of counsel.

On August 5, 1976, appellant entered a guilty plea to a charge of rape and also to a charge of possession of stolen property. He was sentenced to concurrent sentences of 30 years on each with 9 years suspended. On September 19, 1978, he filed his Rule 37 petition pro se. After a full hearing before the trial court, at which hearing appellant was ably represented by appointed counsel, the petition was denied. We are asked to declare that the trial court erred in failing to grant the petition. It is our opinion that the decision of the trial court is supported by the evidence presented at the hearing and we do not find reversible error.

Appellant alleged his guilty pleas were entered because his attorney threatened to withdraw from the case unless he pleaded guilty. The alleged threats came on the date he was scheduled for trial before a jury. The evidence at the Rule 37 hearing included everything appellant desired to present. Several allegations related to matters which cannot be considered on a Rule 37 hearing and will not be discussed in this opinion. For information purposes only, these unrelated matters included allegations that appellant was brought from Missouri to Arkansas without an extradition hearing; that he was never placed in a line-up; and that he was not served copies of the arrest warrants.

Appellant testified at his Rule 37 hearing that his attorney did not subpoena witnesses which he had requested; told him a jury would likely give him 50 to 60 years if he went to trial; that a guilty plea was not discussed until the day of the trial; that he (the attorney) would walk out if a guilty plea were not entered; that the attorney took him outside the courtroom twice before getting him to enter guilty pleas; and that the attorney caused appellant’s mother and brother to help persuade him to plead guilty. The appellant’s mother and brother testified generally to the same matters. The brother admitted he recommended appellant plead guilty, and the mother stated the attorney told them appellant could get life or possibly the electric chair if he did not plead guilty. She further stated the attorney told her appellant would probably have to serve only 3 or 4 years if he pleaded guilty.

From the record is is quite clear that appellant was most reluctant to plead guilty. It is also clear that his attorney used considerable persuasion in getting him to plead guilty. Nevertheless, it is equally clear that the plea was, in the end, a voluntary one as evidenced by the following questions and answers:

The Court: You know of no witnesses nor defense that will help you in either of these cases?
Appellant: No, sir.
* * *
The Court: Has your attorney acted soberly, diligently, and competently in advising you in this case?
Appellant: Yes, sir.
The Court: Do you have any criticism of his conduct in his representation?
Appellant: No, sir.

The original trial attorney took the stand at the Rule 37 hearing testifying that he had contacted all witnesses suggested on behalf of appellant and was convinced none of them would be of any assistance in the defense of the case. He stated he had been practicing law for 11 years and had averaged trying 10 to 12 jury cases per year. He considered the probability that after the appellant had been convicted on either charge he would be sentenced as a habitual criminal on the second trial because he had a prior conviction record. (Appellant had a conviction other than these two charges.) He admitted telling the appellant he would likely receive a sentence of 50 to 60 years if he insisted on a jury trial. In his opinion appellant would have no witnesses and could not afford to take the stand. Also, he admitted he sought the assistance of appellant’s mother and brother in persuading him to plead guilty. He denied telling appellant he would walk out on him if he insisted on a jury trial but stated he informed appellant he could go to the jury if he insisted. The sum total of his testimony was that in his professional judgment pleading guilty, and having the sentences run concurrently, was in the best interest of his client.

In essence, appellant’s argument appears to be that the employed counsel overrepresented him at the time of entry of the guilty pleas by forcing him to plead guilty. The petition also seems to be a backhanded way of trying to withdraw his guilty pleas. This is not a timely presentation for a Rule 26.1 attempt to withdraw a guilty plea. Pettigrew v. State, 262 Ark. 359, 556 S.W. 2d 880 (1977). We pointed out the distinction between Rule 26.1 and Rule 37.1 in Shipman v. State, 261 Ark. 559, 550 S.W. 2d 454 (1977), wherein we stated that a Rule 26.1 petition should be amended to seek relief under Rule 37.1 before it could be considered in a post-conviction collateral attack on a sentence.

There is a presumption that counsel is competent. Davis v. State, 253 Ark. 484, 486 S.W. 2d 904 (1972). Therefore, it is the duty of appellant to prove ineffective assistance of counsel. Porter v. State, 264 Ark. 272, 570 S.W. 2d 615 (1978). In the present case the record clearly reveals the sentencing judge became somewhat unsure of appellant’s voluntariness and granted a recess on two occasions for the purpose of allowing a discussion between appellant and his retained counsel. At most, the evidence tends to show appellant and his attorney gave conflicting testimony as to the voluntariness of the pleas. Under these circumstances we are unable to say the trial court was not justified in accepting the version of retained counsel over that of appellant in finding the pleas were voluntary. It is our custom to defer to the superior position of the trial court where the disposition of the matter depends upon credibility of witnesses who appear before the trial court. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978). The advice given by retained counsel obviously is within the range of competence demanded of attorneys in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W. 2d 152 (1973).

Affirmed.

Harris, C.J., not participating.


author: George Rose Smith, Justice.

text:
    Douglas Orvel WHITE and his wife v. Bill RAY d/b/a RAY’S BUILDING CONTRACTOR
    79-240
    589 S.W. 2d 28
    Opinion delivered November 13, 1979
    (In Banc)

      Charles G. Vaccaro, for appellants.

      Joe H. Hardegree, for appellee.
   George Rose Smith, Justice.

This is an appeal from the chancellor’s refusal to set aside a default judgment for want of valid service of process upon the appellant-defendants.

On July 13, 1978, the appellee Ray, a building contractor, sued the appellants, residents of California, to recover a $2,246.77 balance due under a contract by which Ray had made improvements to the appellant’s property in Montgomery County. Service of process was attempted under Ark. Stat. Ann. § 27-339.1 (Repl. 1979), which requires the Secretary of State to send notice to the nonresident defendant by registered mail. Here the service upon the appellants was defective, because the return receipt from California indicated that the registered letter was being returned undelivered as “unclaimed.” Nevertheless, the appelee, on the basis of an affidavit suggesting that the appellants had in fact refused to receive the letter, obtained a default judgment on December 22.

On January 22, 1979, the appellants filed an unverified motion to set aside the decree, citing Ark. Stat. Ann. §§ 29-501, 29-506(7), and 27-1901 (Repl. 1962). The motion alleged that the defendants had been prevented by unavoidable casualty or misfortune from appearing and defending the action. It also alleged that the service of process was invalid, that the defendants had no knowledge that the suit was pending until after the entry of the decree, and that they had a meritorious defense. After a hearing the chancellor denied the motion.

We cannot say, on the record made below, that the chancellor was wrong. The defendants expressly based their motion to vacate on Section 29-506(7), which provides for the vacation of a judgment for unavoidable casualty or misfortune. Section 29-509 requires that a meritorious defense be shown. (Both sections have, in substance, been incorporated in Rule 60, ARCP.) We have consistently held that a defendant seeking relief under these statutes must show that he did not know of the proceeding against him and that he has a meritorious defense. Renault Central v. International Imports of Fayetteville, 266 Ark. 155, 583 S.W. 2d 10 (1979); Employers Mut. Cas. Co. v. Buckner, 233 Ark. 564, 345 S.W. 2d 924 (1961).

Here the defendants offered no evidence at the hearing on their motion, electing to rely upon the pleadings and the record of the attempted service. A mere allegation of a meritorious defense, without proof, is insufficient. Merriott v. Kilgore, 200 Ark. 394, 139 S.W. 2d 387 (1940). The same thing may be said of an allegation that the defendants had no knowledge that the suit was pending. The plaintiffs proof indicated that defendants had actual knowledge of the suit several months before the default judgment was entered. Hence the chancellor was justified in denying the motion to vacate.

The appellants, in their brief in this court, assert that the default judgment was absolutely void, citing Ark. Stat. Ann. § 29-107 and Edmonson v. Farris, 263 Ark. 505, 565 S.W. 2d 617 (1978). That statute declares that a judgment entered “without notice, actual or constructive,” is absolutely null and void. We so held in Edmonson, adding that proof of a meritorious defense is unnecessary. But, first, that statute has to do with a judgment entered without any notice whatever. That showing was not made in the case at bar. Second, in Edmonson we cited Halliman v. Stiles, 250 Ark. 249, 464 S.W. 2d 573 (1971), where we pointed out that the defendant relied not only on Section 29-506 but also on Section 29-107. Here Section 29-107 was not referred to in the motion to vacate nor in the three trial briefs submitted by counsel then representing the defendants. Thus the attack was on the validity of the service, not upon the judgment itself. The difference is that under Section 29-506 the defaulting defendant seeks a trial, so that he can present his defense. Under Section 29-107 he does not seek a trial, but asks that the judgment be declared void. Here the appellants chose to proceed under Section 29-506, but their proof is insufficient.

Affirmed.

Harris, C.J., not participating.


text:
    James S. MOOSE, Jr. et al v. David GREGORY et al
    79-300
    590 S.W. 2d 662
    Opinion delivered November 13, 1979
    (In Banc)

      Gordon, Gordon & Eddy, for petitioner.

      Edmond M. Massey and W. P. Hamilton, for respondents.
   George Rose Smith, Justice.

In this case the Court of Appeals reversed the decision of the chancery court, essentially on the ground that the chancellor’s conclusion was clearly against the preponderance of the evidence. Gregory v. Moose, 266 Ark. 926, 590 S.W. 2d 665 (Ark. App. 1979). The petitioners, in seeking a review of the decision of the Court of Appeals, summarize their argument in the closing language of their petition for review:

The Court of Appeals reversed the findings of fact of the Chancellor when his findings were not clearly against a preponderance of the evidence. Hackworth v. First National Bank, 265 Ark. 668, 580 S.W. 2d 465.
Public interest justifies a review, because it is of major importance and of first impression.

Counsel do not explain why the case is of major importance or in what way it is of first impression.

We are unanimously of the view that the petition for review should be denied. Ordinarily our order would be, simply: Petition denied. But the Court of Appeals is a new tribunal, created by the General Assembly under the authority of a constitutional amendment adopted only last year. Ark. Const. (1874), Amendment 58. This is one of the few petitions for review that have as yet been filed in the Supreme Court. It presents a peculiarly appropriate opportunity for us to explain why this petition, and similar ones that may be filed in the future, must be denied.

Amendment 58 contains only one sentence pertinent to questions of jurisdiction and review, as between the Supreme Court and the Court of Appeals: “The Court of Appeals shall have such appellate jurisdiction as the Supreme Court shall by rule determine, and shall be subject to the general superintending control of the Supreme Court.” Thus the amendment entrusts to the Supreme Court complete responsibility for determining both the initial jurisdiction of the Court of Appeals and the extent to which its decisions are reviewable.

The really important problem has proved to be that of determining how the Court of Appeals is to be fitted into the appellate system. It might be treated as a purely intermediate court, becoming merely an expensive and time-consuming level in the appellate structure. On the other hand, it might be treated as a court of final authority in the particular area of its own jurisdiction.

We adopted the latter view. We acknowledge our indebtedness to the wisdom of Dr. Robert A. Leflar, an outstanding professor of law and a former member of this court. Dr. Leflar repeatedly urged, from the time Amendment 58 was first proposed, that the new court should not merely add another step to the appellate process. To the contrary, Dr. Leflar urged that the proposed court of appeals have its own areas of jurisdiction, with corresponding final authority. It was Dr. Leflar’s thought that cases requiring a determination of public policy or the setting of important precedent should be reserved for the Supreme Court, with more routine cases going to the Court of Appeals.

Last May, after the General Assembly had created the new Court of Appeals, we further implemented Amendment 58 by adopting and publishing Rule 29 of the Rules of the Supreme Court and Court of Appeals. That rule tentatively defines both the separate jurisdictions of the two courts and the narrow grounds on which a decision of the Court of Appeals will be reviewed by the Supreme Court. Fundamentally, Rule 29 embraces four basic points:

1. Certain cases, set forth in Section 1 of the rule, should be appealed to the Supreme Court in the first instance.
2. All other cases should be appealed to the Court of Appeals.
3. The Court of Appeals should transfer to the Supreme Court (a) any case that should have gone to the Supreme Court in the first instance and (b) any case that is found to involve an issue of significant public interest or a legal principle of major importance.
4. The Supreme Court may grant certiorari to review any case that should have come to the Supreme Court originally, that should have been transferred to the Supreme Court by the Court of Appeals, or that was decided in the Court of Appeals by a tie vote. (Otherwise the decision of the Court of Appeals will not be reviewed.)

We should emphasize the fact that we adopted Rule 29 to put into effect the basic purpose of Amendment 58 to the Constitution. That is, the volume of litigation in Arkansas had grown to such an extent that it could not be handled promptly and properly by a single appellate court. Before the submission of Amendment 58 the Supreme Court’s caseload had more than doubled in about 15 years. Appeals were being filed at the rate of almost two a day for each of the 365 days in the year. It had become impossible for one court of last resort to give careful consideration to every case.

Amendment 58 addressed the problem by authorizing the General Assembly to create a court of appeals to shoulder part of the burden. The Amendment, it may be noted, also authorized the General Assembly to create divisions within the court of appeals, to provide for a still greater caseload in the future. Lastly, Amendment 58 vested in the Supreme Court the power to determine the jurisdiction of the court of appeals, so that the total caseload might be apportioned between the two appellate courts.

Rule 29, with such modifications as experience may suggest, is designed to carry Amendment 58 into effect. Ideally, the Supreme Court and the Court of Appeals will each have its own field of primary jurisdiction. Ideally, each court will in effect be a court of last resort, with its decisions having a desirable finality. Ideally, it will be immaterial to the litigant whether his particular case goes to one court or to the other. In either event both parties will have the benefit of an appellate review by a multi-judge court composed of judges having exactly the same qualifications (as Amendment 58 specifies).

Our goal is to provide each litigant with the opportunity for one appeal only, not two. That is why, in the case at hand, the petitioners’ application for certiorari must be denied. The real question before the Court of Appeals was whether the chancellor’s decision was clearly against the preponderance of the evidence. The court decided that question. There was no reason why the case should have come to the Supreme Court in the first instance or why it should have been transferred to us by the Court of Appeals. The decision of the Court of Appeals is therefore not subject to review under Rule 29.

Finally, we should state, as clearly and as unmistakably as we can, that the mere possibility that the Court of Appeals may have been wrong in a given case is not a basis for review by this court. No matter whether a particular case goes to one court or the other, the losing litigant understandably feels that the decision was wrong. And perhaps it was, no matter which court decided the case. No court is always right. But if we undertake to examine every decision of the Court of Appeals upon a mere suggestion of error, then we must ultimately read all the briefs and decide every case de novo, as if the Court of Appeals did not exist. There is no other possible course if we accept the position in effect argued by the present petitioners, that we should review the case simply because the Court of Appeals may have erred in finding that the chancellor’ s decision was against the weight of the proof.

We said early in this opinion that the case presents a peculiarly appropriate opportunity for us to explain our position. That is so because the opinion of the Court of Appeals is actually mistaken in one respect. In the trial court the present petitioners attacked the validity of a trustee’s sale of land on two different grounds: first, that the trustee was mentally incompetent to make the sale and, second, that the trustee sold the property for an inadequate price. The chancellor found that the trustee was competent, but set aside the sale for inadequacy of price. The Court of Appeals refused to consider the issue of competency, because there was no cross appeal, but reversed the finding of inadequacy of price.

No cross appeal was necessary. It has long been the rule in Arkansas that the trial judge’s decision will not be reversed if he reached the right result, even though he gave an erroneous reason. Greeson v. Cannon, 141 Ark. 540, 217 S.W. 786(1920). Not infrequently we have affirmed a correct decision upon the very ground the trial judge erroneously rejected. See, for example, Mobley v. Scott, 236 Ark. 163, 365 S.W. 2d 122 (1963), and McCrite v. Hendrix College, 198 Ark. 1149, 133 S.W. 2d 31 (1939). A cross appeal is required only when the appellee seeks affirmative relief that he failed to obtain in the trial court, not when he won the case below and merely asks that the judgment be affirmed.

In the case at bar the error of the Court of Appeals has become immaterial in any event, because the petitioners did not complain of it either in their petition for rehearing in that court or in their petition for review. Hence we may fairly use the error as an illustration of why we cannot review decisions of the Court of Appeals, within its own area of jurisdiction, even though it might be argued that the decision was wrong.

Petition denied.

Harris, C.J., not participating.

Byrd, J., concurs in the result.


author: John A. Fogleman, Justice.

text:
    Arnal Wayne GRIFFIN v. GEORGE’S, INC.
    79-195
    589 S.W. 2d 24
    Opinion delivered November 13, 1979
    (In Banc)

      Wommack & Hawkins, by: Claude S. Hawkins, Jr., for appellant.

      Crouch, Blair, Cypert & Waters, for appellee.
   John A. Fogleman, Justice.

The trial judge sustained the general demurrer of George’s, Inc., to the complaint of Arnal Wayne Griffin, seeking to recover for personal injuries suffered during the course of his employment by George’s, Inc. Originally, there was no indication that this ruling was a final judgment, as Griffin was given 30 days to plead further. See Griffin v. George’s, Inc., 266 Ark. 646, 587 S.W. 2d 225 (1979). We did not dismiss the appeal, in order that the parties might have an opportunity to establish the finality of the trial court’s action. We now have a record reflecting the dismissal of Griffin’s complaint, which is, of course, a final order.

Since the dismissal was based upon the sustaining of appellee’s demurrer, we must consider as true all facts well pleaded in the complaint and draw all reasonable inferences from those facts in favor of the pleader. Howell v. Arkansas Power & Light Co., 225 Ark. 535, 283 S.W. 2d 680; Tri-B Advertising, Inc. v. Arkansas State Highway Com’n., 260 Ark. 227, 539 S.W. 2d 430. So we will review the facts alleged in the complaint as if they were facts established as true.

George’s, Inc., is engaged in the feed and grain industry. Griffin was an employee of George’s at Springdale. On or about July 10, 1974, Griffin, then 17 years of age, was severely, painfully, seriously and permanently injured when, in the performance of his duties, he stepped on loose grain and other foreign objects on the surface surrounding an unguarded grain auger and slipped into and become entrapped in it. This auger constituted an extreme hazard to persons working near it, as appellant was at the time of his injury, for the following reasons: There was no grate, or any other protective guard, to prevent persons coming near the auger from falling into, or becoming trapped in, the auger; a protective grate which had been on the auger when it was installed was removed by Griffin’s employer in order to install a “clod-buster” and had never been replaced; the auger was two to three feet below ground level, and the opening into it was funnel shaped, i.e., it was larger at ground level than it was at the level of the auger; the surface at ground level sloped toward the opening of the auger, and, since there was usually grain lying upon this surface, one coming near the opening could easily slip and fall into the unguarded grain auger. This condition was permitted to exist in spite of the fact that it was in direct violation of federal and state statutes and regulations, and could have easily been corrected by installation of a protective covering over the opening. Although the employer was aware that this condition was hazardous and dangerous to its employees and recognized the substantial certainty that it would result in injury to an employee, it wilfully and wantonly disregarded this known danger and gave Griffin a dangerous work assignment which placed him in direct danger of injury by the auger. The employer ordered him to perform this duty without giving him any instructions in the proper and safe manner of performance of his duties or any warnings regarding this dangerous and hazardous condition, in spite of the fact that it was substantially certain that an employee in Griffin’s position would be injured by reason thereof. The auger contained a shaft with a blade connected thereto which was revolving on the shaft when Griffin slipped into it and his resulting injuries were compounded by delay in stopping the operation of the grain auger due to the fact that no safety “shut-off’ devices had been installed on the auger. Griffin was required to start work at 5:00 a.m. on the day he was injured, in violation of Ark. Stat. Ann. § 81-707 (Repl. 1976) [Child Labor Act]. He was also involved in the operation of power driven hoisting apparatus in direct and intentional violation of federal regulations. Plaintiff s injuries would not have occurred had this federal regulation not been violated.

The demurrer and the circuit court’s order sustaining it were based upon Ark. Stat. Ann. § 81-1304 (Repl. 1976) which makes the rights and remedies of an employee under the Worker’s Compensation Law exclusive of all other rights and remedies of the employee for injury or death arising out of and in the course of his employment.

Appellant contends that the trial court erred in sustaining the demurrer because his injury resulted from an intentional tort committed by George’s. He recognizes that, in Haggar v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W. 2d 1, we held that recovery from the employer for the death of an employee in a wrongful death action based on allegations of gross negligence and unlawful acts of the employer was barred because remedies provided by the Worker’s Compensation Law were exclusive. This holding was subsequently construed to mean that recovery for injury or death resulting from gross negligence of the employer was limited to the remedy provided by the Worker’s Compensation Law under § 81-1304, but the section was not to apply to a wilful and malicious injury by an assault by the employer on the employee. See Heskett v. Fisher Laundry & Cleaners, Inc., 217 Ark. 350, 230 S.W. 2d 28.

Griffin contends that, since his complaint alleges an intentional tort, he is not precluded from proceeding with his common law tort action against his employers. He draws an analogy between the test regarding exclusivity of remedies under the Worker’s Compensation Law and the test for allowance of punitive damages in negligence cases. He points out that punitive damages are not recoverable in cases where liability is based upon negligence, however gross the negligence may be, unless there is either an added element of intentional wrong, or its equivalent, conscious indifference in the face of discovered peril, from which malice may be inferred, citing St. Louis S.W. Ry. Co. v. Owings, 135 Ark. 56, 204 S.W. 1146; St. Louis I.M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S.W. 224; Moore v. Wilson, 180 Ark. 41, 20 S.W. 2d 310. Griffin argues that the outer limits of the exclusivity ban should coincide with the limit on the right to seek punitive damages in negligence cases.

Appellant also points out that in Ellis v. Ferguson, 238 Ark. 776, 385 S.W. 2d 154, we held that the law imputes a constructive intention as to the consequences to an offender and, in some cases, conduct which would otherwise be mere negligence becomes a wilful wrong when there was a reckless disregard of probable consequences by the actor. He also relies upon definitions of intent which extend to consequences which the actor believes are substantially certain to follow from what he does. See Prosser, Torts (4th Ed.), p. 31, § 8; Restatement of the Law, Torts, 2d, p. 15, § 8A. He also cites Garratt v. Dailey, 46 Wash. 2d 197, 279 P. 2d 1091 (1955), wherein the Washington Supreme Court held that a defendant who moved a chair while plaintiff was in the process of sitting down in the chair, would be liable for the intentional tort of battery, if he acted with knowledge that such result was substantially certain to occur. This case dealt with common law tort liability only.

We think that appellant is asking us to extend our decisions in Hagger and Heskett, to write an exception into § 81-1304 for injuries or death resulting from wilful and wanton negligence. In Heskett, we considered the question whether a wilful and malicious injury inflicted by an officer and general manager of the employer upon the employee is comprehended within the provisions of the Worker’s Compensation Act. We held that the vicious, intentional, unprovoked, and premeditated assault by the employer upon the employee was not an accident so as to come within the provisions of the Worker’s Compensation Act. It naturally followed that the “exclusive remedy” section did not apply in such a case. Actually, it had been alleged in the complaint in Hagger that the acts relied upon to avoid the application of that section were gross, wanton and unlawful. There was no departure from Hagger v. Heskett; instead, we adhered to Hagger, and did not relax the strict limitation of § 81-1304. It is also important to remember that our decision in Heskett that the employee could seek full damages in a common law action was based upon the premise that an employer wilfully severs the employer-employee relationship by committing a wilful assault upon the employee.

The appropriate construction of § 81-1304 is indicated in Larson’s Workmen’s Compensation Law, Vol. 2A, p. 13-8, § 68.13, where the writer said:

Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injury that robs the injury of accidental character.

Heskett is not inconsistent with this approach. It only excepts acts committed with an actual, specific and deliberate intent on the part of the employer to injure the employee. We relied upon authority that an employer who deliberately batters his employee should not be allowed to compel the worker to accept moderate workmen’s compensation benefits.

We think the proper result was reached in Finch v. Swingley, 42 A.D. 2d 1035, 348 N.Y.S. 2d 266 (1973). The effect of that decision is that, in order to avoid the bar of the exclusivity clause on demurrer, the complaint must be based upon allegations of an intentional or deliberate act by the employer with a desire to bring about the consequences of the act, and not upon allegations of wilful and wanton conduct by negligent direction to the employee to use a device known by the employer to be defective or failure to warn the employee of an unsafe condition of which the employer was aware.

In considering § 81-1304, we must keep in mind that if employers are required not only to provide worker’s compensation but also to defend tort actions of employees and to respond in damages for torts, there would be a subversion of the very purpose of the whole workmen’s compensation scheme of spreading the risk of loss for injuries arising out of, and in the course of, covered employment so that, indirectly and ultimately, the general public bears the burden as a part of the cost of articles produced or services rendered, because there would be no way to spread the risk of the tort liability. See, Rosales v. Verson Allsteel Press Co., 41 Ill. App. 3d 787, 354 N.E. 2d 553 (1976).

The trial court properly sustained the demurrer of George’s, Inc. to Griffin’s complaint, so the judgment is affirmed.

       Our definitions of wilful and wanton negligence include the element of constructive intent, upon which appellant relies. See Edwards v. Jeffers, 204 Ark. 400, 162 S.W. 2d 472; Cooper v. Calico, 214 Ark. 853, 218 S.W. 2d 723; Scott v. Shairrick, 225 Ark. 59, 279 S.W. 2d 39; Spence v. Vaught, 236 Ark. 509, 367 S.W. 2d 238; Carden v. Evans, 243 Ark. 233, 419 S.W. 2d 295.


author: Conley Byrd, Justice.

text:
    Ginger SHIRAS and ARKANSAS GAZETTE COMPANY v. Henry M. BRITT, Circuit Judge
    78-34
    589 S.W. 2d 18
    Opinion delivered November 13, 1979

      Rose, Nash, Williamson, Carroll, Clay & Giroir, by: Phillip Carroll, for petitioners.

      Bill Clinton, Atty. Gen., by: Martin J. Nevrla, Asst. Atty. Gen., and Steve Clark, Atty. Gen., by: David L. Williams, Asst. Atty. Gen., for respondent.
   Conley Byrd, Justice.

During the conspiracy to murder trial of Rodney Coston, and out of the hearing of the jury, respondent Henry M. Britt, Circuit Judge, excluded the public and the press from a “Denno” hearing conducted pursuant to Ark. Stat. Ann. § 43-2105 (Repl. 1977). The respondent, on one other occasion during a proffer for the record of testimony held to be inadmissible, ruled that petitioner Ginger Shiras could remain present during the proffer only upon condition that the respondent could censor any story written about the proffer. Petitioner would not submit to the censorship, and was accordingly excluded during the proffer. This petition was brought to challenge the actions of respondent.

We have reviewed the petition for mandamus, as an after-the-fact situation, for the reasons set forth in Commercial Printing Co. & Tosca v. Lee, 262 Ark. 87, 553 S.W. 2d 270 (1977).

During oral argument, it was conceded by petitioner that she had no greater rights to attend the trial than any other member of the public. Consequently, we shall only deal with the rights of petitioner as a member of the public.

In asking for the issuance of a writ, petitioners contend that the exclusion from the “Denno” hearing, Ark. Stat. Ann. § 43-2105 (Repl. 1977), and the proffer of proof by the witness was a violation of Ark. Stat. Ann. § 22-109 (Repl. 1962) and Art. 2 § 6 of the Constitution of Arkansas and the First and Fourteenth Amendments to the Constitution of the United States. Respondent asserts that petitioner’s legal rights were not violated since the press has only a limited right of access to in camera hearings and that the challenged action of respondent advanced the public interest in a fair and prompt criminal trial in which the rights of the accused were protected.

Most of the briefs of both petitioner and respondent are centered around her alleged Federal constitutional rights and the recent case of Gannett Co., Inc. v. DePasquale, County Court Judge of Seneca County, N.Y., U.S., 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). However, we need not reach those issues, because as we view the issues before us, they are controlled by Ark. Stat. Ann. § 22-109 (Repl. 1962) which provides:

“The sittings of every court shall be public, and every person may freely attend the same.”

In Commercial Printing Co., & Tosca v. Lee, supra, after pointing to Ark. Stat. Ann. § 22-109 (Repl. 1962), and the fact that the Constitution of Arkansas does not guarantee a private trial, we stated:

This is no new premise. Probably the best known legal writer of all time, Sir William Blackstone, a member of His Majesty’s Court of Common Pleas during the 18th Century, in his Commentaries on the Laws of England, Volume 4, Page 1428, Paragraph 5 (Lewis’ Edition), stated:
‘Public wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community in its social aggregate capacity.’
Lay citizens, in criticizing courts in reversing or dismissing criminal cases because of the state’s failure to comply with some legal requirement (though perhaps thought to be technical), frequently comment that the courts scrupulously observe every right of a defendant, but sometimes seem to overlook that the public also is directly affected by criminal acts and has a direct interest in the outcome of the proceedings.
Additionally, the courthouses are paid for with public funds; the judges, jurors, state’s attorney (and defense attorneys who have been appointed by the court because of the indigency of their clients) are paid with public funds. The public has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice, and it would require unusual circumstances for this right to be held subordinate to the contention of a defendant that he is prejudiced by a public trial (or any part thereof).
As stated previously, we have only one question before us, viz, was the court’s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic ‘No!’ ”

Respondent contends that the challenged action actually advanced the public interest in a fair trial by protecting the rights of the accused. In this connection he points out that the most damaging outside information in a criminal trial comes from suppression hearings. He acknowledges that society benefits when there is access to all open court proceedings but concludes that the State’s obligation to protect the right of the accused to a constitutionally fair, speedy and impartial trial must be given even greater consideration.

We cannot agree with respondent’s emphasis on the rights of the accused for to do so puts the courts in the position of letting the tail wag the dog. Courts operate for the benefit of the public and like Caesar’s wife should appear to be above reproach. When the public loses confidence in the ability of the courts to fully and impartially deal with those accused of crime, the public has a tendency to take the law into its own hands. In that case all of society is the loser because the innocent have no way of protecting themselves from their accusers.

Furthermore, the handling of the public’s business in secret and behind closed doors not only causes the public to view the results with distrust, but it deprives the public of sufficient knowledge to make adjustments or reform in the law or the judiciary. Just recently a farmer by trade introduced and put through the General Assembly a judicial redistricting of the several judicial circuits and districts in this State. Needless to say, we have concluded that the rights of the accused to a fair and impartial trial do not exceed the rights of the public to observe justice in progress.

Writ granted.


text:
    William Roger WINKLE and Janie WINKLE v. GRAND NATIONAL BANK
    79-178
    590 S.W. 2d 852
    Opinion delivered November 13, 1979
    (In Banc)
    [Rehearing denied December 17, 1979.]
    Appellants, pro se.

      Glover, Sanders, Parkerson & Hargraves, by: Robert S. Hargraves, for appellee.

      James M. McHaney of Owens, McHaney & Calhoun for The Arkansas Bankers Assn., Amicus Curiae.
   Conley Byrd, Justice.

On January 22, 1979, the trial court heard the motions of appellants William Roger Winkle and Janie Winkle seeking to stay garnishments and executions and/or dismiss deficiency judgments. The trial court overruled the motions, sustained the writ of garnishment against the employer of William Roger Winkle and held that appellee Grand National Bank could pursue its deficiency judgments subject to appellants’ exemption rights. The trial court’s order sustaining the garnishment was suspended by an order of the Bankruptcy Court showing that appellants had been adjudicated as bankrupt under Chapter 13 of the Bankruptcy Act.

For reversal of the trial court’s order, appellants contend:

“I. The Chancellor erred as a matter of law in only allowing $500.00 exemption from foreclosure for the entire family of four.
II. The Chancellor erred in dismissing the motion to dismiss the deficiency judgments.”

POINT I. We find no merit to this, contention. The record before us does not show that appellants have filed a schedule of exemptions as required by Ark. Stat. Ann. § 30-209 (Repl. 1962). Secondly appellants did not object to the action of the trial court when it asked counsel for appellee if appellants were entitled to a $500 exemption. Furthermore, it appears that the matter is now a moot issue before the state courts because of the adjudication in bankruptcy.

POINT II. Appellants’ contention here is that the deficiency judgments remaining after disposal of the secured collateral should be dismissed because they were never given proper notice to allow them to file timely objections. We find no merit to this contention. In the first place there was a dispute between appellant Janie Winkle and the attorney representing appellants at the time of the sale of the collateral as to whether appellants had notice. The trial court accepted the testimony of the attorney over the testimony of Janie Winkle and on review, we cannot say that the trial court’s finding on an issue of credibility is contrary to a preponderance of the evidence. In the next place, appellants have not shown how they were injured by the alleged failure to receive notice. Thus, if we should assume that appellants did not receive notice in time to permit them to file timely objections, any such failure to give notice would be harmless error on the record before us.

Affirmed.

Harris, C.J., not participating.