author: Steele Hays, Judge. David Newbern, Judge,

text:
    William Earl GORDON v. STATE of Arkansas
    CA CR 79-143
    601 S.W. 2d 598
    Court of Appeals of Arkansas
    Opinion delivered July 9, 1980

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Steele Hays, Judge.

Appellant was charged with four seprate criminal offenses during 1974 and 1975 and was sentenced to five years with three years suspended on three of the charges (cases CR 74-229, CR 75-84, and CR 75-152) and placed on five years statutory probation on the other case (CR 75-332).

On May 15, 1979, a petition to revoke the suspended sentence was filed in case CR 75-332 based on the offense of promoting prostitution alleged to have occurred on May 11, 1979.

The petition was heard on August 23, 1979, and defendant moved for a dismissal on the basis of Arkansas Statute, 1947, Ann. § 41-1209 (2), requiring that a suspended sentence or probation should not be revoked except after a hearing within a reasonable time, not to exceed 60 days, after the defendant’s arrest. The State did not oppose the motion to dismiss case CR 75-332, and the motion to dismiss was granted. While the hearing was in progress, the State filed a petition in the remaining three cases, which the defendant also moved to dismiss on the premise that all four cases should be treated as one and pointing out that all four cases were referred to in the body of the revocation petition. This motion was denied by the court.

At the close of testimony the court found by a preponderance of the evidence that appellant had violated the conditions of his suspended sentence and revoked the suspension in case CR 75-152, leaving cases CR 74-229 and CR 75-84 undisturbed. Appellant was sentenced to two years in the Department of Corrections in case CR 75-152.

Appellant has raised two issues by this appeal: that the evidence was insufficient to prove a violation of the conditions of the sentence and that appellant was denied constitutional guarantees of due process by the court’s refusal to dismiss cases CR 74-229, CR 75-84 and CR 75-152.

As to the sufficiency of the evidence, we think that the ruling of the trial court was supported by a preponderance of the evidence, which is all that the law requires. Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977) and Ellerton v. State, 261 Ark. 525, 549 S.W. 2d 495 (1977). The evidence was circumstantial and, perhaps, inadequate for a conviction, but that quantum of evidence is not required in a revocation hearing. Smith v. State, 234 Ark. 958, 411 S.W. 2d 510 (1967). The evidence did support a finding that the appellant was promoting prostitution in violation of the conditions of suspension based on the following testimony: that appellant was asked by an undercover police officer if he knew where to obtain a woman for sexual purposes; that sometime thereafter a woman known to the appellant came to the officer’s motel room and offered to have sexual relations for money; that in a written statement given by her to the police she stated that appellant had told her that she could make some money by going to the motel room, although in her testimony at trial she stated only that appellant had told her that there was a party in the room; that on previous occasions appellant had asked her for money and that she had once paid him $10.00, although he did not ask for money on this particular occasion. Thus, we conclude that the evidence was adequate to support the revocation of suspension. We see no need to discuss the argument that the condition of good behavior was not violated by appellant’s conduct in this regard, as we have no doubt that appellant was well aware that his role in the affair would jeopardize his suspension if discovered.

As to the second point, we disagree with appellant that due process has been denied him because the procedures below contravene principles of fundamental fairness, though the argument is not without merit. It is urged that the petition relative to cases CR 74-229, CR 75-84, and CR 75-152 is in reality an amendment to petition relative to case CR 75-332, but that argument is not convincing. The second revocation petition does not purport to amend the first petition in any fashion and the fact that cases CR 74-229, CR 75-84, and CR 75-152 are referred to in the body of the petition filed in CR 75-332 is merely informational.

But appellant’s argument need not rest alone on the mechanical aspects of the pleadings, as there is substance to the point in and of itself. That is to say, can the State, where the defendant is under four suspended sentences seek to revoke only one, withholding three, as though to marshall its reserves?

While we regard such procedural strategems as suspect, we cannot reach the conclusion that it would be proper to hold that the sixty day requirement of § 41-1209 (2) applies not only to cases on which the State has. filed, but to cases on which it has not filed, where there is no inference that failure was the result of an improper motive, or under all the circumstances it cannot be said the defendant was denied fundamental due process. We are not willing to apply a hard and fast rule to an area of the law that ought to have wide boundaries. We think each case must be jduged upon its own merits. What other result could be reached where the test is one of applying principles of fundamental fairness? When that broad test is applied to the case before us, we are reasonably confident that the appellant did receive fair treatment. After all, the court did dismiss one of the four cases, declined to disturb the suspensions on two others, and revoked only one of the four, all on evidence that appellant had violated the conditions of the suspended sentence. We don’t think any sense of fair play has been offended by the overall treatment of appellant by the State or by the trial court. Appellant’s argument would have greater weight if the State had not filed all three cases simultaneously, as this would have strengthened the inference that a piecemeal approach was contemplated and though there is a hint of piecemeal strategy, it is a hint only, and we are not willing to overturn the outcome on that basis alone.

It must be remembered that there is no right of probation when one has been convicted of a crime, rather it is a matter of judicial sufferance or grace. People v. Williams, 93 Cal. App. 2d 777, 209 Pac. 2d 949 (1949) and Morgan v. State, 267 Ark. 28, 588 S.W. 2d 431 (1979).

Appellant concedes the absence of any clear authority in Arkansas as precedent for the argument advanced, but cites United States v. Tyler, 605 F. 2d 851 (5th Cir. 1979) as “very similar.” But even if we were bound by Tyler, there is a subtle but basic difference between the factual setting in Tyler as opposed to this case. In Tyler the defendant was free on probation under a single sentence and between November, 1976, and January, 1978, was convicted of three misdemeanors, including public drunkenness and insulting a police officer. The incidents were promptly reported to his probation officer. In November, 1978, a small amount of marijuana was seized from Tyler’s residence and at a hearing several days later on a revocation petition the court found the evidence failed to establish a violation of the probation. This petition made no mention fo the earlier misdemeanor convictions.

On March 1, 1979, the probation officer filed a revocation petition based upno the three misdemeanors, more than two years and three months after the occurrences. Alluding to the fact that the probation officer had known of one of these charges for over two years and known of all three for more than a year, and having failed to allege any of them in the earlier petition, the court held that the procedure was fundamentally unfair, being careful to point out that it was not holding that there could never be, in a proper case, a second revocation hearing alleging violations committed before a previous hearing, but that in this case, the long delay coupled with the probation officer’s obvious decision not to file on these charges, deprived the defendant, Tyler, of fundamental due process. Thus, in Tyler an improper and vindictive motive was clearly induced by the procedures followed by the prosecution. The absence of similar circumstances in the case before us is obvious and moreover we think Tyler illustrates the wisdom of avoiding a rigid rule.

Appellant argues that a refusal to reverse will result in our having excised the 60 day requirement from § 41-1209 (2), but we doubt that our decision will be construed so boldly; it is not the intent of this opinion to undermine the 60 day requirement in the slightest, we simply decline to hold that in this case the trial court should have applied the 60 day requirement to a revocation petition before the petition was filed or that the refusal to do so contravened principles of fundamental fairness, absent any inferences of improper or vindictive motives.

Affirmed.

Newbern, J., concurs.

David Newbern, Judge,

concurring. The sentences with respect to all of the convictions mentioned in the majority opinion resulted from a previous petition to revoke. As to each of the offenses, Gordon was sentenced, at a revocation hearing in May, 1978, to five years with four years suspended on good behavior. These sentences were issued on May 15, 1978, pursuant to a petition to revoke.

As mentioned in the majority opinion, the more recent petition to revoke, which is the subject of our consideration here, only requested revocation with respect to one of the previously imposed sentences, but it mentioned the others in the body of the petition. Gordon was arrested pursuant to that petition in May, 1979- The hearing on the petition was not held until August 23, 1979- It is, therefore, obvious that there was a violation of Ark. Stat. Ann. § 41-1209 (Repl. 1977), with respect to the hearing held on the petition to revoke pursuant to which Gordon was arrested. It is equally clear no violation of the statute has occurred with respect to the other three offenses, as no arrest had been made pursuant to any petition to revoke them. The “arrest” to which the statute refers must be an arrest for an offense which precipitates a petition. Walker v. State, 262 Ark. 215, 555 S.W. 2d 228 (1977). I fear the majority opinion suggests there might be some latitutde in the application of the statute. I see none but simply feel the statute is strictly inapplicable to all but the one case which was dismissed.

Entirely separate from the consideration of the statute, is the question whether failure to petition for revocation on three of four outstanding sentences violates any constitutional guarantee. I agree with the majority that United States v. Tyler, 605 F. 2d 851 (1979), is inapplicable, but I would like to state separately my reason for distinguishing it. In the Tyler case, the defendant was subjected to separate revocation hearings on each of several known offenses which had occurred and upon which revocation of a single sentence was sought. In this case we have several sentences which are potentially revocable, but we are dealing only with one offense which may serve as a predicate for revocation.

It should be made clear that, unlike the Tyler case, no issue was made in this case of the time which elapsed between the prostitution arrest and the time the petition to revoke in the remaining cases was filed.

It should also be made clear that this case does not stand for the proposition that the prosecution may proceed in a piecemeal manner by having separate hearings on the same conduct proposed as a ground for revocation until each of the revocable sentences has been adjudicated. The petition to revoke in CR 75-332 was dismissed by the court because of a clear violation of the statute referred to above. Thus, prior to the hearing we consider here there had been no hearing on the merits as to whether any suspension of sentence should be revoked because of the prostitution episode. Had the prosecution failed in a hearing on the merits with respect to revocation of one of the suspensions, I am confident this court would not have approved any subsequent revocation based on the same alleged offense.


source: Caselaw Access Project

author: James H. Piikinton, Judge.

license: Public Domain

text:
    Larry GREEN v. STATE of Arkansas
    CA CR 80-15
    601 S.W. 2d 273
    Court of Appeals of Arkansas
    Opinion delivered July 9, 1980

      E. Alvin Schay, State Appellate Defender, by: Jack Kearney, Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   James H. Piikinton, Judge.

Larry Green was charged in the Pulaski County Circuit Court with theft of property, a violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). It was alleged by the state that appellant on December 23, 1978, while he was an attendant at the Magic Mart Self Service Gas Station at Seventeenth and Main Streets in Little Rock, took unauthorized control of some $556.00, the property of his employer. The appellant pleaded “not guilty.” A jury being waived, Green was tried before the Pulaski Circuit Court, First Division, on September 18, 1979. At the conclusion of the trial, the court found the defendant guilty, and fixed his sentence at two years imprisonment. Appellant has appealed the conviction and sentence.

Ark. Stat. Ann. § 41-2203, supra, under which appellant was charged, states:

41-2203. Theft of property. — (1) person commits theft of property if he:
(a) knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interests in, the property of another person, with the purpose of depriving the owner thereof; or
(b) knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof.
(2) (a) Theft of property is a class B felony if:
(i) the value of the property is $2500 or more; or
(ii) the property is obtained by the threat of serious physical injury to any person or destruction of the occupiable structure of another; or
(iii) the property is obtained by threat and the actor stands in a confidential or fiduciary relationship to the person threatened.
(b) Theft of property is a class C felony if:
(i) the value of the property is less than $2500 but more than $100; or
(ii) the property is obtained by threat; or
(iii) the property is a firearm valued at less than $2500; or
(iv) the property is a credit card.
(c) Otherwise, theft of property is a class a [A] misdemeanor.

With the statute in mind, we must now look at the facts shown by the record. There was only circumstantial evidence in this case, and appellant contends it was not circumstantial evidence such as would support a criminal conviction under Arkansas law. See Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979); Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969). Thus appellant seriously contends that there was not sufficient evidence to support the conviction. The appellant had only worked two days for this employer and, on his third day of work at Magic Mart as a service station attendant, he was assigned to a night shift and was the only attendant on the job. The station consisted of pumps and an enclosed attendant’s booth which had an opening large enough for customers to hand in their money or credit cards. The sole prosecution witness was William Porter, station manager, who testified, it was company policy, that an attendant was not to leave thé booth unlocked or let anyone in it; and, if he did, the attendant was responsible for any damage or theft that might occur. Mr. Porter also testified that attendants were not to leave the booth at all. If a pump quit working, Mr. Porter said he had told the attendants not to attempt to repair it. This was disputed by the appellant. Mr. Larry Green testified that Mr. Porter had told him to go out to a pump that was “hanging up,” take the front off of it and hit. it, to make it reset to zero. On the evening in question, Green said he left the booth three or four times during the evening, but locked the booth only on the first occasion. He also said he let a woman in the booth to make a telephone call after her car had a flat tire in the service station lot. The appellant also testified that the lock on the cash drawer did not work.

Both Mr. Porter and the appellant agreed that Green telephoned Porter on the evening involved and reported to the station manager that he (Green) was having trouble with some customers. It is undisputed that Mr. Porter went to the station and instructed Green to close the station for the evening. They disagreed, however, on when Mr. Porter found out about the missing money. Green says Porter knew about it that evening while the manager indicated it was the next day before he discovered the loss. But in any event, Green had to fill out a shift report, which is an exhibit in evidence, in order to shut down the station. This report which was made that night showed a shortage of $349.21.

At the trial, Mr. Porter testified that the total amount of missing money was $556.06. It is hard to understand how Mr. Porter arrived at this figure, even after correcting certain mistakes in addition from lines 6, 7 and 10 of the shift report. This report shows that $196.00 was deposited in the safe, leaving a shortage of $493.46. The loss figure was reported as $556.06 by the station manager even though Mr. Porter admitted' there was “some money there.” It is significant that Mr. Porter did not dispute the figures used by Mr. Green when he made out the shift report in order to shut down the station, although Porter did note certain mistakes in calculations. The confusion about the amount of the shortage is indicative of the weakness of the state’s case. It appears from the record that all the prosecution proved was that appellant may have violated company policy; however, this is not sufficient for conviction of the offense charged under the Arkansas Criminal Code.

It is well settled that circumstantial evidence is sufficient to establish guilt but if circumstantial evidence alone is relied on, the evidence must establish every element of a crime. Henley v. State, 255 Ark. 863, 503 S.W. 2d 478 (1974); Jones v. State, supra. In criminal cases, circumstances, however strong, ought not to coerce the mind of the fact finder to a conclusion of guilt if they can be reconciled with the theory that someone other than the defendant has committed the crime or that no crime has been committed at all. Bowie v. State, 185 Ark. 834, 49 S.W. 2d 1049 (1932). The case law is clear that the circumstances relied upon by the state must be so connected and cogent as to show guilt to a moral certainty and must exclude every other reasonable hypothesis than that of the guilt of the accused. Bowie v. State, supra; Jones v. State, supra.

A conviction of the type now before us can be sustained upon evidence that property is missing, that the defendant had the opportunity to take it, and no one else had that opportunity. Jefferson v. State, 89 Ark. 129, 115 S.W. 1140 (1909). The prosecution in the case before us did not proye that no one else had the opportunity to take the money. This case is easily distinguishable from Pharr v. State, 246 Ark. 424, 438 S.W. 2d 461 (1969), where a conviction was upheld under evidence showing that a service station was found unattended at 4:00 a.m. and the attendant was located the same night, drunk in a motel, with approximately the same amount of money that was missing from the station.

It is undisputed that more than $100.00 was missing after Green’s shift ended, but there is no substantial evidence in this record to show that he took it. In fact, appellant presented evidence that there were opportunities for others to take the money. Even though he may have been responsible and negligent for creating those opportunities, the evidence in this case is not sufficient to sustain his conviction for theft.

Counsel for appellant suggests that this case presents an opportunity for Arkansas to adopt the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). It was held in Jackson that a federal court reviewing a state criminal conviction in a habeas corpus proceeding must consider whether there is sufficient evidence to justify a rational trier of facts to find guilt beyond a reasonable doubt. It is not necessary to a decision in this case for us to consider the federal rule suggested by Jackson because the evidence in the case before us does not even meet the Arkansas test now in effect.

We hold that appellant’s conviction was based upon mere speculation and conjecture, and the judgment of the trial court must therefore be reversed and the case dismissed. Smith v. State, supra; Pollard v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978); Green v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Edd. 2d 15 (1978).

Reversed and dismissed.


author: Marian F. Penix, Judge.

text:
    James MARSHALL v. OUACHITA HOSPITAL and ST. PAUL FIRE & MARINE INSURANCE COMPANY
    CA 80-144
    601 S.W. 2d 901
    Court of Appeals of Arkansas
    Opinion delivered July 9, 1980

      Roberts, Harrell & Lindsey, for appellant.

      Shackleford, Shackleford & Phillips, P.A., for appellees.
   Marian F. Penix, Judge.

This is an appeal from a decision of the Workers’ Compensation Commission involving the application of Ark. Star. Ann. § 81-1313(f)(2)(h).

In September, 1952, claimant, then a 21 year old carpenter, was stricken with polio. He was out of the labor force until February, 1953 — some six months. He returned to work for the same company in February, 1953, learning to file saws by hand. At this time, the claimant was wearing braces on both legs and a back brace which connected to the leg braces. The claimant also required the use of two crutches in order to walk. When the job at which claimant was working ended, he became an insurance salesman. Later he worked as an outside salesman for Firestone and as a Mason Shoes salesman. During this time, the claimant obtained his GED and took a junior accounting course. Over this period of time, the claimant gradually discarded all of the braces except for a left knee brace and learned to walk without the crutches.

Claimant went to work for the Ouachita Hospital on October 11, 1956. He remained at this hospital until his injury on June 19, 1978 — some 22 years. During his employment at the hospital, the claimant became a lab technician. This has been his job for most of his employment with the hospital.

On June 19, 1978, as he straightened up from drawing blood from a patient, he felt an onset of back pain. Dr. S. B. Thompson diagnosed the condition as a ruptured disc. The claimant underwent a laminectomy on the left side of L 5 and exploratory surgery at L 5 and S 1 was performed. There is no dispute that the claimant is now permanently and totally disabled. Dr. Thompson in a December 12, 1978 letter report wrote:

It would be my impression that an equitable way of handling the distribution of the disability in case he took permanent disability and retirement, would be to estimate the contribution of the injury on the job as about 20% of the value of the body as a whole with the remainder of the 80% coming from the previously existing disability that he had.

The Administrative Law Judge and the Workers’ Compensation Commission found the claimant to be permanently and totally disabled. However, they ruled he was entitled to permanent partial disability benefits calculated only upon a rating of 20% permanent partial disability as he had an 80% permanent partial disability to the body as a whole prior to the June 19, 1978 injury. The claimant appeals.

The Commission found there was a previously existing 80% disability. The claimant contends this is erroneous. He contends he had no disability in the Workers’ Compensation sense in that he had been able to work as a lab technician at the Ouachita Hospital where he had been performing all required tasks for 22 years at the time of his accident. The claimant relies on McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W. 2d 416 (1961). “Apportionment does not apply in such cases, nor in any case in which the prior condition was not a disability in the compensation. ...” McDaniel, supra at page 146. The claimant contends he certainly had some functional disability, but in his ability to hold down a full time job he had no earning capacity disability until after the back injury.

The respondents-appellees argue the Commission correctly apportioned the disability from the back injury and the disability from the polio. Davis v. Steams-Rogers Construction Co., 248 Ark. 344, 451 S.W. 2d 469 (1970) is relied upon by the respondents. “If prior disabilities are a contributing factor to his present total permanent disability, then StearnsRogers as a subsequent employer, is not hable for 100% of the total permanent disability but only for that degree which would have resulted had the prior disabilities not existed.” Davis, supra at page 348.

Should the Workers’ Compensation Commission have applied the apportionment statute? In order to determine this issue, we must first look at the definitions which are to apply to Title 81. These definitions govern the meanings of the words used in this Act.

Ark. Stat. Ann. § 81-1302(d) defines “Injury” as:

(d) “Injury means only accidental injury arising out of and in the course of employment, including occupational disease as set out in Section 14, and occupational infections arising out of and in the course of employment.

Ark. Stat. Ann. § 81-1302(e) defines “Disability” as:

(e) “Disability” means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.

In order to interpret “disability” we must insert the definition of “injury” as set forth in (d) into the definition of disability in (e). Therefore it reads as follows:

Disability means incapacity because of accidental injury arising out of and in the course of employment, to earn in the same or any other employment, the wages which the employee was receiving at the time of injury.

The Commission applied Ark. Stat. Ann. § 81-1313(f)(2)(ii) to this case. This section reads as follows:

(f) Second Injury — In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto: . . .
(2) If an employee has a prior permanent disability not occasioned by an injury resulting while in the employ of the same employer in whose employ he received a subsequent permanent injury, the amount of compensation for the subsequent injury shall be fixed as follows: ....
(ii) If the subsequent injury is one that is not scheduled under section 13(c), the injured employee shall be paid compensation for the healing period and for the degree of disability that would have resulted from-the subsequent injury if the previous disability had not existed.

We do not find this section to be applicable. The polio suffered by the Claimant was not the result of a work-related injury. It did not arise out of and in the course of his employment. Therefore, claimant had not suffered any job-related injury as defined in our Workers’ Compensation Act. Hence, any disability suffered as a result of the polio was not disability as defined in § 81-1302(e) and hence ..it is not disability subject to apportionment. Instead, any impairment which the claimant had prior to the injury suffered at Ouachita County Hospital was a pre-existing condition. It is basic in Workers’ Compensation law that an employer takes his employee as he finds him. See 1 Larson, Workmen’s Compensation Law, § 12.20, p. 3-307.

Seven states have statutes which would allow apportionment in this type situation. The California statute is an example.

§ 4663. Aggravation of prior disease.
In case of aggravation of any . disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury. CAL. CODE § 4663 (Deering).

Arkansas presently has no such statute! As of January 1, 1981, however, the Second Injury — Apportionment Statute will be different. The Legislature has passed the following amendment:

81-1313. Compensation for disability.
(i) Second Injury.
(1) Commencing January 1, 1981, all cases of permanent disability where there has been previous disability or impairment shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a permanent partial disability or impairment, whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability caused by the combined disabilities or impairments is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability or impairment.

This Court fails to see why this amendment would be necessary if (f) is presently interpreted in the manner urged by the appellees.

In Wilson Hargett Construction Co. v. Holmes, 235 Ark. 698, 361 S.W. 2d 634 (1962), the Supreme Court affirmed the Workers’ Compensation Commission refusal to apportion the disability suffered by claimant as a result of two heart attacks. Claimant’s first heart attack was suffered in 1957 while working for himself or another. His doctor allowed him to reenter the labor market but cautioned him against heavy work or lifting. From 1958 through 1960, the claimant regularly worked forty hours a week as a pipe fitter. On June 22, 1960, he suffered a second heart attack while lifting a pipe for his employer. The employer argued the disability of claimant should be apportioned between the two heart attacks with the employer’s liability being no greater than the percentage of disability which would have resulted had the claimant suffered no previous heart attack. The Supreme Court quoted from Larson, 2 Workmen’s Compensation Law, § 59 as follows:

. . . ‘To be apportionable, then, an impairment must have been independently producing some degree of disability before the accident, and must be continuing to operate as a source of disability after the accident.’ Holmes had suffered a heart attack in 1957, but that heart attack was not producing any degree of disability at the time of the heart attack in this case in June, I960. Holmes had returned to work and was engaged by Wilson Hargett Construction Company as a pipe fitter and was earning $160.00 a week. The attack in 1957 had resulted in no impairment of Holmes’ earning capacity; . . . ‘It should be noted that this first attack was not claimed as an industrial injury and the claimant had returned to full employment between the first and second heart attacks.’ Wilson Hargett Construction Co., supra, pages 701-702.

In deciding Wilson Hargett Construction Co., supra, the Supreme Court relied upon and quoted excessively from McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W. 2d 416 (1961). The claimant injured his back on February 7, 1958. The issue was the percentage of permanent partial disability sustained by the claimant. There were five medical reports from five physicians entered into evidence. Each found the claimant had “pre-existing deformity to the back” or “mechanically unstable back” or “a congenital anomaly.” The Commission found 20% Permanent Partial Disability to the body as a whole but allocated 10% of the congenital anomaly which pre-disposed him to the injury. Therefore the Commission allowed compensation benefits on 10% permanent partial disability.

The Supreme Court reversed, again quoting from Larson as follows:

“. . . Apportionment does not apply in such cases, nor in any case in which the prior condition was not a disability in the compensation sense ...”

The Supreme Court agreed with this rule and adopted it for Arkansas.

This Court fails to see the difference between a non job related heart attack and non job related polio. Both are diseases. Both leave residuals. The degree of harm to the body depends upon the severity of the attack. Each may restrict, to some degree, the future activities of a worker. The Supreme Court in Wilson Hargett Construction Co., supra, refused to apply the apportionment statute. They stated that there was no disability in the compensation sense from the first heart attack. We see no disability in the compensation sense from the polio. Unlike the claimant in Davis v. Stearns-Rogers Construction Co., supra, this claimant had no prior disabilities in the compensation sense. None of his disability was the result of an industrial accident.

Both parties concede the claimant was permanently and totally disabled. The only issue was apportionment. Since we find as a matter of law, apportionment does not apply, this case must be reversed and remanded to the Commission with instructions to enter an award of 100% disability.

In addition, the 10% penalty is awarded on all amounts controverted. Claimant’s attorney is allowed $250.00 fee for services rendered on appeal.

Reversed and remanded.


text:
    COOPER INDUSTRIAL PRODUCTS v. Naeomi MEADOWS
    CA 80-150
    601 S.W. 2d 275
    Court of Appeals of Arkansas
    Opinion delivered July 9, 1980

      Brown, Compton & Prewett, Ltd., by: William I. Prewett, for appellant.

      Ronald L. Griggs, for appellee.
   Marian F. Penix, Judge.

Claimant was injured on the job April 13, 1978 while in the employment of Appellant. Appellant paid temporary total disability benefits from April 14, 1978 until May 15, 1978 and medical bills. At the conclusion of an April 17, 1979 hearing the Administrative Law Judge left the record open for depositions of doctors and requested the attorneys to advise him within ten days of the hearing the doctors who would be deposed. The record was kept open for almost 90 days until July 12, 1979 at which time the Administrative Judge filed an opinion denying any additional benefits to the Claimant. His opinion reflects it is partially based upon a letter report of Dr. Joe K. Lester dated April 16, 1979. The Administrative Law Judge interpreted this letter as Dr. Lester’s withdrawal of his 5 to 10% physical impairment assessment which Dr. Lester had made in his letter dated January 30, 1979-

The Claimant’s attorney wrote the Administrative Judge a letter on July 17, 1979 in which he said:

I am in receipt of your Opinion filed July 12, 1979 • • • My first reaction is to ask that the Opinion be amended in that it appears to be based on your feeling that Dr. Lester’s disability was withdrawn in his letter of April 16, 1979. I would be happy to have Dr. Lester clarify that matter and submit the matter for an amended decision if the Court feels that would be proper. Otherwise we will proceed with appeal . . .

On July 23, 1979, the Administrative Judge responded to the Claimant’s attorney:

This will acknowledge receipt of your letter dated July 17, 1979- You are correct in the second paragraph of your letter in assuming I considered Dr. Lester’s disability to be withdrawn in his letter of April 16, 1979. I would appreciate some clarification from Dr. Lester and if he had, in fact, not withdrawn the disability rating I will amend the opinion to reflect that. I had rather do it this way than have you ánd Bill Prewett (Respondent’s Attorney) go to the expense of an appeal to the Full Commission and then having it remanded to me . . .

On October 9, 1979 Dr. Lester wrote Claimant’s attorney:

In response to your request for medical information, Mrs. Meadows has two different orthopedic problems. One of which is a degenerative lumbar disc for which, in the opinion of this examiner, she has 5 to 10% physical impairment of the body as a whole on the basis of symptomatic degenerative disc disease at L5-S1. In addition, she had a Morton’s neuroma of the right foot which was operated and for which she should have no physical impairment. I realize in retrospect that since the sciatica was on the right and her Morton’s neuroma was on the right that this has been confusing for all involved for which I submit my humble apology. By no means did I intend to leave the impression that the fact that she had a Morton’s neuroma did away with her, what I consider, obvious degenerative disc disease.

The Claimant’s position is the July 23, 1979 letter from the Administrative Judge indicates the appeal time was tolled until a report from Dr. Lester clarifying his position was submitted for an amended opinion.

An amended opinion was rendered October 31, 1979 awarding the Claimant a 10% permanent disability. Respondent appealed to the Full Commission. The Commission ordered a remand to the Administrative Law Judge for the purpose of taking additional evidence and for the purpose of giving Respondent the opportunity for cross-examination as provided by Commission Rule 20. Respondent brought this appeal.

Respondent contends the July 12, 1979 decision was a final adjudication and the Administrative Law Judge was therefore without jurisdiction to issue any amended opinion. Respondent contends the ex parte letter from Dr. Lester to Claimant’s attorney could not be filed and considered 90 days after the rendering of the opinion and 60 days after the expiration of the time within which to file a petition for review or appeal. Respondent contends the procedure for securing a review of or for perfecting an appeal from decisions and orders in compensation is prescribed in detail in Ark. Stat. Ann. § 81-1325(a):

A compensation order or award of a referee shall become final unless either party to the dispute shall, within thirty days from the receipt by him of the order or award, petition in writing for a review by the Full Commission of the order or award.

We cannot consider the issue raised by the Respondent-Appellant. The Commission Order of January 17, 1980 is not a final order, and hence not appealable. The setting aside of a judgment for the Claimant and the order opening up the record for the taking of additional evidence, is not a final order which is appealable. Johnson v. Bear Brand Roofing Co., 234 Ark. 733, 354 S.W. 2d 277 (1962):

For a judgment to be final and appealable, it must in form or effect: Terminate the action; operate to divest some right so as to put beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy. Allred v. National Old Line Insurance Company, 245 Ark. 893, 895-896, 435 S.W. 2d 104 (1968) quoting Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967).

Therefore, this Court has no jurisdiction over this case.

Appeal dismissed.


author: George F. Howard, Jr., Judge.

text:
    Sandra KIRKPATRICK v. UNION BANK OF BENTON, Executor of Estate of Gladys Milham WIED, Deceased
    CA 80-121
    601 S.W. 2d 607
    Court of Appeals of Arkansas
    Opinion delivered July 9, 1980

      Hall, Tucker, Lovell, Alsobrook & Moudy, for appellant.

      Ted Boswell, P.A., for appellee.
   George F. Howard, Jr., Judge.

This is an appeal from an order admitting an instrument to probate purporting to be the last will of Gladys Milham Wied, which was executed six days prior to her death on September 4, 1979-

Under the will, appellant, the daughter of the late Mrs. Wied, was bequeathed $10,000.00 and the balance of the estate, approximately $140,000.00, was left in trust to a sister-in-law and the sister-in-law’s adult children and grandchildren.

For reversal, the appellant has alleged the following points:

A. The testimony established that the testatrix did not have the mental capacity to make a will.
B. The testimony established that the will was the product of an insane delusion.

During the course of the trial, Rosamond Mooney, a legal secretary who prepared the will pursuant to instructions given over the telephone by the decedent and also a subscribing witness to the document, testified on cross-examination:

Q. . . . Did she give you any reason why she was leaving $10,000.00 to her daughter, and nothing else?'
A. Yes, she did.
Q. What was that reason?
A. She just told me that she believed Sandra was on dope, and that she did not want her to use everything that there was for this reason.”

Appellant testified:

“Q. Yo’ve heard the testimony of Rosamond Mooney, that your mother told her the reason she was leaving you only $10,000.00 in the Will, was because you were a dope addict.
A. Yes, I heard it.
Q. And Rosamond said that, in your presence at her office. Is that correct?
A. Yes, it is.
Q. All right. Now, are you a dope addict?
A. I am not a dope addict.
Q. Do you take any kind of medication?
A. The only medication . . . you want me to tell you what I take? Is that what you mean?
Q. Well, my first question is; do you take any kind?
A. Yes, I take . . . yes, I do.
Q. What do you take?
A. I am now on Premarin, which is . . .
Q Well, what is that?
A. It’s a hormone.
Q. And, that is because you’ve had what kind of surgery?
A. All right, another one; I also take Tetracycline, which is an antibiotic. I have lost both breasts. I had a mastectomy . . . I’ve had three mastectomies; three surgeries in 1978.
Q. Right. Do you take anything that is not prescribed by a doctor, other than aspirin?
A. No, I do not.
Q. Have you, in the past years?
A. Not prescribed by doctors, no. I only take medicine prescribed by doctors.
Q. All right. Okay. Now, did your mother make this same accusation to you, when she was in the hospital in January?
A. Yes, she did, when she came home.
Q. When she came home . . .
A. Yes.
Q. ... in January?
A. Uh-huh.
Q. All right. And, later, did she call you on the telephone and discuss that again.
A. Yes, she called me on the telephone and felt very badly that she had done it; she said she didn’t really mean it, and she didn’t know what got into her, but she had . . . you know . . .
Q. In other words, she did that in January, and then she apologized later?
A. Yes, she did.
Q. And, did she ever mentioned it to you again?
A. She never mentioned it to me . . . you mean . . .
Q. Again.
A. No, she . . .
Q. . . . ever, at any time?
A. . . . never did.
Q. All right.

Mason Kirkpatrick, husband of the appellant, denied that his wife was a dope addict; and stated that during their twenty-eight years of marriage, appellant had used only those drugs prescribed by her physician except aspirins.

At the close of the trial, counsel for the appellant requested the trial court to consider the holding in Dumas v. Dumas, 261 Ark. 178, 547 S.W. 2d 417 (1977), where the Supreme Court sustained the actions of a trial court in denying the probate of a will on the ground that the will was the product of an insane delusion.

The trial court registered the following comment in response to counsel’s request.

“THE COURT:
... A person has got a right to believe anything they want to believe, even though I might disagree with it and it might not have any basis, in fact, to a great portion of the population. It still may ... is her right to believe that way if she wants to believe that way. And, she may leave her property in furtherance of that or ... to keep from perpetuating something that’s contrary to that. I’ve listened to the testimony here, and I am convinced that at the time that this Will was executed she was competent to execute the Will. It’s true, there’s been testimony that when she was in the hospital, there were times that she was afraid and wouldn’t take her medication

The appellee, while arguing in its brief that the rule in Dumas v. Dumas, supra, has no application here, made the following observation:

“Appellant correctly cites Dumas v. Dumas, 261 Ark. 178, 547 S.W. 2d 417 (1977) for the rule that a Will may be invalidated because of an insane decision. However, not only can the facts of Dumas be distinguished, but counsel for Appellant fails to correctly apply the Dumas rule to the facts of the present case.

We are persuaded that the trial court did not fully consider appellant’s argument. that the purported will was the product of an insane delusion. Consequently, we reverse and remand this case for further consideration of this issue.

It is settled law that while an individual may possess the requisite testamentary capacity, he may, at the same time, be laboring under one or more insane delusions which may have the effect of making his purported will a nullity. Moreover, ah insane delusion which will render one incapable of making a will is difficult to define. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908); 94 C.J.S., § 18, p. 708. It is plain, however, that an insane delusion is a false belief, for which there is no reasonable foundation, and which would be incredible under the given circumstances to the same person if of sound mind, and concerning which the mind of the decedent was not open to permanent correction, through evidence or argument. A delusion affects testamentary capacity only when it enters into and controls to some degree the making of a will. Taylor v. McClintock, supra; Dumas v. Dumas, supra; Haines v. Hayden, 95 Mich. 332, 54 N.W. 911; Kimberly’s Appeal, 68 Conn. 437, 36 A. 850; Matter of Heaton’s Will, 224 N.Y. 22, 120 N.E. 84.

In Taylor v. McClintock, supra, the Arkansas Supreme Court observed that an insane delusion, such as will defeat one’s Will, may be based upon a belief that his daughter does not care for him or love him as well as she does others, or is ungrateful to him, which is false and without foundation and he adheres to the belief against all evidence and argument to the contrary.

Reversed and remanded.


author: David Newbern, Judge.

text:
    Blanche L. WAGANER v. THE TRAVELERS INSURANCE CO.
    CA 80-22
    601 S.W. 2d 277
    Court of Appeals of Arkansas
    Opinion delivered July 9, 1980

      Warner & Smith, by: James M. Dunn, for appellant.

      Jones, Gilbreath & Jones, by: Robert L. Jones, Jr., and Mark A. Moll, for appellee.
   David Newbern, Judge.

This case presents the question whether a trial judge may honor the request of jurors that an exhibit which contains a portion of an instruction be given to them without giving them all of their instructions. We have found no Arkansas cases which deal with this specific problem. However, we were able to say the case should be reversed because we find the trial judge’s act in giving the jurors part of an instruction contained in an exhibit had the effect of placing undue emphasis upon that portion, and emphasis of that sort has been held to constitute error.

The appellant was insured against long-term disability by the appellee. She presented evidence showing she had become disabled at least to the extent she could no longer perform the job she had held since the inception of the policy. The appellee had made periodic payments on the claim for a time but had ceased making the payments, whereupon the appellant brought this suit.

At the close of the evidence the court gave instructions, including Instruction No. 2, as follows:

INSTRUCTION No. 2
I have just read to you from the insurance policy the definition of “total disability.” I would again like to read to you that part of the definition of “total disability” in question today. “The term ‘total disability’ as used herein, means the complete inability of an employee to engage in any and every duty pertaining to any occupation or employment for wage or profit for which the employee is or becomes reasonably qualified by training, education or experience.” “Total disability” as defined by the policy does not mean a state of absolute helplessness. It means that if there are any substantial and material acts necessary to be done, pertaining to plaintiffs occupation, that she could not perform in the usual and customary manner, she would be totally disabled within the meaning of the policy.

After the jury had retired, the jury foreman reentered the courtroom in the presence of the judge and counsel, but in the absence of the court reporter. Although there is no record of the language used by the foreman, it is clear he requested a definition of “total disability.” Although the appellant’s brief refers to the request as being one for a definition of “total disability,” without more, the record shows the appellant’s counsel in objecting to what then transpired.said:

Comes the plaintiff Blanche Waganer and states that during the course of jury deliberation, the foreman of the jury came into open Court and requested that they be furnished the definition of “total disability” as defined by the insurance policy, . . . [Emphasis supplied.]

The appellee agrees this was the request made by the foreman. Thus, we may assume the jurors wanted' the language of the policy and did not specifically ask for any instruction which had been given by the court.

To this request the court responded by giving the jury a copy of the insurance policy which had been made an exhibit in the proceeding. Despite our assumption that the jury was requesting an exhibit rather than an instruction, it is clear the jury was furnished a portion of Instruction No. 1 in which the judge had quoted more extensively that portion of the policy dealing with “total disability.”

Árk. Stat. Ann. § 27-1732.1 (Repl; 1979), requires the judge to deliver a typewritten copy of the instructions to the jury when all parties request it. The judge may deliver the instructions to the jury, within his discretion, whether they are requested or not. Gambill v. Stroud, 258 Ark. 766, 531 S.W. 2d 945 (1975). When the court gives its instructions to the jury, it should do so in a manner that does not emphasize one instruction over others. St. Louis Iron Mountain and Southern Railway Company v. Reed, 88 Ark. 454, 115 S.W. 150 (1908). The same principle should apply, of course, with respect to a portion of an.instruction. In this case by giving the jurors a copy of the insurance policy, from which the court had quoted in its instructions, the jury had placed before it the definition of “total disability” contained in- the policy but not the explanation- qf that definition given by the judge just after he had quoted it in his instructions. This clearly had the effect of emphasizing one part of the instruction(s) at the expense of another part. On the general matter of improper emphasis in giving instructions, in addition to the Reed case, supra, see, Rutland v. P. H. Reubel and Company, 202 Ark. 987, 154 S.W. 2d 578 (1941), and Wright v. Covey, 233 Ark. 798, 349 S.W. 2d 344 (1961).

In its attempt to distinguish the Reed case, the appellee points out that the jury did not receive instructions more than one time in this case, whereas in Reed the court had reread a particular instruction. The distinction fails because the exhibit given to the jury in this case did contain a portion of an instruction. Additionally, the appellee contends the appellant’s argument that it does not matter whether the jury requested an exhibit or an instruction is illogical because it suggests the trial court has the power to supply the jury with information he deems more pertinent or significant than that requested by them. As noted above, the trial court may, within its discretion, give the instructions to the jury regardless whether they are requested. We cannot say we would have reversed had the court reread only Instructions 1. and 2., but the better practice would have been for the court to have given a complete set of typewritten instructions to the jury when it became apparent the jury would have before it, in writing, a portion of an instruction.

Because we must reverse on this point, we need not decide the issue raised in the appellant’s second argument which dealt with refusal of the judge to instruct the jury that it should construe the insurance policy in favor of the insured and against the insurance company.

Reversed and remanded for a new trial.


author: Searle, J.

text:
    ADAMS et al. v. HOBBS.

      Landlord — him of, when attaches. — The lien of the landlord, for rent, is a charge upon the crop, and accrues as soon as there is any crop upon which it may attach.

      Same — Enforcement of, ly Attachment. — Under the Act of December 28, 1860, the process of attachment was designed to give the landlord a more efficient remedy tor the enforcement of his rights under the lien, and the attachment, when issued, relates bad!:, as enforcing the lien, to the time when the lien accrued.

      Practice — Judgments in Attachment where Interplea. — Under the Act of January 9,1861, where property attached is interpleaded for, the judgment, when against the defendant in the original suit, should be against him with an order of execution against the property attached, in the event the interplea should be determined in favor of the plaintiff.

      Interpleader — Judgment on. — On trial of the interplea, if the property . be found subject to the attachment, the judgment should be that the plaintiff have execution against the property, and if the same is not delivered to the sheriff by the interpleader, on demand, that execution issue, on the return of the facts in the scire facias by the sheriff, against the interpleader and his securities.
    APPEAL PROM PULASKI CIRCUIT COURT.
    Hon. Johnv'Wiiytock, Circuit Judge.

      Watkins § Bose, for Appellants.
    There was no breach of the bond, under the law at that time, until after execution against the interpleader, and a failure by him to deliver up the property. See Acts 1860, ¶. 299.
    The bond was conditioned to deliver to the “sheriff or his. successor in office, whenever demanded by such sheriff, after execution upon such judgment should coiné to his hands to be levied therein.” The law on the subject has never been changed, and no change could affect the liability of the sureties after the execution of the bond. Woodruff vs. State, 3 Ark-., 285; Curran vs. State, 12 Ark., 321.

      Garland § Nash and Wassell §■ Moore, for Appellee.
    The only point in the case has already been decided by this court, directly upholding the decision of the court below. Sevier vs. Shaw, et al., 25 Ark., 417.
    We submit, the case ought to be affirmed, with damages. 14 Ark., 171; 10 Ark., 494.
   Searle, J.

The statement of this case, as far as may be necessary to evolve the questions to be decided, is simply as follows:

The appellee brought suit, by attachment against one Zane,. in the Pulaski Circuit Court. The attachment was levied on the 30th day of December, 1867, upon Zane’s cotton (85 bales) to enforce a landlord’s lien, under a lease, from Hobbs to Zane, of the plantation upon which the cotton was produced. Pending the attachment, Adams, one of the appellants, having, by interplea, claimed the cotton, so levied upon, under a mortgage executed subsequently to the execution of said lease, and before the attachment was levied, and upon his executing a bond, with Tibbetts and Taylor as secuiities, in favor of Hobbs, the cotton was turned over to him on the 1st day of January, 1868. The trial came on to be heard, at the May term, 1869, of the Pulaski Circuit Court. On the 1st day of. July, 1869., judgment by default was rendered against Zane, in the attachment suit. On the same clay the interplea was tried by the court, sitting as a jury, and judgment rendered against Adams, the interpleader, and Tibbetts and Taylor, his securities, from which they appeal to this court.

By the assignment of errors, two questions are presented for consideration, namely:

First — Was the landlord’s lien paramount to the lien created ' by the mortgage ?

Second — Was the judgment, on the trial of the interplea, properly rendered against the appellant and his securities ?

The first inquiry is virtually answered by the opinion of this court, in Sevier, adm’r, vs. Shaw, Barbour & Co., 25 Ark., 417. In that case, this court held “that the lien of the landlord is a charge upon the crop for the payment of the rent, and accrues as soon as there is any crop upon which it may attach, and does not in any manner depend upon the maturity of the rent. * * * The Act of December 28, 1860, which gives the landlord the process of attachment for enforcing his lien, declares that the proceeding may be commenced before the rent is due.” Tlie process of attachment is simply designed to give the landlord a more efficient remedy to enforce his rights under the lien, when the tenant is disposed, fraudulently, to remove the crops from the premises and dispose of them. From the above observations, it will be seen that, as soon as the writ of attachment is sued out, it relates back as enforcing the landlord’s lien, as soon as his right to a lien accrues. In the ease before us, Adams took the mortgage subject to the lien, as the same was executed after the lien had accrued. The judgment, therefore, of the court below, in declaring the cotton in controversy subject to the levy of the attachment, was not erroneous.

Second — The other question is: was the judgment, upon the determination of the interplea, properly rendered against the interpleader and his securities upon the bond? This inter-plea was interposed and determined under the provisions of the Act of January 19, 1861, and from this Act we must determine whether or not the judgment was properly rendered. *

This act (See. 1.) provides that when any sheriff shall levy a writ of attachment upon any property claimed by any person, not a party to such writ, such person may reclaim such property, by making oath that the property is his, and by giving bond, in favor of the plaintiff in the attachment suit, with good and sufficient securities, etc., conditioned that he will interplead at the term of the court to which the writ shall be returnable, and that he will prosecute such inter-pleader to judgment, without delay. And further, the act requires that if the plaintiff' shall recover judgment against the defendant, (in the original suit) the property so reclaimed shall be delivered to the sheriff', or his successor in office, whenever demanded by such sheriff; after execution upon such judgment (in the original suit) shall come to his hands to be levied thereon, etc.; and then it provides that if any person, to whom such property is so returned, shall refuse or neglect to deliver the property to the sheriff, according to the condition of the bond, it is made the duty of the sheriff'to return the writ of fieri facias issued, upon the judgment rendered in the original suit, setting forth the facts that the condition of the bond has been broken. It is also provided that the bond shall contain that, in case the property so levied upon shall not be delivered as provided for in the act, it shall have the force and effect of a judgment, etc. And Sec. 2, of the act, provides that on the return of the writ, showing the forfeiture of the bond, execution shall issue against all the obligors in the bond, etc.

In the case before us,' we find that the court first tried the original suit, rendered judgment by default against Zane, and ordered execution against the cotton attached, in the event that the interploa should be determined in favor of the plaintiff'. The court then tried and determined the interploa, finding that the cotton levied on wab subject do the attachment, and rendering the following judgment: — “.It is thereupon considered that said plaintiff have execution against said cotton, and if the same is not delivered to the sheriff of Pulaski county, by said interpleader, on demand, that execution issue on the return of the facts in the fieri facias, by said sheriff, against John I). Adams, Jonas M. Tibbetts and Charles M. Taylor, on the interpleader bond, for the sum of two thousand nine-hundred and five dollars, or so much thereof as will be sufficient to satisfy the said damages and costs,” etc. It will be seen from the above brief synopsis of the act of January 19, 1861, and the trials and judgments in this case, under the provisions of this act, that the latter followed the former with almost-unnecessary particularity. The-act requires that execution shall issue upon the judgment, in the original suit, against the defendant, in this case, in rem-, against the cotton alone, by the agreement of the parties, and that in the event the property is not re-delivered, the sheriff shall return the fieri facias, with' a showing that the condition of the bond is broken. So the court adjudged and ordered in almost the language of the act. The act requires that on such return •and showing of the forfeiture of the bond, the clerk shall issue an execution, in favor of the plaintiff, against all the obligors in the bond, and so the court ordered. ¥e cannot therefore discover that there was any error'in the court below in this matter.

Finding no error in any of the proceedings in the trial and disposition of this case, in the court below, the judgment is affirmed with costs.


author: McClure, C. J.

text:
    BUCK et al. v. MARTIN et al.
    Purchase without Notice — What plea or answer must state, etc. — In. setting up a bona fide purchase without notice, the plea or answer must state, briefly, the contents of the deed of purchase; that the vendor was seized in fee and in possession; the consideration must ho stated with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed. Notice must he denied previous to, and down to the time of paying the money and the delivery of the deed, and, if notice is specially charged, the denial must he of all the circumstances referred to from which notice can be inferred, and it must show how the grantor acquired title.

      What the title must be. — The title purchased must he apparently perfect — good at law — a vested estate in foe simple — it must he a regular conveyance.
    APPEAL FROM JEFFERSON CIRCUIT COURT.
    Hon. Henry 13. Morse, Circuit Judge.

      Wasscll & Moore and Bell & Carlton, for Appellants.

      We submit that, as appellants had no notice of the liens whep the case was tried, the appellee’s equitable lien could not be enforced against him, -an innocent purchaser, without notice. Shall vs. Biscoe, 18 Ark. 142 ;■ Scott vs. Orlnson, 21 ■ Ark. 202.
   McClure, C. J.

In January, of 1867, Lucy J. Martin, by her deed of that date, conveyed to one Thomas A. Hinton, (who is also a party defendant to this suit) certain property in the town of Pine Bluff. The consideration, named in said conveyance, is a certain forty acres of land described in said deed and one note, at twelve months, for two hundred and fifty dollars, signed by said Hinton. The complaint, of Lucy J. Martin, alleges that on the 19th day of February, 1867, the said Hinton, by a mortgage deed, conveyed said lands to the defendant, John L. Buck, to secure the payment of certain sums of money in said mortgage deed mentioned. That said mortgage deed was filed, for record, subsequent to the filing of the deed from the complainant to Hinton, and that said mortgage deed recites that there was due and payable on said Pine Bluff property, tbe sum of two hundred and fifty dollars, with interest, etc. Tbe bill concludes with a prayer for ■the amount of said note and interest, and that said land be sold to satisfy tbe same, etc..

Jobn L. Buck is tbe only one of tbe defendants who made answer in tbe court below. In bis answer be alleges that, about tbe 19th day of February, 1867, said Hinton applied to him to borrow certain moneys, and offered to execute to said respondent, (Buck) a deed of mortgage, on tbe Pine Bluff" property, to secure tbe same. That be inquired as to title, and was informed by said Hinton that be bad an absolute deed to said lot, given in exchange for other land; that Hinton was in possession, and, on examining tbe records, be could not find. tbe deed, and therefore relied on tbe statements of said Hinton, and, having no information or notice of said conrplainant’s claim or pretended lien, accepted said deed of trust in good faith and without any notice whatever of complainant’s equity or lien, and denies that she bad any; that when said ■sum of money, secured by said deed of trust, matured, and tbe •same being unpaid, said lots of land were sold under tbe provisions of said deed, and tbe respondent became tbe purehaser; that be is in possession under said deed of purchase, •and that be is a purchaser for a valuable consideration without notice and entitled to tbe protection of tbe court, etc.

At tbe bearing below, tbe complaint was decreed to be taken as confessed as to all of tbe defendants, save John L. Buck. The court further decreed a vendor’s lien upon tbe land, hereinbefore mentioned, for $289 00, and ordered that ■tbe same be sold in default of payment. From this decree, Buck appealed to this court.

Tbe question presented is, does tbe response of Buck show him to be an innocent purchaser? Tbe rule laid down by'the Supreme Court of the United States, in tbe case of Boone vs. Chiles (10 Feters, 177), was, that “in setting up a bona fide purchase without notice,' by plea or answer, it must state tbe deed of purchase, tbe date, parties and contents briefly; that the vendor zoas seised in fee and in possession; the consideration must he stated with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed. Notice must be denied previous to, and doion to the time of paying the money, and the delivery of the deed, and if notice is-specially charged, the denial must be of all the circumstances referred, to, from which notice can be inferred; and the answer or plea must show hoto the grantdr acquired title; the title purchased must be apparently perfect; good at law; a vested' estate in fee simple. It must be a regular conveyance; for the purchaser of an equitable title holds it subject to the equities upon it in the hands of the vendor.” Does the respondent, Buck, bring himself within this rule? Ve think not.

The complaint alleges that the deed from Mrs. Martin to-Hinton recites the non-payment of two hundred and-fifty dollars of the purchase money; it also alleges that the deed of mortgage, from Hinton to Buck, recites the non-payment of two hundred’ and fifty dollars of the purchase money. These are allegations charging notice of the existence of the-lien of the vendor. -The only denial Buck makes of this charge is, that he examined the record and found no deed from Mrs. Martiu to Hinton, and because he found no such deed, that he relied on Hinton’s statements as to title; but there is no denial that the deed of mortgage, from Hinton to himself, does not recite the non-payment of the two hundred and fifty dollars. If such a recital existed in the mortgage, it is apparent that he had notice of the existence of the vendor’s lien. In the absence of any deed irpon record from Mrs. Martin to Hinton, it is but natural that he, as a prudent man, examined the deed itself; if he did, then the deed was notice to him of the non-payment of a part of the purchase money. But be this as it may, if he expects to rely upon the fact of being an innocent purchaser, he must bring himself within the rule. - To do this, he was bound to plead the deed from Mrs. Martin to Hinton. Had he done this, he would have pleaded notice to himself; had he pleaded the deed of mortgage from Hinton to himself, and this he was bound to do to bring himself within the rule, the fact would have become apparent that he had notice at the time he took his mortgage. If the deed had acknowledged the entire payment of the purchase money, and the mortgage had made-no allusion to the two hundred and fifty dollars due to Mrs. Martin, and he had, pleaded these things, he then would have stood before this court in the light of an innocent púrchaser. Where one relies upon protection on the ground of being ¿n innocent purchaser without notice, it is incumbent on' him, who sets it up, to establish a legal title in his vendor; If, however, in doing this, he purchases an equity in some one else, he cannot plead his ignorance of that equity, to establish the fact that he is a purchaser without notice. In this case notice is specially charged; there is no denial óf the circumstances referred to, in the complaint, or is there anything in the answer, showing title in either Buck or his vendor. No vested estate in fee simple has been: 'shown to exist in Hinton, which ‘did not also show that the purchase money had not all been paid. For these reasons, and finding no error in the proceedings of the court below, the judgment is affirmed.


text:
    COLLIER, Adm’r, v. KILCREASE, Adm’r.

      Administration — Revoca-tion of Letters, etc. — On affidavit filed, by a party interested in an estate,- tliat the administrator is insolvent, it is error in the -Probate Court to revoke the letters of administration, without requiring the administrator to give additional bond, and without any showing- that his securities were not ample.

      Appeals — Should he tried de novo. — Appeals from the Probate to the Circuit Courts should be tried anew.
    APPEAL EROM RANDOLPH CIRCUIT COURT.
    IIon. Elisi-ia Baxter, Circuit Judge.

      English, Gantt $ English, for Appellant.
    1. Tlie Probate Court may revoke letters, on affidavit, notice and proof wlien an executor or administrator becomes of unsound mind, or wastes or mismanages the estate, or acts so as to endanger his eo-executor. Gould’s Digest, ch. 4, sec. 35.
    2. On an affidavit tliat *an administrator is likely to become insolvent, tlie Probate Court may require him to give a new bond (as well as for other causes named in the statute), and if he fails to give the new bond, may then revoke his letters. Goidd’s Digest, ch. 4, sec. 36-7-8, pp. 110-11; Renfro vs. White, 23 Ark., 195; State vs. Stroop, 22 lb., 328.
   Searle, J.

Collier was the duly appointed administrator of the estate of Wilson, deceased. Kilcrease, who had married Wilson’s widow, filed an affidavit in the Probate Court of Randolph county, in January, 1869, stating that he had reason to believe that Collier was likely to become insolvent, and prayed the court to revoke his letters of administration.

The evidence, upon the hearing of the matter, was to the effect that Collier was insolvent. The court ordered the revocation of his letters, from which' Collier appealed to the Circuit Court. The Circuit Court affirmed the order, and Collier appealed to this court.

The only question to be determined, in this case, is, did the affidavit and evidence show a sufficient legal ground, for the revoking of Collier’s letters of administration ? It is discoverable, at a glance, that the application and affidavit were made under sec. 36, ch. 4, Gould’s Digest. This section provides that if any heir, legatee, creditor, security, or other person interested in any estate, shall file in the Probate Court, etc., an affidavit, stating that the affiant has reason to believe that the principal in the executor’s or administrator’s bond has become, or is likely to become insolvent, and shall have given the principal fifteen days’ notice of the time and place of hearing such complaint, “ The court shall examine the same and make such order as shall seem proper.”

Poes the clause, “the court shall examine the same and make such order as shall seem proper,” give such court, upon a sufficient showing of suck insolvency, the power of at once revoking the letters of administration, or does it only authorize it to make such order as may seem proper in relation to the giving of an additional bond? Undoubtedly, we think, the latter. Por by sections 37 and 38, of the sainé chapter, which seems to have been' designed to carry out and perfect the provisions of section 36, it is declared that,'if an additional bond be given, it shall discharge the former securities from any liability, etc., after the approval and filing of such additional bond, and that,'in the event of a failure to give such additional security as may be required by the court, within ten days after the making of the order requiring additional security, the letters of such administrator shall thenceforth be revoked and his authority cease at that time. It is further to be observed, that it is only in those cases and for those causes where the administration law explicitly provides for it, may letters, etc., be revoked, -without first requiring additional bonds. Here the Probate Court arbitrarily revoked the letters without requiring Collier to give additional bond, and without any showing that his securities were not ample.

It appears from the transcript, further, that the Circuit Court did not try the case anew upon the appeal, but simply, upon reviewing the transcript from the Probate Court, declared that there was no error, and affirmed the judgment, tare Circuit Court should have tried the ease anew. See Smith & Bro. vs. Van Gilder, 26 Ark., 527.

For the errors indicated the judgment is reversed, and the cause is remanded to the Circuit Court with instructions to try the case anew and not inconsistent with this opinion.


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    RAMSEY v. CARHART.
    Quo Warranto — Will not issue on the relation of private, person. — The writ of quo warranto will only issue on tile relation of the Attorney General, in the name of the State, in eases where tht' whole community are interested, and will not he granted at the instance of an individual for -the determination of a private ric/ht.

    PETITION EOR. QUO WARRANTO.

      Watkins & Bose, for Petitioner.
    As to the objection that the writ of quo warranto can only be brought on the relation of the Attorney General, and not on the relation of .any other person, we submit:
    That the amendment of the law by Sec. 525, of the Code, was merely the adoption of the- English statute of-9 Anne, ch. 20.
    ‘The Code proceeding is only the quo xoarranto, of the common law, codified, and it does not lie in the Code to impair the jurisdiction of this court, by prescribing new forms, though the Code or any other statute, may prescribe the manner of proceeding in any of the courts. State vs. Gh-aham, 1 Ark., 428; Anthony, ex-parte, 5 Id. 358; Miller v. Heard, Id 75.

      Montgomery & Warwick, for Defendant.
   McClure, C. J.

The only question presented, by this case, is, whether a quo warranto will issue on the relation of a private person ? ,It was held, in the State vs. Ashley, 1 Ark., 279; in Caldwell vs. Bell & Graham, 6 Ark., 227, and the State vs. Williams, that the writ of quo ivarranto wquld only issue on the relation . of the Attorney General, in the name of the State, in cases where the whole community are interested, and would not be granted at the instance of an individual for the determination of a private right.

The counsel for the appellant ask: “ Will any one say that the jurisdiction of this court depends upon the breath of the Attorney General ?” and in response to the question, says, “ God forbid.” In response to the query propounded by counsel, this court takes occasion to say, that the jurisdiction of this court is derived from and regulated by the Constitution of the State, but it is for the Attorney General to see whether the offices or franchises of the State have been usurped; he is the law officer of the government, and is presumed to discharge his duty. The office, in controversy, is one created by the Constitution; it is a grant of power by the people; the Attorney General is their highest law officer, and so long as the “people” do not complain, through him, of usurpation of an office or franchise, it is but fair to presume that no usurpation has taken .place. It may be asked, if this be true, how can one, entitled to an office, get possession of it, if quo toarranto is denied, or the Attorney General refuses to discharge his sworn duty ? Section 525, of the Civil. Code, declares that, “ Whenever a person 'usurps an office to .which he is not entitled by law, an action, by proceedings at law, may be instituted against him, either by the State, or the party entitled to the office.” This section furnishes the complainant, in this case, with a full and perfect remedy to assert and maintain his right to the office he claims, and neither the neglect of the Attorney General, nor a denial of jurisdiction in this court, in any manner, interferes with his remedy.

Quo warranto was invented, originally, not to determine which of two persons were entitled to an office, but to require the incumbent to show by what authority he was exercising or attempting to exercise the duties of an office, created by sovereign authority. The issue was between the State and the person in office; and not between two persons who claimed the right to exercise its duties. In short, quo warranto is the writ of the State and only issues at the instance of the State. It was not, nor is it now designed of used as a remedy, at law, by which individuals may contest the right to an office. The Legislature has provided a separate remedy for the determination of such a question, and the parties must seek the remedies provided for them, instead of one provided for the State.

The writ is denied and the cause ordered to be stricken from the docket. (

Gregg, J., dissenting.


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    CAMPBELL v. GOODRICH.
    PETITION EOR QUO WARRANTO.

      W. J. Thompson and Watkins & Rose, for Petitioner.

      Montgomery & Warwick, for Defendant.
   McClure, C. J.

The doctrine announced in Ramsey vs. Garhari, disposes of the only question in this ease.

Quo warranto denied, and the case will be stricken from the docket.

Gregg, J., dissenting.


author: Gregg, J.

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    HILL v. SEWELL.

      Sheriees — Liability in levying executions, etc. — ."Where ail execution, against principal and security, comes to the hands of the sheriff, and through neglect, want of diligence, favor or extension of time, by the sheriff, he fails to make the money out of the principal, or the principal become insolvent, the sheriff becomes responsible to the security for the amount he may be forced to pay. . \

      Security — When protected in equity. — "Wlíen a sheriff, without the consent of the security, through favor or extension of time to a principal pays off an execution, in his hands, against 'principal and security, and procures an assignment of the execution to himself, equity will enjoin him from proceeding against the security for the amount so paid.
    APPEAL EROM UNION CIRCUIT COURT.
    Hon. Q-. ~W. McCoavn, Circuit Judge.

      Watkins & Rose, for Appellant.
    In this case we take it that if the law would subrogate the negligent sheriff to the rights of the creditor, whose judgments he had paid, an assignment would be useless; and that an assignment could not impose any additional burden on the surety, which was not inherent in the nature of the situation. Otherwise his liability in the end might be made to depend on the terms of a contract between other parties, of the existence of which at the time he had no knowledge. But sureties cannot be concluded by any fabricated account between third persons. United States vs. Boyd, 5 How., U. S. 29.
    “Subrogation is not to be allowed, except in a clear case, and when it works no injustice to others.” Lloyd vs. Galbraith, 32 Penn., 103. Even if a stranger had the judgments without being delinquent in respect thereof. Bunn vs. Nichols, 25 Ark., 129; see also Rusk vs. Ramsey, 3 Munf., 417; Hammond vs. Chamberlin, 26 Vt., 406; Miller vs Dyer, 1 Duval (Ky.) 263. The case of Finn vs. Stratton, relied upon by appellee, has been overruled, and is not law. See Com. vs. Stratton, 7 J. J. M.} 90;. Stan. Com. 2 Dana 397, and Rawe vs. Williams, 7 B. M.

      John H. Carlton and Garland § Nash, for Appellee.
    Mere indulgence does not release the security. King $• Houston vs. Bank, etc., 9 Ark., 189, 190; 18 Miss. Rep., 125; 5 Cal. 173; 3 Cowan, 446. Not even when the principal, in the meantime, becomes insolvent; 14 Miss., 473. Nor when the principal dies, and the creditor neglects to prove his claims against the estate of the principal, until it is barred by the statute of non-claim. Ashley, et al., vs. Johnston, et al., 23 Ark. 165; citihig Johnston vs. Planter’s Bank, 4 Smede § Marshall, 171; Cohen, et al, vs. Com. of S'. F‘. 7; Ibid 441 .• Marshall vs. Hudson, 9 Yerg. 63; MoBroom vs. Governor, 8 Porter, 33; Wisinger vs. Cawthorn, 6 Ala., 716.
    But by sections 1 and 2, chapter 157, Gould’s Digest, 1015, appellant might have given Grinnet notice in writing to proceed against the principal, Withering-ton, and if the plaintiff had delayed even thirty days, appellant would have been discharged. , State Bank vs. Watkins, 6 Ark., 123; lb. 317; Caldwell vs. McVigkers, 9 Ark., 418; Cummins Feniio vs. Garret-son, 15 Ark., 132; 14 Ark., 216. But he slept on his rights then, and can’t be heard now.

    “The right of the officer to occupy, by substitution, the place of the plaintiff in an execution, to whom he has paid the amount, is founded on principles'-of unquestionable justice.” Finn vs. Stratton, 5 J. J., Marshall 366; Bray vs. Howard, 7 B. Monroe 467; 5 Mon., 128 Ky.

   Gregg, J.

On the 27th day of March, 1861, the-appellant presented his bill, to the Judge of the Sixth Judicial Circuit, for an injunction. He alleged, therein, that on the 2d day-of April, 1859, one Grinnett, as guardian, etc., recovered two judgments against A. L. Worthington, each for $1301 61, and on the 29th day of the next July, he caused executions to issue, which, on the 27th day of September following, were respectively duly levied, and the appellant then became security on Witherington’s delivery bonds; that the property thus released was not delivered, and the bonds were returned forfeited. That' on the 1st of November, 1859, executions were issued on these forfeited bonds, and on the 7th of the same month, delivered to the appellee, who was then sheriff of Union county, to be by him levied and collected. That he .gave no notice to the .appellant, and on the return day of these executions, endorsed them wholly unsatisfied, and returned them without the knowledge' or consent of the appellant. That during the time the sheriff so held these executions, Worthington had ample property, visible and subject to. execution in the county, out of which the sheriff could have levied and collected said amounts, but that he, without the knowledge of the appellant, took the promise of Worthington that he would pay the money on or before the return day, which he failed to do, and after the return of the executions, to avoid a rule being made against him, because of the failure to levy and collect, the appellee paid them off.

That in 1860 or 1861, Worthington became much embarrassed, and with the knowledge and consent of the appellee, left the State, and that afterwards, when there was no hope of making the money out of Worthington, the appellee, for his own benefit, and to reimburse himself for the moneys hollad so paid out, on the 20th day of March, 1861, caused other-executions to be issued, on said forfeited delivery bonds, and directed the then sheriff of said county to make said amounts out of the property of the appellant, and that said sheriff was proceeding to collect the same, and he prayed an injunction; a temporary injunction was issued. The cause then slept over the war; after which, depositions wore taken, and in April, 1870, it came on for final hearing, and the court found that there was no equity in the bill, and decreed that it be dismissed for want of equity, and that the appellant pay all costs, from which decree he appealed to this court.

The case of Finn vs. Stratton, 5 J. J. Marshall, 366, referred to by the appellee, is exactly in point in his favor. Judge Buchanan, in that case, held very strongly in favor of the sheriff, and that, wherein his misconduct had prejudiced a security; but the Supreme Court of his State refused to follow that ruling. In the case of Staton vs. The Commonwealth, etc., 2 Dana, 377, they held a sheriff liable to a security who had been forced to pay, because the sheriff had levied a junior instead of a senior execution; and in the case of Rowe vs. Williams, 7 B. Monroe, 206, wherein the sheriff held an executiou against a principal and his security, in an injunction bond, and having levied upon the property of the principal debtor, through his neglect, the property was run off and the levy lost, upon the security being compelled to pay off the debt, that court held that the sheriff was liable to the security,., in an action, for the amount he had been compelled so to pay; and in a later case of Miller vs. Dyer, etc., 1 Duval, 263, the case of Finn vs. Stratton is expressly overruled; in this last case, by the neglect of the sheriff", ho became liable and paid off’the judgment and procured an assignment of the execution to himself, and attempted to make the money out of the security, who applied for an injunction, and the court said he was entitled to that relief, in equity, because, if forced to pay, he could then sue the sheriff’ and recover back from him; and these established rulings, of the Kentucky courts, fully sustain the appellant. See also, 7 J. J. Marshall, 90; Staton et al., vs. Commonwealth, 2 Dana, 397; 2 Johns, 445; 3 Munf., 417. In this case, the appellee did not deny but that Witherington liad ample property, subject to execution, during all the time the writs were in his hands, against him and the appellant, and if he had, that fact was abundantly proven. Nor is it pretended but that the appellee could have collected the money from the principal debtor, if he had made an effort so to do. At his own risk, he chose to favor the debtor, and declined to make the levy upon’his promise that he would pay.

it is a principle well understood that, where a burden must fall between parties alike indifferent as to the beneficial considerations, it should be borne by him who had been most in fault; he, whose action has most contributed to an inequitable result, should, hear that responsibility. In this case, there is another and strong reason why the law should be as it is; the .appellee was^a public officer, sworn to a faithful performance of his duties; The well being and peace of society depends much upon the prompt and efficient enforcement of all the laws; without that, the rights of none are secure, and when such an officer departs from the line of his duty, as marked out by the law, he is held to a rigid account, and if loss must fall between him and one not at fault, the law readily throws the damages upon him.

This was not a mere neglect of duty on the part of a public officer, but -was, as. shown clearly by the evidence, a willful and intentional assumption of responsibility to extend time to the principal debtor, by reason of which he became insolvent before the debts could be collected, and this well illustrates the propriety of the rule that throws the responsibility upon him; his own wrong and neglect should not burden another less at fault than himself, and the appellant was no more bound by the bond he had given-to release the property, in this case, than was the appellee by the bond he had given to execute the duties of his office in all cases.

The decree of the court below is reversed, and this cause is remanded to the court with directions to grant a perpetual injunction and adjudge costs against the appellee.