author: Walker, J.

text:
    Tobin et al. vs. Jenkins et al.
    1. Practice : Bight to concluding argument.

    The party having the burden of proof is entitled to conclude the argument, and a denial of this right is ground for reversal.
    2. Evidence : Competency of an earlier; in support of capacity to make a later will.

    A former will, that was never probated, but was proven by the subscribing witnesses to have been executed at a time when there was no doubt of the capacity of the testator to make a will, and which contained provisions similar to those of a later will, which was being contested, was competent, in connection with other evidence, to show whether the testator’s mind was rational and unbiased at the time the will in contest was executed.
    8. Pleading: Issue in the contest of a will.

    The provisions of sec. 82, ch. 180, Gould’s Dig., for the contest of a will, require that the distinct issue of devisavit vel non be made up, and the jury sworn to try it.
    4. — Capacity and undue influence must be considered together, and both questions should be presented by the instructions.

    The questions of capacity to make a will, and of undue influence, are intimately connected, and must ofnecessity be considered together; though there was capacity, yet, if the mind was not free to act, by reason of the undue influence of another, the act might be declared invalid. And when there is evidence on the latter question under the issue of devisavit vel non, an instruction on the former should be so qualified as to leave the jury free to consider it.
    5. — Bange of inquiry under this issue.

    If capacity and free agency exist at the time of the act, it will be valid,, regardless of the state of the mind or the degree of restraint at any other time; but the will may be fettered and controlled at the time the act is done, by influences that were previously fixed and impressed upon the mind; and in order to determine the capacity and freedom of the mind at the time, a wider range of inquiry is permissible into facts and circumstances, whether before or after the making of the will.
    6. — Capacity requisite to make a will and how destroyed.

    The capacity to make a will is such as requires sufficient mind to contract, free from such undue influences as constrain the party to act against his will, or subdue the will until it ceases to act for itself, and acts under the dictates of the will of another. This capacity-may be destroyed without actual force and coercion.
    7. Instructions.
    The instructions should be based on evidence in the cause, otherwise,, they are correctly refused.
    8. — Under the issue of deviscwit vel non.

    The court should not, under the issue of devismit vel non, embody a hypothetical state of facts in an instruction and direct the jury-what their verdict must be in case they find those facts.
    9. Evidence : Contents of the will competent.

    The contents of the will, and the facts and circumstances connected* • with its execution, are proper- to be considered of by the jury im determining the capacity of the testator.
    10. — Instructions upon.

    While it is true that an unequal distribution of the estate of the testator-among his children is a circumstance calculated to arouse suspi- ' cion, and should go to the jury, an instruction that it required strict-proof of fairness would tend to induce the jury to attach undue importance to it, and should not be given.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Carroll <& Bradshaw and A. H. Garland, for appellant.

      Bell & Carlton, contra.

   Walker, J.

The plaintiffs, heirs at law of Nathan Jenkins, deceased, filed their petition, in-, the Jefferson circuit-court, against the other heirs of said Jenkins, for the purpos e-of having the will of Nathan Jenkins (which had been probated before the clerk) set aside upon the grounds :

1. That the testator, at the time the will was made, was not-of sound and disposing mind and memory.

2. Because the will was not the result of the voluntary act-of the testator, but was procured to be executed by an undue; influence over him by William H. Jenkins, a son and a devisee in the will.

3. That the provisions /of the will were agreed upon by William H. and James H. Jenkins, to whom the whole estate of the testator was devised, and who procured the'will to be written and dictated its provisions, and thereby perpetrated a fraud and an imposition upon the testator.

The prayer of the petition was, that an issue be formed to be tried by a jury, as to whether the instrument probated was, or not, the will of Nathan Jenkins.

The defendant answered and denied all that" part of the petition which set up the invalidity of the will. A jury was impaneled and sworn, who, after having heard the evidence and the instructions of the court, returned a verdict that they found for the defendants, upon which judgment was rendered in their favor.

The complainants filed their motion for a new trial, and assigned as cause several errors in the proeeedings, and in the giving and refusing to give certain instructions. The motion for a new trial was overruled, exceptions taken, and the case brought before this court by appeal.

The first error complained of and made a ground for a new trial is, that the court refused to permit the complainants to conclude the argument before the jury.

It is provided in the Code, sec. 349, that the party having-the burden of proof shall have the conclusion of the argument; The complainants in this case held the affirmative, and were consequently entitled to conclude, as held by this court in Rogers et al. v. Diamond, 13 Ark., 479; McDaniel v. Crosby et al., 19 id., 533. We must therefore hold that it was error in the court below to deny to the complainants the right to conclude the argument before the jury. That there is a decided advantage before a jury in having the concluding argument, there can be no doubt; the extent of the wrong, however, it is hard to estimate. It may suffice that it is a right and a privilege to which complainants were entitled.

' .The next error presented for consideration is, that the court permitted a paper which purported to be the will of Nathan Jenkins, dated February 26, 1862, to be read in evidence to the jury over the objection of complainants. It is true that the will of 1862 was never probated as a will, but it was proven by the subscribing witness to have been executed by the testator. This will was executed at a time when there seems to have been no question as to the capacity of the testator to. make a will, and as its provisions with regard to the disposition of his property to his sons, to the exclusion of the children of his daughters, are, with unimportant differences, the Same as those in the will of 1868, the validity of which is in contest, we think that it was competent evidence to be considered in connection with all of the other evidence offered by the parties to show whether the testator’s mind was rational, and was, or was not unduly influenced at the time the will, in 1868, was executed.

The next ground for a new trial is, that the court erred in allowing the cause to be tried without having first directed an issue to be made up, according to law, to try the validity of the will.

The record states that the jury were duly sworn, but it does not appear that any issue was formed as provided for in sec-. tion 32, ch. 180, Gould’s Dig., which provides that “it shall be the duty of the circuit court to direct an issue to try the validity of such will, which issue shall, in all cases, be tried by a jury.” "We do not suppose that any very formal order would be required; but under the provisions of this statute, the distinct issue of devisavit vel non should have been presented, and the jury should have been sworn to try it. This, however, appears not to have been done, and there is nothing, not even the verdict, to indicate what the issue was the jury were sworn to try. This objection was well taken.

The remaining grounds for a new trial arise out of the instructions given at the request of the defendants, and those asked by the complainants and refused by the court; to all of which, exceptions were taken by complainants. The first is, that the court erred in giving the 5th, 6th, 7th, 8th and 9th instructions asked by defendants. The second is, that the court erred in refusing to give the 8d, 4th, 7th and 8th instructions asked by the complainants.

The 5th instruction given at the instance of the defendants, is: “If the jury believe from the evidence that the testator, Nathan Jenkins, knew what he was about when he executed his will, and the consequences of what he was doing; if he had sufficient capacity to make a contract, he might make a valid will, and the testator might even not have had sufficient strength of mind and vigor of intellect to digest all the parts of a contract, and yét be competent to direct the disposition of his property by will; the question for the jury to determine being, were the mind and memory of Nathan Jenkins, at the time he executed his will, sufficiently strong to enable him to know and understand the business in which he was engaged at the time when he executed the will ?”

This is a long, instruction, and embraces several distinct propositions, but fails to cover the question of undue influence, of which there was evidence, whether slight or strong, we are not called upon to determine. The substance of the instruction was, that if the testator knew what he was about when he made the will, and had sufficient capacity to make it, or if they should find that the testator had not sufficient mind to digest and understand all the parts of a contract, he yet might be competent to make a will. This might all be true, and still, if the mind was not free to act, if constrained to act, or lulled into repose to submissiveness to the will of another, who was present at the time, and had before and at the time exercised a commanding control over the testator, by reason of which the freedom of thought was suppressed, under such circumstances the act might be declared invalid; and as there was evidence upon this question, the instructions should have been so qualified as to leave the jury free to consider of it, and by its omission the jury were left to infer that, irrespective of the question of undue influence, they might find for the defendants. This question of capacity, or incapacity, and that of undue influence, are intimately connected, and the character and extent of the influence so dependent upon the state of the mind,- as well as of all of the surroundings of the party who contracts, that both must of necessity be considered together. The power of the influence depends much upon the state of the mind. Thus, in Kelly's heirs v. McGuire and wife, 15 Ark., 555, it was held that, if a person, although not positively non compos, is of such weakness of mind as not to be able to guard himself against, or to resist importunity, or undue influence, a contract made by him under such circumstances will be set aside.

. The 6th instruction was as follows: “ A will valid upon its face cannot be destroyed, or in any way varied by declarations of the devisor, unless the declaration was a part of the res gestae, and made at the very time of the execution of the will.”

This instruction presented an abstract proposition, which, whether true or false, has no application to this case; because there is no evidence that the testator made any declarations, or in any manner referred to his will after it was made, and consequently there was nothing for the jury to consider in common with it,

The 7th instruction is as follows: “Undue influences over the testator, necessary to set aside a will, must amount to force and coercion, destroying free agency and vitiating the will. The influence used must not be attributable to the influence of affection or attachment.”

The real issue in this case was devisavit vel non. It is admitted that the will was formally proven, and the question is, was the testator of disposing mind and memory to make the will, and if he was, was he also, at the same time, free to act; or was he, by undue influences, induced to make a will which otherwise he would not have made ? Free agency and capacity to contract, are each indispensably necessary to make a valid contract, or execute a valid will. The lack of mind comprehends both, because without mind there can be no free agency; but if there is mind it must be free to act, and if restrained unduly to the extent that free agency is destroyed, the act is void. This incapacity, or undue restraint, must exist at the time the act is done; if capacity and free agency exist then, the act is valid, irrespective of the state of mind or degree of restraint, whether before or after that time. But in order to determine the capacity and its free action at the time the will is made, a wider range of inquiry is permissible into facts and circumstances, whether -before or after the time of making the will, the better to enable the jury to determine the probable state of the mind, and the extent and force of the restraint at the time the will was executed. And as regards undue restraints, it may be proper to remark that it is not necessary that the mind should act under influences at the time brought to bear, or then employed, but they may be such as have at a previous time been so fixed and impressed as to retain their controlling influence at the time the act is done. Nor is such restraint necessary to be effected by force or intimidation; for it has been held, upon authority, that if the mind acts by force of long training to submission, so that the will of another is adopted for its own, and without reflection, the party thus influenced is incompetent to contract. Jarman, in his work on "Wills, cites an authority with approval, in which when referring to the several kinds of undue influence, it is said, “ there is another ground which, though not so distinct as actual force, nor so easy to be proved, yet if it should be made out, would certainly destroy the will, and this is, if a dominion was acquired over a mind of sufficient sanity for general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind.”

This is the greatest extent to which the authorities seem to. ■have gone, and upon principle seems to result in this: that it requires sufficient mind to contract, free from such undue influences as constrain the party to act against his will, or by subduing the will until it ceases to act for itself, and acts under the dictates of the will of another. The terms force and coercion, as used in the instruction,'were calculated to mislead the jury. The instruction should have been broad enough to cover the subject of coercion fully, as we have above indicated.

The 8th instruction relates to the superior weight to be given to the evidence of the subscribing witnesses to the will, and was properly given, as held in McDaniel v. Crosby, 19 Ark., 533.

The 9th and last instruction of defendants to which exceptions was taken is, “That if the jury believe from the evidence that the testator was of unsound mind, but had lucid intervals, and no proof of habitual insanity has been made by the plaintiff previous to and at the time of the execution of the will, the law presumes that the testator was rational and sound in mind when he executed the will. And if the jury believe that the testator in his will disposed of his property substantially in accordance with his antecedent declarations, the law presumes that he was lucid and rational, and in his right mind when he executed the will, and the jury must ■find for the defendant.”

All of that part of this instruction which relates to the lucid intervals and lunacy is out of place, as without evidence upon which to base the instruction; and to instruct that, if the jury found from the evidence that testator was in his right mind when he executed the will, was erroneous, because it left out the question of undue influence entirely, and for this reason was improperly given.

Having disposed of the questions which arose upon the defendant’s instructions, we will proceed to consider those asked by the complainants, and refused by the court:

The 8d is: “ If the jury believe from the evidence that the testator, at the time of signing the instrument, was very old and infirm in body, and childish in mind, and was suffering at the time from a harrassing disease, and had become from those causes mentally incapable of transacting his ordinary business, then he had not sufficient capacity to make a will.”,

The causes for incapacity are certainly strong, but we are not prepared to say, as we must if we sustain this exception, that no man who is incapable of transacting ordinary business can make a valid will. The court has assumed to determine upon a given state of facts, the precise question to be left to, the jury, that is, competency or incompetency. We think that the instruction as asked was properly refused.

The 7th instruction is, “That if the jury find from the evidence that Nathan Jenkins, before the execution of the instru-: ment presented, had not given to his children, Margaret To-bin and Nancy D. Barnes anything, or had given them, oí either of them, an insignificant amount compared with the value of his estate, at the time of executing the will, the fact that he stated in his will that he had given them more than he considered the property he had given to his two sons was worth at a fair valuation, is a circumstance to be considered by the jury in determining whether he had capacity to execute a will.”

It was error to refuse this instruction. It is said by Jar-man, 79, that the contents of the will, the manner in which it was written and executed, the nature and extent of the testator’s estate, his family and connexions, their condition and relative situation to him, the terms upon which he stood with them, the claims of particular individuals, the situation of the testator himself, and the circumstances under which the will was made, are all proper to be shown to the jury, and often afford important evidence in the decision of the question of the testator’s capacity to make a will.”

In the case we are considering, we have a testator of eighty-two years of age, possessed of an estate of some fifteen or twenty thousand dollars worth of property, with the children •of his two deceased daughters, and two living sons, who have claims upon him in the distribution of this property. It appears from the evidence that the sons and their wives, with the brother-in-law of one of the sons, met at the room of the testator; one of the sons went for and procured the attendance of a lawyer to draft a will; the evidence discloses no sickness or other cause for this assemblage, other than the execution of the will. None of the grandchildren were present. It is true that some of the parties may have called for purposes disconnected with the making of the will; but all of these circumstances when taken in connection with the acts that followed, are calculated to arouse suspicion and to challenge scrutiny, and the instruction asked pointed to a provision in the will which cut off the children of the daughters, who were absent, and gave to the sons, who were present, the whole of the testator’s estate, for the reason, as set forth in the will, that the testator had heretofore given to the daughters more than the value of the estate therein devised to the ■sons. The value of the land is not in evidence, but from the quantity, location — fronting on the Arkansas river — and improvements, it was, as we suppose, worth at least $10,000. In addition to this, it is proven that one of the devisees received on his part of the personal estate, $2,030 cash, $300 or $100 worth of household property, seven mules worth $700, and eighty or ninety dollars worth of cattle, which being the ■one-half would make the personal property $6,230, and the •entire estate $16,230.

The will makes the testator say that he had given to his two daughters more than this amount, whilst the evidence shows that one of the daughters received $1,200, and the other two negroes, one worth $700, sold after the death of her husband and the money paid to the testator, the other a girl for a nurse was when large enough, placed by the testator in the cotton field as one of his hands, and there remained in his service until freed at the close of the war; so that in fact this daughter, according to the evidence, received nothing. There is evidence, however, that the testator contributed a small amount in the education of his granddaughter; and there is also evidence that after the death of her husband, the daughter resided with the testator, but the’ evidence shows that her services were fully equal to the charge of support.

Under this state of the case, complainants asked that the jury be instructed that this inadequate provision for the grandchildren and the erroneous statement in the will were circumstances to be considered by them in determining whether the testator had, at thé time he made the will, sufficient capacity to make it. The reason given in the will for failing to provide for his grandchildren appears, from the evidence, to be untrue.. Shall we suppose that the testator (if he did direct this statement to be made) had,-at the time, a disposing mind and memory; or shall we suppose that, under the solemnities of the occasion, with a clear memory and mind, he directed a gross falsehood to be inserted in his will, and made this fabricated pretense of justice to his grandchildren, represented that their mothers had been fully provided for heretofore, when the proof, as to one, shows that she in fact received nothing, and as regards the other, only a very inconsiderable amount had been received, much less than had been advanced to one of the sons ? ■ The one or other alternative would seem inevitable.

This conduct on the part of the grandfather is so unnatural, so little in accordance with the obligations of parental care- and affection, and particularly so in the absence of any cause of displeasure between the testator and these grandchildren,, that it was the proper subject for the consideration of- the jury. Chancellor Walworth, in the case of Clark v. Fisher, in a case where the provisions of the will were under consideration, said: “ The ■ will is unreasonable on its face, when taken in connection with the amount of the testator’s property and the situation of his relatives; and this is always' proper evidence to be taken into consideration in judging of. the testator’s mind.” In the case of Stewart v. Lispenard, 26 Wend., 313, it was held that, in almost every case of disputed capacity, the will itself has, in its nature and effect, been regarded as an essential and most important part of the evidence of capacity.

It was unquestionably the duty of the court to give the instruction asked, and it was error to refuse to do so.

The 8th instruction asked by the complainants -was, that if the jury believe from the evidence that Nathan Jenkins was weak and imbecile in mind from old age and disease, so much so that he was incapable of attending to his ordinary business affairs, and, that whilst he was in this condition, he was induced to abandon the attorney who had previously attended to his business, and that the attorney of W. H. Jenkins, who was the principal devisee under the will now in contest, was called in to write said will, and that said will was attested only by said attorney of W. H. Jenkins and his wife and C. L. Colburn, who was the relation of said W. H. Jenkins, when other persons not interested in the said will were about the place, and could have been conveniently called to witness the same, this may be taken into consideration by the jury as a circumstance to determine whether said will was obtained by undue influences or not.

This instruction we think should have been given. There is some contradiction in the evidence in regard to this question. Owen, the attorney who drew the will of 1862, as well as that of 1868, states that after he wrote the first will, and some time before the second will was written, Nathan Jenkins told witness that the death of one of his sons and other causes required that his will should be written over, and that he, Jenkins, wished witness to write it for him. James H. Jenkins states that he went for Owen to draw the will of 1868, at the direction of the testator. The statements of these two witnesses agree; whilst that of Mrs. Williams is, that in the summer of 1867, in a conversation with the testator, he told her that he intended to make a will, and make it as’ he pleased; that he was going to have Thomas James to write it for him; that before Doctor Jenkins came out, Thomas James had always attended to his legal matters ■ for him, but now Doctor Jenkins was not willing for him to have any one but W. E. Owen write his will, but that he intended Thomas James to do it.

If the statement of this witness is true, then we must suppose that Nathan Jenkins had either changed his mind with regard to having James write his will, or that his mind had been influenced by others to induce him to make, the change. It was the province of the jury to weigh this evidence, and in view of their means of information, and the interest which the witnesses might be supposed to have in the issue, they were called to try to determine its weight, and to give it place when making their verdict. The testimony, if given full credit, shows very clearly, that the testator, for some cause, was unwilling to trust Owen to write another will for him, and that when the first will was made, he was procured to write it in preference to James, in whom he had more confidence ; that his son, one of the principal devisees was not willing for him to have any one but Owen, and when the testator told the witness that he intended to have a will Written as he pleased, we are left to infer that the first will was written contrary to the testator’s wishes. What credit is to be given to this evidence was a matter for the jury to determine, and had direct bearing upon the question of undue influence, and of fraud in the procurement of the will. All that the complainants asked of the court was this: That if found true, it was a proper subject for their consideration, and the court clearly erred in refusing to give it.

The ninth and last instruction asked by the complainants, and refused by the court, is: That an unequal disposition of the testator’s property to his heirs creates a suspicion against the testament, and requires strict proof of fairness in its execution and of capacity to make it.

There can be no doubt but that failure of a testator to make a fair distribution of his estate amongst his children, at once arouses inquiry as to the probable cause of so unnatural an act. That provision by way of advancements had been made to part of the children, or that some of them were prodigal, or disobedient, is at once looked into by the inquiring mind. Suspicion is aroused, and this unnatural devise is always a circumstance which should go to the jury; but we think that the terms, strict proof of fairness, tended to induce the jury to attach unnecessary importance to this circumstance, which, though properly given as such, does not necessarily require for this cause strict proof, or stricter proof, than other circumstances. We think the instruction properly refused.

The remaining ground for a new trial is, that the jury found contrary to evidence.

Without summing up the evidence, or attempting to decide on which side there was the greater weight of evidence, it may suffice to say that if this was the only ground assigned for granting a new trial, we would not disturb the verdict.

But for the several errors which we have found in the progress of our investigation, the judgment and decision of the court below must be reversed and set aside, and the cause remanded with instructions to grant to the complainants a new trial; that the court make up an issue of devisavii vel non to be tried by a jury.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    Dixon vs. The State.
    1. Presumptions : In favor of circuit court.

    When the circuit court set aside the regular panel of grand jurors, and had another summoned; and the record fails to disclose the ground of its action, this court will presume that it was done for good cause.
    2. Waives: Of irregularity in formation of the grand jury.

    A defendant, hy pleading to an indictment, without moving to set it aside, waives any illegality in the formation of the grand jury.

      3. Indictment: Form of.

    A statement, in the indictment, of the facts necessary to constitute the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, is all that is required.
    4. The Becord: Need not recite facts'already appearing.

    An order changing the venue in a criminal cause need not set forth the ground thereof, the same appearing in the petition, which is a part of the record.
    5. Circuit Court : Authority for holding special terms of.

    The authority for holding a special term of the circuit court, for the trial of persons confined in jail, is complete when it appears there were persons in jail awaiting trial before the court, that the time fixed did not interfere with any other court to be held by the judge, and was not within twenty days of the regular term; and that the judge, ten days before the time fixed, made an order therefor, which was transmitted to the clerk and by him entered upon the record; and an omission to notify the prosecuting attorney, ten days before such term, would not affect the jurisdiction or the rights of a defendant.
    6. Verdict: ‘ Form of.

    The verdict of the jury may be announced orally and entered by the clerk upon the record; and if in writing and responsive to the is. . sue, it is sufficient, without the formula, “ in manner and form,” etc.
    APPEAL from Hot Spring Circuit Court.
    Before tbe Judge of tbe Circuit Court of Hot Spring county.

      Wilshire & Allen, for tbe appellant.

      The Attorney General, contra.

   Harrison, J.

The appellant was indicted in tbe circuit court of Clark county for tbe murder of Nathaniel Y. McCall. Upon bis application to tbe court, tbe venue was changed to Hot Spring county, in tbe circuit court of which, at a special term begun and held on tbe 23d day of March, 1874, be was tried and convicted of murder in tbe first degree.

He filed a motion for a new trial, which was overruled ; be then moved in arrest of judgment, and that motion being also overruled, judgment of death was pronouced against him.

The first cause assigned for the arrest of judgment was, illegality in the formation of the grand jury.

It appears from the record that the court, upon the motion of the prosecuting attorney, set aside the j panel of grand jurors that had been summoned for the term, and orderd another to be summoned, from which latter the grand jury was formed ; but the ground upon which the first panel was set aside is not disclosed.

In the absence of any showing in regard to it, we must presume it was done for good and sufficient cause; yet, if it did appear that it was improperly set aside, and a valid objection to the grand jury on that account existed, the defendant, by pleading to the indictment, without moving to set it aside, waived it. Gantt’s Dig., secs. 1829, 1831; State v. Brown, 10 Ark., 81; Wilburn v. The State, 21 id., 199; McQuillen v. The State, 8 Smedes & Marsh, 587; 1 Chit. Crim. Law, 309; Whart. Crim. Law, 173.

The second was: That the “ indictment did not allege facts sufficient to constitute a public offense.”

The indictment is as follows :

“Indictment — In Ciarle Circuit Court. February term, 1874. The State of Arkansas against. Giles Dixon. The grand jurors of Clark county, in the name and by the authority of the state of Arkansas, accuse Giles Dixon of the erime of murder in the first degree, committed as follows, to-wit: the said Giles Dixon, in the county aforesaid, on the gOth day of December, A. .D., 1873, did willfully, feloniously, of his malice aforethought, with premeditation, by lying in wait, kill and murder one Nathaniel Y. McCall, then and there being, by shooting him, the said Nathaniel Y. McCall, with a certain gun, which he, the said Giles Dixon, .in his hands then and there held, the same being loaded with gunpowder and leaden bullets, with intent, him, the said Nathaniel Y» McCall, then and there to kill and murder, contrary to the-statute in such cases made and provided, and against the. peace and dignity of the state of Arkansas,

“ Duane Thompson, Prosecuting Attorney.”

“ It is a general rule,” says Wharton, “ that the special matter of the whole fact should be set forth in the indictment, with such certainty, that the offense may judicially appear to-the court.” Whart. Crim. Law, 116.

The indictment above set out, though not containing that, minute detail of circumstances attending the killing, usually-found in indictments for murder,- alleges every fact or ingredient of murder of which proof is required, and the manner.1 and the means of the perpetration of the crime are so clearly set forth that the accused could not possibly fail to know the-specific charge against him, and what he had to meet and contest upon the trial. A statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to. know what is intended, is all that is required. Gantt’s Dig,,, secs. 1781, 1782, 1796.

There is a material difference between this case and the-case of Thomson v. The State, 26 Ark., 323. In that case the manner of killing was not shown ; the indictment only alleging it to have been done “ with a double barreled shot gun, loaded with gunpowder and leaden bullets,” leaving it uncertain whether by shooting or-beating, two modes so materially different that evidence of one would not be proof of the other. In this, no such uncertainty exists. The indictment directly charges the murder to have been committed by shooting, and the defendant was fully apprised of the nature of the evidence that would be required to prove the act.

The third was: That the order for the change of venue was not in accordance with the statute, and the Hot Spring circuit court, therefore, had no jurisdiction of the case.

In support of this objection, it is insisted, that the order does not specify the cause of removal, and for that reason is a nullity.

This position of counsel is, in point of fact, without foundation. The application for the change of venue was' made in open court; the defendant’s petition setting forth, as a matter of course, the only cause for which it might be made, that the minds of the inhabitants of the county of Clark were so prejudiced against him that he could not have a fair and impartial trial therein, which petition was filed and became a part of the record.

The order is as follows :

“ Comes the state by her attorney; comes also the defendant in custody in person and by attorney. The court being fully, advised, it is ordered that the change of venue be granted, and’ this cause be removed to Hot Spring county.”

The order obviously refers to the petition which had been presented for the change of venue, and the cause set forth' therein for it. The statute does not require so unnecessary and useless a thing as an express statement, in the order, of the ground upon which it is made, when that already appears in the record. The whole record must always be regarded and considered; and, often, that which is uncertain in one part may be rendered clear by that which is certain in another part.

The Hot Spring circuit court could plainly see from the' record before it, that the cause was removed in accordance' with the provisions of the statute, from the Clark circuit court, where the indictment was found, and transferred to its jurisdiction, and nothing more could be necessary.

' The fourth was : That the trial of the defendant was not at a term of the court, provided by law:

The judge of the circuit court is empowered by sec. 1166, Gantt’s Digest, if he deem it expedient, to appoint a special term of his court for the trial of persons confined in jail, by making out a written order to that effect, and transmitting the same to the clerk to be entered upon the records. Sec. 1165, Gantt’s Digest. The statute provides that such term shall not interfere with any other court to be held by the same judge, and shall not be held within twenty days of the regular term of the court. Secs. 1169 and 1170, id.

The order of the judge appointing the term recites the fact that the defendant was confined in jail and held to answer the indictment in this case, and the same fact is otherwise shown by the record. And the order was made and transmitted to the clerk of the Hot Spring circuit court, and by him entered upon the record more than fifteen days before the time appointed for holding the term, affording ample time for the judge to cause notice to be served on the prosecuting attorney ten days before its commencement, as directed by sec. 1167. It is not required by the statute that the record should show that the notice was given to the prosecuting attorney, but we should presume it was given, unless the contrary was shown. The omission, however, of such a mere ministerial duty could not have affected the jurisdiction of the court, or afforded the defendant any just ground of complaint. The authority to hold the term for the trial of the defendant depended upon the following facts and circumstances: that he was confined in jail awaiting trial before the court; that it did not interfere with any other court to be held by the judge, and was not to be held within twenty days of the regular term; that an order therefor had been made by the judge, at least ten days before the day appointed for holding it, and by him transmitted to the clerk, and the same had been entered upon the record, all of which appears by the record, or is within the judicial knowledge of the court. The fifth and last cause assigned was, that the verdict was so' defective no judgment could be entered upon it.

We are unable to perceive any objection to the form of the verdict. It is in these words: “We, the jury, find the defendant guilty of murder in the first degree,” and is directly responsive to the issue formed upon the defendant’s plea of not guilty. The omission of the words “ in manner and form as charged in the indictment ” sometimes used, and which, if added, would have obviated all shadow of objection, is of no consequence whatever, for the verdict need not be in writing, but may be announced by the foreman of the jury orally, and then entered by the clerk in proper form upon the record. Atkins v. The State, 16 Ark., 590 ; 1 Chit. Cr. Law, 635 ; Freel v. The State, 21 Ark., 224; Strawn v. The State, 14 id., 549; Stephens v. The State, 11 Ga., 241.

The only ground alleged in the motion for a new trial was, that the verdict was against law and contrary to the evidence.

No other answer need be made to the objection that the verdict is against law, if considered without reference to the evidence, than the remark just above made that it is responsive to the plea of not guilty, and covers every allegation of -the indictment 'which we have shown contains all that are necessary to constitute the offense charged.

The deceased was shot near Arkadelphia, in Clark county, on the night of the 30th of December, 1873, and from the wounds received, died in the course of the next forty-eight hours. His declarations, which were admitted in evidence, were to the following effect: That hearing his dog barking at .night, he went out to ascertain the cause, whereupon some one rose up and shot him. He said, at first, that one Miles Collins. shot him; but afterwards that he might- have been mistaken as to the person; that Collins had been there, and had left only long enough before he was shot to have gone two hundred yards ; that he knew by the report that he was shot with an Enfield rifle belonging to James B. Draper.

The evidence which implicated the defendant was circumstantial only.

The recent tracks of two persons, corresponding with those of the defendant and one Tom Reynolds, were discovered the morning after the shooting, at or near the spot where the person who fired the gun stood, and going from thence and nearly to the defendant’s house about a half of a mile distant. The house of Miles Collins, which stood within twenty-five or thirty yards of that of the deceased, had, the morning of the day on which deceased was shot, been burned, and he had taken his family'to the defendant’s, and Tom Reynolds who lived with said Collins also went there. After night, Miles Collins left defendant’s house, accompanied by two or three of the defendant’s children, to go over to the deceased’s house to bring away his chickens. Shortly after he left, the defendant and Tom Reynolds left also, the defendant taking the Enfield, rifle belonging to the said Draper, which he had sometime before borrowed, and which he had loaded just before leaving. Whilst the defendant and Tom Reynolds were gone, a gun was heard in the direction of the deceased’s house, and Miles Collins testified that, in a short time after the gun was fired, the defendant and Tom Reynolds ran past him at some distance off, as he was returning from the direction of the deceased’s and towards the defendant’s. A paper was found near the place where the gun was fired, that corresponded with the paper from which the defendant tore a wad when loading the rifle. It was loaded with buckshot, and the deceased was shot with that kind of shot. Draper was in the habit of shoot-. ing buckshot with his rifle, and the deceased had often heard its report. There was much other corroborative evidence.

Witnesses for the defendant swore that he' was at home when the gun was fired, and was not absent during the night, and their testimony was contradictory in other particulars of the evidence for the state.

There was, as is thus seen, evidence tending to prove every material fact charged in the indictment, and though that inculpatory of the defendant was circumstantial only, and was in several particulars directly contradicted by the defendant’s witnesses, the jury whose duty and province it was to weigh the evidence and pass upon the facts, having fairly and under the most favorable circumstances for ascertaining the truth, and arriving at a correct conclusion, done so, and found the defendant guilty, this court may not disturb their verdict.

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


author: Williams, Sp. J.

text:
    Baxter vs. Brooks.
    1. Certiorari : Nature of the proceeding, and when it will lie.

    A proceeding by certiorari is not a direct proceeding to reverse, but is an appeal to the superintending control of this court, arid unless there was a want of jurisdiction, or an excess in its exercise, by the court below, this court will leave the party to his remedy by appeal.
    2. Supreme Court : Superintending control over inferior courts.

    Although, under the constitutions of 1836 and 1868, there has been some difference of opinion as to whether this court could issue the writs of certiorari, mandamus, etc., named therein, in the exercise of an original jurisdiction, there has been none upon the question of supervisory or superintending control; and the provisions of the constitution of 1874 are identical, in this respect, with those contained in the prior constitutions.
    3. — Same.

    The superintending control of this court over the circuit court, and the power to quash its judgments on certiorari, when it usurps jurisdiction, are unquestionable; and when there is a want of jurisdiction or an excess apparent on the face of the record, it is the appropriate, if not the only remedy.
    4. — Decision of, the law of the case.

    The decision of this court, whether right or wrong, is the law of the case; and where the unsuccessful party, after such a decision begins de novo, in a different form of action in the circuit court, the rule applies.
    5. Remedy: Provided, by a lam areating a new right, is exclusive.

    It is well settled that when a new right, or the means of acquiring it, is, conferred by a constitution or a statute, and an adequate remedy is given by the same authority which created the right, parties are confined to the redress thus given.
    6. Election : Mode of contesting the election of governor.

    The office of governor does not exist by virtue of the common law; it is a creation of the constitution, and a specific mode of contesting elections to that office being therein provided, is exclusive of every other.
    I. Jurisdiction: Of contested election for governor.

    The provisions of sec. 19, art. YI. of the constitution of 1868, providing that contested elections for governor and other officers therein named should be determined by the general assembly, created that body a judicial tribunal, with exclusive jurisdiction over such contests.
    8.— Of the circuit court to render judgment for salary of the office of governor.

    The salary is but an incident of the office of governor, and cannot be recovered until the title to the office is determined by a competent tribunal. The circuit court, therefore, could not, in advance of such determination, render a judgment for the salary, without passing upon the title to the office, and its attempt to do so was an excess of jurisdiction.
    CERTIORARI to Pulaslci Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Compton & Martin, for petitioner.
   Williams, Sp. J.

On tbe 12th day of Novembér, 1874, plaintiff presented his petition to one of the judges of this court, in which he averred that defendant, on the 16th day of June, 1873, brought his action at law in the Pulaski circuit court against plaintiff. In his complaint in said action, defendant alleged:

That on the 5th day of November, 1872, at a general election held on that day in the state of Arkansas, pursuant to the constitution and laws of said state, for the election, among other officers, of the governor of the state for the term of four years from the first day of January, 1873, said Joseph Brooks received the highest number of legal votes cast at said election for the office of governor aforesaid, etc.

That the said Joseph Brooks was in all respects legally qualified for said office — stating the facts which brought him within the constitutional requirements as to eligibility — and. was entitled to bb placed in possession thereof, and to enter upon the discharge of the duties of the same.

That on the 7th day of January, 1873, Elisha Baxter usurped the said office of governor, and from thence until the commencement of said action, unlawfully withheld the same from said Joseph Brooks, and received the salary, fees and emoluments pertaining to said office, amounting to the sum of three thousand dollars; and in and by said complaint it was prayed that, by the judgment of said circuit court, the said Elisha Baxter be ousted from the office of governor, and that the said Joseph Brooks be declared entitled' thereto, and placed in possession of the same, and that he also have judgment against the said Elisha Baxter for the salary, etc.

After thus reciting the contents of the complaint of Joseph Brooks, plaintiff, in his petition, further averred :

That he appeared to said action and demurred to the complaint, because it appeared upon the face of said complaint that the-said circuit court had no jurisdiction of the subject of said action. Whereupon said circuit court- overruled said demurrer, and rendered against said Elisha Baxter judgment of ouster from said office of governor, and also judgment for the sum of two thousand, two hundred and eighteen dollars, with interest thereon at the rate of six per cent, per annum from the date of said judgment, with costs. And the said circuit court further adjudged that the said Joseph Brooks was entitled to the said office of governor, and all books, papers and other appurtenances thereto belonging, by virtue of the election in said complaint mentioned.

The plaintiff1 claimed that the court had no jurisdiction, and that its judgment was void. But the>same being of record in the circuit court of Pulaski county, and will, as he believed, be used as a pretext for further attempts to harass and injure him, prays for a writ of certiorari, and that the proceedings and judgment of the Pulaski circuit court be quashed.

A duly certified copy of the record of the proceedings and judgment of the circuit court of Pulaski county, including a copy of all the original papers, is attached to this petition, and fully sustains its statements. On the above mentioned day the writ was ordered by the Hon. William M. Harrison, to whom the application was made.

In response to this writ, the clerk of said circuit court has returned a full and complete transcript of the record in said cause, which, in every particular, corresponds with the transcript exhibited with the petition.

The record before us shows that the court below allowed the counsel of Brooks to submit the demurrer of Baxter, in the absence of his counsel, and decided the question in their absence; and'instead of overruling the demurrer and requiring Baxter to answer, and giving him a right to deny the statements of the petition, and to a trial of the issue as directed by the code of practice of this state, rendered a final judgment ousting Baxter from the office of governor, and for two thousand, two hundred and eighteen dollars. How the court arrived at this exact sum does not appear, as there was no regular assessment either by court or jury; and if the complain^ was regarded as confessed, as the record states that the court held it to be, on the demurrer, for the purpose of ousting the governor, we cannot see how it failed to find $8,000 as the sum due for salary and emoluments, for that fact was as distinctly stated in Brooks’ petition as any other allegation in it.

Baxter, on the 16th of April, 1874, filed his motion to correct the.record entry of the 15th of April, which stated that the parties appeared, so as to have it appear that Baxter was not present by counsel or in person, when his demurrer was submitted, also, a motion to set aside the judgment, on several distinct grounds:

1. The demurrer of defendant to plaintiff’s complaint was called up by the plaintiff’s counsel, and submitted in the absence and without the knowledge or consent of the counsel of Baxter.

2. The demurrer was called up and submitted on a day other than the day fixed by the rules of the court for taking up and arguing demurrers and motions, and on a day when defendant’s counsel had no reason to suppose it could, or would be taken up, and when one of them was confined to his bed with severe illness.

3. The counsel of the defendant understood the court to announce from the bench on Saturday last (that is, the Saturday before the Monday on which the case was called up and submitted by Brooks’ counsel ex parte), that inasmuch as the federal court would be in session the then coming week, no cases would be called during the week, in the absence of counsel engaged in the federal court; hence the counsel of defendant having business in the federal court, did not deem it necessary to attend this court, to look after this, or any other cases in which they were retained, and were absent when said demurrer was called up and submitted, and when the final judgment was rendered.

4. On the overruling of the demurrer, the court proceeded at once to enter final judgment, when the judgment' should have been that the defendant answer.

5. The court rendered a-final judgment on overruling the demurrer, in the absence of the counsel for defendant, and without giving the defendant any time or opportunity or option to answer.

6. The court proceeded to assess damages and render a money judgment against defendant without any proper submission to the court, or a jury to ascertain the damages on proof.

7. The court had no jurisdiction of the subject matter of the suit, etc.

On the 17th day of April, 1874, was made the following order by the court below, in the case:

“ And now comes the plaintiff by his attorney, and the motion of the said defendant to correct a record entry in this case heretofore filed, coming on to be heard, and the court being of opinion that the said record entry should be amended, it is ordered that the same be so amended as to read as follows :

“ And now comes the plaintiff by his attorney, and this case being subject to call by the plaintiff, and it appearing to the court, defendant by his attorneys was consenting to the submission of the demurrer of the defendant to the complaint of the plaintiff herein, the same is submitted to the court, and by the court taken under advisement, and the motion of defendant heretofore filed herein to set aside the judgment heretofore rendered in this cause, is by the court overruled.”

As to how the fact appears that defendant was consenting to the submission of his demurrer, and how plaintiff’s counsel procured the right to submit defendant’s demurrer for him does not appear; as to this the record is silent. Perhaps the court omitted to give us all the facts in the case, which influenced its conclusions. Be this as it may. the record shows errors of a very gross kind; for which, were the case before us in a direct proceeding, its reversal would be inevitable, however anxious the court might feel for the ends of justice, to sustain the judgment. But this is not a direct proceeding td reverse; but is an appeal to the superintending control of this court; and unless we find a want of jurisdiction over the subject matter of the litigation, or excess of jurisdiction, we can do nothing in this mode of proceeding, and must leave the plaintiff to his remedy by appeal or writ of error.

Article VII, sec. 4 of the constitution of 1868, under which this case arose, provides that the supreme court shall have general supervision over all inferior courts of law and equity. It shall have power to issue writs of error, supersedeas, certiorari, habeas corpus, mandamus, quo warranto and other remedial writs, and hear and determine the same. Final judgment in the inferior courts may be brought by writ of error or appeal into the supreme court. The constitution of 1874 is substantially the same. This section does not materially vary from section 2 of article VI of the constitution of 1836, of' which section 4, article VII of constitution of 1874 is a copy..

In this constitution the language is, “ superintending control,” and instead of providing for appeals and writs of error; as is provided in the constitution of 1868, it simply provides that, except in cases otherwise directed in that constitution the supreme court shall have appellate jurisdiction only. Both constitutions provide in the same language for the above named writs. There is no material distinction between the three constitutions. On this subject they are substantially identical. Under the constitution of 1836, it has been repeatedly-held that there was an appellate jurisdiction and a power of superintending control over inferior courts, and in aid of this jurisdiction any one of the writs named in the constitution might be invoked; and although there has been some difference of opinion as to the construction of these two sections in the two constitutions, to wit: in those of 1836 and 1868, as to whether there was in this court any power to issue any of the named writs in the exercise of an original jurisdiction, there has been no difference upon the question of supervising or superintending control. The construction upon that subject has been uniform under both constitutions. We might, therefore, under the constitution of 1868, as well as under that of 1836, class the powers therein given to this court as ordinary .•and extraordinary. The ordinary are invoked by appeal or -writ of error; others, which are extraordinary in the sense that their exercise is unfrequent and also special, are invoked whenever one of the special writs named is applicable, as ¡mandamus, certiorari and quo warranto, whether they are issued in the exercise of an appellate or original jurisdiction.

Where an inferior court usurps jurisdiction, or exceeds that given by the constitution, the jurisdiction of this court may be invoked in such case to arrest the proceeding, as was done in the case of Berry v. Wheeler, by writ of prohibition, or after •the inferior court has assumed to render judgment, the jurisdiction of this court may be invoked, and the writ of certiorari — for which the constitution makes provision — may issue to remove the case here. Where the constitution gives a superior, superintending control over an inferior court, and the law provides no mode of its exercise, this is the proper remedy. Carnall v. Crawford County, infra. In such case the superior court can only quash or affirm, in the absence of statutory regulations. The distinction between ordinary and ex'traordinary powers of the court was clearly defined in the cases of Woods ex parte, 3 Ark., 53, and Anthony ex parte, 5 id., 358; and although these cases were overruled, the decisions are applicable to the constitution of 1868, as construed in the case of Price and Barton v. Page, 25 id., 527. And this matter is fully reviewed, and the powers and jurisdiction of the court, under the constitution of 1836, which is, like that of 1874, fully defined in Carnall v. Crawford County, 11 Ark., 604; Marr ex parte, 12 id., 84; Allis ex parte, id., 102; Crise ex parte, 16 id., 195; Good ex parte, 19 id., 411, all of which cases arose under the" constitution of 1836. The decision under the constitution of 1868 first followed these (see Jones v. Little Rock, 25 Ark., 284); and afterwards, in the case of Price and Barton v. Page, 25 id., 527, it was held that the constitution of 1836 and that of 1868 were different in this, that that of 1838 prohibited all original jurisdiction in this court, while that of 1868 did not, and therefore this court could take original jurisdiction whenever the writs named were the appropriate legal remedy. But upon this question of superintending control, there has never been any difference in the construction of the two constitutions.

It has been held that where there is no jurisdiction in the inferior court, there can be none by appeal to the supreme court. Latham v. Jones, 6 Ark., 371; Collins v. Woodruff, 9 id., 463; Pendleton v. Fowler, 6 id., 41; Levy v. Sherman, 6 id., 182; Ashley v. Brazil, 1 id., 144.

Where there is a want of jurisdiction, or an excess, the remedy sought in this case is the appropriate if not the only remedy. An appeal would not be proper. Ashley v. Brazil, supra; People v. Judges of Suffolk, 24 Wend., 252. Certiorari is the proper remedy where there has been an excess of jurisdiction apparent on the face of the record; if it has to be made out by collateral facts, the writ does not lie. Ex parte Mayor of Albany, 23 Wend., 277; Rex v. Somersetshire Justices, 6 Dowl. & Ryl., 469; 5 B. & Cress., 816; Queen v. Inhabitants of Westham, 10 Mod., 159 ; Buckner ex parte, 4 Eng. (9 Ark.), 73.

This last case was overruled in Marr ex parte, 12 Ark., 84, only so far as it held that an application might be made direct to this court for a certiorari to the county court, instead of applying to the circuit court. But this court has never overruled the principle announced in Buckner ex parte, that where a court exceeds its jurisdiction, its acts are void, and its proceedings may, upon application to the proper tribunal, be removed by certiorari and quashed. A certiorari will not lie from this court to correct errors of an inferior court which could have been corrected on appeal. Allston ex parte, 17 id., 580.

The superintending control of this court over the circuit court, and the power to arrest its.action by prohibition, or quash its judgment on certiorari, where it usurps jurisdiction, is indisputable.

The remaining inquiry, which will dispose of this case, is: Had the court below jurisdiction of the subject matter of this suit?

The proceedings in this case in the court below were based upon the 12th chapter of the civil code, for repealing or vacating charters, and preventing the usurpation of an office or franchise, and is especially based upon section 525 of the civil code, which section forms a part of said chapter, and is as follows : “ Whenever a person usurps an office or franchise 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 or franchise, to prevent the usurper from exercising the office or franchise.” Under this section Mr. Brooks, claiming to be entitled to the office of governor, instituted suit in his own name against Baxter in the Pulaski circuit court.

The 19th section of article VI of the constitution of 1868, provides that “ the returns of every election for governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general and superintendent of public.instruction, shall be sealed up and transmitted to the seat of government by the returning officers, and directed to the presiding officer of the senate, who, during the first week of the session shall ■open and publish the same in the presence of the members then assembled. The persons having the highest number of votes shall be declared elected; but if two (2) or more shall have the highest and equal number of votes for the same office, one of them shall be chosen by joint vote of both houses. ■Contested elections shall likewise be determined by both houses of the general assembly in such manner as is or may hereafter be prescribed by law.”

Now here is a tribunal established by the constitution to try contested elections for governor. If that tribunal had exclusive jurisdiction over contested elections for governor, it will scarcely be contended by any one that the circuit court of Pulaski county had jurisdiction of this case ; for the complaint ■claims to be nothing but a dispute as to the result announced in the canvas of the vote for governor in 1872. If the creation of a tribunal before which such contests are to be heard, establishes an exclusive jurisdiction, then the legislature will not be presumed to have intended to include the officers named in the constitution in that behalf in the provisions of •chapter 12, civil code. Eor then, as to the officers named, the only subject left within legislative control by the constitution' was to prescribe the mode of hearing the contestants, conducting its deliberations and of announcing its conclusion. As to “the question who should compose the tribunal, and how it should be chosen and organized, the constitution itself had .settled — the two houses of the general assembly.

The law in foree, at the adoption of the constitution of 1868, which was adopted by that constitution and continued in force, was found in ch. 62, secs. 100 and 101, Gould’s Dig. The same provision has been carried into the new digest just published. See Gantt’s Dig., secs. 2379, 2380 et seq. This statute fully prescribes the method of conducting such contests before both houses in joint meeting, provides how the case shall be brought before them, and how notice shall be given and proof taken, etc., and is full and minute in all the details of the investigation. But without any law to regulate the proceedings in such case before the general assembly, the jurisdiction of the case would remain there, if it is exclusive. The mere failure on the part of the legislature to provide a mode of conducting the trial would no more oust the jurisdiction than a failure to establish laws governing actions before justices of the peace or probate courts, would destroy their constitutional jurisdiction, and give the power to bestow it somewhere else, by a simple enactment. Constitutions would be worth but little, if they could be thus evaded.

Is the jurisdiction conferred by the constitution exclusive?

This court held in the case of Attorney General on the Relation of Brooks v. Baxter (MS. Op., 1873), that the jurisdiction thus conferred by the constitution on the general assembly was exclusive, and that neither this nor any other state court had jurisdiction to try a suit in relation to such contest, be the mode or form what it might, whether at the suit of the attorney general, or on relation of the claimant through him, or by an individual alone claiming a right to the office; that such issue should be made before the general assembly, and that no other tribunal could determine the question.

In the case last cited, the very right which Brooks claimed in this case came up on his relation through the attorney general, and this decision not only decided the question involved here, but decided the very case; and the institution of this proceeding, after such an announcement in this court, s eems to us an effort to get an inferior court to review the decision of a superior, or at least an attempt through the inferior court to get the question again before this court. If this court had even erred in the first instance, its decision became the law of the case, which could never be disturbed or overruled in this case. Jones ex parte, 2 Ark., 93; Porter v. Doe, 10 id., 186.

The decision of this court in a case, .whether right or wrong, is the law of the case, and the mandate upon the circuit court is obligatory. Pulaski County v. Lincoln, 13 Ark., 103 ; Rector v. Danley, 14 id., 304; Hubbard v. Welch, 11 id., 151; Brooks v. Hanauer, 22 id., 176.

"We might here content ourselves to rest this case. But as the question has been much discussed, and our conclusion may be disputed, "we will be pardoned for entering into a fuller discussion of the reasons for concurring in the opinion heretofore delivered by the former court.

Mr. Berry, who ran for auditor on the same ticket with Mr. Brooks, instituted proceedings in the Pulaski circuit court, under the provisions of the same section of the code under which this case was instituted. Wheeler applied to this court by petition for writ of prohibition against the circuit judge to arrest his action in the case. In that case the question here involved was again presented to this court, and was decided in the same manner, and the writ of prohibition was ordered. See Wheeler v. Whytock, MS. Op., 1873, cited in note to Gantt’s Dig., p. 477.

The office of governor does not exist by virtue of the common law. It is a creation of the constitution. And it is well settled that where a néw right, or the means of acquiring it, is conferred by a constitution or a statute, and an adequate remedy for its infringement is given by the same authority which created the right, parties injured are confined to the redress thus given. The State on the relation of Gresell v. Marlow, 15 Ohio St., 114; Smith v. Lockwood, 13 Barb., 209; Dudley v. Mahew, 3 Comst., 9; Sedg. on Stat. & Const. Law, 94; Com. on relation of Attorney General v. Garrigues, 28 Penn. St., 9; Com. v. Baxter, 35 id., 263 ; Com. v. Leech, 44 id., 332; Pringle v. Carter, 1 Hill (S. C.), 53.

The above cited authorities bear directly upon this question, and many of them are ' directly in point and conclusive of the question.

The case above cited, from 15 Ohio St., is strongly in point with this. There, under provisions similar to ours, wherein a specific mode of contesting elections was provided by statute according to the requirements of their constitution, the supreme court of that state decided that this specific mode alone could be resorted to, to the exclusion of the common law mode of inquiry by proceedings in quo warranto.

Hon. T. M. Cooley, a distinguished writer upon constitutional law, and one of the law professors in the university and a j udge of the supreme court of Michigan, in an article in the International Review (of New York), for January and February, 1875, fully and ably reviewed this whole question, under the title, “ Guaranty of order and republican government in the states.” At page 74 of said Review, after fully setting forth his reasons for the conclusion, he uses this language : “ And by the constitution of Arkansas, the legislature had wisely been vested with complete and final authority in the premises.” And, in a note, Judge Cooley quotes the provisions of our constitution in reference to contested elections for governor, and concludes : “ To our mind, there can be no plausible suggestion that the decision of the general assembly on such a contest is open to judicial review after-wards ; but it may not be inappropriate to refer to Grier v. Shackelford, S. C. Const. R., 642; Batman v. McGowan, 1 Met. (Ky.), 533 ; State v. Marlow, 15 Ohio St., 134; People v. Goodwin, 22 Mich., 496, et al., as in point,”

Pending the disturbances which followed the decision in this case, four of the former judges of this court assumed to open this court, notwithstanding the constitution (art. VII, sec. 3) provided that it should consist of one chief justice and four associate justices; and heard an application in behalf of Joseph Brooks v. Henry Page, State Treasurer, to compel him to hand over money claimed to have been appropriated for suppressing insurrections, by an old law on the statute books since 1838. To the statement made in reference to this simulated case, by Attorney General Williams, in the opinion herein referred to, we will add the additional, statement: that the old statute upon which it was assumed to be based was repealed in 1868, by act approved July 23d of that year, as follows:

11 Be it enacted by the general assembly of the state of Arkansas:

“Sec. 1. That all acts and parts of acts making appropriations for any purpose whatever, passed by the genereal assembly of this state previous to the first day of January, A. D. 1868, be and the same are hereby repealed.

“ Sec. 2. That the amount of, or balance remaining unpaid under said appropriations shall remain in the treasury of the state as unappropriated funds until otherwise provided by law.” See acts of 1868, p. 228.

Those four judges ordered the treasurer to pay Brooks money on a statute that had been repealed nearly six years.

And we will add the further comment, that while the constitution of 1836 provided that a majority of the judges of this court should constitute a quorum, that of 1868 required as above stated. And, although the legislature, early after the organization of the court under the constitution of 1868, had passed an act authorizing the court to be held by a majority of the. judges, yet the members of the court had, up to this time, refused to open unless they were all present; and on more than one occasion, had the court been postponed on account of the absence of one member. The judges very properly held that the constitution having prescribed that the court should consist of one chief justice and four associate justices, it was not competent for the legislature to say it should consist of more or less; and for six years had the court thus acted. Until this case, there had been no pretense of authorityin four judges to open the court. Under the circumstances, we would not be expected to respect this case. But it only assumed to decide, in effect, that the decision of the court below in this case was entitled to respect until set aside by this court.

■ It has been, also, seriously contended that the decision of an inferior court, on the question of its own jurisdiction, is as conclusive as any other decision until reversed. This is the announcement of a general rule without noting and properly applying its exceptions.

It is true, as a general rule, that the question of jurisdiction is, prima jade, within the power of every court to determine for itself, and the decisions of an inferior court, on this question, are, ordinarily, as binding as any other decision. But to this, there are exceptions, as well established as the rule. One of the exceptions to this rule is, where the want of jurisdiction appears, as in this case, on the face of the proceedings. In such case, it is simply void, ab initio. State v. Scott, 1 Baily, 294. To hold otherwise would be to. run into the most monstrous absurdities. Suppose the county court of Pulaski county — which has j urisdiction only over thé fiscal matters, roads, paupers and internal affairs of the county, and has no criminal jurisdiction whatever — were to summon a grand jury, receive at its hands an indictment for murder, and thereon proceed, in the mode prescribed by the criminal code, to trial and conviction, and should upon this, sentence the person charged with the crime to be hung. In such case, the want of jurisdiction would be apparent on the face of the proceedings. Yet if we lost sight of the exception above indicated, the sheriff would be bound to obey the county court and hang the man. Suppose he did so, would any court fail to hold him for the crime he had attempted to punish? "Would the sentence of the county court protect him? This is a strong case, and perhaps would never occur ; yet it illustrates the importance of the exception; but scarcely more strongly than the case before us, wherein the court below not only disregarded a plain provision of the constitution, not only went in the teeth of the decisions of this court, twice pronounced, but in one of them a prohibition had been issued to this very judge ; and in the other, the very case before him here, was decided by this court, holding that neither this court nor any other in the state had jurisdiction. If such proceeding as that is to be respected until set aside by this court, and is to command obedience, even from this court, it is difficult to see what stage of insubordination and assumption of jurisdiction would not be equally entitled to obedience and respect.

We cannot better crown this pyramid of authority for the conclusion we reach, than by citing in full the elaborate and exhaustive opinion of the attorney general of the United States, when this question came before him officially, and wherein it became his duty to investigate it judicially; and upon his opinion the most momentous action of the president of the United States is based; and when we remember that the supreme court of the United States has repeatedly held that the decisions of the political department of the government on these questions are final, we cannot overrate their importance. Luther v. Borden, 7 How., 1; Rose v. Himly, 4 Cranch, 241; Kennett v. Chambers, 14 How., 38 ; United States v. Probasco, 11 Am. L. Rev., 419. Aside from these considerations, the position and distinguished ability of the officer, as well as the conclusive reasoning of the opinion, entitle it to the highest respect:

“ Department of Justice,

“Washington, May 15, 1874.

The President. — Sir : Elisha Baxter, claiming to be governor of Arkansas, having made due application for executive aid to suppress an insurrection in that state, and Joseph Brooks, claiming also to be governor of said state, having made a similar application, and these applications having been referred by you to me for an opinion as to which of these two persons is the lawful executive of the state, I have the honor to submit: That Baxter and Brooks were candidates for the office of governor at a general election held in Arkansas on the fifth day of November, 1872. Sec. 19 of art. VI of the constitution of the state provides that ‘.the returns of every election for governor, lieutenant governor, secretary of state, treasurer, auditor, attorney-general and superintendent of public instruction, shall be sealed up and transmitted to the seat of government by the returning officers and directed to the presiding officer of the senate, who, during the first week of the session, shall open and publish the same in the presence of the members there assembled. The person having the highest number of votes shall be declared elected; but if two or more shall have the highest and equal number of votes for the same office, one of them shall be chosen by joint vote of both houses. Contested elections shall likewise be determined by both houses of the general assembly in such a manner as is or may be prescribed by law.’

“ Pursuant to this section, the votes for governor at the said election were counted, and Baxter was declared to be duly-elected. Said section, as it will be noticed, after providing for a canvass of the votes, specially declares ‘ contested elections shall likewise be determined by both houses of the general assembly in such manner as is or mav- hereafter be prescribed by law.’ When this constitution was adopted, there was a law in the state which continues in force, prescribing the mode in which the contest should be conducted before the general assembly; the first section of which is as follows: ‘ All contested elections of governor shall be'decided by joint vote of both houses of the general assembly, and in such joint meeting, the president of the senate shall preside.’ Brooks accordingly presented to the lower house of said assembly his petition 'for a contest, but by the decisive vote of sixty-three to nine, it was rejected by that body. Subsequently the attorney-general, upon the petition of Brooks, applied to the supreme court of the state for a quo ivarranto to try the validity of Baxter’s title to the office of governor, in which it was alleged that Baxter was a usurper, etc. That court denied the application upon the ground that the courts of the state had no right to hear and determine the question presented, because exclusive jurisdiction in such cases had been conferred upon the general assembly by the constitution and laws of the state.

“ Brooks then brought a suit against Baxter in the Pulaski circuit court, under section 525 of the civil code of Arkansas, which reads as follows: “Whenever a person usurps an office or franchise, 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 or franchise, to prevent the usurper from exercising the office or franchise.” Brooks stated in his petition that he received more than 45,000 votes, and that Baxter received less than 30,000 votes for governor at the said election, and, after declaring that Baxter has usurped the office, prays that it may be given to him by the Judgment of the court, and that he may recover the sum of $2,000, the emoluments of said office withheld from him by Baxter. This presented to the court the simple question of a contest for the office of governor. Baxter demurred to this petition on the ground that the court had no jurisdiction of the case; and afterwards, on the 15th of April, the court, in the absence of the defendant’s counsel, overruled the demurrer, and without further pleadings or any evidence in the case, rendered judgment for Brooks in accordance with the prayer of his petition. Brooks, within a few minutes thereafter, without process to enforce the execution of said judgment, and with the aid of armed men, forcibly ejected Baxter and took possession of the governor’s offices. On the next day after the judgment was rendered, Baxter’s counsel made a motion to set it aside, alleging, among other things, as ground therefor, that they were absent when the demurrer was submitted and the final judgment thereon rendered; that the judgment of the court upon overruling the demurrer should have been, that the defendant answer over, instead of which a final judgment was rendered, without giving any time or opportunity to answer the complaint upon its merits; that the court assessed the damages without any jury or evidence, and finally that the court had no jurisdiction over the subject matter of the suit; but the next day this motion was overruled by the court. Section 4, article IV, “of the constitution of the United States is as follows: “The United States shall guaranty to every state in this union a republican form of government, and shall protect each of them against invasion, and on application of the legislature or of the. executive (when the legislature cannot be convened) against domestic violence.” When, in pursuance of this provision of the constitution, the president is called upon by the executive of a state to protect it against domestic violence, it appears to be his duty to give the required aid, and especially when there is no doubt about the existence of the domestic violence; but where two persons, each claiming to be govern- or, make calls respectively upon the president under said clause of the constitution, it of course becomes necessary for him to determine in the first place which of said persons is the constitutional governor of the state. That section of the constitution of Arkansas, heretofore cited, in my opinion, is decisive of this question as between Baxter and Brooks. According to the constitution and laws of the state, the votes for governor were counted and Baxter declared elected, and he was at once duly inaugurated as governor of the state. There is great difficulty in holding that he usurped the office into which he was inducted under such circumstances. Assuming that no greater effect is to be given to the counting of the votes in the presence of the general assembly than ought to< be given to a similar action by any board of canvassers, yet, when it comes to decide a question of contest, the general assembly is converted by the constitution into a judicial body, and its judgment is as conclusive and final as the judgment of. the supreme court of the state on any matter within its jurisdiction. Parties to such a contest plead and produce evidence, according to the practice provided in such cases, and the controversy is invested with the forms and effect of a judicial procedure. When the people of the state declared in their constitution that a contest about state officers shall be determined by the general assembly, they cannot be understood as meaning it might be determined in any circuit court of the state. To say that a contest shall be decided by decision, and then to say after the decision is made, that such contest is not determined, but is as open as it ever was, is a contradiction in terms. Can it possibly be supposed the framers of this constitution, when they declared contested elections about state officers, including the governor, should be determined by the general assembly, intended that any such contest should be just as unsettled after as it was before such determination of it? Manifestly they intended to create a special tribunal to try claims to the high offices of the state. But the tribunal is not special if the courts have concurrent jurisdiction over the subject. Brooks appeal’s to claim that when a contest for governor is decided by the general assembly, the defeated party may treat the decision as a nullity and proceed dé novo in the ■courts. This makes the constitutional provision as to the contest of no effect, and the proceedings under it are empty form. When the house of representatives dismissed the petition of Brooks for a contest, it' must be taken as a decision of that body on questions presented in the petition. But it is not of any consequence whether or not the general assembly has in fact decided the contest, if the exclusive jurisdiction to do so is vested in that body by the constitution and laws of the state. Section 14 of article Y of the constitution of Arkansas, like most other constitutions, declares that each house of the assembly shall judge of the qualifications, election and return of its members, and it has never been denied any where that these words confer exclusive jurisdiction. But the terms, if possible, are more comprehensive'by which the constitution confers upon the legislative assembly jurisdiction to judge of the election of state officers. Doubtless the makers of the constitution considered it unsafe to 'lodge in the hands of every circuit court of the state the power to revolutionize the executive department at will, and their wisdom is forcibly illustrated by the case under consideration, in which a person who had been installed as governor according to the constitution and laws of the state, after an undisturbed incumbency of more than a year, is deposed by a circuit judge, and another person put in his place upon the unsupported statement of the latter that he had received a majority of votes at the election. Looking at the constitution alone (p. 17), it appears perfectly clear to my mind that the courts of the state have no right' to try a contest about the office of governor, but that exclusive jurisdiction over that question is vested in the general assembly. This view is confirmed by judicial authority.

“ Summing up the whole discussion, the supreme court of Arkansas say in the case of the Attorney General v. Baxter, above referred to: ‘ Under this eonstituton the determination of the question as to whether the person exercising the office of governor has been duly elected or not, is vested exclusively in the general assembly of the state, and neither this nor any other state court has jurisdiction to try a suit in relation to such contest, be the mode or form what it may; whether at the suit of the attorney general or on the relation of a claimant through him, or by an individual alone claiming a right to the office. Such an issue should be made before the general assembly; it is their duty to decide, and no other tribunal can determine that question. We are of opinion that this court has no jurisdiction to hear and determine a writ of quo warranto for the purpose of rendering a judgment of ouster against the chief executive of this state, and the right to file an information and issue a writ for that purpose is denied.’ Some effort has been made to distinguish this case from that of Brooks v. Baxter, in the circuit court, by calling the opinion a dictum; but the point presented to and decided by the supreme court was, that in a contest for the office of governor the jurisdiction of the general assembly was exclusive, which, of course, deprived one court as much as another of the power to try such contest. There is, however, another decision made by tbe same court on the precise question presented in the case of Brooks v. Baxter. Berry was a candidate for state auditor on the same ticket with Brooks. "Wheeler, his competitor, was declared elected by the general assembly. Berry then brought a suit under said section 525,, in the Pulaski circuit court, to recover the office. Wheeler applied to the supreme court for an order to restrain the proceedings, and that court issued a writ of prohibition forbidding the said court to proceed, on the ground that it had no jurisdiction in the case as to the question of law involved. The cases of Berry and Brooks are exactly alike. That this circuit court should have rendered a judgment for Brooks under these circumstances is surprising, and it is not too much to say that it presents a case of judicial insubordination which deserves the reprehension of every one who does not wish to see public confidence in the certainty and good faith of judicial proceedings wholly destroyed. Chief Justice McClure, who dissented in the case of the Attorney General v. Baxter, delivered the opinion of the court in the Wheeler case, in which he uses the following language: ‘ The majority of the court in the case of the State v. Baxter, under the delusion that quo warranto and a contested election proceeding were convertible remedies having one and the same object, decides that neither this nor any other state court, no matter what the form of action, has jurisdiction to try a suit in relation to a contest for the office of governor. As an abstract proposition of law, I concede the correctness of the rule, and would have assented to it if the question had been before us. The question now before this court is precisely one of contest, and nothing else. As to all matters of contested elections for the offices of governor, lieutenant governor, secretary of state, auditor,, treasurer, attorney general and superintendent of public instruction, I am of the opinion that it can only be had before the general assembly.’

“He then adds in conclusion: ‘I think a writ oí prohibition ought to go to prohibit the circuit court from entertaining jurisdiction of that portion of Berry v. Wheeler, that has for its object a recovery of the office.’ All five of the judges heard this case, and there was no dissent from these views as to the question of jurisdiction. To show how the foregoing decisions are understood in the state, I refer to a note by the Hon. H. C. Caldwell, judge of the district court of the United States for the southern district of Arkansas, upon section 2379 of the digest of the statutes of the state, lately examined and approved by him, which is as follows: ‘ By the provisions of sec. 19 of art. IV of the constitution, the jurisdiction of the general assembly over cases of contested election for the officers in said section enumerated is exclusive.’ (Attorney general on the relation of Brooks v. Baxter, MS. Op. 1873; Wheeler v. Whytock, MS. Op. 1873).

It is assumed in the argument for Brooks, that the judgment of the Pulaski circuit court is binding as well upon the president as upon Baxter until it is reversed ; but where there are conflicting decisions, as in this case, the president is to prefer that one which, in his opinion, is warranted by the constitution and laws of the state. The general assembly has decided that Baxter was elected. The circuit court of Pulaski county has decided that Brooks was elected.

Taking the provision of the constitution which declares that contested elections about certain state officers, including the governor, shall be determined by the general assembly, and that provision' of the law heretofore cited which says that all contested elections of governor shall be decided by the legislature, and the two decisions of the supreme court affirming the exclusive jurisdiction of that body over the subject, and the conclusion irresistibly follows that such judgment of the circuit court is void. A void judgment binds nobody. Said section 525, under which this judgment was rendered, must be construed with reference to the constitution and other statutes of the state, and is no doubt intended to apply to county and other inferior officers, for which no provision elsewhere is made. But the constitution takes the state officers therein enumerated out of the purview of this section and establishes a special tribunal to try these contested election cases to which they are parties. The jurisdiction of this tribunal is exclusive. Ohio v. Grisell and Menlon, 15 Ohio, 114; Attorney General v. Garrugues, 28 Penn., 9 ; Commonwealth v. Baxter, 35 id., 263; Commonwealth v. Leech, 44 id., 332. Respecting the claim that Brooks received a majority of the votes at the election, it must be said that the president has no way to verify that claim. If he had, it would not in my opinion, under the circumstances of this case, be a proper subject for his consideration. Perhaps if everything about the election was in confusion, and there had been no legal count of the votes, the question of majorities might form an element of the discussion ; but where, as in this case, there has been a legal count of the votes, and the tribunal organized by the constitution of the state for that purpose has declared the election, the president, in my judgment, ought not to go behind that action to look into the state of the vote. Frauds may have been committed to ihe prejudice of Brooks, but unhappily there are few elections where partisan zeal runs high, in which the victorious party, with more or less truth, is not charged with acts of fraud. There must, however, be an end to the controversy upon the subject. Somebody must be trusted to count votes and declare elections. Unconstitutional methods of filling offices cannot be resorted to because there is some real or imagined unfairness about the election. Ambitious and selfish aspirants for office generally create the disturbance about this matter, for the people are more interested in the preservation of the peace than in the political fortunes of any man. Either of the contestants with law and order is better than the other with discord, and violence. I think it would be disastrous to allow the proceedings by which Brooks obtained possession of the office to be drawn into a precedent. There is not a state in the Union in which they would not produce a conflict and probably bloodshed. They cannot be upheld or justified upon any ground, and in my opinion Elisha Baxter should be recognized as the lawful executive of the state of Arkansas.

“ Since the foregoing was written, I have received a telegraphic copy of what purports to be a decision of the supreme court of Arkansas, delivered on the 7th inst., from which it appears that the auditor of the state, upon a requisition of Brooks, drew his warrant -on the treasurer for the sum of $1,000, payment of which was refused. Brooks then applied to the supreme court for a writ of mandamus upon the treasurer, who set up by way of defense that Brooks was not governor of the state, to which Brooks demurred, and thereupon the court say: ‘ The only question we deem it necessary to notice is, Did the circuit court have jurisdiction to render the judgment in the case of Brooks v. Baxter? We feel some delicacy about expressing an opinion upon the question propounded, but under the pleadings it has to be passed upon incidentally, if not absolutely, in determining whether the re•lator is entitled to the relief asked, for his right to the office, if established at all, is established by the judgment of the circuit court of Pulaski county. We are of opinion that the circuit court had jurisdiction of the subject matter, and its judgment appears to be regular and valid. Having arrived at these conclusions, the demurrer is overruled, and the writ of mandamus will be awarded as prayed for.’ To show the value of this decision, it is proper that I should make the following statement : On the 20th of April, Brooks made a formal application to the president for aid to suppress domestic violence, which was accompanied by a paper signed by Chief Justice McClube and Justices Seakle and Stephenson, in which they stated that they recognized Brooks as governor, and to this paper also is-appended the name of Page, the respondent in the above named proceeding for mandamus. Page, therefore, did not refuse to pay the warrant of the auditor because he did not recognize Brooks as governor, but the object of his refusal evidently was to create such facts as were necessary to make a case for the supreme court. Accordingly the pleadings were made up by the parties, both of whom were on the same side in the controversy, and the issue so made was submitted to judges virtually pledged to give the decision wanted, and there within the military encampment of Brooks they hurriedly but with delicacy, as they say, decided that he is governor, a decision in plain contravention of the constitution and laws of the state, and in direct conflict with two other recent decisions of the same court deliberately made. I refrain from comment. More than once the supreme court of the United States has decided that it would not hear argument in a case made up in this way, and a decision obtained under such circumstances is not recognized as authority by any respectable tribunal. No doubt this decision will add to the complications and difficulties of the situation, but it does not affect my judgment as to the right of Baxter to the office of governor until it is otherwise decided upon a contest made by the legislature of the state. On the 11th inst., the general assembly of the state was convened in extra session upon the call of Baxter, and both houses passed a joint resolution pursuant to sec. 4 of art. IV of the constitution of the United States, calling upon the president to protect the state against domestic violence. This call exhausts all the means which the people of the state have under the constitution to invoke the aid of the executive of the United States for their protection, and there seems to be, under the circumstances of the case, an imperative necessity for immediate action. I have the honor to be, with great respect. “ George H. Williams,

“Attorney General.”

We will not attempt to add anything to this opinion on the subject of jurisdiction.

We have discussed the remedy sought in this case, because this is the first time since this government began, in 1836, that this court has been asked to remove a judgment of a circuit court by certiorari, and to quash it for want of jurisdiction. The fact is a silent compliment to the skill of the makers of our several constitutions, who were able to free them from obscurity on this question of jurisdiction, and is a tribute to the intelligence and integrity of our judiciary. There are but two cases in which this court has been asked to quash the judgments of an inferior court for want of jurisdiction, and they were against county courts: in Buckner ex parte, above cited, and Hudson et al. v. Jefferson County, opinion 1873 ; and the remedy asked in this ease was refused in Buckner ex parte, because the application was premature.

If the title to the office of governor had been determined in Brooks’ favor by a competent tribunal, he might have sued in the Pulaski circuit court for his salary; but the right to this is but an incident, and follows the right to the office of governor as the shadow follows the substance; and before the Pulaski circuit court could, in this case, take jurisdiction of the incident, it must determine the principal question, to-wit: the right to the office. We find, therefore, in this case, an excess of jurisdiction in rendering a money judgment. This case can be distinguished from that of Wheeler v. Whytock, wherein this court refused to prohibit the court below from retaining the jurisdiction for the salary, leaving it there to be progresséd with when the right to the office of auditor, involved in that case, should be properly determined. Here the court below assumed to decide both. But if Wheeler v. Whytock was in conflict with these views, we should not hesitate to overrule it.

Finding that the court below had no jurisdiction over the subject matter of this suit, nor of any of its incidents, and that its proceedings and judgment in this cause are void, the judgment must be quashed.

The Hon. E. H. English, C. J., did not sit in this case.