author:
John A. Fogleman, Justice.
      Conley Byre, Justice.

text:
    Jack Bowlin v. Ova Lea Keifer
    5-4847
    440 S.W. 2d 232
    Opinion Delivered April 21, 1969

      N. I). Edwards for appellant.

      Jack Yates and Theron Agee for appellee.
   John A. Fogleman, Justice.

The primary question on this appeal involves the validity of a written instrument as a conveyance of real property.

Appellant filed a partition suit claiming to he the owner of an undivided one-seventh interest in certain tracts of land in Franklin County. He alleged that appellee was also the owner of an undivided one-seventh interest. Appellant asserted, and it is agreed, that the common source of title was George T. Wade, who owned all of the property at the time of his death on August 15,1945. Appellant claimed title by reason of a conveyance from one Victor Grady Wade, the sole heir of Guy G. Wade, who was one of the seven children of George T. Wade. Guy G. Wade died on September 10, .1948.

On April 26, 1947, Guy G. Wade executed and delivered to appellee the following written instrument:

£ 1 Glendora, California
April 26, 1947
AGREEMENT OF SALE
NOTICE: For the sum of $300.00 cash in hand, paid, the receipt of which is hereby acknowledged, I, Guy G. Wade, sell to Ova Lea TCeifer, all my rights, title and interest in the estate of my father George T. Wade — deceased. I also agree to render proper and legal conveyance at any time upon request of said Ova Lea Keifer.
Gny G. Wade
Signed:
Guy G. Wade”

The defendants in the partition suit, of which appellee was one, filed an answer in which it was asserted that appellee was the owner of an undivided two-sevenths interest in the. lands. They also denied that appellant had any interest in them. The instrument above set out was made an exhibit to their answer and later introduced in evidence in support of appellee’s claim. It was also alleged in the answer that appellant knew at the time of his conveyance that his grantor had no interest in the lands and knew that Guy G. Wade had conveyed his interest to the appellee by the instrument above set out. They also alleged that the recording of this instrument on June 20, 1955, gave constructive notice to appellant.

Appellant contends that the instrument in question is void and that it was not notice either to him or to his predecessor in title. One of his arguments in support of this contention is that the deed does not describe ány real property. In this respect we agree with the appellant.

In Turrentine v. Thompson, 193 Ark. 253, 99 S.W. 2d 585, we held that a deed which did not identify the land sought to be conveyed as being in any county or even in the state was void as failing to furnish a key by which the land might be certainly identified. As we said in that case, the land intended to be conveyed might he in another state.

The chancellor based his holding, in part, upon adverse possession for the period of limitations by appellee, laches of appellant and estoppel. Appellee argues those defenses here even though she failed to plead either of them and testified that her claim depended entirely upon the written instrument. Generally, in order to be available to a party the defenses of limitations and estoppel must be pleaded, and relied on in the trial court. Blakeley v. Ballard, 188 Ark. 75, 65 S.W. 2d 7; Bell v. Lackie, 210 Ark. 1003, 198 S.W. 2d 725; Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190.

The adverse possession statute may become an issue during the trial, however, either by amendment of the pleadings or by evidence showing operation of the statutory bar. Roberts v. Burgett, 209 Ark. 536, 191 S.W. 2d 579. In this case, however, appellee, on the one hand, and appellant and his grantor, on the other, were tenants in common. In order for possession of a tenant in common to be adverse to that of his cotenants, knowledge of the adverse claim must be brought home to them directly or bj^ such notorious acts of unequivocal character that notice may be presumed. Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707. Stronger evidence is required when a family relationship exists than in other cases. McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714; Ueltzen v. Roe, 242 Ark. 17, 411 S.W. 2d 894. The burden of proof was upon appellee. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809.

In this case, Mrs. Keifer never talked with her nephew Victor Grady Wade about the matter. Sometime between two and six years before the trial, she executed two division orders acknowledging that Victor Grady "Wade was entitled to a one-seventh interest in royalties arising from the interest of George T. Wade in the lands. The only evidence of adverse possession is the fact that rents for a two-sevenths interest were paid to appellee and none were paid to Victor G. Wade. It was shown that Victor did not inquire about his share of the rents. The sole enjoyment of rents and profits by a tenant in common does not necessarily amount to a disseizin of a cotenant. Hardin v. Tucker, 176 Ark. 225, 3 S.W. 2d 11.

This .case is remarkably similar to Smith v. Happier, supra, where we reversed a finding of adverse possession against a cotenant seeking partition. The basis of our holding was that there was no showing that notice of the adverse claim was given and that there was a recognition of the title of the cotenant by acts done during the period of asserted adverse possession. Appellee here failed to meet her burden for the same reasons. We are not impressed with her explanation that she signed the division orders as a gratuity because they were too insignificant for her to raise any question. She admitted that she knew she was conceding a one-seventh interest to Victor Grady Wade. Her action is more consistent with a recognition of his title than with her present contention. See also Zachery v. Warmack, 213 Ark. 808, 212 S.W. 2d 706.

Generally, estoppel must be pleaded to be available as a defense. Blakeley v. Ballard, 188 Ark. 75, 65 S.W. 2d 7; Bell v. Lackie, 210 Ark. 1003, 198 S.W. 2d 725; Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190. Estoppel may also become an issue when no objection is made to evidence in support of the defense. Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Aclin v. Caplener, 229 Ark. 718, 318 S.W. 2d 141. Here the defense was neither pleaded nor relied upon by appellant, who testified that her claim depended entirely upon the written instrument signed by Guy G. Wade. Although estoppel can arise by actions of a party, or his failure to speak or act as well as by representations, it does not exist unless the adverse party has in good faith relied upon the acts, representations, inaction or silence to his detriment. Storey v. Brewer, 232 Ark. 552, 339 S.W. 2d 112; Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443; Tarver v. Taliaferro, 244 Ark. 67, 423 S.W. 2d 885. We find no evidence to show that Ora Lee Keifer relied upon any acts of either Victor Grady Wade or Jack Bowlin to her detriment in any respect.

In order for laches to constitute a defense, appellee must have suffered such a change in position that she could not be restored to her former state by reason of the failure of appellant or his predecessor in title to assert the present claim. Baxter v. Young, 229 Ark. 1035, 320 S.W. 2d 640. Appellant acquired title by deed from Victor Grady Wade on December 5, 1966. This action was brought February 3, 1968. Certainly there was no undue delay on appellant’s part. It is not shown that appellee has suffered any change in position by reason of any delay on the part of Victor Grady 'Wade. Her recognition of his rights when she signed the division order negates any idea that she had changed her position in any way.

We cannot subscribe to the suggestion that the fact that appellant was married to a daughter of Guy G. Wade’s widow by a subsequent marriage supplies any deficiencies in the evidence or charges appellant with any notice not otherwise shown. There might be some merit in the argument that appellant bore the burden of proof of the payment of a valuable consideration by him without notice of appellee’s claim, if the instrument relied upon by appellee constituted a contract enforceable between the parties. This is not the' case. A contract for the sale of land will not be enforced unless the description disclosed therein is as definite and certain as tliat required in a deed of conveyance. Fordyce Lumber Company v. Wallace, 85 Ark. 1, 107 S.W. 160. The instrument here does not contain such a description. Turrentine v. Thompson, supra.

The decree is reversed and the cause remanded to the trial court for entry of a decree consistent with this opinion since the title to real estate is involved.

Byrd, J., dissents.

Conley Byre, Justice.

The record here shows a controversy between appellee Ova Lea Keifer and appellant Jack Bowlin to a tract containing 270 acres more or less in the Ozark District of Franklin County and to one-seventh of the proceeds of a IT. S. Government check for $25,500, deposited in the registery of the court. It is not disputed that George T. Wade was the father of Ova Lea Keifer and Guy G. Wade, together with other children. On April 26, 1947, Guy G. Wade executed the following instrument.

“Glendora, California
April 26,1947
“AGREEMENT OF SALE
“NOTICE: For the sum of $300.00 cash in hand, paid, the receipt of which is hereby acknowledged, I, Guy G. Wade, sell to Ova Lea Keifer, all my rights, title and interest in the estate of my father George T. Wade, deceased. I also agree to render proper and legal conveyance at any time up.on request of said Ova Lea Keifer.
Guy G. Wade
Signed:
Guy G. Wade
Subscribed and Sworn to before me this 26th day of April, 1947.
Edna Graves, Notary Public
In and for the County of Los Angeles, State of California
My Commission Expires August 27, 19 ”

After execution of this instrument, Guy G. Wade died on Sept. 10, 1948, leaving as his sole and only heir Victor Grady Wade. The testimony shows that after the Oorp of Engineers begin making surveys for the Ozark Dam area, Victor Grady Wade and wife, on Dee. 5, 1966, conveyed one-seventh interest in the lands to his step-sister’s husband, appellant Jack Bowlin. This deed recites a consideration “of one dollar and other valuable considerations”. In offering this deed into evidence counsel for appellant stated, “Our stipulation is only to the extent that it is unnecessary to bring the clerk up to prove the deed”. The record also shows that Victor Grady Wade was present in the court room but did not testify, and that the appellant Jack Bowlin neither testified nor attended the trial.

I agree with the majority opinion that the description contained in the agreement of sale is insufficient to constitute notice to a bona fide purchaser for value, HOWEVER, I do not agree that the description is void as between Ova Lea Keifer and Guy G. Wade. In Varner v. Rice, 44 Ark. 236 (1884), we permitted evidence aliunde to show what was meant by the description “the plantation called the Varner place”. In Thomason v. Abbott, 217 Ark. 281, 229 S.W. 2d 660 (1950), we pointed out that a description “a part of the east half of south east one quarter of Section 31, 6 acres” was void for indefinitehess insofar as record title was concerned but that as between the grantor and grantee evidence aliunde might be introduced to establish what lands were intended to bo conveyed.

Based upon the foregoing authorities it is perfectly obvious that as between appellee Ova Lea Keifer and Guy G. Wade evidence could have properly been introduced to show what the estate of George T. Wade consisted of.

Does Victor Grady Wade stand in anj^ better position than his father? We held in Turner v. Rust, 228 Ark. 528, 309 S.W. 2d 731 (1958), that a grantor, or an heir claiming through him, is estopped to claim or assert anything in derogation of his deed or assignment. Certainly the heir could convey no better interest to one with notice than he himself had and since he himself paid no consideration for the inheritance from his father, the title in him was no better than the title in his father.

Did the deed from Victor Grady Wade to the husband of his step-sister, reciting only a consideration “of one dollar and other valuable consideration,” make Jack Bowlin a bona fide purchaser for value without notice'? Since the only evidence in the record is the deed and since the record shows that Jack Bowlin was not present at the trial and did not testify, the issue turns upon who had the burden of proof. In Osceola Land Company v. Chicago Mill & Lumber Company, 84 Ark. 1, 103 S.W. 609 (1907), we said:

“The plaintiff contends that the railroad company and Chatfield were both bona fide purchasers for value without notice of the Rozell title, and the question is presented whether the burden to show notice was on the defendant or not. In the recent case of Steele v. Robertson, 75 Ark. 228, where parties came in as interveners and in order to obtain protection alleged affirmatively that they were bona fide purchasers for value without notice, we said that the burden was on them to make out their case, and to show, not only that they had paid for the land, but that they did so without notice of plaintiffs’ light. When in such a case there are circumstances that tend to show notice, or tend to raise an inference of notice, and the party who claims to be a bona fide purchaser fails in his testimony to deny notice, this may be, as we held in that case, a controlling circumstance against him, without regard to who has the burden of proof. This was probably as far as we should have gone in that case, although the law as there stated is supported by a number of cases. Bell v. Pleasants, 145 Cal. 410; Beattie v. Crewdson, 124 Cal. 577; Wilhoit v. Lyons, 98 Cal. 409, Farley v. Bateman, 40 W. Va. 542; Connecticut Mut. Life Ins. Co. v. Smith, 117 Mo. 261. But a further consideration o£ the case has convinced us that the statement that the burden is on the party claiming to be a bona fide purchaser to show want of notice is not correct as a general rule; for, when the party relies on the defense of being a bona fide purchaser, and shows that he has paid a valuable consideration, the burden of showing that he purchased with notice is on the party alleging it or who relies on the notice to defeat the claim of bona fide purchaser.”

In 92 CJS page 228, Vendor & Purchaser, § 323(c), it is pointed out that a person who purchases property for a nominal or grossly inadequate consideration is not a bona fide purchaser, and in 92 CJS page 308, Vendor & Purchaser, § 373, it is pointed out that the recital of a consideration in the conveyance is not sufficient evidence that the grantee therein was a purchaser for value, without other evidence, to establish the defense of bona fide purchaser. To the same effect, see Hood v. Webster, 271 N.Y. Supp. 57, 2 N.E. 2d 43, 107 ALR 497, and the subsequent annotation at page 513, wherein it is said, “In accordance with the general rule . .. tire numerical weight of authority is to the effect that one claimiug to be a bona fide purchaser as against the holder of a prior unrecorded conveyance or encumbrance has the burden of showing that he paid a valuable consideration for the conveyance to him, and this by other evidence than the recitals in his deed.”

Thus, as I view the instrument, here involved, it was sufficient to pass title as between the parties and the description contained therein was sufficient to permit evidence of what the estate of George T.- Wade consisted. In this situation Victor Grady Wade as an heir of his father, Guv G. Wade, stood in the same position as his father Guy G. Wade, under the authority of Turner v. Rust, supra. Furthermore, since the appellant Jack Boudin failed to sustain his burden of proof by showing that he paid a valuable consideration for the deed from Victor Grady Wade, appellant Jack Bowlin stands in no better position than his grantor. Consequently I would, affirm the decree of the Chancellor holding the title good in appellee.

The majority opinion places much emphasis on Turrentine v. Thompson, 193 Ark. 253, 99 S.W. 2d 585 (1936). There Will Turrentine had conveyed to Zazelle Turrentine on the 4th day of May 1927. The description in Will’s deed to Zazelle is as follows, “All the right, title, interest, equity, and/or claim of every kind of character, which I may now or hereafter have, as heir of Richard Turrentine, deceased, in and to all moneys, credits, chattels, effects, insurance funds, choses iu ac-1ion, and/or real, personal or mixed property of every kind or nature and wherever situated.” Subsequently on the 4th day of June 1927, Will Turrentine conveyed by particular description the 40 acre tract to W. C. Thompson. In turn W. C. Thompson conveyed the 40 acres by particular description to Earl Thompson on Nov. 15, 1927. All conveyances were recorded.

Since all the instruments in the Turrentine case wore recorded the sole issue on appeal was by stipulation of the parties — i.e., whether the description in the deed from Will to Zazelle on the 4th day of May, was sufficiently definite to convey a fee simple title in an undivided % interest in the “SW % of NE% of sec. 8, twp. 12 S. R. 25 W.” Thus we see that by a stipulation the parties had excluded the issue of whether other evidence could be introduced as between the parties to show what lands were included in the description in the deed from Will to Zazelle. Consequently I do not consider the Turrentine case as authority for the proposition for which the majority opinion cites the case.

Therefore, I respectfully dissent.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Milford Fuller and Leo Walton v. State of Arkansas
    5-5410
    439 S.W. 2d 801
    Opinion Delivered April 21, 1969
    [Rehearing denied May 19, 1969.]

      Donald Adams (for appellant Walton) and Moore & Brockman for (appellant Fuller).

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This appeal arises from the re-trial of Walton and Fuller v. State, 245 Ark. 84, 421 S.W. 2d 462, which was reversed by this court on September 9, 1968, and remanded to the Boone County Circuit Court for a new trial.

The facts set out in that case are the same as those in the ease at bar and are reiterated briefly as follows: Law enforcement officers from Missouri, accompanied by local officers, made searches of certain premises in and near Harrison in Boone County, Arkansas, and seized numerous items of personal property which had been stolen in Missouri. The principal items involved consisted of men’s suits and television sets, and the items were seized under search warrants obtained in Boone County. The warrants described the premises to be searched and specifically described the property searched for. During the search of the premises, the appellant. Walton directed the officers to his living quarters and pointed out to them a color television and a record player which were not designated objects of the search, but which were later determined to be stolen property and seized under voluntary relinquishment bv Walton.'

In the first trial all of the stolen property seized was admitted in evidence. The appellants were found guilty by the jury and sentenced by the court to four years in the penitentiary. On appeal, this court held that the warrants were defective under which the searches were conducted and that the trial court erred in admitting into evidence the objects seized thereunder. The case was reversed and remanded for a now trial. At the second trial, from whence comes this appeal, the appellants were again found guilty and sentenced on the jury verdict to ten years in the penitentiary. On this appeal from their second conviction, the appellants rely on the following points:

“1. The court erred in denying defendants’ motions to suppress all evidence, statements, and other matters obtained as the result of illegal searches and seizures and their motions to suppress evidence under the doctrine of the ‘fruit of the poisonous tree.’
2. The court erred in denying defendants’ motion to suppress defendants’ statements and in permitting testimony and evidence concerning the statements to be introduced into evidence.
3. The court erred in accepting the verdict of the jury and sentencing the defendants to a longer term in the Arkansas Department of Corrections than is permissible under law.
4. The court erred in admitting into evidence the Zenith television set and Zenith record player, ihe possession of which the defendants were charged and in failing to direct a verdict of acquittal of the appellant at the close of the evidence in the case.”

Appellants’ first and fourth points have already been decided adversely to their contention in Walton and Fuller v. State, supra, and our decision there becomes the law of this case as to the admissibility of evidence as to the television set and the record player which defendant “voluntarily” pointed out to the officers at the time of the second search. In that case we held this evidence to be admissible regardless of the fact that the voluntary disclosure was made at a time when the search was being conducted under tlio authority of the defective warrant. On this point we said:

“ . . .Walton, in the presence of Fuller, voluntarily advised Sheriff Hickman of Boone County and Sgt. Rife that there was a quantity of other property besides the television sets for which the search was being conducted, and that he wanted to «bow them where it was. He told them that he had certain suits of clothing and the television set and record player upstairs in his living quarters .. . Under these circumstances, the property found in the Walton living quarters and his statements about them ivere not come about through exploitation of an illegal search...
For the reasons above set out, the television set and record player were admissible in evidence.” (Emphasis supplied.)

Appellants’ second point is likewise without merit for the same reason. In Walton and Filler v. State, supra, this issue was resolved in the discussion of the evidence which was to be excluded as a result of the invalid search, wherein we said:

“... [identification of property which was inadmissible should have been excluded by the trial court as ‘fruit of the poisonous tree,’... Furthermore, statements by both Walton and Fuller made in the prosecuting attorney’s office, except for those portions relating particularly to property not listed in the second search warrant about which Walton volunteered information, were inadmissible as ‘fruit of the poisonous tree.’ ”

Appellants argue that the statements made to the prosecuting attorney were inadmissible since appellants did not waive their constitutional rights under the holding of Miranda v. Arizona, 384 U.S. 448. This point also was decided adversely to appellants’ contention in Walton and Fuller v. State, supra, when we said:

“Although objection was made to the statements made in the prosecuting attorney’s office as being inadmissible under the rule announced in Miranda v. State of Arizona, 384 U.S. 448, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we find adequate evidence to support the trial judge’s finding that the warnings required by that rule were given, and that the statements were voluntary and made under waiver of the rights enumerated in the above case. Neither Walton nor Fuller was in custody at that time on any charge. Before interrogation, both were advised of their rights as to the giving of statements. There is nothing to indicate that either was not intelligent enough to understand the statement of his rights. Nor does it appear that either was not conscious that he was waiving them in answering questions. Walton actually signed a 'written waiver, on which his constitutional privilege against self-incrimination and right to counsel are clearly and fully listed. There is no indication that this was not a free and voluntary act on his part. While Fuller did not sign the waiver, there is testimony that an identical statement of his rights was read to and by him before any interrogation, after which he expressed his willingness to answer questions. It was only after the interrogation was virtually concluded that he was asked to sign a written waiver of these rights, and he then stated that he wanted a lawyer ‘if it got down to where he had to sign something.’ In addition to the warnings at the time of the interrogation of Walton and Fuller in the prosecuting attorney’s office, the evidence that both were advised of these rights at the time of the search is convincing.”

As to their third point for reversal, appellants raise the issue of double jeopardy and argue that the trial court erred, in accepting tire verdict of the jury sentencing tire defendants to a longer term tlian they had received at the first trial of the case. Arkansas Statutes Annotated § 41-3938 (Repl. 1964) is as follows:

“Any person who shall possess stolen goods, money or chattels which exceed the aggregate value of thirty-five ($35.00), knowing them to be stolen, with intent to deprive the true owner thereof, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one (1) year nor more than twenty-one (21) years; and if the aggregate value thereof be not more than thirty-five ($35.00) dollars, such person shall be guilty of a misdemeanor and shall be punished by imprisonment in the county prison or municipal or city jail not more than one [1] year and shall be fined not less than ten dollars ($10.00) nor more than three hundred dollars ($300.00).”

This issue of former jeopardy was discussed rather thoroughly in the very recent decision of this court rendered on April 1, 1969, in the case of Stout v. State, 246 Ark. 479, 438 S.W. 2d 698.

There was no “implied acquittal” of the appellants by the reversal of their first conviction in the case at bar and different degrees of the offense were not involved as was the situation in Green v. United States, 355 U.S. 184, cited in Stout v. State, supra. In the Green case the accused was first convicted of second degree murder and the court held that he could not be re-tried for first degree murder, having been impliedly acquitted of that degree of the crime. When an accused is tried on a specific degree of crime and is convicted of a lesser degree, which is included in the greater degree, he is thereby acquitted of the greater degree and cannot be tried again for the greater degree. This has been the law in Arkansas for nearly one hundred years. Johnson v. State, 29 Ark. 31. We now hold, as we have hereto fore indicated, that the same rule applies where the difference in the nature of the punishment is the difference between life imprisonment and death. Sneed v. State, 159 Ark. 65, 255 S.W. 895. In the Sneed case the accused was first sentenced to life imprisonment and upon a new trial following reversal he was again sentenced to life imprisonment. Sneed was tried both times for the same degree of homicide, first degree murder, and this court approved an instruction at the second trial advising the jury that if Sneed was again found guilty of first degree murder, he could only be sentenced to life imprisonment and could not be sentenced to death. We perceive that this rule was based, not on the degree' of the crime or the degree of punishment, but upon the difference in the nature of the punishment provided by statute for first degree murder, life imprisonment or death by electrocution.

In the case at bar the appellants were tried and convicted twice for the possession of stolen goods which exceeded the aggregate value of $35.00. Some of the items of stolen goods offered in evidence at the first trial were .inadmissible and appellants were granted a new trial at their own request. At the second trial, before a new and different jury, only the admissible portion of the stolen goods was offered in evidence and this jury was not as lenient in fixing punishment as the trial court was in the first trial. The punishment fixed by the jury at the second trial was of the same nature as that fixed by the judge in the first trial and was well within the maximum fixed by statute. Had the appellants served time under the first sentence, they would have been entitled to credit on the second sentence for lime served on the first, Stout v. State, supra.

The appellants rely on the case of Patton v. State of North Carolina, 381 F. 2d 636. The defendant in that case had served five years of a twenty year sentence imposed by the trial judge on a plea of nolo contendere. The eon vie Li on was overturned on constitutional grounds under state post-conviction procedure, and at the second trial the defendant was sentenced by the trial judge to twenty-five years with credit allowed for the five years served and leaving twenty years yet to be served. The Fourth Circuit Court of Appeals held that the defendant had not waived the benefits of his initial sentence, “because of the restrictive effect this has on access to post-conviction remedies.” The case at bar reaches us .by direct appeal and not through post-conviction relief procedure, so we fail to see where the 14th Amendment to the constitution is involved in this case at all.

Juries in this state are closely examined on voir dire before they are accepted for service in a given case. While no one would deny that the jury system does not insure perfect justice in every case, no better system for doing so has yet been devised.

We think, the better rule to be, that where a defendant appeals from a conviction and is successful in obtaining a new trial, he must accept the hazards as well as the benefits of a new trial and assume the risk of a more severe sentence of the same nature at the hands of a new and different jury, when the second vérdict is within the same degree and the punishment is within the statutory maximum fixed for the degree.

The appellants were not “put in jeopardy of life or limb” at all in this case under any reasonable interpretation of Amendment 5 of the constitution, nor have the appellants been deprived of “life, liberty, or property, without due process of law” under any reasonable interpretation of Amendment 14. We prefer to weigh appellants’ rights by the plain and simple language of the constitution rather than attempting to measure the constitution by what we perceive appellants’ rights should be. We are unwilling to say to the appellants “you are entitled to a new trial because some of the evidence at your first trial was inadmissible. If your second trial results in less punishment or acquittal, that is well and good, and your constitutional rights to a speedy and public trial by an impartial jury under Amendment G to the constitution have been met and fully complied with. But if your second trial results in a greater penalty than the first even though the punishment is of the same nature and well within the statutory limitation for the offense charged, that part of your new trial violates your constitutional rights and will not be permitted to stand. ’ ’

We are unable to derive such procedure from the constitution and we are unwilling to road such procedure into the constitution. We hold that under the law of Arkansas a new trial granted in a criminal case for error committed in the first trial constitutes a new trial as to penalty imposed by the verdict, as well as to guilt or innocence where the verdict in the second trial is for the same degree of crime as the first verdict, and the penalty assessed by the second verdict is of the same nature and within the statutory limitations for the degree of the crime involved.

The judgment of the trial court is affirmed.


author: ( 'onley Byrd, Justice. Carleton Harris, Chief Justice. John A. Fogleman, Justice.

text:
    Winthrop Rockefeller, et al v. Ernest Hogue, et al
    5-4869
    439 S.W. 2d 805
    Opinion Delivered April 21, 1969

      Wright, Lindsey & Jennings for appellants.

      Jam Robinson (for appellee Hogue) and Howell, Price & Worsham (for appellee Hailey).
   ( 'onley Byrd, Justice.

Appellant Winthrop Rockefeller is the Governor of the State of Arkansas. Acting as such Governor and for the purpose of removing appellees Ernest Hogue and Newt L. Hailey, members of the Arkansas Game and Pish Commission, he appointed appellants Courtney Crouch and Heartsill Ragon as members of a “hearing panel” to prepare, in accordance with judicial standards, a proper record of the charges against each Commissioner. The hearing panel is directed to hear the evidence presented both for and' against removal of the Commissioners and, after the evidence had been properly prepared, to present it to the Governor for Ms decision. Pursuant to the Governor’s plan for the preparation of the record, H. W. McMillan was appointed “evidence officer” to investigate the, charges against the Commissioners and to present such evidence as he considers pertinent to the hearing panel.

The Chancery Court enjoined appellants Crouch and Ragon from holding a hearing on the Governor’s charges against the Commissioners upon the basis that the referral to the panel was an unlawful delegation of authority, and also enjoined the Governor from considering as admitted matters contained in a request for admissions (the request being submitted in accordance with the discovery procedure provided for circuit, chancery and probate courts by Act 335 of 1953). For reversal appellants contend, among other things, that the chancery court erred in taking jurisdiction because the Commissioners have an adequate remedy at law. Appellants’ argument is as follows:

“In the case at bar, two basic questions arise: (1) Is there a remedy available at law? (2) Is such remedy adequate to give appellees complete and prompt redress for any grievances they conoeive they have because of the actions of appellants?
“The answer to the first of these questions is unquestionably in' the affirmative. Section 5 of Amendment 35 grants to the Governor the power of removing appellees after a hearing and also provides that such hearing ‘may be reviewed by the Chancery Court for the first district with right of appeal therefrom to the Supreme Court, such review and appeal to be without presumption in favor of any finding by the Governor or the trial court.’ Thus the people of Arkansas have given to appellees a clear remedy as a matter of right to redress am alleged wrongs which they might receive at the hands of the Governor because of removal proceedings. There are no provisos or special qualifications into which appellees must fit their alleged grievances in order to obtain this right of appeal. Therefore, if appellees feel that they have been wronged or that their rights have been denied or infringed, they have a right to appeal to the Pulaski Chancery Court and to this Court.
“The answer to the question whether the remedy available to appellees is complete is also in the affirmative. In order to preclude the maintenance of a suit in equity the remedy at law must be plain, adequate, complete, and as efficient as the remedy in equity. First State Bank v. Chicago R. I. & P. R. R. Co., 63 F. 2d 585, McGehee v. Midsouth Gas Company, 235 Ark. 50, 357 S.W. 2d 282. Certainly the remedy provided for appellees by the people of Arkansas in this case meets all of these standards. By appealing the decision of the Governor to the courts in question, appellees can raise not only the alleged wrongdoings which they have raised in this suit but also any which might occur in the future as the removal proceedings continue. Also, by using the method provided for in the Constitution the appellees can have the matter decided once and for all without resorting to piecemeal litigation.
“In this case there would be no irreparable injury if appellees lose this appeal. Just for the sake of discussion, let us assume that the injunction is dissolved by this Court and that the Governor wrongfully removes appellees from office. The only thing which they stand to lose is privilege to serve as Commissioners on the Game & Pish Commission. No question of salary or other renumeration is here involved. Under the law it would not be necessary for the appellees to even miss a single day in office if they had been wrongfully removed. In Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85, (1968), this Court held that the removal would not be complete and the office would not be vacant until the appellate proceedings had been completed.
“The people of Arkansas have provided appellees with a complete, adequate and efficient remedy to redress not only the alleged wrongs set forth in their complaints but also any grievances which they may conceive in the future. Since there are no special circumstances requiring the extraordinary remedy of injunction, the lower Court erred in allowing the appellees to substitute their request for an injunction for the appeal provided for in the Constitution.”

Since our decisions, Cummins v. Bentley, 5 Ark. 9 (1842), Bassett v. Mutual Benefit Health & Accident Ass’n., 178 Ark. 906, 12 S.W. 2d 893 (1929), recognize that equity lias no jurisdiction where there is a complete and adequate remedy at law, we must then determine whether the Commissioners have a complete and adequate remedy at law.

The Commissioners sought to be removed were appointed under Amendment 35 to the Constitution of Arkansas. The amendment was initiated by the people and enacted at the general election. In adopting Amendment 35, the people of Arkansas made provision for an independent commission to regulate hunting and fishing' in the State and to advance conservation of all forms of wildlife. This was something new'in our constitutional fabric. By their action the people created the commission, set its membership, prescribed the qualifications for appointment, and generally outlined the powers of the commission. Section 2 of Amendment 35 conferred upon the Governor the power to appoint the commissioners. Because of the State’s history of two term Governors, a “built in” safeguard was established, staggering the commissioners’ terms of office, in the effort to prevent any Governor from gaining control of the commission. Thus, with seven year staggered terms, it was doubtlessly assumed that no Governor would be able to appoint a majority of the commissioners. Although recent history has shown that this assumption was erroneous in that one Governor served twelve consecutive years, there can be no doubt of the intentions. Section 5 of the Amendment provides:

“A Commissioner may be removed by the Governor only for the same causes as apply to other constitutional officers, after a hearing which may be reviewed by the Chancery Court for the First District with right of appeal therefrom to the Supreme Court, such review and appeal to he without presumption in favor of any finding by the Governor or the trial court.” [Rmphasis ours].

In Rockefeller v. Hogue, 214 Ark. 1029, 429 S.W. 2d 85 (1968), we held that the removal phrase “for the same causes as apply to other constitutional officers,” referred to the “high crimes and misdemeanors and gross misconduct in office,” set out in Art. 15, § 1 of the Constitution as grounds for impeachment of officers in general.

The United States Supreme Court, In The Matter of John Buffalo, Jr., 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222 (1968), pointed out that proceedings such as this are adversary proceedings of a quasi-criminal nature and that one so charged is accordingly entitled to “procedural due process ”. AAre understand this ‘ ‘ procedural due process” to mean that one so charged is entitled to a hearing before a tribunal established by law and governed by rules of law previously established, 16 Am. Jur. 2d, Constitutional Law § 580, where he will be entitled to the compulsory attendance of witnesses or a substitute therefor such as the taking of depositions. Anything less would discourage men of character from accepting such positions, for otherwise their leadership and character could be destroyed by an adjudication that they were guilty of “high crimes and misdemeanors and gross misconduct in office” because of a mere failure of proof.

That a person charged in an impeachment proceeding is entitled to procedural due process is not a new requirement nor one of recent origin. It received much thought at the time of the impeachment of Sir Francis Bacon. AArhen we analyze Section 5 above, to determine the point or place where the procedural due process is guaranteed a commissioner in a removal proceeding, we also find the answer to the question here involved — i.e. does the commissioner have a complete and adequate remedy at law to correct any alleged errors committed by the Governor in discharging his duties?

Under the scheme of government set out in our constitution of 1874, the government of the State was divided into three branches, the executive, the legislative and the judicial. Under Article 7, § 1, the judicial power was vested:

“... in one Supreme Court, in circuit courts, in county and probate courts and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery.”

Article 7, § 4 gave the Supreme Court appellate jurisdiction only, unless otherwise specifically provided. Circuit courts were generally given jurisdiction in all civil and criminal cases and superintending control and appellate jurisdiction over inferior courts, Art. 7, § 11 and Art. 7, § 14. The chancery court, as distinguished from the circuit court, has at all times been a trial court or a court of first instance. Even the superintending control and appellate jurisdiction of the circuit courts over inferior courts from 1873 to date has been by way of trial anew on the merits without any regard to any error, defect or other imperfection in the proceedings of the inferior courts (Ark. Stat. Ann. § 26-1308 [Repl. 1962]).

Also, when Amendment 35 was adopted, there was no established procedure for a hearing before the Governor or for the compulsory production of evidence to be submitted to him. Nor did Amendment 35 give the right of subpoena to the Governor for the compulsory production of evidence.

We note further that while Section 5, supra, provides for a review “by the Chancery Court for the First District” it also refers to the same tribunal as “trial court” when providing that the review and appeal to tliis court is to be “without presumption in favor of any finding by the Governor or the trial court.” (Emphasis ours).

Thus we find that at the time of adoption of Amendment 35 there were no procedural rules established for holding hearings before the Governor or for compulsory attendance of witnesses. Nor was any such procedure established by Amendment 35. However, at that time, there existed a procedure established by law for a hearing' before the chancery court, for compulsory attendance of witnesses and preservation of the record. The only conclusion that we can draw, from the language of the amendment equating the finding of the Governor with that of the “trial court” when viewed in the light of the history of the State at the time of the enactment and the requirements of procedural due process, is that a commissioner removed by the Governor is entitled to a trial anew on the merits in the Chancery Court of the First District without regard to any error, defect or other imperfection in the proceedings before the Governor. Because of this we agree with appellants that the commissioners have a complete and adequate remedy by appeal and that the chancery court was without jurisdiction to interfere with the hearing before the Governor.

Reversed and dismissed.

Harris, C.J. and Fogleman, J., concur.

Carleton Harris, Chief Justice.

I agree that the Chancellor’s decree should be reversed, but I see no necessity to go further than to say that the Pulaski Chancery Court had no jurisdiction to enjoin appellants from conducting the hearing. In 43 C.J.S., Injunctions, § 116, p. 647, it is stated:

“While injunctions have been granted to prevent the improper removal of an officer where
there was no doubt as to the illegality of the action and where the removal had not already taken place but was threatened, the general rule, in the absence of statute providing, otherwise, is that equity lias no jurisdiction to enjoin the appointment or removal of public officers, whether the power of appointment or removal is vested in executive or administrative boards * *

This is also pointed out in our own case of Davis v. Wilson, 183 Ark. 271, 35 S.W. 2d 1020.

in the Vermont case of Emerson v. Hughes, 90 A. 2nd 910, the factual situation was somewhat similar to the case at bar. The governor sought to remove a member of the Liquor Control Board. The Chancery Court granted a temporary injunction restraining the Governor from holding a removal hearing, but on appeal to the Supreme Court, that court held that the Court of Chancery had no jurisdiction to grant the injunction, stating that equity does not, as a general rule, have jurisdiction to enjoin the removal of a public officer.

Of course, under Amendment 35 to the Constitution of Arkansas (setting up the Game and Fish Commission), the Governor’s findings may be appealed to the Chancery Court, and thus, at that time (if such an appeal should be perfected), the Chancery Court, by virtue of the constitutional provision, would have jurisdiction — but that jurisdiction is only granted in event of an appeal.

The majority are also of the view that the Chancery Court had no jurisdiction to issue the injunction, but my disagreement with the majority is based on the fact that they proceed to set out the procedure to be followed on appeal, if and when the Governor holds that a commissioner should be removed. The question of whether a commissioner who has been removed by the Governor is entitled to a trial anew on the merits in the Chancery Court is not a question presented to this court in the instant litigation, and it is not argued by either side in the briefs submitted. Consequently, the majority is in the position of setting' out the procedure to be followed on an appeal, without giving the parties, both appellants and appellees, the opportunity to brief this question.

In accordance with the views herein expressed, I too would reverse the Chancery Court, holding that it had no jurisdiction to enter the injunction, but I would terminate the opinion with that finding, leaving questions that have not yet arisen to be decided, if and when the}' do arise.

John A. Fogleman, Justice.

I agree fully that the chancery court had no jurisdiction. I agree with the disposition because I think the case must be dismissed for want of jurisdiction. But I do not agree with the means employed to reach the result. There is a much more obvious want of jurisdiction in the trial court which has been urged by appellants but ignored by the majority. Because this want of jurisdiction of subject matter is total, any action taken in the case by either the trial court or this court, except to dismiss it, is wholly void.

Appellees sought to have the chief executive of the state and commissioners appointed by him enjoined from proceeding with a hearing under Amendment No. ■15 to our constitution for the removal of appellees as members of the Arkansas Game and Fish Commission. Kadi complaint showed on its face that the chancery court was without jurisdiction.

This want of jurisdiction was recognized in the early case of Rhodes v. Driver, 69 Ark. 606, 65 S.W. 106, where this court quoted from High on Injunctions:

“No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum of determining the disputed questions of title to public offices, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy, by proceedings in the nature of a quo warranto,” High, Injunctions (3rd Ed.) No. 1312.

See also Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C 980; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002; Sheffield v. Heslep, 206 Ark. 605, 177 S.W. 2d 412.

Courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political and where no civil or property right is involved. They have no jurisdiction in matters of a political nature or to interfere with the duties of any other department of government. Walls v. Bnmdidge, supra. To assume such jurisdiction would be to invade the domain of other departments of government or of tribunals having jurisdiction. 42 Am. Jur. 2d 834, Injunctions § 86.

Political rights have been clearly defined and distinguished in Walls v. Bundidge, supra, as follows:

“* * * Political rights consist in the power to participate directly and indirectly in the establishment or management of the government. These political rights are fixed by the Constitution. Every citizen has the right to vote for public officers and of being elected. These are political rights which tlie humblest citizen possesses. Civil rights are those which have no relation to the establishment, support, or management of the government. They consist in the power of acquiring and enjoying property and exercising the paternal and marital powers and the like.”

Proceedings pertaining to removal from public office are matters of a political nature and the right of the incumbent to remain in office is a political right. In this state the chancery court has no jurisdiction in cases pertaining to ouster of an incumbent from public office and none can he conferred by statute. Gladish v. Lovewell, 95 Ark. 618, 130 S.W. 579. This court said in that opinion: ‘ ‘ The reason for the rule is that such cases involve political rights with which equity has nothing to do.”

This rule has general acceptance and is stated in 42 Am. Jur. 2d, Injunctions, § 86, page 835:

“A court of equity, unless its jurisdiction has been enlarged by statute, has no general jurisdiction over the removal of public officers, and therefore it cannot enjoin an officer or board from removing an officer or from appointing a successor to him after removal.”

See also 43 Am. Jur. 55, Public Officers, § 219.

It has been applied by the Supreme Court of the Chited States many times. Walton v. House of Representatives, 265 U.S. 487, 44 S. Ct. 628, 68 L. Ed. 1115 (1924) (and cases cited therein). In the Walton case, the court said that the rule was not altered ¡even though the removal proceeding be in the nature of a criminal prosecution.

It has also been applied in a petition to enjoin a governor from conducting a removal hearing under a statule strikingly similar to the constitutional provision involved. here. See Emerson v. Hughes, 117 Vt. 270, 90 A. 2d 910 34 A.L.R. 2d 539 (1952). The authorities were carefully reviewed in that case and overwhelming support for the rule was found. The statute 47 V.S. § 6131 read:

“* * * ‘Removal. After notice and hearing the governor may remove a "member of the liquor control board for incompetency, failure to discharge his duties, malfeasance, immorality or other cause inimical to the general good of the stale. In case of such removal, he shall appoint a person to fill the unexpired term.’ ”

The lack of jurisdiction is just as great even though an injunction is sought. Walls v. Brundidge, supra; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002; Davis v. Wilson, 183 Ark. 271, 35 S.W. 2d 1020; Priest v. Mack, 194 Ark. 788, 109 S.W. 2d 665; Curry v. Dawson, 238 Ark. 310, 379 S.W. 2d 287. Thus the chancery court was devoid of judicial power in this matter to the extent that any decree rendered by it would be void. Raney v. Hinkle, 80 Ark. 617, 95 S.W. 993; Miller v. Tatum, supra; Robinson v. Morgan, 228 Ark. 1091, 312 S.W. 2d 329. See also 4 C.J.S. 163, Appeal and Error, § 42.

I regret that the majority have seen fit to bypass this fundamental want of jurisdiction and have laid its action upon a jurisdictional limitation which is not so fundamental that the chancery court would be deprived of power to act. The existence of an adequate remedy at law is not ground for dismissing a complaint, even when objection to jurisdiction on that ground is raised by demurrer. Higginbotham v. Harper, 206 Ark. 210, 174 S.W. 2d 668. My regret is based not only upon my feeling that this court should be zealous in preventing and avoiding interference with other independent and coequal branches of government but upon the feeling that the court is using this vehicle to gratuitously render an advisory opinion upon procedures in this case. In so doing, the court is not only rendering' an opinion on questions not raised or briefed by the parties but is doing so by way of dictum as support for a judgment which itself is void for want of jurisdiction.

Since there was a want of jurisdiction of the subject matter or a want of power in the trial court, the jurisdiction of this court, being* derivative, is no greater. Jurisdiction of an appellate court is derived from and depends upon that of the court of origin. Rucker v. Cox, 200 Ark. 247, 138 S.W. 2d 778; Markham v. Evans, 239 Ark. 1154, 397 S.W. 2d 365; Whitesides v. Kershaw, 44 Ark. 377; Wright v. Wooldridge, 94 Ark. 276, 126 S.W. 841. Where the court from which an appeal is taken has no jurisdiction, the appeal confers none. Gregory v. Williams, 24 Ark. 177; Dunnington v. Bailey, 27 Ark. 508; Smyrna Baptist Church v. Burbridge, 205 Ark. 108, 167 S.W. 2d 501; Carter Special School District v. Hollis Special School District, 173 Ark. 781, 293 S.W. 722; Harris v. Hare, 183 Ark. 259, 35 S.W. 2d 340; See 4 Am. Jur. 2d 539, Appeal and Error, § 9. This court has no jurisdiction where the trial court had none. Trapnall v. Jordan, 7 Ark. 430. Siuce an appellate court acquires only such jurisdiction as the court wherein the case originated had, it may render only such judgment as the trial court could or should have rendered. Pride v. State, 52 Ark. 502, 13 S.W. 135; Price v. Madison County Bank, 90 Ark. 195, 118 S.W. 706; Markham v. Evans, supra; Carter Special School District v. Hollis Special School District, supra; Baughman v. Overton, 183 Ark. 561, 37 S.W. 2d 81; Wright v. Wooldridge, 94 Ark. 276, 126 S.W. 841; Woolverton v. Freeman, 77 Ark. 234, 91 S.W. 190. See also 4 C.J.S. 159, Appeal and Error, § 41. This court has no jurisdiction to do anything except dismiss this case for want of jurisdiction.

While I academically agree with the majority that appellees have a complete and adequate remedy by appeal as provided by Amendment 35, I do not agree, even academically, that the review is of the nature suggested in the majority opinion. The very language of the constitutional amendment contradicts the construction . of the majority opinion. It says that a commissioner may be removed “after a hearing which may be reviewed by the chancery court * * * with right of appeal therefrom to the supreme court, such review and appeal to be without presumption in favor of any finding by the governor or the trial court.” It is not the removal which is to be reviewed, it is the hearing. This cannot mean that a trial de novo such as is specifically provided by statute on appeals to circuit courts is indicated. See, e.g., Ark. Stat. Ann. § 26-1308 (Repl. 1962). On those appeals, there is no review, and the hearing in the inferior tribunal is not even considered. The statute provides that the circuit court shall hear, try and determine the cause on its merits. No such provision appears in Amendment 35. A review of a hearing, on the other hand, certainty should not involve any more than the type of review given here on appeals from chancery courts. I have been unable to find any instance where the “review” of any matter heard by any tribunal in Arkansas has been taken to encompass a complete new trial where evidence is heard anew and additional evidence accepted, unless a specific statute authorizes or requires this to be done.

In matters pertaining to legal proceedings, the word “review” means a judicial reexamination, as of the proceedings of a lower tribunal of any kind by a higher ("Webster’s New International Dictionary, Second and Third Editions). This matter was treated by the Supreme Judicial Court of Massachusetts in Swan v. Justices of Superior Court, 222 Mass. 542, 111 N.E. 386, 389 (1916), wherein it was held that a review of removals of license commissioners of a city indicated simply a reexamination of proceedings already mad. The court said:

“* * * ‘A review of the charges’ signifies in its broad sense an examination of the specifications of misconduct which constitute the cause or causes on which the hearing was had, to see if they are stated fairly, in a common sense way, though not necessarily with technical accuracy. A review of ‘the evidence submitted thereunder’ manifests a purpose that there shall be no new witnesses heard but simply that the evidence on which the mayor based his findings shall be re-examined. A review ‘of the findings’ imports an examination of the conclusions reached by the mayor both as to facts, law7, and the resultant decision.”

The majority has grasped the words “trial court” as the basis of the opinion that a complete new- -trial should be had in the chancery court. The effect of this holding is to relegate the hearing before the chief of the executive branch relating to the removal of a member of that branch to the status of a preliminary hearing such as is conducted before magistrates in felony cases. It ■would vest the real power of removal in the judicial branch of the government rather than the executive branch. I humbly submit that this was not the intention of the people of Arkansas in the adoption of this amendment.

It is obvious to me that the people intended that the power of removal in the governor be limited to the same causes as applied to other constitutional officers and that it be subject to review in order to prevent arbitrary or capricious action. It is also obvious to me that the people intended to avoid the cumbersome, expensive and generally unsatisfactory impeachment processes by the legislative branch. But it is also clear to me that it was never intended by anyone that the real power of removal be vested in the chancery court of the first district subject only to a trial de novo on appeal, as in other chancery cases.

While I do not think the question was ever properly reach'd here, I felt compelled to express my present feelings with regard to the proper construction of the constitutional amendment with reference to the subject of review. Viewed in a concrete factual situation, rather than in the abstract, with the question presented through advocacy, I might come to a different conclusion. I dare say that the same might be said as appropriately of my brethren of the majority.

I would reverse and dismiss.


author: Conley Byrd, Justice. J. Fred Jones, Justice.

text:
    Don H. McClellan v. James H. French
    5-4776
    439 S.W. 2d 813
    Opinion Delivered April 21, 1969

      Howell, Price & Worsham for appellant.

      Smith, Williams, Friday & Bowen by W. A. Eklredge, Jr., for appellee.
   Conley Byrd, Justice.

Appellant Don H. Me Cien - lan appeals from a jury verdict finding that appellee Dr. James H. French was not guilty of malpractice in his treatment of McClellan’s perirectal wound. For reversal of the judgment, McClellan relies upon the following points:

1. The Court erred in permitting Dr. Buchman to give his opinion as to whether Dr. French was guilty of malpractice.

2. The Court erred in permitting defendant to propound hypothetical questions based on assumed facts which were not in evidence.

The record shows that McClellan suffered his perirectal wound at Lake Ouachita while skiing. He was taken by friends to a hospital in Hot Springs where he was referred to Hr. French. Hr. French observed the wound, cleansed it but did not suture it at that time. McClellan whited in Hr. French’s waiting room for his friends who had returned to Lake Ouachita to pick up a boat and trailer. While waiting, McClellan began bleeding, the blood flowing down his leg and off the chair onto the floor. He was returned to Hr. French’s operating table where his wound was again examined. This time Hr. French sutured the wound and placed McClellan in a Hot Springs hospital for observation. McClellan was released from the hospital the next day. He states that he was released in the afternoon. Hr. French contends that he was released during the morning. Subsequent to McClellan’s release from the Hot Springs hospital, he was seen by Hr. Laurens sometime between 4:00 and 5:00 and placed in a Little Rock hospital. The allegations in the complaint were as follows:

‘ ‘ That said defendant did negligently and carelessly fail to apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the practice of medicine in the locality in which he practices or in a similar locality in diagnosing and treating him; that as a result of such negligence and carelessness on the part of the defendant a piece of rotten, contaminated and jagged wood remained in plaintiff’s peritoneal cavity causing peritonitis, infection and putrification, requiring an exploratory laparotomy as well as a colostomy, causing great conscious pain and suffering and permanent partial disability.”

• POINT 1. One of tlie pivotal, issues concerning the alleged malpractice of Dr. French was whether he should have packed the would open to permit drainage as testified to by Dr. Laurens or whether it should have been sutured as testified to b3r Dr. French. To support his position that that was the standard medical procedure, Dr. French called Dr. Joseph Buchman who testified as follows:

Q. Is bleeding dangerous to the patient?
A. Certainly is.
Q. Should be controlled?
A. It has to be controlled.
Q. Then I take it, doctor, in your opinion Dr. French was not guilty of malpractice in suturing'?
mil price:
Your Honor, this is a question ...
the court;...
THE WITNESS:
A. That is standard medical procedure in this eommunit3r to suture a bleeding wound.
Q. In your opinion Dr. French was not guilty of malpractice in suturing this wound?
A. He was not.

McClellan argues that Dr. Buchmau should not have been permitted to testify as to whether it was “malpractice” since this was the ultimate question for the jury. He cites as authority Johnston v. Order of United Commercial Travelers, 182 Ark. 964, 33 S.W. 2d 375 (1930). During oral argument counsel cited other authorities such as Hoener v. Koch, 84 Ill. 408 (1877).

In the Johnston case the issue was whether Sam C. Johnston had committed suicide. In holding that it was prejudicial error for a doctor to express an opinion that Johnston died as a result of suicide, we said:

“Opposing counsel have briefed the question of the admissibility of an expert opinion that the death in question resulted from wounds self-inflicted with suicidal intent, and there appears to be several authorities holding such testimony competent. Miller v. State, 9 Okla. Or. 255, 131 Pac. 717, L.R.A. 1915A, 1088. We think, however, that the better rule excludes this expert testimony. This is the point in issue, the decisive fact in the case, the question which the jury was impaneled to decide, and is an inference which one person might draw as well as another. Of course, the trained physician and surgeon might know the depth and character and consequences of cuts and wounds and the manner in which they might have been inflicted, which the lay witness might not have, and testimony of this character may be given by the expert, but, when it has been given, the jury, and not the witness, should say with what intent the wounds were inflicted.”

In the Hoener case, the Supreme Court of Illinois held that it was proper for an expert to give his opinion as to whether or not the treatment the plaintiff received was proper, but that it was error for him to give his opinion as to whether, from all the evidence in the case, the doctor was guilty of malpractice.

However, in the case of Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S.W. 16 (1927), we said:

“Appellant’s next contention for a reversal of the judgment is that the trial court erred in allowing appellee’s witnesses, Doctors Ruff and Hill, to state that certain alleged facts constituted negligence on the part of appellants. They were permitted to testify that it would be negligence for an X-ray technician or practitioner to turn an X-ray of 4 milliamperes voltage on a patient for twenty or thirty minutes while absent from the room. The purpose for introducing expert testimony is to get the judgment or conclusion of the witness based upon facts assumed to be true. Expert witnesses could not answer a hypothetical question otherwise than by expressing an opinion or announcing a conclusion. We can see no difference in saying that certain acts or omissions constitute negligence in the treatment of a disease and saying that the acts hypothetically detailed show improper treatment. The court did not err in letting the two expert witnesses testify that, in their opinion, it constituted negligence for appellant to turn an X-ray on appellee of the voltage described for twenty or thirty minutes during the absence of the operator of the machine from the room. This court stated in the case of Durfee v. Dorr, 131 Ark. 376, 190 S.W. 376:
“ ‘Objection is made by appellant also to the action of the court in permitting practicing physicians, who qualified as experts, to testify as to the character of attention a patient should receive in a hospital. We think this evidence was competent, as it related to a subject upon which the average juror would have no information or experience upon which he would be in position to formulate an intelligent conclusion unless he based his conclusion upon the opinion of one qualified to speak as an expert.’ ”

"\Ye find nothing in the Johnston case contrary to our holding in the Headstream case. The difference between the two cases is this — in determining whether one committed suicide there is involved an element of intent, usually a matter of inference from the testimony which one person is as qualified to draw as another. On the other hand, in a malpractice case the testimony ordinarily relates to a subject upon which the average juror would have no information or experience and upon which he would not be in a position to formulate an intelligent conclusion unless he does it upon the testimony of one qualified to speak on the subject.

Since Dr. Buchman’s answer to the question of whether Dr. French was guilty of malpractice shows that Dr. Buchman used and understood the word malpractice in its connotation of ‘ ‘ standard medical procedure in the community”, we find no error in the use of the term malpractice.

POINT 2. ASSUMED FACTS.' One of the controversal issues in the trial of this case was the time when McClellan was discharged from the Hot Springs hospital — i.e., whether in the morning or in the afternoon. In coirtending that the trial court erred in permitting Dr. French to propound hypothetical questions based on assumed facts which were not in evidence, appellant relies upon Die following proceedings:

Q. How do you tell when a foreign object sets up an infection, doctor?
A. You simply have to watch the patient and see what happens.
Q. And this takes time?
A. Times time; yes, sir.
Q. This doesn’t happen in a matter overnight or a lew hours?
A. No, sir.
Q. All right, Dr. Buchman, assuming these same facts to he true as already asked you, let’s add the further, the further facts. I want you to assume in addition, doctor, that Mr. McClellan was not toxic nor did his wound reveal any evidence of infection at the time of his discharge from the hospital in Hot Springs. Assuming that he was discharged sometime during the morning of the day after his admission to the hospital at Hot Springs, I want you to further assume that a surgeon in Little Bock examined Mr. McClellan at around 4:00 to 5:00 o’clock that afternoon and that in this surgeon ’s opinion Mr. McClellan was toxic, and that his wound did reveal clinical evidence of infection at the time of the examination here in. Little Bock. Now, doctor, assuming all of these facts to he true, do you have an opinion as to how quickly a patient may become toxic, his symptoms may reveal he is toxic?
MR. HOWELL : NOW . . .
MR. ELDREDGE:
Q. I am not through, and how quickly a wound may reveal clinical evidence of infection from that point where it did not reveal clinical evidence of infection, just answer my question yes or no to give Mr. Howell a chance to make an objection, if you have an opinion.
A. Yes, I do.
MR. HOWELL;
Your Honor ...
THE COURT; . . .
MR. ELDREDGE;
Tliauk you, your Honor.
Q. Now, let’s see, doctor where were we. T asked you whether or not based on those assumed facts which have already been shown, or will be shown in evidence, whether or not...
the court:'
. . . May I interrupt you just once more, Mr. Eldredge, and I am not clear and I am certainly not trying to suggest to the jury what the facts are, it seems to me that you gentlemen by referring to some record that you have in — before you, could determine whether or not your question as to the patient’s discharge at Hot Springs was in the morning or afternoon. That could be clarified.
MR. ELDREDGE;
Your Honor, please, the test would be when Hr. French last examined the patient and assume, the, assumed fact urns he examined him in the morninrj before his discharge.
Tf it wasn’t I meant for it to be. 7 will a,mend m// question. [Emphasis ours].
the court;
All right.
MR. ELDREDGE;
Q. All right, doctor, here we go. Do you have an opinion as to how quickly a patient can be examined and he non-toxic to being examined and being toxic; can be examined as far as his wound is concerned and have no clinical evidence of infection and being examined and have clinical evidence of infection?
A. Well, that can all take place in a matter of hours, three, four, five, something like that; depends entirely on the bacteria and upon the post of the patient and some bacteria. grows much faster. You will have to remember that bacteria for the body multiplies 2, 4, 6, 8, 10. I mean 2, 4, 8, 16 aud 32. That’s the wajr they divide and they multiply very rapidly, if they are in any real good environment.”

Appellant contends that Dr. Buchman was erroneously permitted to assume that plaintiff was discharged in the morning and that the discharge of appellant from the hospital in the morning was not sustained by the record. We need not decide whether there is any evidence in the record to support the assumed fact that appellant was discharged from the hospital in the morning because as we read the record that assumed fact was changed to have the doctor assume that the man was examined by Dr. French in the morning. After the correction there was no further objection by appellant. In Wheeler, Adm’x. v. Delco Ben, 237 Ark. 55, 371 S.W. 2d 130 (1963), we said:

“While appellee’s counsel was propounding the hypothetical question appellant’s counsel objected, stating: ‘Mr. Lindsey says there is no evidence of contusion to the chest area and I beg to differ there is evidence.’ Thereupon appellee’s counsel stated: ‘Let me rephrase that and eliminate that...’ Since no objection was made to the hypothetical question when rephrased, we find no merit in this contention. We cannot consider an objection to a hypothetical question when raised for the first time on appeal.. ”

For the reasons indicated we find the judgment must be affirmed.

Jonhs, J., dissents.

J. Fred Jones, Justice.

I do not agree with the majority in this case. In the days when strychnine poisoning was diagnosed as “locked bowels” and treated by administration of additional strychnine in some localities, (Sneed v. State, 159 Ark. 65, 255 S.W. 895), perhaps medical doctors in a malpractice case were properly held only to that degree of skill and learning ordinarily possessed and used by members of the profession in good standing engaged in the practice of medicine in that locality. In those days of patent medicines and home remedies; when bleeding was stopped by witchcraft or the application of soot and cobweb, perhaps a medical expert was the only one competent to say what was, and what was not, medical malpractice.

It is my opinion in this day of nationwide Blue (Voss-Blue Shield, Medicare and sterile hospitals, and in this day of medical specialization and long internships, and closed circuit television, the same degree of skill and learning should apply in all localities and negligence in medical malpractice cases should in nowise be measured by the medical practice in the particular community where the doctor practices. In this enlightened age, when the importance of sanitation is a matter of common knowledge and the results of contamination in a closed or open wound are well known, it should not require the conclusion of a medical expert for a jury to determine whether a particular procedure in probing, cleansing, disinfecting, suturing and treating a wound, constitutes malpractice.

Dr. Buchman was permitted to testify that Dr. French was not guilty of malpractice in suturing this wound. (Emphasis supplied.) Under the majority opinion, a jury was not necessary in this case at all. Dr. Buchman was permitted to give the answer the jury was empaneled to find. If Dr. Buchman had found malpractice, a jury would have only been necessary in fixing damage, if any.

The evidence is undisputed that the appellant sustained a deep and severe puncture wound by falling or sinking down onto a sharp underwater object. The evidence is undisputed that the wound was more than a finger length in depth and actually extended into the peritoneal cavity. The evidence is undisputed that upon a second examination of the wound by Dr. French, the wound was closed with sutures sufficient to stop bleeding, and although the appellant was hospitalized by Dr. French, the full depth of the wound was never probed or ascertained and a half inch piece of wood was left deep within the wound. If we can logically assume that Dr. French obtained a history of how and where the injury occurred, then common sense would dictate the probability that the offending instrument was a highly contaminated wooden object, and that a residue from that object would be left in the wound.

It is my opinion that it was for the jury to say, under proper instructions, whether the suturing of this wound constituted malpractice under all of the evidence in this case. I would reverse and remand for a new trial.

      The propriety of limiting medical standards to a particular community is not an issue in this case.


author: Conley .Byrd, Justice.

text:
    Turkey Express, Inc. v. Skelton Motor Co., Inc, et al
    5-4902
    439 S.W. 2d 923
    Opinion Delivered April 21, 1969
    [Rehearing denied May 26, 1969.]

      James O. Burnett for appellant.

      Wade McAllister (for appellee Phipps d/b/a Lawrence’s Garage) and Crouch, Blair, Cypert & Waters (for appellee Skelton Motors).
   Conley .Byrd, Justice.

Appellant Turkey Express, Inc. sued appellees Skelton Motor Co., Inc. and Lawrence K. Phipps d/b/a Lawrence’s Garage in tort for damages to appellant’s truck and trailer and the turkeys thereon as a result of appellees ’ alleged negligence in connection with removal of appellant’s truck and trailer from a ditch near Jane, Missouri. The jury, which has been instructed on the contributory negligence law of Missouri, found the issues in favor of appellees. For reversal, appellant relies on the following points:

1. The trial court erred in applying to this litigation the conflict of laws rule of Lex Loci Delicti, or the law of the place of harm. . .

2. The trial court erred in not sustaining the appellant’s objection that only the law of Arkansas should be applied in this case.

The appellees contend that appellant is not entitled to prevail here because it obtained no ruling of the trial court oil tlie issues now raised nor made any objections to the instructions submitted to the jury.

The record shows that pursuant to the Uniform Interstate and International Procedure Act, Ark. Stat. Ann. § 27-2504 (Supp. 1967), Skelton Motor Co., Inc. gave notice of its intent to apply the contributory negligence law of Missouri. Thereafter, appellant filed an instrument called a “reply” as follows:

“Comes now the plaintiff, Turkey Express, Inc., and in reply to the motion of Skelton Motor Company, Inc. that the law of the State of Missouri should be applied in the above-styled cause, the plaintiff states as follows, to-wit:
(1) That only the law of the State of Arkansas should be applied in this case.
(2) That the law of Contributory Negligence, specifically Ark. Stat. Ann. §27-1730.1 and § 27-1730.2, is procedural and therefore the law of the forum should be applied.
(3) That all of the parties to this lawsuit are residents of the State of Arkansas and all of the contacts of facts and issues are with the State of Arkansas. ’'

When this matter came on for trial the testimony was taken and the jury was instructed with reference to the law of contributory negligence without objection by appellant and without appellant ever having sought a ruling on its “reply” set out above.

By this appeal appellant asks us to review the lex loci delicti rule applied for many years in transitory tort actions. It argues that the law of the place which had the most significant contacts with the matter in dispute should be applied. See Leflar, Choice-Influencing Con sideration in Conflicts law, 41 N.Y.U.L. Rev. 267 (1966). However, we do not reacli appellant’s arguments because under our procedure, Ark. Stat. Ann. § 27-1762 and § 27-2154 (Repl. 1962), we will not review an alleged erroneous ruling or order unless a party makes known to the trial court the action which he desires the court to take or his objections to the action of the court and his grounds therefor. Here the record fails to show that appellant requested any such ruling or made any objections to the instructions submitting the issue of contributory negligence. For this reason we affirm the action of the trial court.

Affirmed.


author: Prank Holt, Justice.

text:
    Charles Skinner v. Melvin E. Mayfield, Judge
    5-4848
    439 S.W. 2d 651
    Opinion Delivered April 21, 1969

      Brown, Complon, Prewett & Dickens for petitioner.

      Shackleford. & Shackleford for respondent.
   Prank Holt, Justice.

This controversy results from an annexation dispute. In this original proceeding the petitioner seeks a writ of prohibition to restrain the respondent from entertaining appeals by certain citizens and taxpayers from a county court order which granted the annexation of a contiguous territory to the City of El Dorado.

The city’s petition for the annexation, based upon prior approval of the qualified voters, was filed in the Union- County Court on December 19, 1967. The first order for annexation by the county court was made on January 29, 1968. On April 19, 3968, the county court rendered a nunc pro tunc amendment to that order for annexation. This corrected an erroneous description and excluded a small strip of land owned by the petitioner. The objecting taxpayers first filed an affidavit for appeal as aggrieved parties on May 15, 1968, from the April nunc pro tunc order. Then, on June 10, the taxpayers filed an affidavit for appeal as aggrieved parties from the January order for annexation. Both appeals were granted by'the Union County Court to the circuit court by orders dated May 15 and June 10, 3968, respectively. The respondent, Union Circuit Court, Second Division, consolidated the appeals and denied petitioner’s motion to dismiss the appeals and strike the affidavits for appeals. Also denied was a similar motion by the City of El Dorado. Tire petitioner asserts that unless the respondent circuit court is prohibited and restrained, it will entertain both appeals from the county court’s order which annexed the contiguous territory to the City of El Dorado. The petitioner contends that neither appeal was timely filed because the appeals failed to comply with the thirty-day requirement as provided in Ark. Stat. Ann. § 19-307 (Eepl. 1968). It is also petitioner’s position that the nnnc pro tunc order did not extend the thirty-day period and cites Richardson v. Sallee, 207 Ark. 915, 183 S.W. 2d 508 (1944) to that effect.

It is the taxpayers’ (appellants from the county court order) position that both appeals were timely filed and that the county court’s annexation order should be reversed and made to include the small strip of land which was excluded. They rely upon Ark. Stat. Ann. § 27-2001 (Supp. 1967) which provides that appeals are granted as a matter of right to the circuit court from all final orders or judgments of the county court at any time within six months. See, also Pike v. City of Stuttgart, 200 Ark. 1010, 142 S.W. 2d 233 (1940); Jones v. Coffin, 96 Ark. 332, 131 S.W. 873 (1910). It is argued that this particular statute is applicable in the case at bar because their appeals are not complaints to prevent annexation. To the contrary, the purpose of their appeals is to affirm the annexation of the entire contiguous area which, therefore, would include petitioner’s lands.

It is, of course, settled law in our state that when a trial court is proceeding in a matter where it is entirely without jurisdiction, then the supreme court, in the exercise of its supervisory control, has the authority to prevent the unauthorized proceeding by the issuance of a writ of prohibition. Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 229 S.W. 59 (1920); Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S.W. 2d 358 (1938). It is, however, a well established rule that the extraordinary writ of prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction unless the tribunal is wholly without jurisdiction or is threatening to act in excess of its jurisdiction. Bassett v. Bourland, 175 Ark. 271, 299 S.W. 14 (1927). A writ of prohibition will not lie where the jurisdiction of the trial court depends upon a question of fact. Coley v. Amsler, Judge on Exchange, 226 Ark. 492, 290 S.W. 2d 840 (1956).

In the case at bar we are unable to determine from the meager transcript whether the litigants who appealed to the circuit court really had a grievance that could be presented by an appeal rather than by a separate complaint filed originally Avithin thirty days, in the circuit court. Therefore, we are unable to say that the circuit court is without jurisdiction. Writ denied.

Byrd, J., concurs.


author: John A. Fogleman, Justice.

text:
    J. R. Shepherd v. State of Arkansas
    5-5392
    439 S.W. 2d 627
    Substituted Opinion on Rehearing Delivered April 21, 1969
    [Original opinion delivered February 17, 1969, p. 159.]

      Harry Robinson and Harold Hall-for appellant.

      Joe Purcell, Atty. Gren.; Don Langston, Asst. Atty. Gren., for appellee.
   John A. Fogleman, Justice.

In its petition for rehearing the state admits that the evidence in this case was insufficient to support a conviction. The basis of this confession is the fact that under the evidence, appellant was not shown to have operated as a broker-dealer in violation of Ark. Stat. Ann. § 67-1237. There is no evidence that appellant acted or purported to act as a broker-dealer in this isolated transaction. A broker-dealer is one engaged in the business of effecting transactions in securities, according to the definition in Ark. Stat. Ann. $ 67-1247.

For the same reason appellant could not be guilty of the sale of an unregistered security in violation of Ark. Stat. Ann. ^ 67-1241. Regardless of whether the sale of an interest in an oil and gas lease by the owner constitutes a security in the sense of that section and the definition given in § 67-1247(1), this sale is exempted Prom the operation of the act by § 67-1248(b) (1), as an isolated non-issuer transaction. With respect to certificates of interest or participation in oil, gas, or mining titles or leases, or in payments out of production out of such titles or leases, there is not considered to be any issuer. Section 67-1247(g).

Thus regardless of whether an oil and gas lease is a security under the Arkansas Securities Act, the conviction in this case must be reversed and the charge dismissed.

The opinion delivered February 17, 1969, in this case is withdrawn and this opinion substituted. The judgment is reversed and the cause dismissed.