text:
    Haynes v. Strange.
    5-2161
    337 S. W. 2d 661
    Opinion delivered June 6, 1960.
    [Rehearing denied September 12, 1960]

      Arnold •& Hamilton, for appellant.

      Robert B. Gibson, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Nannie Strange, filed this suit to quiet title to 80 acres of land. From a decree in her favor appellants have appealed. George Strange, deceased husband of appellee, bought the property in 1928 and occupied it as his homestead until his death in 1936, when he died intestate, leaving surviving him his widow and seven children, five of whom were of age. Shortly after his death Mrs. Strange, the appellee, notified the five children who were of age that she was claiming ownership of the land, and gave the minor children the same notice when they became of age, which was more than seven years before the commencement of this suit in 1957. Four of the heirs, for the consideration of $500 each, conveyed their interest in the remainder to appellants, Leroy Haynes and Belle Haynes. The issue is whether Mrs. Strange has acquired the fee title in the property by adverse possession, or whether she owns only dower and homestead rights.

In her complaint Mrs. Strange alleges that her husband bought the property in 1928. She makes no claim to having been one of the purchasers. The complaint alleges: ‘ ‘ That in approximately the month of February, 1928, her husband, George O. Strange, purchased and obtained a deed to the following property, to-wit: . . .” Mrs. Strange bases her claim of ownership solely on adverse possession. The complaint alleges in that respect: “That since the death of the said husband and father, on December 15, 1936, the widow and petitioner, Nannie Strange, has exercised exclusive, open, notorious, actual, adverse, possession of the aforementioned property as against the world and the defendants named in the style of the case and the individuals named in the body of the petition, and is now in actual possession of said property, and has disavowed and has not recognized the claim or interest of the named individuals or any other persons as to the property since the death of George O. Strange.”

Upon the death of her husband, Mrs. Strange acquired by operation of law dower and homestead interest in the property. Before she could acquire the fee by adverse possession, she would have to renounce the rights of dower and homestead in an unequivocal manner. This she failed to do. She merely told the children that she was claiming to be the owner of the property, but she did not say she was renouncing her dower and homestead rights. In Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002, this Court said: “The testimony adduced upon the trial of the case proved that Rachel Watson retained possession of the land after the death of Steve Watson solely by reason of the fact that she was his widow. Her claim to the land was derived from Steve Watson, and was in recognition of his right and title thereto. Her claim was therefore in recognition also of the interest of the heir of Steve Watson, if he had an heir. In its inception her claim of possession of the land was not hostile to the right or interest of the heir of Steve Watson, but was perfectly consistent and in conformity with such right and interest. It is true that her claim and possession might have been of such a nature as to amount to an entire disseizin of the heir and an entire denial of his rights, so as to result in an acquisition of title by adverse possession; but, before her possession could become adverse, it was necessary for her to first repudiate the title of Steve Watson and to disavow any claim thereto as his widow; and it was also essential that notice of such disavowal by her of title as widow should be brought home to the heir. If Rachel Watson acquired possession of the land as widow of Steve Watson, and therefore in conformity with the right and interest of his heir and not in opposition to such interest, then, in order to constitute possession that would be adverse, it was incumbent upon appellee to prove that she disclaimed title in Steve Watson, under whom she acquired the possession, and that she claimed actual possession thereof hostile to that title and to the heir, of which he had notice; or that her disclaimer and hostile possession was so open and notorious as to raise the presumption of notice to him.” (Emphasis supplied.)

In Restatement — Law of Property — § 222, comment (f), it is said: “Owner of present interest as adverse possessor against owner of future interest. In cases within the rule stated in this Section, since the owner of the present estate is entitled to possession and the owner of the future estate is not, no adverse possession by the former against the latter is possible until the future interest becomes a present interest. It is immaterial that the present owner claims a larger interest under color of title, or informs the future owner that he claims an estate in fee simple absolute, or does both.”

Here Mrs. Strange had the right of possession by reason of her dower and homestead interest, and even though it be conceded that she announced to the world that she was claiming the fee ownership in the property, from a practical standpoint there was nothing the remaindermen could do, since she had not repudiated her interest growing out of dower and homestead. And, furthermore, if she had repudiated such interest at that time, she would have had no interest in the property at all, because she did not begin claiming adversely until shortly after the death of her husband, and of course it would take seven years for her claim to ripen into ownership. The evidence is not sufficient to show that she repudiated or renounced her dower and homestead rights, and therefore she could not claim adversely to the remaindermen.

Reversed, with directions to dismiss the complaint.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Powell v. State.
    4972
    335 S. W. 2d 816
    Opinion delivered June 6, 1960.

      Clifton Bond, for appellant.

      Bruce Bennett, Atty. General by Thorp Thomas, Asst. Atty. General, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a conviction for the violation of Liquor laws.

On October 7, 1958, appellant, John Powell, was arrested for the offenses of Possession of Intoxicating Liquors over the legal limit in a dry territory, and, Possession of Intoxicating Liquors for Sale without a license, alleged to have been committed on October 4, 1958. This appellant was tried before the Municipal Court of Monticello on October 9, 1958. The appellant pleaded not guilty and upon a hearing before the Monticello Municipal Court appellant was found guilty of the offense of Possession of Intoxicating Liquors over the legal limit in a dry territory and fined $250, and was found guilty of the offense of Possession of Intoxicating Liquors for sale without a license and fined $250, or, was fined a total of $500 and costs, and was sentenced to one (1) year on the County Farm, with the sentence of imprisonment being upheld on good behavior.

The appellant appealed this decision to the Circuit Court of Drew County and a trial was had before a jury on September 30, 1959. The officers who made the arrest related in their testimony that at about 1:30 p.m. on October 4,1958, the officers went to appellant’s house located on State Highway 4, east of Monticello and outside the city limits, and that on arriving at the house two of the officers met appellant coming up the path to the house from an outside privy with 4 half pints of whiskey in his pockets and hands. These 4 half pints of whiskey were taken into possession by the officers and either one or both of the officers entered appellant’s house to search for more whiskey while one of the officers out of the three officers present began to search the premises outside the house.

In a dresser drawer inside the house the officers found 12 additional half pints of whiskey which with the 4 half pints taken from appellant equalled exactly one (1) gallon, the legal limit for possession in a dry territory. The officers thoroughly searched appellant’s house and premises and found one gallon of whiskey upon property belonging to the appellant.

The officers then searched the Municipal Airport property belonging to the City of Monticello which is adjacent to the home of appellant and in two caches found approximately 35 or 40 half pints of whiskey of various brands on the Municipal Airport property.

The record reveals that this case was first tried before a jury in the Circuit Court of Drew County on April 21, 1959. The jury after deliberating 2 hours and 35 .minutes was deadlocked 7 to 5 and a mistrial was declared. The case was tried before another jury in the Circuit Court of Drew County on September 30,1959, and tbe jury deliberated approximately 35 minutes when they were released for tbe night. The next morning the jury deliberated approximately 1 hour and returned a verdict of guilty and assessed the minimum fines of $50 for the offense of Possessing Intoxicating Liquors over the legal limit in a dry territory and of $100 for the offense of Possessing Intoxicating Liquors for Sale without a license, or a total fine of $150. This appeal followed.

This being a misdemeanor case, the appellant is required to argue all the points on which he relies. All assignments not argued in his brief are waived. Fields v. State, 219 Ark. 373, 242 S. W. 2d 639. For reversal appellant relies upon and argues eight points, one of which contends that it was error for the trial court to allow the Judge of the Monticello Municipal Court to testify upon the trial in the Circuit Court since the appellant was tried by this witness in the Municipal Court and found guilty. This point gave us a great deal of concern; but the issue need not be decided as the appellant failed to properly save his exceptions. As was said by this Court in Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702: “Appellant, in the instant case, has not been convicted of a capital offense. We are not permitted, therefore, to review alleged errors to which no exceptions have been saved.” Thus, this point not being property before the Court, we can find no error. Six of the other points were found to be without merit and will not here be discussed.

Appellant earnestly contends in his remaining point that:

“It was error for the trial court to allow the prosecuting attorney to attempt to impeach the credibility of the defendant by independent testimony as to matters brought out by the prosecuting attorney on his own cross examination. ’ ’

The prosecuting attorney in an effort to impeach the testimony of the defendant and to question the credibility of his testimony cross examined the defendant extensively concerning a second conviction of the defendant for a violation of the liquor laws in 1951 and questioned the defendant on cross examination as follows:

“By Mr. Linder: I want to ask you this question, Mr. Powell, I want to know if this second conviction is the time the man drove up in his car and you were sitting under a tree and he hollered, ‘Bring me some Early Times’, and you said, ‘I don’t have that I have Sunny Brook’.
“A. That is not what was said. He drove in and said Doctor Pepper and I knew what he was saying. I had seen him hide it the day before and I brought it on to him about that time I saw Youngblood.”

The prosecuting attorney introduced two witnesses in rebuttal, Sheriff Jack Towler and Mr. Dallas Youngblood, to contradict this testimony of the defendant brought out by the prosecuting attorney on cross examination.

This Court has repeatedly held that when a witness-is cross examined on a matter collateral to the issue,, he cannot, as to his answer, be subsequently contradicted by the party asking the question. Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473 (1956); Brock v. State, 101 Ark. 147, 141 S. W. 756 (1911); Abbott v. Herron, 90 Ark. 206, 118 S. W. 708 (1909); Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 (1908). See also: Spence v. State, 184 Ark. 139, 40 S. W. 2d 986 (1931); Terrell v. State, 176 Ark. 1206, 2 S. W. 2d 87 (1938).

It was held in McAlister v. State, 99 Ark. 604, 139 S. W. 684 (1911), that while it is proper to permit a witness to be asked as to specific acts affecting his credibility, yet if such matters are collateral to the issues, he cannot, as to his answer, be subsequently contradicted by the party putting the question, and where the State, to impeach a witness asked him concerning a collateral matter, and was then permitted to contradict his answer, this constituted prejudicial error. Following this well settled rule of law, we have no choice but to find that the trial court in allowing the -testimony of Sheriff Jack Tower and Mr. Dallas Youngblood in rebuttal to be introduced in evidence to contradict testimony brought out by the prosecuting attorney on cross examination committed reversible error.

For the error indicated the judgment is reversed and the cause is remanded for a new trial.


text:
    Price v. Edmonds.
    5-2074
    337 S. W. 2d 658
    Opinion delivered June 6, 1960.
    [Rehearing denied September 12, 1960]

      W. H. Dillahunty, Hale and Fogleman, for appellant.

      Fletcher Long, for appellee.
   Jim Johnson, Associate Justice.

This is an action brought by appellee as a citizen and taxpayer of the City of West Memphis against the mayor, treasurer, and aldermen of said city, alleging that the mayor and aider-men are making and executing contracts on behalf of the City of West Memphis with and for the financial benefit of themselves personally in violation of law. The allegations regarding the treasurer are to the effect that he has made expenditures for such contracts as a part of his duties as treasurer. Appellee asks that appellants he enjoined permanently from continuing such actions and that the appellants be required to repay the City all tax revenues so unlawfully expended.

A temporary injunction was entered by the trial court restraining such practices. Upon a full hearing and in an extremely penetrating memorandum opinion, the Chancellor made the temporary injunction permanent and denied the second request, that of requiring appellants to repay the tax funds so expended. Appellants have appealed that part of the order making the injunction permanent.

For reversal, appellants argue first that the court erred in overruling their motion to make appellee’s petition more definite and certain.

This case was originally filed on March 24, 1959. A hearing was held on April 3, 1959, to determine whether a temporary restraining order should be issued. Appellants were present, both in person and by counsel. Based on the testimony of four witnesses the temporary restraining order was issued. Some 30 days following this hearing the appellants’ motion to make more definite and certain was filed. The record of the testimony taken at the hearing details the allegations contained in the complaint. The purpose in granting a motion to make more definite and certain is to inform the parties of the facts upon which the alleged claim is based so as to enable them to prepare a defense. See: Wassell v. Sprick, 208 Ark. 243, 185 S. W. 2d 939; Gunter v. Fletcher, 217 Ark. 800, 233 S. W. 2d 242; Spikes v. Hibbard, 225 Ark. 939, 286 S. W. 2d 477; Ark. Stats. § 27-1160.

Without question, at the time the motion was filed appellants were sufficiently advised of the allegations made in the complaint in order to prepare a defense, and the court was not in error by denying their motion to make more definite and certain. The remainder of appellants’ argument for reversal is based on Ark. Stats. § 19-909, the pertinent language of which is as follows:

“No alderman or member of any council, which, during the term for which he shall have been elected, or one (1) year thereafter ... be interested, directly or indirectly, in the profits of any contract or job, for work or services to be performed for the corporation.”

Appellants’ basic premise is that this statute does not prohibit them from entering into contracts with themselves on behalf of the City for the purchase of “materials”, and in fact, by the enactment of this statute the legislature has made an expression of public policy to this effect.

The record reflects that the appellants have engaged in the practices complained of for some time. The quite candid words of the Chancellor’s opinion in this regard are more appropriate:

“It has been the position and attitude of the respondents in their pleadings, briefs, and oral arguments throughout this proceeding that expenditure of tax funds belonging to the people of West Memphis by the mayor and city council under contracts of various kinds either with themselves or with companies and enterprises in which they have a beneficial interest — for the specific purpose and with the express intent to create a financial profit to said mayor and councilmen — is not in violation of any law existing in Arkansas. Moreover, from all of the proceedings that have taken place in the progress of this cause of action the conclusion on the part of the court is inescapable that the respondents hold a firm and abiding conviction that even if their practices aforesaid should be found to be in violation of the law they are nevertheless good for the City of West Memphis. The implication in the position and attitude of the respondents stands out in bold relief that this court should ignore any laws that seem to get in the way and defer to the good judgment of the officials concerned.
“Petitioner’s allegation that the mayor and city Council were spending the tax money of the people of West Memphis under contracts which they as public officials made with themselves as private individuals with the purpose and intent to make a financial profit for themselves was admitted by each and every witness which the court now recalls. It is clear beyond the peradventure of a doubt that such practices constituted a continual, consistent, planned course of handling the peoples’ money. Not a single official denied these facts. .

It is well settled that the common law rule prohibited municipal officers from self-dealing in regard to the sale of materials as well as in contracts or jobs for work or services. 10 McQuillin, Municipal Corporations, § 29.97 et seq. See also: Warren v. Wheatley, 231 Ark. 707, 331 S. W. 2d 843. But counsel for appellants urge the common law rule is no longer in effect by passage of the act pertaining only to work and services. It is their argument that since the lawmakers have seen fit to legislate on the subject and by the above enactment have put restraint only on the performance of work or services, this must be accepted as abrogating the common law rule pertaining to all other contracts between a municipality and its officers. This position is untenable. Appellants rely on the maxim expressio unius est exclusion alterius. True, contracts for materials are not prohibited by the statute but there can here be no reason for invoking a maxim to give validity to a contract void at common law as against public policy simply because it does not fall within the prohibitions of the statute. As we have said, both contracts for services and contracts of sale were prohibited at common law. The legislature has done nothing more than emphasize the prohibition relating to services. It would be absurd to give effect to the statute as evidencing a change of view respecting public policy and as a declaration that all contracts heretofore within the prohibition of common law are now legal, save those directly dealt with by the statute.

Appellants rely also on the holding in Frick v. Town of Brinkley, 61 Ark. 397, 33 S. W. 527. Without analyzing that opinion to determine whether it is inconsistent with the above language, we now hold that the law in respect to contracts for both materials and work and services is as set forth herein.

Affirmed.

Harris, C. J., and McFaddin, J., dissent in part.


text:
    Womack v. Brickell.
    5-2123
    337 S. W. 2d 655
    Opinion delivered June 6, 1960.
    [Rehearing denied September 26, 1960]

      Frank Sloan, Jack Segars, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Jim Johnson, Associate Justice.

This case involves claims for damages arising out of an automobile and tractor collision.

Appellees, J. B. Brickell and Broadway Packing Company, Inc., brought this action for damages for personal injuries sustained by Brickell while driving an automobile owned by the appellee company and for property damages to the automobile, respectively, in an accident occurring May 28, 1959, with a tractor owned by appellant Tom Womack and driven by appellant Foy Wisham.

Trial to a jury resulted in a verdict rendered upon special interrogatories finding appellants liable for damages as a result of concurring negligence with appellees and fixing the respective percentages of fault at 70% against appellants and 30% against appellees.

After the jury returned a special finding of total damages for personal injury in favor of appellee Brick-ell for $63.10, the court interrogated the jury as to whether they had allowed Brickell anything for pain and suffering, and upon being advised in the negative and being further told by the jury that only medical and hospital cost had been allowed, directed the jury to return a verdict for pain and suffering and ordered them to retire for further deliberation.

Upon returning the second verdict, the jury increased the figure for total damage for personal injuries to Brickell from $63.10 to $163.10.

Appellants objected to the interrogation of the jury when it returned its first verdict and to the direction that an allowance had to be made for pain and suffering as being an invasion of the province of the jury by the trial judge.

For reversal, appellants rely on three points. We find no merit in two of the points, therefore, only the above objection will be discussed in this opinion.

After the jury had returned its verdict into open court awarding appellee Brickell $63.10 for his total damages, instead of accepting the verdict, the court, over objection, inquired as to the basis of the finding and was told by a juror that the jury intended to return a verdict for hospital and medical cost and did not award anything at all for pain and suffering. Since no member of the jury dissented to this statement, it was equivalent to a special finding by the jury. See annotation: ‘ ‘ Propriety of court questioning jury as to meaning of their verdict, or for purpose of correcting it in matter of form. ’ ’ 164 A.L.R. 989, 993, Sec. II a, 1, d.

The court then told the jury, over specific objection that it was invading their province, that Brickell was entitled under the law to recover for physical pain and mental anguish and directed the jury to retire.

The jury then returned a different verdict allowing Brickell $163.10, whereupon the court discharged the jury.

After careful consideration, we cannot escape the conclusion that the action of the trial court in this respect was an invasion of the province of the jury requiring a reversal of this cause.

The Constitution of Arkansas, Art. 2, Sec. 7, provides :

“The right of trial by jury shall remain inviolate, ■ and shall extend to all cases at law . . .”

Ibid, Art. 7, Sec. 23, provides:

“Judges shall not charge juries with regard to matters of fact, but shall declare the law . . .”

In 89 C. J. S. 203, Sec. 517 c. (2), it is stated:

“As a general rule where the determination of the amount of recovery is exclusively within the province of the jury the court has no power to amend the verdict by increasing the amount found by the jury.” (Citing: 64 C. J., p. 1099, n. 29, which cites Rice & Holiman v. Henderson, 183 Ark. 355, 35 S. W. 2d 1016). Accord: 53 Am. Jur. 758, Sec. 1094.

In Beckley v. Miller, 96 Ark. 379, 131 S. W. 876, this Court held that the trial court exceeded its power in reducing a verdict rendered on evidence of plaintiff in the sum of $506.40 to $214, as shown by evidence offered for defendant. There it was said:

“The trial court may tell the jury in a proper case that there is no question of fact for it to determine, and may also set aside a verdict for errors committed by the jury and grant a new trial; but it can never substitute its judgment for that of the jury on a disputed question of fact. It is obvious that, if the trial court could do this, the verdict of the jury would have no binding force but would be persuasive merely as is the case of the verdict of a jury in a chancery court. The amount to be recovered by the plaintiff was a disputed question of fact, and it was the exclusive province of the jury to determine it . . .”

So, also, we have held that the trial court is without power to add to the verdict as in Rice & Holiman v. Henderson, supra, where the jury returned a verdict for a stated sum “with hospital and doctor’s bills to be paid by defendants” and there was no evidence as to the amount of the hospital bill.

As we view the case at bar, the only proper course to follow was as provided in Ark. Stats. Sec. 27-1738:

“The verdict shall be written, signed by the foreman and read by the court or clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again, but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.”

Of course, the testimony of appellee Brickell as to his personal injuries should not have been treated as uncontradicted because he was a party. Conway v. Hudspeth, 229 Ark. 735, 318 S. W. 2d 137; and, further, different inferences might have been drawn from both his testimony and the testimony of Ms physician, W. M. Douglas, introduced by stipulation. Brickell testified that he told Foy Wisham he didn’t tMnlc he was hurt and the physician reported: “Physical examination of the neck and adjacent areas revealed no significant findings except the subjective tenderness on motion of bis neck.”

Certainly “fair minded men may differ” about tbe inferences to be drawn as to pain and suffering, and might consistently say that there was no proof thereof convincing to their minds. The court was, therefore, not justified in peremptorily instructing the jury that Brick-ell was entitled to recover for physical pain and mental anguish and directing further deliberation. See: Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226; and Thiel v. Dove, 329 Ark. 601, 317 S. W. 2d 121.

From a careful review of the record it is apparent that the jury had, in effect, found that no pain and suffering had been endured by Brickell. Therefore, the judgment insofar as it pertains to appellee J. B. Brickell is reversed and the cause is remanded for a new trial. Regarding appellee Broadway Packing Co., Inc., the situation is entirely different. This case was submitted to the jury on separate interrogatories and separate findings were returned as to damages sustained by each appellee. That, in effect, amounted to the return of two separate verdicts. Therefore, the rule recognized in Wilson v. Davis, 230 Ark. 1013, 328 S. W. 2d 249 — that the verdict in a law case being an entirety could not be divided by affirming in part — does not here apply. The error here committed affected only the verdict or judgment in favor of appellee Brickell: there being no contention that error existed in the verdict or judgment in favor of appellee Broadway Packing Company, Inc., such judgment is affirmed.

Reversed in part. Affirmed in part.


author: Jim Johnson, Associate Justice. Paul Ward, Associate Justice,

text:
    Kirkham v. Malone.
    5-2128
    336 S. W. 2d 46
    Opinion delivered June 6, 1960.

      Earl J. Lane, for appellant.

      Jerry Witt and Wood, Ghesnutt & Smith, for appellee.
   Jim Johnson, Associate Justice.

Appellees, J. M. Malone and Gertrude Malone, his wife, instituted this action in the Chancery Court against appellants, William P. Kirkham and Ruby Kirkham, his wife, to set aside a deed because of failure of consideration. At the time of the conveyance, out of which this suit arises, appellant, William P. Kirkham, was married to appellees’ daughter, Carrie Belle Kirkham, who is now dead.

In 1955, appellant, William P. Kirkham, and his then wife, Carrie Belle Kirkham, who will be hereinafter referred to as the Kirkhams, were living in Hot Springs, Arkansas, where Mr. Kirkham worked as a clerk in one of the gambling houses or “bookie joints”, and the appellees lived in Texas. The appellees had in their custody and took care of Carrie Belle’s daughter by a former marriage. On December 30, 1955, earnest money in the sum of $500 was paid to the real estate agent, Mr. Franks, on the property here in question. This $500 was paid with $300 in cash furnished by Carrie Belle Kirk-ham and a $200 check drawn on appellees’ account in a Greenville, Texas, bank. On January 2, 1956, the transaction was closed out and a deed received wherein the balance of the consideration in the amount of $2,500 was paid in twenty-five one hundred dollar bills. The Kirk-hams and appellees were all present at the time of this transaction. On March 11, 1956, a baby was born to the Kirkhams and not long thereafter it was learned that Carrie Belle Kirkham had a cancer. On August 20,1957, the appellees executed a deed to the Kirkhams to the property wherein the consideration as recited is Ten Dollars and other good and valuable consideration. In December of 1957 Carrie Belle Kirkham died. This suit to set aside the deed made in August 1957 was filed on April 30, 1959, after appellant, "William P. Kirkham, had married appellant, Ruby Kirkham, and alleges that the true consideration for the August 1957 deed was the promise of the Kirkhams that they would modernize the house, all of which the said William P. Kirkham has failed to do. The appellants filed a general denial and from a decree entered after the hearing of testimony setting aside the deed, the appellants bring this appeal based upon the theory that appellees failed to establish the alleged failure of consideration by the necessary clear, satisfactory, cogent and convincing evidence.

At the outset it must be recognized that the law is firmly established that to justify the setting aside of a deed for failure of consideration, the evidence of such failure must be clear, cogent and convincing. See: Carnall v. Wilson, 14 Ark. 482; Rector v. Collins, 46 Ark. 167; McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Goerke v. Rodgers, 75 Ark. 72, 86 S. W. 837; McCracken v. McBee, 96 Ark. 251, 131 S. W. 2d 450; Adkins v. Hoskins, 176 Ark. 565, 3 S. W. 2d 322; Swim v. Brewster, 177 Ark. 1171, 9 S. W. 2d 560; Bell v. Castleberry, 96 Ark. 564, 132 S. W. 649; Polk v. Brown, 117 Ark. 321, 174 S. W. 562; Johnson v. McAdoo, 222 Ark. 914, 263 S. W. 2d 701. A careful review of the record fails to reveal any evidence that the deed in question was given in consideration of a promise by Kirk-ham to repair the house except the testimony of the plaintiffs, the Malones. Of course, they are interested parties and the courts are not bound to accept their testimony as true. Stovall v. Stovall, 228 Ark. 1077, 312 S. W. 2d 337; McDaniel v. Johnson, 225 Ark. 6, 278 S. W. 2d 657.

Some of the Malones’ relatives did testify that they had heard Kirkham say that he intended to repair the house, and Kirkham himself says he had such intentions, but the relatives of Malone did not say that Kirkham’s statement about intending to repair the house amounted to a promise or that such statement was given in consideration of a deed. As we view this entire matter on trial de novo, we are convinced that not only does the evidence produced by the Malones fail to make out a case by clear and convincing testimony, but it would be hard for us to say that they proved their case to any degree of satisfaction. Malone did not merely testify that he owned the property and conveyed it to the Kirkhams in consideration of an alleged promise to repair the premises, but at the very outset of his testimony Malone went into great detail as to how he acquired his alleged ownership of the property. He introduced the deed he received from Charles Dittman showing a consideration of $3,000. He went into all the details of how he had made a down payment of $300 in cash and the giving of a check for $200; that his daughter, Carrie Belle, let him have the $300 in cash to make the down payment and, further, while still testifying on direct examination, he tried to show where he got the balance of $2,500 used in making the purchase. The $2,500 was in one hundred dollar bills. He never explained where he got the one hundred dollar bills. He said he got the money from various sources — from the Government and from the sale of two farms, but he did not say such money was paid to him in one hundred dollar bills. He was asked on direct examination:

“Q. The money that you paid for that farm, except for the $300.00, was your money, is that correct?
‘ ‘ A. That’s right. ’ ’

He then stated that Carrie Belle gave him the $300. Malone was further asked on direct examination:

“Q. Mr. Malone, what was the consideration for that deed?
“A. Well, Bill Kirkham and his wife, Carrie Bell, wanted me to have-”

The sentence was not completed. He further stated that Kirkham’s alleged promise to improve the property was made after the property was deeded to Kirkham and his wife, hut later changed his testimony to say that the deed was made after the promise to repair. Furthermore, he testified that the repairs were to he done immediately after the deed was executed in August 1957. The suit was filed almost two years later after appellant had remarried and in the meantime it does not appear that the Malones made any demand on Kirkham to repair the house. Malone’s testimony on cross-examination, in explaining where he got the $2,500, is as follows:

‘ ‘ Q. Where did you get the twenty-five one-hundred dollar bills?
“A. Well, I sold the farm for part of it.
“Q. When did you sell the farm?
“A. Well, it’s been several years ago.
“Q. What did you get for the farm?
“A. Oh, I think I got about four or five thousand dollars for it.
“Q. In what year did you sell it?
“A. Well, I don’t remember.
“Q. You ought to be able to remember that, Mr. Malone.
“A. Well, I don’t though.
"Q. Was it ten years ago?
“A. No, I just don’t remember that well.
"Q. Well, you remember the amount of money, but you don’t remember the year you sold the farm?
"A. Well, I can remember the money.
“Q. Who did you sell it to then?
"A. I can’t even think of him.
‘ ‘ Q. You can think of the money, but you can’t think who you sold to? Are you sure you had a farm? What was the description of it, where was it located, in what County?
"A. About a mile or a mile and a half out of Whit-more.
"Q. What county is that?
"A. Well, I just can’t think of the name of the county.
"Q. You can’t think of the name of the County, and you can’t think of the name of the person you sold it to, and you don’t know the year you sold it. Now, who did you buy it from, then?
"A. I bought it from a man by the name of, he’s a land dealer there, I don’t believe I can recall his name.
"Q. You don’t know who you bought it from?
“A. Yes, I know who I bought it from, I can’t call his name, I forgot his name.
"Q. When did you buy it?
“A. Well, I thought I just told you I didn’t remember the exact time when I bought it.
"Q. And you saved the money all that time, and carried it around in your pocket?
"A. I didn’t say I carried it a hundred years or so, I said I had that money in my pocket, and I did, and every darn nickel of it was mine.”

On the other hand, Mrs. Malone testified that they sold the land near Whitmore in 1953, and that she had been carrying the money around with her in cash since that time. Mr. Malone had testified that he was the one who carried the money in his pocket. Mrs. Malone testified that she had no confidence in banks and that is the reason she didn’t have the money in the bank, but on the other hand she did give a check for $200 as a down payment on the place and the other $300 paid at that time she got from Kirkham’s wife, although she testified that at the time she had $3,000 in her purse in cash.

Kirkham testified that he is a professional gambler ; that he carries his money in his pocket, and when questioned on cross-examination with reference to this point he pulled out his roll and offered to let counsel for the Malones count it. He testified he let his wife have 25 one hundred dollar bills to let the Malones use in purchasing the property; that he and his wife were there at the time the property was purchased; that the deed was made to the Malones, but later at the insistence of his wife the Malones deeded the property to the Kirk-hams. He testified that he wanted to help the old people all he could; that he had no intention of taking the property away from them during their lifetime, and that in the beginning he did intend to have some repairs done on the house, but that his wife became sick with a cancer and that she was in a hospital for many months at great expense and died from the disease.

Regardless of Kirkham’s occupation, we cannot say that his testimony does not have the ring of truth; on the other hand, we are unable to say that the testimony of the Malones is so unreasonable as to be unworthy of belief. Consequently, herein lies the reason we must find that the Chancellor erred in setting aside the deed. The burden was on the appellees, as plaintiffs, to establish that the deed was given in consideration of appellants having the house repaired by clear, cogent and convincing evidence. See: Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517. This, they failed to do.

In onr body of law there have grown np a number of rules and principles governing the law of real estate which have become known as “Rules of Property.” While it may be argued that many of such rules are based upon technicalities, it is nevertheless true that these rules, and the technicalities upon which they are based, have come into existence and have been continued because of the ever present need for stability and predictability in this field of the law. Were this not the case then chaos soon would be the result and property values would diminish in direct relationship to the degree of instability existing in the law of this or any other state as it might be applied to real property. Consequently, economic and moral necessity have dictated the establishment of such rules and the technical basis of many of them. Thus it is that the maintaining of the integrity of such rules devolves upon this tribunal. The general welfare requires a continuation of the observance of such rules and may in special cases, as in the case at bar, be found to require a decision in accordance with these principles even though the Court may entertain great sympathy for individuals in a particular situation.

Since appellants in their prayer for relief ask that appellees be given a life estate in the property here involved, the case will be remanded for that purpose.

Reversed and remanded.

Holt, McFaddin, and Ward, JJ., dissent.

Paul Ward, Associate Justice,

dissenting. I am firmly convinced that the result reached by the majority is not in accord with equity or the law. As I understand that opinion it is based principally on two things: (1) that Kirkham, and not the appellees, paid the $2,500.00 in question to Charles Dittman and his wife, and (2) that the Chancellor’s finding is not supported by clear and convincing testimony. My reasons for dissenting could not be adequately expressed without reviewing the case in its entirety.

Pleadings. On April 30, 1959 appellees filed a verified complaint which in all material parts states: On August 20,1957 appellees were the owners of the 40 acres of land in question; on that date they executed a Warranty Deed conveying the land to William P. Kirkham and his wife (appellants herein); said deed recites a consideration of $10.00 and other good and valuable considerations; that said deed was executed in consideration and reliance upon the promise of appellants to remodel and modernize the house located on said land for the use and benefit of appellees during their lifetime; that appellants failed and refused to carry out said agreement and the deed should be cancelled for lack of consideration. The prayer was in accordance with the above Complaint stating “that they deny each and every allegation of the plaintiffs’ complaint.”

The Chancellor’s Findings. On the above joint issue there was a full and complete hearing before the Chancellor who made the following findings: (a) “ The plaintiffs, J. M. Malone and Gertrude Malone, paid the original purchase price of the land hereinafter described out of funds belonging to said plaintiffs with the exception of the sum of $300.00 provided by the plaintiffs’ daughter”; (b) the deed from the plaintiffs to Kirkham conveying subject land was executed in consideration and reliance upon the promise of Kirkham to remodel and modernize the house on said land for the use of plaintiffs during their lifetime; (c) the defendant, Kirkham has failed and refused to carry out the said agreement and the said deed should be can-celled for the lack of consideration and the title to said lands are vested in the plaintiffs.

For a reversal appellants contend it is not shown by clear, satisfactory, and convincing testimony that, in return for the deed to them, they agreed to modernize the house for appellees to occupy as long as they lived.

The testimony is substantially as hereinafter set out. Appellee J. M. Malone who was 73 years of age at the time of the trial testified that the deed was executed to Kirkham in consideration of Kirkham’s promise to modernize the house which he and his wife were to occupy for as long as they lived or either one of them lived.

“Q. What was he (Kirkham) supposed to do to make it a modern home ?
“A. Well, you might say a general overhaul inside and outside, put in a pump and bath.
‘ ‘ Q. What else was he to do ?
“A. W ell, he was just to improve the house and make it a perfect modern home, that’s what he said he would do.
“Q. What was the condition of the house when you moved in?
“A. Well, you could live in it, but it wasn’t too good.
‘‘Q. What did the outside walls consist of?
“A. It was boxes, stripped up.
“Q. What were the inside walls ?
“A. Just had paper on it.
"Q. Was there to be any change in the outside walls ?
“A. Yes.
‘ ‘ Q. What was he to do on that ?
‘ ‘ A. Shingle them.
£ ‘ Q. What was he to do on the interior of the house ?
“A. Well, he was to put cardboard, or whatever you call it, on the inside.
‘ ‘ Q. You mean sheetrock?
“A. Yes, sheetrock.
“Q. He was to install a bath?
“A. Yes.
"Q. When did he agree to do that?
“A. He said he was going to do it right away.
‘ ‘ Q. Was that agreement made before the deed was made?
“A. No, I believe it was after we made it — no, we made it before the deed was made.
“Q. Was that agreement of William Kirkham the reason you made the deed?
“A. That’s right, and no other reason.
“Q. Did Mr. Kirkham do anything to improve the property after he got the deed?
“A. He bought one small load of lumber.
* ‘ Q. Did he ever put a bath in the place ?
“A. He didn’t put anything in it.
‘ ‘ Q. Did he install the pump ?
“A. Nothing.
“Q. Did he put the sheetrock in ?
“A. Nothing.
“Q. Have you asked Mr. Kirkham to fix the house up?
“A. I could never even get him to talk to me.
‘ ‘ Q. No when was it (the deed) made ?
“A. I don’t remember just the exact day.
“Q. Well, was it made before or after you gave the deed to Billy (Kirkham) ?
“A. It was made before we gave the deed to Billy.’’

Mrs. Malone in regard to the improvements to be made testified substantially as follows: Mr. Malone and I have been married fifty years and we have three living children. One of our daughters, Carrie Bell, was the wife of William Kirkham.

‘ ‘ Q. How did it happen that you and Mr. Malone made a deed to Mr. and Mrs. Kirkham?
“A. Por them to fix our home.
‘ ‘ Q. Well, what was the transaction, tell us about it ?
“A. He was to modernize the house, fix it in the inside, put sheetrock on the inside, and put hoards on the outside, fix the bedroom, and we was to live there as long as we live, and then it went back to him and Carrie Bell.
“Q. Would you have signed that deed if you had known he was not going to fix the house up ?
“A. No, I had confidence in him, I loved him like I loved a son.
‘ ‘ Q. Did he ever fix the house ?
“A. Never, since my daughter died.
“Q. Did he ever do anything on it except put the load of lumber there?
“A. No, it’s out there in the barn now.
“Q. Have you had a telephone conversation with him since your daughter died?
“A. Yes, he called me down at Chester Wright’s one day, and Chester Wright got into his car and come over there and I went; Billy called me and said, ‘Grandma, that’s your place, and any damn thing you want to do with it,’ over the telephone. Chester Wright was standing there and heard every word of it. He said ‘its yours, so later do anything you want to ’. That was a long distance call.
“Q. Who paid the insurance on the place the whole time you had it?
“A. I have and Mr. Malone.
“Q. Did Billy (Kirkham) ever pay the insurance?
“A. No, I paid it this year and last. ’ ’

Mrs. Hignight, a sister to Mr. Malone, testified that she and her husband, Mr. and Mrs. Benrus, her sister and her daughter were all at the home of Mr. and Mrs. Malone in 1957 at the time Mr. Kirkham stated before all of them that he was going to fix up the home and modernize it.

“Q. What did he say he was going to do?
“A. He said lie was going to put the sheetrock in, just said he was going to modernize the home for them.
“Q. Was the home ever modernized?
“A. No, it wasn’t.”

Mrs. Carrie McG-ee and Mrs. Carl H. Vineyard were present at the meeting above referred to at the home of Mr. and Mrs. Malone and they testified substantially the same as Mrs. Hignight.

In the face of the above testimony appellants offer practically nothing to the contrary. Mr. Kirkham even admits that he did promise that he would make some repairs and he further admits that he did nothing. In spite of all of this the majority would overturn the direct and positive finding of the Chancellor (set out above) who had the opportunity (which we do not have) to observe the witnesses on the stand.

The conclusion reached by the majority appears to be based largely if not primarily on the ground that the $2,500.00 payment was made by Mr. Kirkham and not by appellees. My remarks hereafter are addressed to that point.

First, under the pleadings in this case the payment of the said $2,500.00 is not an issue vital to the decision. The important thing is (and this is undisputed) that the title to subject property was in appellees and not in appellants, and that appellees then deeded it to appellants. The payment of the $2,500.00 to my mind could have no bearing in the case except possibly to go to the credibility of the witnesses. Viewed in that light a reference to the testimony in this case is indeed revealing.

It is obvious that the majority do not believe appellees were in possession of the $2,500.00 which they admittedly paid to Dittman. This means, therefore, that the majority believe Kirkham’s version. I can only point out from the record that Mr. Malone who appears to be a substantial citizen of the age of 73 years testified that they had saved that amount of money and explained where he got it; that Ms wife, Mrs. Malone, testified to the same thing; and that the real estate man testified that he received the money from them. Over and against this testimony stands only the uncorroborated statement of Kirkham who is a confessed lifetime gambler, and who made no effort to explain where he got the money or the reason why he carried it around on his person. On the other hand appellees explained that they had lost all of their money along about 1930 because of the bank failure. I submit in all seriousness that the above statement of facts confirms rather than refutes the credibility of appellees.

There is of course no definite workable rule by which to tell when testimony is clear and convincing — especially one that fits all people. Therefore we should, I believe, be guided by what was satisfactory to the Chancellor, especially where any doubt exists. TMs thought was impliedly expressed in the recent opinion of Odom v. Odom, 232 Ark. 229, 335 S. W. 2d 301, where we said: “This question is not free from doubt, but after studying the record we are unable to say that the chancellor was in error in finding the plaintiff’s proof to be sufficiently clear and convincing.”


author: Carleton Harris, Chief Justice.

text:
    Edwards v. State.
    4979
    337 S. W. 2d 865
    Opinion delivered September 12, 1960.

      N. L. Schoenfeld and Tilghman E. Dixon, for appellant.

      Bruce Bennett, Attorney General, by John T. Haskins, Asst. Attorney General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, E. W. Edwards, was charged by Information with violation of the Overdraft Act (Ark. Stat. Anno., 1947, Sections 67-714 to 67-716), was found guilty by the jury, and Ms punishment fixed at six months imprisonment in the State Penitentiary. Several points are raised in urging a reversal, but the first contention effectively disposes of the appeal, vis., the Garland County Circuit Court was without jurisdiction.

The undisputed proof reflects that appellant, a building contractor, issued a payroll check upon the Worthen Bank and Trust Company of Little Bock in the amount of $48.10 on May 29, 1959, to an employee, Howard Duff. The check was delivered to Duff, a resident of Hot Springs, in appellant’s office in Little Bock. Duff subsequently cashed the check at Halsell’s service station and grocery store in Hot Springs. Thereafter, the bank at Hot Springs processed the check for payment, but it was returned by Worthen Bank and Trust Company with the notation “insufficient funds.” On two later occasions, the check was presented for payment, but was returned with tbe same notation. Thereafter, tbe prosecuting attorney of Garland County filed tbe Information against Edwards. An oral motion to dismiss for lack of jurisdiction was made, both during tbe trial, and at tbe end of tbe State’s evidence, on tbe ground that tbe State bad failed to prove that the crime was committed in Garland County. A written motion in arrest of judgment and motion to set aside tbe verdict of tbe jury and dismiss for want of jurisdiction was filed at tbe end of tbe trial. All of these motions were denied.

Appellant’s primary assertion, that tbe Garland County Court was without jurisdiction, is well founded. Section 10, Article II, of the Arkansas State Constitution provides:

“In all criminal prosecutions tbe accused shall enjoy tbe right to a speedy and public trial by impartial jury of the county in which the crime shall have teen committed; provided that tbe venue may be changed to any other county of tbe judicial district in which tbe indictment is found, upon application of tbe accused, in such manner as now is, or may be, prescribed by laws; . . . ”

"We have held that jurisdiction of statutory offenses is within tbe county where tbe crime is committed, Smith v. State, 169 Ark. 913, 227 S. W. 530. Tbe venue of tbe offense charged herein is not transitory, Cousins v. State, 202 Ark. 500, 151 S. W. 2d 658, and tbe alleged violation was consummated when tbe check was executed in Pulaski County and delivered to tbe payee in Pulaski County. In Shepherd v. State, 221 Ark. 191, 252 S. W. 2d 621, this Court said:

“Appellant contended that tbe venue was in Clark, bis home county, and not in Hempstead County, where be was charged and tried. It appears undisputed that tbe check in question was executed in Arkadelpbia, but there is conflict in tbe testimony as to whether it was delivered in Clark or Hempstead County. If delivered in Clark County, as appellant contended, then tbe venue would be in Clark, and not Hempstead.”

It is therefore clear, in the canse before us, that if Edwards committed a criminal offense, same was committed in Pulaski County, and not in Garland County, and the Circuit Court of the latter county was without jurisdiction.

Reversed.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice.

text:
    Newsom v. State.
    4981
    337 S. W. 2d 866
    Opinion delivered September 12, 1960.

      Blair S Blair, Robert J. White, for appellant.

      Bruce Bennett, Attorney General, by Ben J. Harrison, Asst. Attorney General, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Ernest Newsom, a man of mature years and a lifelong resident of Logan County, Arkansas, was sentenced to a term of three years in the State Penitentiary for the crime of unlawfully fondling a child under Ark. Stats. §§ 41-1128 — 29. For reversal of the judgment appellant contends: “(I) The verdict is contrary to the evidence and not supported by the evidence, and is not sufficient to overcome the presumption of innocence. (II) The verdict is so excessive as to amount to cruel and unusual punishment.”

"We do not agree with either of these contentions. (I) The record reflects that a child, age 10, daughter of Mr. and Mrs. Roy Stallings, was left at Newsom’s home by her father. This was not unusual for this little girl had often spent some time with the Newsoms. About 9 o’clock on the evening in question Newsom walked the little girl home and her mother testified that when she arrived she was nervous and looked as if she wanted to cry. The mother found blood on the child’s clothing. Her sexual organs were red. The child was taken to Dr. Charles Smith who examined her and his findings were, in effect, that there was evidence of trauma and slight physical damage and bruising. Also there were two small areas that were raw as though mucous membrane or the skin had been scratched off. He further noted there was no evidence of any entrance into the vaginal cavity.

The little girl testified, in substance: I don’t know what happened, Mr. Newsom touched me. He touched me with his hand, it was underneath my clothing, he just bothered me, he put his hand under my dress, just had on my dress and underclothing. He put his hands inside my panties, this was around four or five minutes. He said not to tell anybody or I couldn’t visit him any more. He kissed me on the mouth, don’t know how many times he had his hands on me when he kissed me. Don’t recall whether he had shaved or not. He just messed around.

The above evidence was ample to support a conviction. Here the testimony of this little girl alone, if believed by the jury and it evidently was, was sufficient to convict when viewed in the light most favorable to the State as we must view it, Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400: “It is a well-settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained.”

(II) As pointed out, we cannot say the verdict was excessive in the circumstances. Section 41-1129, Ark. Stats., supra provides that the punishment for one guilty of the revolting crime here involved shall be not less than one year or more than five years in the State Penitentiary and the trial court correctly so instructed the jury.

The jury returned the following verdict: “We, The Jury, find Defendant Guilty as Charged. The Court to Assess the Penalty.” Whereupon the court fixed his punishment at a term of three years in the State Penitentiary. It thus appears that the jury, by its verdict, directed the court to fix the punishment and this the jury had the right to do under provisions of Ark. Stats. § 43-2306 which provides: “When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment, and render judgment accordingly.”

Finding no error in the trial of this case the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Rider, Executrix v. Cunningham, Judge.
    5-2168
    337 S. W. 2d 868
    Opinion delivered September 12, 1960.

      Wayne Boyce, for petitioner.

      Kaneaster Hodges, for respondent.
   Ed. F. McFaddin, Associate Justice.

This is an original suit filed in this Court by Mrs. Nettie Rider as Executrix of the Estate of E. C. Rider, seeking a writ to prohibit the Chancery Court of Jackson County from proceeding in a cause therein pending wherein Hutson et al. are Plaintiffs and Eider et al. are Defendants, and referred to as the £‘Hutson-Eider case.”

On March 31, 1959 Hutson et al. filed complaint in the Jackson Chancery Court against E. C. Eider, Dene Hook, Mary Hook, and the Dene Hook Motor Company, Inc. The complaint alleged that in a series of transactions at various times E. C. Eider, as President and chief executive officer of the Dene Hook Motor Company, Inc., had used funds of the corporation wrongfully and fraudulently to his personal gain and had thereby become a trustee for the corporation of certain properties purchased and standing in the name of E. C. Eider. The complaint alleged that the plaintiffs were at all times stockholders in the corporation but had only recently learned of the wrongful activities of E. C. Eider; and that Dene Hook and Mary Hook, as the other stockholders and as the officers of the corporation, had refused to allow the corporation to proceed against E. C. Eider. The complaint was for an accounting by E. C. Eider, the impressing of a trust for the benefit of the corporation on certain properties standing in the name of E. C. Eider, judgment for money, and for costs and other relief.

Summons was duly served on E. C. Eider in person on April 1, 1959; but he departed this life on April 20, 1959 before filing any defensive pleading. Mrs. Nettie Eider was appointed executrix of the Estate of E. C. Eider; and Hutson et al., as Plaintiffs in the HutsonEider case, had the cause revived against the Executrix by Order of Eevivor of the Jackson Chancery Court (see § 62-2602, Ark. Stats.). Thereupon Mrs. Eider, as Executrix, filed this original proceeding in the Supreme Court to prohibit the Chancery Court from further proceedings in the Hutson-Eider case. The theory of the Executrix is, that the alleged cause of action against E. C. Eider did not survive his death: and, therefore, the Chancery Court was without jurisdiction to enter an order of revivor.

"While we entertain grave doubts as to a writ of prohibition being the proper remedy in a case like this one, we forego a decision on that point because it is not briefed and because, even if prohibition should be a remedy available to a petitioner in a case like this, we nevertheless deny the writ because we conclude that the Chancery Court Order of Revivor was correct.

Our applicable statute on survival of actions is § 27-901, Ark. Stats, which provides that for wrongs done to the person or property of another an action may be brought against wrongdoer, “. . . or after his death, against his executor or administrator . . .” In 1 Am. Jur. page 82 (“Abatement and Revival” § 107), the holdings of the various jurisdictions are summarized:

“Where the cause of action against an officer of a corporation arises from a breach of a fiduciary relation by which he enriches himself, his death does not abate the action. Therefore, a cause of action against such officer for misappropriation of corporate property by him while in office, the cause of action having arisen from a breach of a fiduciary relation by which the officer enriched himself, survives his death. An action in equity against a director of a corporation to recover secret profits made under a contract with the corporation survives against his executor or administrator.”

In 79 A. L. R. 1517 there is an extensive and enlightening annotation: “Abatement upon death, of cause of action to enforce personal liability of corporate officer, director, or trustee”; and the holdings are summarized:

“In various cases involving causes of action for negligence or misconduct of officers, directors, or trustees of corporations, or misappropriation of corporate property, it has been held that the cause of action survived the death of the officer, director, or trustee.”

Our own case of Hughes v. Kelley, 95 Ark. 327, 129 S. W. 784, points to the conclusion that we reach. There, the officers of the corporation had failed to file an annual report as required by statute. A creditor of tbe corporation brought action against the individual officers of the corporation. One of the officers was deceased and his executor was made a party. The question was, whether the cause of action under the statute survived against the estate of the deceased officer. In holding that such cause of action did survive, we quoted from our earlier case of Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S. W. 952:

“ ‘Having reached the conclusion that this is a statutory liability, and not a penalty, the statute of limitations would be that applicable to all actions founded upon any contract of liability, expressed or implied not in writing; for before the forms of action were abolished, debt was the proper action for enforcing a statutory liability of the kind under consideration.’ ”

In the case at bar the proceeding is for an accounting, impressing of a trust on property, and obtaining a judgment for whatever may be shown due the corporation by the accounting. This is not a penal proceeding, but is in all respects a proceeding to redress a wrong to the corporation. We conclude that the Order of Revivor was correct and the Writ of Prohibition is, therefore, denied.

       The statute read: “If the president or secretary of any such corporation shall neglect or refuse to comply with the provisions of section 848 and to perform the duties required of them respectively, the persons so neglecting or refusing shall jointly and severally be liable to an action founded on this statute, for all debts of such corporation contracted during the period of any such neglect or refusal.”


author: George Rose Smith, J.

text:
    Neely v. Jones.
    5-2170
    337 S. W. 2d 872
    Opinion delivered September 12, 1960.

      Howard & McDaniel, Barrett, Wheatley, Smith £ Deacon, for appellant.

      Frierson, Walker & Snellgrove, for appellee.
   George Rose Smith, J.

This boundary line dispute involves the ownership of a strip of land, less than an acre, lying between the appellants’ property to the east and the appellees ’ property to the west. The case began as an action in ejectment but was later transferred to equity. At the close of the plaintiffs’ proof the chancellor sustained a demurrer to the evidence, and this appeal is from the ensuing order of dismissal. The only question is whether the demurrer to the evidence was properly sustained. This depends, under our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, upon whether the proof, viewed in its most favorable light, would have presented a question of fact for the jury if the case had been tried at law.

The appellees have record title to a tract of about ten acres, which includes the strip now in controversy. Some twenty or more years ago their predecessors in title erected a fence near their eastern boundary, but for some reason not disclosed by the record the disputed strip was left outside the fence. The appellants’ land, a three or four acre tract, lies just east of the strip in question and includes a dwelling house that has been occupied by the appellants and their predecessors in title. Except for a few isolated acts neither the appellants’ actual possession nor that of their predecessors has extended to the disputed strip, which is largely made up of gullies not suited to cultivation or other use. This litigation arose in 1959 as a result of the appellees’ having moved the fence over to the true line and having thereby attempted for the first time to exercise dominion over the area in controversy.

We are of the opinion that the demurrer to the evidence should have been overruled, for the appellants’ proof raised a question of fact as to the existence of a boundary by acquiescence. As we said in Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490: “We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. [Citing cases.]” In such cases the existence of a boundary line by acquiescence is an issue of fact, to be determined upon the evidence in each individual case. Thompson on Real Property (Perm. Ed.), § 3309. In the record now before us there is substantial evidence to support the view that the landowners ’ tacit recognition of the fence line for more than twenty years created a new boundary line.

The appellees rely principally upon Cossey v. House, 227 Ark. 100, 296 S. W. 2d 199, where we said that “a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years.” We adhere to the basic principle followed in the Cossey case, but there are at least two important points of distinction between that case and this one. First, there the adjoining land on the far side of the fence was wild and unimproved, so that its owner could hardly be regarded as having consciously acquiesced in the fence as a boundary line. Here the fact that both tracts have been improved and occupied might well support an inference that the fence has been accepted as the line. Secondly, the Gossey case was tried upon its merits; the question on appeal was where the preponderance of the evidence lay. Here the trial court’s action in sustaining a demurrer to the evidence can be affirmed only if the plaintiffs offered no substantial testimony upon the controlling question of fact. We are unable to say that their proof falls completely short of establishing a prima facie case.

Reversed and remanded.


author: Paul Ward, Associate Justice.

text:
    McCulloch v. McCulloch.
    5-2172
    337 S. W. 2d 870
    Opinion delivered September 12, 1960.

      D. A. Bradham and Stanley E. Price, for appellants.

      Max M. Smith, for appellees.
   Paul Ward, Associate Justice.

This appeal involves the disposition of United States Series E Bonds by a testator. The trial court held that the bonds were included in the word “cash”, and this appeal follows.

Robert McCulloch executed his will on October 14, 1939 and died, testate, January 11,1949. Certain legatees filed a petition in the Probate Court in July 1949 asking to have the will construed. A final determination was not made by the Probate Court until September, 1958, but the executors in the meantime administrated the estate and kept the assets practically intact.

The subject will, in all essential parts reads as follows:

“. . ., first I direct that all my just debts be paid out of my estate, second I give Finch McCulloch and Luciel McCulloch my home place consisting of one hundred (105) and five acres more or less, Second I give to Finch McCulloch and Luciel McCulloch all my personal property Store and goods therein and all accounts due me except money to my Grandaughter Ella May Parrott I give the sum of one hundred dollars to Irine McCulloch I give the sum of one hundred dollars to Florence McCulloch I give the sum of one hundred dollars to Luciel McCulloch I give the sum of Five Hundred dollars all remaining cash to be divided equally between Finch McCulloch James E. McCulloch Lydia Parrott and Luciel McCulloch. I hereby appoint James E. McCulloch and Finch McCulloch sole executors of this Will without bond. ” (Emphasis supplied.)

It was stipulated and agreed by all parties that the assets of the estate (with the amounts and valuations calculated at the time of the final order of the Probate Court in 1959) consisted of the following:

(a) The home place, 103.50 acres, value $2,000.00
(b) Household goods, value 119.00
(c) Farm equipment, value 38.00
(d) Deposits in New Edinburg Bank 717.12
(e) Deposits in Merchants & Planters Bank 1,575.40
(f) Deposits in Warren Bank 1,507.26
(g) Five Series E Bonds, maturity value 3,600.00
(h) Three notes signed by James McCulloch (amount and disposition not in dispute).

The testator was survived by two sons and two daughters; James E. McCulloch, Finch McCulloch, Luciel McCulloch and Lydia (McCulloch) Parrott, all of whom are beneficiaries under the will. He was also survived by three grandchildren; Ella May Parrott, Florence McCulloch and Irine McCulloch, all of whom are likewise beneficiaries.

The proof shows, and it is not here disputed, that: (a) the store and its contents were owned by the testator at the time the will was made but were disposed of by him before his death in 1949; and, (b) the testator did not own the Series E Bonds at the time the will was made but purchased them in his own name before his death.

This litigation arises over the ownership of the Series E Bonds. It was and is the contention of Finch McCulloch and Luciel McCulloch that these bonds belong to them by virtue of the language in the first part of the will. In other words, these appellants contend that the said bonds constituted personal property and should not be classified as cash. On the other hand appellees contend that the said bonds should be treated as cash the same as the bank deposits. As so classified, appellees contend that the proceeds of the E bonds should “be divided equally” between the children of the testator under the latter portion of the will. It will be seen therefore that this contest is between Finch McCulloch and Luciel McCulloch (appellants herein) who claim all the proceeds of the said E bonds, and James R. McCulloch and Lydia (McCulloch) Parrott (appellees herein) who contend that they should each receive % of the proceeds of the said E bonds.

The trial court, in a somewhat comprehensive opinion dated September 9, 1958, among other things found; that the store and its contents had been sold prior to the testator’s death and that this bequest to the appellants lapsed; that the only question is, does the words “personal property” in the will necessarily include the E bonds; that said bonds were not transferable and can only be cashed and the proceeds transferred; that the E bonds were purchased by the testator after the will was executed, and since the testator did not make the bonds payable to appellants he thereby indicated an intent to treat the bonds as cash, and; the E bonds should be distributed equally among the appellants and appellees. (The........................judge was not surviving when these findings were made.)

After careful consideration we have arrived at the conclusion that the result reached by the learned Chancellor cannot be sustained. Although we have received little assistance from our own decisions cited in the briefs or revealed by our own research, other authorities appear to be harmonious to the effect that ordinarily the word “cash” does not include bonds. Set out below are pertinent excerpts from some of the many authorities examined.

In Jordan v. Chamberlain et al, 46 Cal. App. 2d 16, 115 P. 2d 235, in construing a will the court said:

“In the instant case there is nothing to indicate that the decedent intended that the word ‘cash’ be used in any other or different sense from that which ordinarily attaches to it. Cash is ‘current money in hand or readily available ’. ”

In that same case, the court cited with approval: “ ‘ Cash’ means especially ‘ready money’ at command, subject to free disposal; not tied up in a fixed state. It is almost equivalent to the term ‘loose money’.” The Supreme Court of New Mexico, in Hanny v. Joyce et al, 37 N. M. 569, 25 P. 2d 806, in dealing with the allowance of fees of an administrator, stated (at page 573): “The trial court also announced the view that government bonds were to be deemed ‘cash’ within the meaning of the statute. We think the statute incapable of such interpretation.” In the matter of In re Feist’s Will, 170 Misc. 497, 10 N. Y. S. 2d 506, where a will was being construed, the court said: “ ‘Cash’ means especially ‘ready money’ at command, subject to free disposal; not tied up in a fixed state.” Similarly in In re Hinds’ Will, 270 App. Div. 408, 61 N. Y. S. 2d 748, we find the court holding that “money” did not include stocks and bonds.

We do find however that there are circumstances under which the courts are inclined to give a broader meaning to the word “cash” than is indicated above. One circumstance is where other language in the will would indicate such broader meaning but we find no such language in the will under consideration here. The other circumstance is where a part of the testator’s estate would be undisposed of by the will unless a broader meaning is given to the word “cash”. See: In re Feist’s Will, supra, In re Hinds’ Will, supra, and Campbell v. St. Joseph’s Industrial School, 30 Del. Ch. 84, 53 A. 2d 768. But this circumstance is not found in Mc-Culloch’s will. Regardless of whether we accept the view of appellants or the view of appellees all his property is disposed of by the will.

We recognize the wholesome and well established rule of construing a will so as to carry out the intentions of the testator. However, we find very little in this will to reveal McCulloch’s intentions. If any intention at all is revealed it could well be to give the bonds to appellants. We refer to the fact that he gave appellants the store and its contents, but these items were disposed of before his death. It could be reasonably inferred that he intended them to have the bonds in the place of the other items. We see no force in the argument that McCulloch would naturally want to treat all his children alike, and, therefore, intended to divide the bonds equally among them. This argument is refuted by other terms of the will which are not challenged.

For the reasons heretofore set forth the decree of the trial court is reversed.

Harris, C. J., and George Rose Smith, J., not participating.


text:
    Nutt v. Strickland.
    5-2166
    338 S. W. 2d 193
    Opinion delivered September 19, 1960.

      Henry, Boyett Nutt, for appellants.

      L. B. Smead, for appellees.
   Carleton Harris, Chief Justice.

This is a boundary dispute. The parties to the action derived title to their respective properties from a common grantor, W. L. Fur-low, who at one time owned the entire tract. Appellants instituted suit in the Calhoun Chancery Court, seeking to quiet title to certain lands in themselves, alleging that they had been in possession of such lands since 1932; that Furlow had attempted to convey a portion of their property to appellees on September 14, 1957; that such deed constituted a cloud upon the title of appellants, and they prayed that the deed from Furlow to appellees be cancelled. On hearing, the court dismissed the complaint for want of equity, and found that title to the land in dispute should be quieted and confirmed in appellees. From such decree comes this appeal.

At the outset, it might be mentioned that appellants do not predicate their claim in any respect on adverse possession, but rather base their title solely upon the description in the deed.

The disputed boundary is the northern border of the appellants’ property and the southern border of appellees’ property. In 1925, W. L. Furlow acquired title by warranty deed to certain lands from Hugh McKinnie, under the following description:

“Starting at the Southeast corner of said Subdivision, run North along the Section line Eighty (80) feet to the Branch or Little Creek, to the point of beginning; thence continuing North along said Section line, two hundred and twenty (220) feet, more or less; to the right-of-way of the Thornton and Alexandria Railroad; thence West along said right-of-way, about Two Hundred Twenty Feet (220), more or less, and thence in a Southwesterly direction, continuing along said right-of-way about Two Hundred Ninety (290) feet, more or less, to the place where said right-of-way crosses said Branch or Little Creek, thence East along said Branch or Little Creek about Five Hundred Feet (500), more or less, to said point of beginning.”

In February, 1927, Furlow conveyed, by warranty deed, to W. S. Nutt, a portion of the above property described as follows:

‘‘Commencing at the Southeast Corner of said Northeast Quarter (NE 14) of the Northeast Quarter (NE 14) and running North on the Section Line 80 feet to a corner on North side of Branch; the point of beginning ; thence running North on said line 184 feet; thence running West 192 feet to the right-of-way of Thornton and Alexandria Railway Company, thence running in a southwesterly direction along said right-of-way, to where said right-of-way crosses said Branch, thence running East along said Branch back to the point of beginning, containing two acres, more or less.”

This description is substantially the same as that in which Furlow acquired title, except that the distance north from the beginning point is stated to be 184 feet instead of 220 feet, and the distance west is stated to be 192 feet rather than 220 feet (this latter difference is not explained by the testimony at the trial and apparently does not raise an issue on this appeal). This land, under the same description, was conveyed by warranty deed from W. S. Nutt and wife to Victor L. Nutt on April 13, 1943. The appellants are the sole surviving heirs and surviving spouse of Victor L. Nutt.

On September 14, 1957, W. L. Furlow conveyed to the appellee and his wife, land on the northern part of his original plot. This land is described in the deed as follows:

“Beginning at the Southeast corner of said Northeast Quarter of the Northeast Quarter, run thence North 264 feet to a point of beginning; running thence North 36 feet to the South line of the right-of-way of the Thornton and Alexandria Railway; thence West 192 feet; thence South 36 feet; thence East 192 feet to the point of beginning, containing 16/100ths of an acre, more or less.”

It is noted that the distance to the beginning point in this deed is the sum of the 80 feet to the point of beginning in the appellants’ deed, plus the 184 feet to the northern boundary of their property, or a total of 264 feet.

This litigation was occasioned by the fact that appellees commenced construction of a building near the boundary of the properties, and appellants contend that the construction was partly placed on a portion of the land which had been deeded to Nutt. According to appellants’ surveyor, the proposed building overlapped about twelve feet on appellants’ premises.

The Nutts ’ principal contention is that references to a monument in a deed prevail over references to distances. In their brief, they state:

“Appellants contend that the location of the Southeast Corner is immaterial for the reason that the deeds from the common grantor, W. L. Furlow, of appellant and appellee described the point of beginning as being a corner on ‘North side of Branch’ and that monument prevails over the distance of 80 feet referred to in said deeds. ’ ’

Further:

“Appellants contend that the call distance in their deed of 80 feet was a mistake in fact and that the reference to the Branch or Little Creek controls.”

Appellants have correctly stated the legal doctrine, that generally speaking, monuments prevail over courses and distances; however, the difficulty in the instant litigation is in locating the designated monuments, and this applies to both the natural and artificial monuments mentioned in the deeds. Six witnesses testified in the case, three for each side. E. N. Lyons, Jr., a surveyor, and two of the appellants, testified in support of the Nutts, and Allison Means, county surveyor of Calhoun County, appellee Hamilton Strickland, and W. L. Fur-low, common grantor to both sides, testified in behalf of appellees. According to the evidence, in 1933, a highway was built along the eastern boundary of the property, and a concrete bridge replaced the wooden structure which had spanned the branch. Witnesses for appellants largely directed their testimony to the effect that the location of the branch was not changed in any manner when the highway was paved. The widow of Victor Nutt stated, on direct examination, that the location had not been changed; however, she subsequently testified that she did not especially remember the old wooden bridge, except to know that such a bridge existed. Lyon was unable to state whether the concrete bridge was placed in the same position as the wooden bridge. Fur-low testified that the course of the branch was first changed by the railroad when it constructed ditches, and subsequently, the Highway Department, in building the highway, “straightened” the branch, and the concrete bridge was moved some distance north of the location of the old wooden bridge. While this evidence was very much in dispute, all parties agreed that the railroad right-of-way could not be located.

Appellants admit that their case is dependent upon establishing that the monument, referred to in the deed, was situated at the time of the conveyance in the same location as at present. We cannot say that this fact was established by a preponderance of the testimony. As we have frequently stated, the Chancellor heard the witnesses, observed their demeanor on the stand, and was therefore in better position to judge the weight of the evidence. See Willis v. Denson, 228 Ark. 145, 306 S. W. 2d 106. The findings of the Chancellor on a fact question, of course, will not be disturbed unless clearly against the preponderance of the evidence.

Appellants assert that the property conveyed to Strickland by Furlow had previously been conveyed to Nutt by the same grantor; i.e., that the thirty-six feet deeded to Strickland was embraced in the broader description by which Nutt acquired title. Appellees, of course, contend to the contrary. The correctness of this assertion is dependent upon the original location of the branch, and as stated in the previous paragraph, we are unable to say that the Chancellor’s findings were incorrect.

Finally, appellants urge that there is sufficient land north of the present location of the branch to allow them a full 184 feet and the appellees 36 feet. They argue that the lower court should have corrected the boundary to this extent. However, this argument appears fallacious, for appellants subsequently state that if there is any impinging upon the railroad right-of-way as a result of this action, “any dispute over the grant conveying railroad right-of-way property can be settled by the railroad and appellee.” If this is a possible result, then appellants are not correct in stating there is sufficient land north of the present location of the branch to allow each party the full distance called for in their respective deeds. In any event, having failed to establish the original location of the branch, the reference to this monument is no longer controlling because of uncertainty and the courses and distances in the deeds are binding upon the parties, and the boundaries established thereby.

Affirmed.


text:
    Norwood v. Glover, Judge.
    5-2167
    338 S. W. 2d 198
    Opinion delivered September 19, 1960.

      Amis Guthridge and Roy Finch, Jr., for appellants.

      Joseph G. Kemp and Perry V. Whitmore, for appellee.
   J. Seaborn Holt, Associate Justice.

This appeal comes from a judgment of the Pulaski Circuit Court denying appellants’ petition for a Writ of Prohibition against Judge Quinn Glover, a municipal judge of Little Bock, Arkansas. Appellants were accused of committing certain misdemeanors triable in the Little Bock Municipal Court. While the cases were pending, appellants, on October 1, 1959, filed applications for change of venue, alleging that the Judge of the Court was so prejudiced against them that they could not obtain a fair and impartial trial. Accompanying appellants’ motions were affidavits of two persons who stated in their opinion the appellee was so prejudiced against the appellants that they could not obtain a fair and impartial trial before the court. The court overruled appellants’ motions after hearing and determining that the affiants used in support of their motions were not credible witnesses as contemplated by Ark. Stats. §§ 22-721 — 22. Thereafter, on October 15, 1959, appellants attempted to file an amended and substituted application for change of venue identical to the first application except a substitution of different persons as supporting affiants. The Municipal Court refused to allow this latter application for change of venue as a substituted application for change of venue, but allowed it to be filed as an amendment to the original application of appellants.

Thereafter, on October 28, 1959, appellants filed a petition for a Writ of Prohibition against appellee to prohibit him from continuing to hear the actions. On November 21, 1959, Pulaski County Circuit Court denied the Writ of Prohibition. This appeal followed.

Appellants, for reversal, rely on the following point: “The Court erred in determining as a matter of law that the change of venue statutes, i.e., Ark. Stats., Anno., (1947) §§ 22-721 and 22-722 were not mandatory upon the Municipal Court, and by virtue of the said ruling, the decision of the lower court is contrary to the law, the evidence, and the law and evidence.”

We do not agree with this contention. The sections of our statutes relied upon by appellants provide: ‘ 'Ark. Stats. § 22-721. Change of venue — Affidavit for change— In all Counties within the State of Arkansas wherein there are two or more Municipal Courts the defendant in any criminal case pending either for trial or preliminary examination before any such Municipal Court may take a change of venue from the Municipal Court in which said cause is pending to some other Municipal Court within said County; provided, the defendant shall, at or before the commencement of such trial or examination, file in the Municipal Court in which said cause is pending an Affidavit setting forth that the Judge of said Court is a material witness in said cause, or that such Judge is so prejudiced against the defendant that he cannot obtain a fair and impartial trial before said Court.” And — “Ark. Stats. § 22-722. Verification of affidavit — of two credible persons — The application of any defendant for a change of venue as herein provided for shall be verified by the affidavit of said defendant setting forth the grounds upon which said change of venue is sought, and shall he supported by the affidavit of at least two (2) other credible persons.”

It is conceded by appellee that there is more than one municipal court in Pulaski County and that appellants had the right to apply, i.e., “may” apply, for a change of venue upon a proper showing that the trial judge (appellee) was so prejudiced against them that they could not obtain fair and impartial trials before him. However, such change of venue was not a mandatory right in favor of appellants, as they insist, just by merely applying for change of venue. They must go further and support their application for change of venue by the affidavits of at least two other credible persons and we hold this appellants failed to do.

We have consistently adhered to the rule which we announced in Dewein v. State, 120 Ark. 302, 179 S. W. 346, as follows: “A credible person is one who has the capacity to testify on a given subject and is worthy of belief; and one who lacks knowledge on the subject under investigation is not a credible person to be accepted as worthy of belief in that particular inquiry. ’ ’ The use of these words, “credible persons”, means that the supporting affiants should have fairly accurate information of the facts alleged by appellants seeking a change of venue, Williams v. State, 162 Ark. 285, 258 S. W. 386, and Hedden v. State, 179 Ark. 1079, 20 S. W. 2d 119.

Appellants introduced two witnesses. Their first, Mrs. R. G. Taylor, testified: “Q. Do you think those defendants can get a fair trial in this court? A. No, sir, I do not. Q. Will you tell the Court why you think — believe that, please? A. Your Honor, let me assure you that I mean no reflections on this Court or the Judge of this Court, but due to the circumstances and the environment surrounding this Court I do not believe that they can get a fair and impartial trial. That is the reason that I come with this request. THE COURT: You don’t know me, personally? A. I have known of you, Judge Glover, for years; yes, sir. THE COURT: You hold no prejudice? A. I hold no prejudice against you as judge, let me assure you of that. THE COUBT: All right, do you have another witness ? MB. GUTHBIDGE: That is sufficient with her? THE COUBT: Yes, sir.”

Their other witness, A. E. Cooper, testified: “Q. Did you and Mrs. Taylor, who just testified, are you the two who filed those affidavits for each of these defendants in each charge? A. Bight. Q. You did? A. Yes sir. Q. Now, you swore that you thought that those defendants could not get a fair and impartial trial in this court, is that true? A. I did. * * * Q. Would you please state to the court on what you base your belief ? A. I just think there is a prejudice among the City Officials at this particular time against the defendants. And as I have no interest, personally, in all due respect to the Court, so far as that is concerned, I just think there is a feeling of prejudice against the defendants among the City Officials. Q. You don’t think they can get a fair trial in this Court due to that prejudice which you believe is rampant in the City Hall? A. Bight. Q. I would like to ask him this, Your Honor. Do you know Judge Glover, personally? A. No, sir, I do not. Q. You don’t. In other words, it is based on the atmosphere, not directed against him, personally, is that right? A. Bight. Q. As a man? A. Nothing whatever. * * * Q. Mr. Cooper, specifically, is there anything that you know of of your own knowledge regarding the City Hall that would lead you to believe the City Hall has such a prejudice? A. Well, not anything more than has been stated — the atmosphere and the feeling that has been from the newspapers and radio and reports. # * * Q. Have you ever heard anyone in the City Hall express prejudice regarding this particular matter? A. No, I haven’t. * * * Q. Do you know of any evidence of Judge Glover’s prejudice in this matter? A. No, I do not.”

We hold that the testimony of these two witnesses falls far short of proving that Judge Glover was so prejudiced against the appellants that they could not obtain a fair and impartial trial before him. It will be observed that there was no testimony as to any statement or assertions by Jndge Glover to anyone indicating any prejudice against appellants. In fact, witness Cooper did not know Jndge Glover personally, as indicated by Mr. Cooper’s testimony: “Q. Do yon know of any evidence of Jndge Glover’s prejudice in this matter! A. No, I do not. ’ ’ And Mrs. Taylor testified: ‘£ THE COURT: Yon don’t know me, personally! A. I have known of yon, Jndge Glover, for years; yes, sir.”

Finding no error, the judgment is affirmed.

      Emphasis Ours