text:
    Barksdale v. Carr.
    5-2767
    361 S. W. 2d 550
    Opinion delivered October 22, 1962.
    [Rehearing denied November 26, 1962.]

      Davis & Ragsdale, for appellant.

      Brown & Compton, for appellee..
   Ed. F. McFaddin, Associate Justice.

The Chancery Court held that the appellees had éstablished, by the required quantum of evidence, a contract of September 26, 1945, between R. A. Carr and his wife, Sarah Ellen Carr, that they would make irrevocable reciprocal wills, and appellants challenge that finding and decree insofar as concerns the matter of irrevocability.

In 1925 R. A. Carr, a widower with three children, married Mrs. Sarah Ellen Barksdale, a widow with three children. There were no children born to the 1925 marriage, but it was a happy and successful one, and each parent treated the six children with equal love and affection. Mr. and Mrs. Carr acquired a taxicab business as partners; they owned their home by entirety; and among other assets, there was a joint bank account. On September 26,1945, Mr. and Mrs. Carr went to the office of their attorney, Hon. Surrey E. Gilliam in El Dorado, and executed their separate reciprocal wills, whereby eacli spouse named, the other as beneficiary, and then treated all six children equally. Mrs. Carr’s will was identical in wording with Mr. Carr’s will, except that she left everything to Mr. Carr and named him in each place in her will where he had named her. Each will was witnessed by Mr. Gilliam and his secretary, Miss Jewell Carroll, and the original wills, both in the same envelope, were left with Mr. Gilliam, who also had unsigned copies in his files; and the unsigned copies are brought into the present record by stipulation.

Mr. Carr died in El Dorado on April 23,1959. When Mr. Gilliam died on May 1, 1959, his files were delivered to Mr. Crnmpler; and on or about May 22, 1959, Mrs. Carr sent her son, Mr. Collie Barksdale, to Mr. Crumpler for the original wills, both of which were delivered to Mr. Barksdale in the same envelope, just as they had been in Mr. Gilliam’s possession through all the years. Mrs. Carr probated Mr. Carr’s will, became the executrix, and took under said will.

On November 1, 1959, Mrs. Carr revoked her will by burning it; on December 18, 1959 she conveyed the home place to her son, Collie Barksdale; in December she conveyed the farm lands to the three Barksdale children; and she had her bank account made to herself and/or Collie Barksdale. On January 13,1960, Mrs. Carr conveyed her automobile to her daughter, Ola Barksdale Wallace; and on January 14, 1960 Mrs. Carr departed this life intestate. The consideration for the said conveyances executed by Mrs. Carr to the Barksdale children was testified to be $10.00 in each instance, or a total of $30.00, which is certainly nominal for property worth in excess of $15,000 or $20,000. Dr. Wharton testified that she was mentally competent at all times.

In due time after Mrs. Carr’s demise, the three Carr children filed this suit in Chancery Court against the three Barksdale children, claiming that when Mr. and Mrs. Carr made their wills in 1945 they made a contract for irrevocable reciprocal wills; that Mrs. Carr, having taken under one will could not destroy her own will thereafter; that Mrs. Carr breached the contract by destroying her will; and that her conveyances to the Barksdale children were not bona fide. The complaint prayed that the Barksdale children be ordered to convey to the Carr children one-half of all the properties that Mrs. Carr owned prior to making the conveyances beginning in December, 1959.

The Barksdale children moved that Robert B. Wallace, administrator of the estate of Mrs. Sarah Ellen Carr, be made a defendant along with them, since said administrator had title to assets of the estate of Mrs. Carr. This motion was granted, and Wallace, Administrator became a party defendant. For answer, the defendants denied, inter alia, that R. A. Carr and Sarah Ellen Carr made any contract against revocation of their wills. The Chancery Court, after hearing the evidence, held that when Mr. and Mrs. Carr made their wills in September, 1945, they made a contract that neither will could be revoked. The Court awarded the Carr children (plaintiffs) the prayed relief; and the Barksdale children and Mrs. Carr’s administrator (defendants) have appealed.

I. The Dead Man’s Statute. In the trial of the case the defendants objected to any evidence by any of the Carr children (plaintiffs) as to anything Mrs. Carr may have said to them about the alleged contract. This objection was because of the “Dead Man’s Statute,” which is found in “Schedule” § 2 to the Arkansas Constitution; and the germane portion reads:

“In actions by or against . . . administrators . . . in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the . . . intestate . . . unless called to testify thereto by the opposite party.”

The Trial Court correctly ruled that the “Dead Man’s Statute” was applicable to the proffered evidence by the Carr children. See Alphin v. Alphin, 225 Ark. 122, 279 S. W. 2d 822; Morris v. Arrington, 215 Ark. 564, 221 S. W. 2d 406; and Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495.

II. Declarations of Mr. Carr. Likewise, in every instance in which, the Carr children sought to prove that their father had made any statements to anyone — in the absence of Mrs. Carr — concerning any alleged contract against revocation of the wills, there was a prompt objection to such testimony as incompetent. Such objection was well made, because one party to an alleged contract cannot bind the other party by declarations made in the absence of the other party. Central Coal Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S. W. 49; Beasley Lbr. Co. v. Sparks, 169 Ark. 640, 276 S. W. 582; and Rouw v. Arts, 174 Ark. 79, 294 S. W. 993.

III. The Burden On The Plaintiffs. With the excluded evidence thus mentioned, the next vital point is the burden that rested on the plaintiffs to prove the contract prohibiting the revocation of Mrs. Carr’s will. No language in either will stated or indicated that there was a contract against revocation. The mere proof of the making of identical or reciprocal wills does not, ipso facto, establish a contract against subsequent revocation by either one of the makers. If the Carr children are to win, they must prove a contract against the revocation of Mrs. Carr’s will just as they would have to prove a contract to make a will; and our cases hold that such a contract must be proved by evidence that is clear, cogent, and convincing. Crews v. Crews, 212 Ark. 734, 207 S. W. 2d 606. In Janes v. Rogers, 224 Ark. 116, 271 S. W. 2d 930, we had a set of facts very similar to those presented in the case at bar; and the question there posed was whether a contract to make irrevocable reciprocal wills had been established. There, as here, the written instrument contained no specific provision recognizing the contract ; and Mr. Justice Millwee, speaking for this Court, said:

“The principal contention for reversal is that the proof is insufficient to establish a valid contract to make reciprocal wills. In considering this contention we deem it appropriate to notice certain general principles applicable to a proper solution of the issues. We have repeatedly held that a valid oral contract to devise or convey real estate may be made, which is enforceable in equity. Williams v. Williams, 128 Ark. 1, 193 S. W. 82; Speck v. Dodson, 178 Ark. 549, 11 S. W. 2d 456. We have also held that the proof to establish such contract must be clear and convincing. Crews v. Crews, 212 Ark. 734, 207 S. W. 2d 606. The same degree of proof is required to establish a contract for the execution of wills containing reciprocal bequests of a life estate to the surviving testator with remainder to third persons designated by the contract. 57 Am. Jur., Wills, Sec. 728.
“ It is also well settled that a will is generally ambulatory until the death of the testator, and that mutual or reciprocal wills, may be revoked at pleasure unless founded on, or embodying, a binding contract. 69 C. J. Wills, Sec. 2719. . . .
“The fact that the parties have concurrently executed separate wills, reciprocal in terms, is not sufficient, of itself, to show that the parties had entered into a contract to make such wills; but the terms of such wills afford some evidence of the contractual relation and, when read in connection with other evidence which tends to show the execution of the contract, may establish that fact. Page on Wills, Sec. 1710; Annotation on Joint, Mutual and Reciprocal Wills, 169 A.L.R. 9.”

So we conclude that the burden resting on the Carr children in the case at bar was to establish by evidence that is clear, cogent, and convincing, a contract between Mr. and Mrs. Carr to make irrevocable wills.

IV. The Competent Evidence In The Case. In order to recover their full claimed interest in the property in controversy, the Carr children had to prove that Mrs. Carr could not legally revoke her 1945 will. The only competent evidence that we have discovered in the record before us, even remotely bearing on tbe matter of tbe irrevocability of Mrs. Carr’s will, is now listed:

(a) Theo Sawyer testified that he knew Mr. and Mrs. Carr; that he was at one time employed by the Yellow Cab Company which they owned; that some time between 1946 and 1950 he had a conversation with Mr. and Mrs. Carr, as it affected their children, and here is what the witness stated Mrs. Carr said:

“At the time, William Carr was living in one of their houses over on East First and for some months he had not paid the rent on it and she made the statement that in their will, each child, or if any owed any money, it would be divided equal and what each one owed would be deducted. ’ ’

(b) The other witness was Carlos Cole. He testified that he had worked for the Yellow Cab Company; and he testified as to what Mr. Carr said in about 1957, when we infer Mrs. Carr was present:

“Q. State to the Court whether or not you had a conversation with Mr. R. A. Carr or was present when he made a statement with reference to his will and Mrs. Carr’s will, both of them!
“A. Yes, sir, he did not say it to me exactly, but to the bunch that was sitting around.
“Q. All right, what was the occasion of that statement being made ?
“A. Well, I don’t know exactly.what started it. At first, about some fellow that died and hadn’t’left a will or something, he figured there might be a big-' lawsuit and he just made the .remark, he said, well, he. said— . . . He just made the remark, said there wouldn’t be nothing like that happen when he .and his wife, that they had everything fixed like they wanted it, one of their heirs wouldn’t get any more than the other one, and he just turned around and walked off.”

The testimony of the witness Sawyer, at most, shows that some time between 1945 and 1950 Mr. and Mrs. Carr intended that all the children be treated equally; but such intention does not establish a contract that would prevent the will of Mrs. Carr from being revoked by her. Likewise, the testimony of the witness Cole, as to what Mr. Carr said — even assuming Mrs. Carr to have been present at the time — merely showed that several years before Mr. Carr’s death he had said that the six children would take equally. There is nothing to show that such intentions were beyond revocation.

In short, the testimony of Sawyer and Cole — and there is no other in the record on this point — along with the wills themselves, fail to be that “clear, cogent, and convincing evidence ’ which is required in a case such as this; and we, therefore, conclude that the Carr children failed to offer the quantum of evidence required to establish their case and that the decree must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Y. Other Matters. In the briefs there is considerable argument as to whether the deeds from Mrs. Carr to her children were tona fide and with valuable consideration. That question passes out of the ease, because, since Mrs. Carr had a right to revoke her will, she had a right to give to whomsoever she desired the property she had received by entirety as well as any property she acquired other than by Mr. Carr’s will. Of course, any property she received solely through Mr. Carr’s will, and not disposed of by her, would be governed by the terms of Mr. Carr’s will. We remand the case so that as to such property, the Chancery Court may make appropriate orders.

       Mr. Carr’s will reads: “STATE OF ARKANSAS, COUNTY OF UNION. LAST WILL AND TESTAMENT OF R. A. CARR.
      “KNOW ALL MEN BY THESE PRESENTS, That I, R. A. Carr, of the City of El Dorado, County of Union and State of Arkansas, being in good health, of sound and disposing mind and memory, and being above the age of twenty-one years, do make and publish this my last will and testament, hereby revoking all wills by me at any time heretofore made.
      “FIRST: I direct that all my just debts shall be paid, and that the legacies hereinafter given shall, after the payment of my debts, be paid out of my estate.
      “SECOND: I give to each of my children, Leon Carr, Belton Carr and William Carr, and to each of the children of my beloved wife, Ellen Carr, by a former marriage, that is, Coy Barksdale, Collie Barks-dale and Ola Barksdale Wallace, the Sum of One Dollar each, to be paid to them as soon after my decease as conveniently may be done.

        “THIRD: I give, devise, and bequeath to my beloved wife, Ellen Carr, all the rest and residue of my estate, real, personal and mixed, wherever the same may be situated or located, for and during her natural life, with the right, power and privilege, however, during her natural life, to use, expend, sell and hypothecate any and all of the same, and to execute valid and proper deeds, mortgages, conveyances or leases therefor, to the same full purpose and effect as though she owned the full fee or absolute interest in said property, without any interference from any of my said children during her natural life, and with full power and authority during her natural life to handle and carry on the business in which I am now engaged, as though said property belong to her absolutely.
      “FOURTH: I give, devise and bequeath, in equal shares and .portions, after the death of my said beloved wife, Ellen Carr, or in the event the said Ellen Carr shall not survive me, absolutely and in fee simple all my property, real, personal and mixed, and of any nature and kind, wherever the same may be situated, and located, which shall not have been used, expended, sold or otherwise disposed of, by my said beloved wife, Ellen Carr, in her lifetime to the following in equal shares and portions, to-wit: Leon Carr, Belton Carr, William Carr, Coy Barksdale, Collie Barksdale, and Ola Barksdale Wallace.
      “And in the event of the death without issue of any of said devisees prior to the death of the said Ellen Carr, his or her share shall go to the remaining devisees above named in equal shares; and in the event that any of the above named devisees shall not survive the said Ellen Carr, but shall at her death leave direct descendant or descendants, the said direct descendant or descendants shall receive, in equal shares among themselves, the share and portion of his, her, or their said respective father or mother, as the case may be.
      “FIFTH: I do hereby appoint and constitute Ellen Carr as sole executrix of this my last will and testament, to serve as such without bond.
      “IN WITNESS WHEREOF, I have hereunto set my hand this the 26 day of September, 1945, in the presence of Surrey E. Gilliam and Jewell Carroll who attest the same at my request.
      “R. A. Carr, Testator.
      “The above instrument was now here subscribed by R. A. Carr, the testator, in our presence; and we, at his request and in his presence, and in the presence of each other, sign our names hereto as attesting witnesses, and at the time of our signing said testator declared said instrument to be his last will and testament.
      “S. E. Gilliam
      “Jewell Carroll”

       We have several comparatively recent cases that are worthy of study in connection with some of the problems presented in this case. We mention these: George v. Smith, 216 Ark. 896, 227 S. W. 2d 952; Janes v. Rogers, 224 Ark. 116, 271 S. W. 2d 930; Allen v. First National Bank, 230 Ark. 201, 321 S. W. 2d 720; and Robinson v. Williams, 231 Ark. 166, 328 S. W. 2d 494.

       While the case was pending in this Court, Mrs. Ola Barksdale Wallace died intestate, and proper orders have been made reviving the cause as to her husband and heirs, all of whom are of full age.

       Some cases have not made any definite distinction between “joint”, “mutual”, or “reciprocal” wills. There is an annotation in 169 A.L.R., page 9, entitled “Joint, mutual, and reciprocal wills,” and on pages 11 to 14 of the volume there is a discussion of definitions and distinctions. The mere fact that two parties executed separate wills reciprocal in terms — as here — does not ipso facto prove a contract that the wills were to be irrevocable. See Page 23 of said annotation.

       As to what is “clear and convincing evidence,” we like the language used by the Supreme Court of Utah in Kirchgestner v. Denver, 233 P. 2d 699, wherein the Court quoted from its own case of Greener v. Greener, 212 P. 2d 194: “ ‘. . . . for a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion. A mind which was of the opinion that it was convinced and yet which entertained, not a slight, but a reasonable doubt as to the correctness of its conclusion, would seem to be in a state of confusion. . . . That proof is convincing which carries with it, not only the power to persuade the mind as to the probable truth or correctness of the fact it purports to prove, but has the element of clinching such truth or correctness. Clear and convincing proof clinches what might be otherwise only probable to the mind.’ ”


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Collins v. Fincher.
    5-2761
    361 S. W. 2d 86
    Opinion delivered October 22, 1962.

      Bon MeCourtney & Associates, Bon McCourtney, Claude B. Brinton, for appellant.

      H. C. Partlow, Jr. and Marcus Evrard, for appellee.
   George Rose Smith, J.

This case involves the applicability of a well-settled doctrine of election, which comes into play when a testator purports to devise A’s property to B and by the same will also leaves other property to A. In that situation A cannot claim both his own property and the testamentary gift; he must elect to take one and relinquish the other. McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L.R.A.N.S. 657. The question here is whether Lillie Belle Yastbinder was put to such an election with respect to the two forty-acre tracts in controversy. The chancellor held that no election had been necessary and upon that premise quieted the title in Mrs. Yastbinder’s heirs, the appellees.

W. D. Vastbinder and Lillie Belle Fincher were married in 1920. By a prior marriage W. D. then had seven children, the appellants. Lillie Belle had four children by her first husband and later had four more children by Vastbinder; those eight are the appellees.

In 1946 W. D. and Lillie Belle acquired the eighty acres in dispute, as tenants by the entirety. W. D. died testate in 1958, owning 140 acres in addition to his interest in the two forties involved in this case. By his will Vast-binder left “all my real estate that I own at the time of my death to my wife, Lillie Belle Vastbinder, for the period of her life only,” with remainder to W. D.’s eleven children as set out in the will.

Lillie Belle served as executrix of the will. The appellants attach some importance to the fact that she listed the eighty acres in question in her inventory, as an asset of the estate. It appears, however, that this listing was an error on the part of the person preparing the inventory, that Lillie Belle .signed the inventory by mark without knowing that this property was included, and that no one has changed his position in reliance on the mistake. We therefore consider the error to be immaterial. Lillie Belle’s act of signing the inventory could not have constituted an election, for she was not aware that the two forties were included. Nor were the circumstances sufficient to create an estoppel against her.

Lillie Belle died testate in 1960, leaving her property to her own eight children, the appellees. They brought this suit to quiet their title to the eighty acres and to set aside an assertedly erroneous partition decree that was rendered in a suit to which the Fincher children were not parties and at a time when none of the various heirs realized that the two forties had been owned as a tenancy by the entirety. The chancellor granted the relief sought.

The appellants contend that when W. D. Vastbinder left his children a remainder interest in “all my real estate, ’ ’ it was an attempt by him to devise an interest in the eighty acres that passed to Lillie Belle as the surviving tenant by the entirety. Hence, it is argued, W. D. purported to give his children property that belonged to Lillie Belle, and therefore the widow, by accepting the gift of a life estate in W. D. ’s other land, elected to take under the will and forfeited her fee simple ownership of the eighty acres.

This contention is not sound. An election is required •only when the testator purports to give the beneficiary’s property to someone else. Here the two forties were not specifically mentioned in Vastbinder’s will. The general reference to ‘ ‘ all my real estate that I own at the time of my death” did not even purport to describe lands that would pass to Lillie Belle by operation of law at the instant of W. D.’s death. As Atkinson points out in his discussion of this doctrine of election: “Thus, where the testator and the beneficiary are both interested in the property disposed of, the presumption is that the testator intended only to give what was his. By the use of such expressions as ‘ all my lands ’ or ‘ all my estate, ’ the testator is deemed to intend to pass only his interest in the property.” Atkinson on Wills (1937 Ed.), § 255.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Jerry v. Jerry.
    5-2777
    361 S. W. 2d 92
    Opinion delivered October 22, 1962.

      Spencer & Spencer, for appellant.

      Brown & Compton, for appellee.
   Paul Ward, Associate Justice.

The question presented relates to the amount the divorced father should pay for the “maintenance and education” of his children under the peculiar facts and circumstances of this case. The factual background giving rise to this litigation is presently summarized.

Appellant, G-ordon Jerry, and appellee, Mertice Jerry, were married October 6, 1937. They were divorced September 11,1953 upon a complaint filed by appellee. They had three children — -Bobby Jean (female) aged 10, Randall Lynn (male) aged 8, and Angela Lynett (female) 8 months old — whose care and custody was awarded to appellee. Incorporated in the divorce decree and approved by the court was an instrument executed by both parties entitled ‘ ‘ Property Settlement, Agreement and Contract’ ’. In this instrument appellant agreed to “pay to the plaintiff the sum of $200 per month as child support for the maintenance and education of the three children born of this marriage ’ ’. The decree indicates there was a property settlement and the record indicates certain real and personal property was given to appellee. The decree also provided that appellant would be in contempt of court if he failed to make any payment.

On March 8, 1961 appellee filed a petition stating: that on March 1,1961 appellant paid only $133.33, and that he was in arrears in the sum of $66.67; that since the decree conditions have changed in that appellant’s income is greater, the children’s expenses have increased: Bobby Jean (then 18 years old) had finished high school and desires to enter college, and Randall Lynn is in junior high school; that the cost of living had increased; that some of the rental property given to her produced little if any income; and, that $200 per month was insufficient. She prayed judgment for $66.67, for $300 per month for the children’s maintenance, for suit money and for attorney’s fee.

To the above petition appellant answered: Bobby Jean became 18 years of age February 7,1961 and he was no longer liable to pay her one-third of the support money; and he was heavily in debt. He asked to have appellee’s petition dismissed and his monthly payments reduced by $66.66. It is admitted that appellant, without authority from the court, made a payment of only $133.33 on March 1,1961.

On September 21,1961 the court, after a full hearing, in substance, made the following findings: (a) Although appellee’s annual income is more than appellant’s, the latter has, since the divorce, paid $9,000 on investments and now owns real estate, a liquor store and other business interests on which he owes considerable money; (b) appellant has no legal obligation to support his daughter, Bobby Jean, after she became of age in February, 1961; (c) since there is additional expense and cost in maintaining the two younger children in school the payments should remain at $200 per month; and, (d) appellant should pay the amount “he is in arrears by his voluntary reduction of those payments beginning last March”. On the same date the chancellor entered a decree in accordance with the above findings.

For a reversal, appellant presents his argument under three separate points, but we feel that all issues raised can be resolved by a consideration of two questions: One. Was appellant legally and automatically relieved of any duty to make further payments for support of Bobby Jean when she reached the age of 18 ? Two. Does the weight of the evidence support the finding that the monthly payments should remain at $200? For the reasons hereafter set out, we have concluded the first question must be answered in the negative and the latter question must be answered in the affirmative.

One. Ark. Stats. § 57-103 makes it plain that “females -of the age of eighteen (18) years shall be considered of full age for all purposes. ...” In Missouri Pacific Railroad Company et al. v. Foreman, 196 Ark. 636, 119 S. W. 2d 747 (at page 651 of the Arkansas Reports) we said: “Ordinarily, there is no legal obligation on the part of a parent to contribute to the maintenance and support of his children after they become of age.” A significant word in the above quotation is the word “ordinarily”, showing that the Court realized there might be circumstances which could impose on a parent the duty to support a child after such child became of age. This fact was expressly recognized in Upchurch v. Upchurch, 196 Ark. 324, 117 S. W. 2d 339 (page 327 of the Arkansas Reports) where it was stated: “It is, of course, the duty of the father to contribute to the support of his children even after they are of age if the circumstances are such as to make it necessary. ’ ’ This court has uniformly held, based on Ark. Stats. § 34-1213, that the amount allowed for child support is subject to modification when required by changed conditions. See: Watnick v. Bockman, 209 Ark. 696, 192 S. W. 2d 131.

From the above there appears two sufficient reasons why appellant here could not, of his own volition, reduce the $200 monthly payment due on March 1, 1961. One is that the court (and the court alone) had the right to change the amount of the award for the support for the two minor children — which the court in fact did later do. The other reason is that the court, had the facts and circumstances justified, could have continued the original award for not only the two minors but also for Bobby Jean who had become of age. The fact that the trial court later found appellant was under no obligation, under the circumstances, to support Bobby Jean gave appellant no right to voluntarily stop part payment. A third reason might also be added— the award of $200 was for the maintenance of three children and appellant had no right to conclude that $66.67 was for Bobby Jean.

Two. Having the power to do so, we think the trial court was justified, under facts and circumstances, to continue the award of $200 per month for the support of the two minor children. At least we are unwilling to say such finding and holding was against the weight of evidence. Some of the facts on which the court based its decision have heretofore been set out in the findings, but there are others disclosed by the record. It appears undisputed that appellee is in poor health and that her earnings may be substantially diminished. The cost of living has gone up since the date of the original decree and the expense of maintenance of the two minors has increased. Appellee detailed the several items of expense such as groceries and clothing. The record also shows that appellant owns a grocery store, in which he and his wife both work, and from which they take groceries without keeping any account of the cost.

Appellee has asked for an attorney’s fee and we think it should be, and it is hereby, allowed. In our opinion a fee of $200 is fair and reasonable under the circumstances. We do not find that any fee was allowed by the trial court. This procedure is in accordance with our previous decisions in similar cases and also with Ark. Stats. § 34-1210.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Hayes Bros. Lumber Co. v. Bradley.
    5-2772
    361 S. W. 2d 81
    Opinion delivered October 22, 1962.

      Thomas B. Tinnon, for appellant.

      John B. Driver and N. J. Henley, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Roy Bradley, filed this action in the Searcy County Circuit Court alleging that he had been employed by appellant, Hayes Brothers Lumber Company, to buy timber; that he was to be paid $1.00 per thousand feet for the estimated amount of timber in a tract at the time of purchase, and an additional $1.00 per thousand at the time the timber was cut. Bradley alleged that he bought an estimated three million feet of timber, of which two million feet was later cut, making a total of $5,000.00 earned; that he had been paid $2,000.00, leaving a balance of $3,000.00 owed to him on the timber buying contract. He further alleged that he was indebted to Hayes on another account in the sum of $401.00, leaving a balance of $2,599.00 owed to him by Hayes. There was a verdict and judgment for that amount in favor of Bradley and Hayes has appealed.

Appellant contends that there is no substantial evidence to sustain the verdict for any amount, and particularly no evidence to sustain a verdict of $2,599.00. The evidence is convincing that the appellant company, acting through its authorized agent, Noah Burleson, entered into a contract with appellee, whereby Bradley undertook to buy timber for appellant. He was to receive $1.00 per thousand for the estimated footage of timber on a tract at the time of purchase, and was to receive an additional $1.00 per thousand at the time the timber was cut.

There is some discrepancy in the testimony as to both the amount of timber estimated to have been on the various tracts of timber at the time of purchase, and also as to the amount of timber actually cut. Under many decisions of this Court, such discrepancy must be resolved in favor of the jury verdict. Service Fire Insurance Co.v. Payne, 218 Ark. 499, 236 S. W. 2d 1020; Wilson v. Morse Mill Co., 225 Ark. 405, 282 S. W. 2d 803; Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 222.

Mr. Gene Terry, Secretary and Treasurer of the Hayes Company, produced as a witness by Bradley, testified from company records, and gave testimony to the effect that the Bradley estimates totaled 2,465,000 feet, and that of this amount 1,335,602 feet were actually cut. In addition, 67,018 feet were cut from the Baker tract, and 22,863 feet were cut from the Sharp tract. No estimate was given on these two tracts, but by giving appellee the benefit of an estimate equaling the amount cut, this would make a total estimate of 2,554,881 feet. It can also be determined from Mr. Terry’s testimony, which was the most favorable evidence for appellee, that a total of 1,425,483 feet were cut. This would make a total of 3,980,364 feet for the estimate and the amount cut. At $1.00 per thousand, Bradley earned $3,980.36.

According to the Complaint, Bradley had been paid $2,000.00; however, the evidence showed he was paid only $1,685.00. This sum, deducted from the amount earned, would leave $2,295.36 owed to him, but he owes the Hayes Company $401.00 on another account. This amount, deducted from the $2,295.36, leaves $1,894.36. When the evidence is viewed in the light most favorable to appellee, this is the total amount he can recover.

The judgment is, accordingly, set aside and a judgment will be entered here for the appellee in the sum of $1,894.36.

Reversed.


author: Jim Johnson, Associate Justice.

text:
    Barrow v. Bolton.
    5-2784
    361 S. W. 2d 90
    Opinion delivered October 22, 1962.

      Ward & Lady, for appellant.

      W. B. Howard, for appellee.
   Jim Johnson, Associate Justice.

This is a case of first impression wherein appellants seek a new trial on an assignment of error that the trial court abused its discretion in refusing to allow counsel for appellants to argue that sympathy is a proper ground for recovery in a tort action.

Appellants brought suit in Craighead County Circuit Court seeking to recover damages resulting from an injury suffered by Robert C. Barrow, age 13 years, when he received a blow on the head from a baseball pitching machine located on appellees’ amusement park which was closed. In the course of final argument to the jury counsel for appellants attempted to read to the jury a definition of sympathy from Webster’s Unabridged Dictionary. An objection was sustained to which counsel for appellants excepted. From judgment for appellees comes this novel appeal.

The abbreviated record before us shows the following colloquy took place in chambers:

‘ ‘ MR. WARD: In beginning the closing argument to the jury counsel for the plaintiffs referred to the fact that on voir dire examination and again in his closing argument counsel for the defendant had demanded that the jury remove all consideration and reference to sympathy from their deliberations. Counsel for the plaintiff then read, verbatim, an excerpt from the definition of sympathy as given in Webster’s Unabridged,Dictionary, and then stated to the jury that sympathy on the part of mankind for each other was the basis for the existence of onr judicial system. At that point counsel for the plaintiff was interrupted by counsel for the defendant with an objection. Pursuant to this objection on the part of defense counsel, the court admonished the jury in general terms that sympathy is not a basis upon which recovery may be predicated. Whereupon, counsel for plaintiffs expressly requested the court to rule on whether counsel for plaintiffs could discuss the proper definition of sympathy and its proper relationship to other matters and circumstances which the jury was entitled to consider. The court ruled that counsel could not pursue that type of argument, and it is to that ruling on the part of the court to which plaintiff now objects and asks that his exceptions be noted of record, for the reason that plaintiffs contend that by way of argument they had every right to discuss the meaning and application of sympathy in the deliberations of the jury.
‘ ‘ THE COURT: Specifically, the court, in its last ruling to the jury, stated that they could not undertake to consider sympathy for either of the parties in arriving at a verdict, that the discussion regarding sympathy would therefore be irrelevant, hence improper, and they should not consider it in arriving at their verdict in considering the law and evidence.
“MR. WARD: Just so there will be no misunderstanding as to what the record itself is. Counsel for the plaintiffs wishes to object to the ruling as dictated by the court and object to it for the reasons heretofore stated and save their exceptions.
“MR. HOWARD: Let the record show, the objection is being made after retirement of the jury and made in such manner at the express request of counsel for the plaintiffs. Let the record further show, it is the contention of the defendants that counsel for the plaintiffs was arguing to the jury, in effect, they had a right to consider sympathy in arriving at a verdict and that they should not disregard sympathetic consideration.
“THE COURT: May I state for the record, at the time the court sustained the objection made by defendants counsel, counsel for the plaintiff asked for permission to make a record of his objections to the court’s ruling and the court said he would permit him to do so.”

Appellants, in their brief, argue that the trial court abused its discretion in refusing to allow counsel to read to the jury a dictionary definition of the word sympathy. We do not agree. It is familiar law that definition of terms and statements of law are to be given by the court by way of instruction to the jury rather than by argument of counsel. Heard v. Farmers Bank of Hardy, 174 Ark. 194, 295 S. W. 38. It goes without saying that the word sympathy is a common, ordinary, workaday word which is within the immediate understanding and comprehension of veniremen.

Turning to the immediate issue, it is well that this court lay to rest the proposal that sympathy as a proper ground for recovery is without merit. The very nature of the word and its import upon an issue at trial is often inseparable from the facts in any given circumstance. But there it should remain, to go no further. For that reason we adopt the clear language as set out in 53 Am. Jur. Trial, § 496, p. 401, which is as follows:

“While sympathy for suffering and indignation at wrong are worthy sentiments, they are not safe visitors to the courtroom. They may not enter the jury box, nor be heard on the witness stand, nor speak too loudly through the voice of counsel. It is, therefore, improper for counsel to appeal to the sympathy of the jury, either directly or indirectly ...”

Affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    Webb v. Curtis.
    5-2775
    361 S. W. 2d 87
    Opinion delivered October 22, 1962.

      Dinning & Dinning, for appellant.

      A. M. Coates, for appellee.
   Neill Bohlinger, Associate Justice.

In the year 1900 M. E. West and his wife, Mary G. West, subdivided a plot of ground owned by them in Helena, Arkansas and filed their plat and dedication deed. This subdivision was known as the West’s Addition in the City of Helena. M. E. West and his wife reserved Lot 9 and a strip of land being 10 feet North and South by 118.4 feet East and West out of the Northwest corner of Lot 10 as their homestead and occupied same up to the time of Mr. West’s death, after which Mrs. West continued to occupy the place until about 1957.

Alice W. Foster was the owner of all of Lot 11 and Lot 10 of West’s Addition with the exception of a strip of land 10 feet North and South by 118.4 feet East and West out of the Northwest corner of Lot 10, which strip had been retained by the Wests as part of their homestead.

The appellees acquired their property from Alice W. Foster in 1940 under a deed giving metes and bounds description and the appellees at the same time acquired from Mrs. Foster a quitclaim deed to two narrow strips of land [here in controversy] lying immediately North of the well defined hedgerows and fence line. There appears to have been no monument or marker set that would indicate the line.

The appellees brought this suit for the purpose of establishing the North line of their property which would be, according to the plats, approximately 10 feet North of the hedgerow on the front and 12 feet North of the hedgerow and fence line on the back of the property and the appellees sought to enjoin the appellants from trespassing on these two pieces of their property. The appellants contested the suit on the ground that the appellees had for more than twenty years silently accepted a well defined boundary line which they contend constitutes the true boundary line between the two property owners.

The appellees ’ record title dates from the 16th day of January, 1940. The holding of the appellants dates from December 1959 when they acquired the property which is now their homestead. It is clear from the record before us that no doubt or confusion existed in the minds of the appellants’ predecessors in title. The testimony of Will Smith on this point is pertinent. He testified that during the time Mrs. West was living on the adjoining property he was employed by Mr. Curtis, the appellee, to cut down a pecan tree that was located on the property which is now in dispute. That when he was cutting the tree, Mrs. West asked him why he was cutting it and he told her that Mr. Curtis had ordered it cut down and Mrs. West said: “Well, if it was on my property I wouldn’t have it cut, ’ ’ but there was nothing she could do about it so to go ahead and cut it down. He had cut another tree on the property now in dispute and had piled some brush on the land and couldn’t move it at that time and Mrs. West remarked on that occasion that it wouldn’t make any difference to her because it was on Mr. Curtis’ land and to move it when you get ready.

C. L. Moore also testified that Mr. and Mrs. West had sold to Mr. Foster a 10 foot strip and a 12 foot strip because Mr. Poster found that Ms house was on the line and he didn’t have room for a garage and that’s when they sold him the extra 10 feet so he could put his garage on it. Thereafter the Wests made no claim to it.

Prom the record it appears that this controversy might well be pinpointed on the testimony of one of the appellants, Mrs. Webb:

“A. Now, I looked at the property, but to tell you the truth, I never noticed the gravel driveway. It came beyond the hedgerow. It didn’t start right at the Curtis house. It comes over so little you would almost have to get out and look at the lines to notice it.
Q. What do you mean by looking at the line, Mrs. Webb?
A. We naturally thought the hedgerow was the line. In fact, anybody looking at that property I believe would call the hedgerow the line, if you are unfamiliar with the property.” [Emphasis added]

Since the appellants’ predecessors in title made no claim of acquiescence in a boundary or any claim of adverse possession, the case rests upon appellants’ claim by adverse possession or acquiescence acquired since 1957. In the case of Brown Paper Mill Co., Inc. v. Warnix, 222 Ark. 417, 259 S.W. 2d 495, we said:

“* * * Of course 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.” [See also Cossey v. House, 227 Ark. 100, 296 S. W. 2d 199.]

It may be true that Webb assumed that the southern boundary to his property was the hedgerow but a mere subjective belief cannot transfer the title to land.

In Ball v. Messmore, 226 Ark. 256, 289 S. W. 2d 183, we made the following statement:

“In claiming more land than the chancellor awarded them the appellants rely upon the testimony of several witnesses who say that the branch has long been understood to be the line. This testimony may be true, but it falls short of establishing a record title, or adverse possession, or an agreed boundary line, or any other fact of substantive importance. It shows at most the existence of a general belief about the line, but of course such a belief could not have the effect of vesting or divesting the title to real property. ’ ’

The instant case presents an even stronger case for application of the above pronouncement for here the record title is in the party against whom adverse possession, acquiescence, or general belief is claimed.

At the very start of appellants ’ claim of acquiescence or general belief they are met with the proposition that they knew, or should have known, the true boundary for the deed which they received to the property, in describing the boundaries, states:

“* * * thence South 10 feet along the West line of that part of said tract conveyed to Alice W. Foster by deed recorded in book 189, page 422, * *

That deed described approximately one-half of the strip here in controversy; the other one-half had been previously conveyed to Foster: Therefore, by looking in the record noted in his own deed, Webb could have ascertained that he did not own any part of the disputed strip.

The use of part of the property as a dog run by former owners was at most a permissive use. No use was made of the front part of the strip except by appellees as part of their driveway and when appellants attempted to occupy or use said strip this action resulted.

The chancellor’s finding that Webb had not obtained title to the property by adverse possession or by acquiescence is sustained by an overwhelming preponderance of the evidence. The chancellor quieted the title to the disputed strip in the appellees and enjoined the appellants from trespassing. That decree is now affirmed.

       Curtis’ predecessor in title.


author: Carleton Harris, Chief Justice.

text:
    Becker v. Rogers.
    5-2881
    361 S. W. 2d 262
    Opinion delivered October 29, 1962.

      Osro Cobb, for appellant.

      Homer T. Rogers, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to the validity of the appointment of Homer T. Rogers, appellee herein, as temporary guardian of Marvin Umsted, incompetent. On July 6,1962, Audrey Umsted Cobb and Aubrey Umsted Becker filed their petition with the Ouachita County Probate Court, asking that Howard East, a resident of Camden, be appointed permanent guardian of the Marvin Umsted estate. Petitioners are nieces of Mr. Umsted, and the petition recites that the latter is 81 years of age, resides in the Ouachita County Hospital at Camden, and is incapacitated due to permanent circulatory disorders and advanced age. On July 12th, petitioners filed an “affidavit of facts” in support of the petition, reciting the history of their connection with Mr. Umsted, and detailing the facts of his illness. This affidavit, of course, is not evidence, but actually a supplemental petition, and is so treated. Reasons are set forth for the appointment of Mr. East, and petitioners request “If, for any reason, Mr. Howard East should become unavailable for the appointment as permanent guardian, then these petitioners respectfully request that they be appointed jointly as such guardian”.

On July 17, Mr. Rogers, appellee, filed a petition setting up that he had “been appointed by this court each ninety-day period for the past twevle months as temporary guardian of the said Marvin Umstead”, and he sought to again be appointed temporary guardian for another ninety days. The petition recites that the condition of Mr. Umsted, physically and mentally, has improved from the date of the last appointment; that at times Umsted is confused, and at other times “his mind is clear and he acts normal”. Said petition was supported by a letter from Dr. P. J. Dalton, a physician of Camden, who stated that he was of the opinion that Mr. Umsted was incompetent to take care of his affairs. Further, “His mental status has improved over what it was six months ago. As a rule, he is relaxed, quiet and co-operative”; however, “his mental status will remain confused at times for the remainder of his life”. On July 19th, appellants filed a motion seeking an order to require Mr. Rogers, as temporary guardian, to file a full and final report.

On July 20th, the Probate Court of Ouachita County entered its order reciting,

“# * * there is presented to the Court the Petition of Mrs. Aubrey Becker and Mrs. Audrey Cobb, asking that Mr. Howard East be appointed permanent Guardian of the person and estate of Marvin Umsted, an alleged incompetent person, or in the alternative, if Mr. Howard East refuses to serve, that they be appointed as such guardians; also a Petition of Homer T. Rogers, who has been appointed temporary guardian of the person and estate of the said Marvin Umsted for four consecutive periods of ninety days each; and the same are submitted to the Court upon said Petitions, testimony of witnesses, and statement of the attending physician, from all of which the Court finds:
‘ ‘ That Marvin Umsted is a resident of Camden, Arkansas, and is at the present a patient at Ouachita County Hospital. He is some eighty-two years of age and is, at times, incapable of managing his property or caring for himself due to a mental incapacity brought on by advancing years and circulatory disturbances. That at intervals he is of sound mind and it would be greatly disturbing to him to change his guardian at this time. That he has become accustomed to Homer T. Rogers being his guardian, and Homer T. Rogers has requested this Court to appoint him a temporary guardian for a period of ninety days. That it would greatly upset said Marvin Umsted to appoint either Mr. Howard East or Mrs. Becker and Mrs. Cobb as his Guardian. * * *”

In accordance with the findings, Rogers was reappointed temporary guardian of the person and estate of Umsted for a period of ninety days, and a bond, in the sum of $15,000, was approved.

On July 23rd, appellants filed a motion to vacate and cancel the order appointing Rogers temporary guardian, alleging that the purported accounting filed by Rogers, covering his services as temporary guardian through July 9, 1962, was not a full and complete report; that there was no emergency which required the July 20th appointment of a temporary guardian; that Rogers is prohibited by statute from continuing as temporary guardian, and that appellants were not advised of any hearing on July 20th, though they had requested of the clerk, formal notice of any hearings in the case. The preceding paragraphs set forth all pleadings, orders, and proceedings, appearing in the transcript, and the record is completely silent as to any further developments following this last motion. From the order of July 20th, reappointing Homer T. Rogers as temporary guardian, appellants bring this appeal.

At the outset, let it be mentioned that the briefs contain, and make reference to, many matters that do not appear in the record. Appellee’s brief, in large measure, is devoted to extraneous material, and appellants, in their reply brief, to some extent, follow the same practice. The fact that we do not consider statements beyond the record is so axiomatic as to require no citation of authority.

While, in one sense of the word, this appeal is moot because of the fact that the appointment expired some 10 days ago, there are matters which could possibly be hereafter presented to the trial court, which we think necessitate this court’s passing upon the legality of Rogers’ appointment, viz., the question of guardian’s fee, expenses, and the validity of actions taken by the guardian during the ninety-day period. In addition, since the appointment is only for a ninety-day period, it would be virtually impossible for a transcript to be prepared, briefs submitted, and the case disposed of by opinion before such period expired. In effect, in many instances, this would result in the loss of the right of appeal, though such right is clearly granted by the statute.

As herein mentioned, appellee’s appointment as temporary guardian on July 20th, was his fifth appointment in that capacity. We are not here concerned with the first four appointments, since they are not at issue on this appeal. We are of the view that the appointment of July 20th was invalid for two reasons. Section 57-620, 1961 Supp., provides as follows:

“If the court finds that the welfare of an incompetent requires the immediate appointment of a guardian of his person or of his estate, or of both, it may, with or without notice, appoint a temporary guardian for the incompetent for a specified period which period including all extensions thereof, shall not exceed ninety [5b] days and remove or discharge him or terminate his guardianship. If made without notice, the temporary guardian shall forthwith give to the incompetent person notice of the appointment. The appointment may be to perform duties respecting specific property or to perform particular acts, as stated in the order of appointment. The temporary guardian shall make such reports as the court shall direct, and shall account to the court upon termination of his authority. In other respects the provisions of this Code concerning guardians shall apply to temporary guardians and an appeal may be taken from the order of appointment of a temporary guardian. The letters issued to a temporary guardian shall state the date of expiration of the authority of the temporary guardian. ’ ’

The Arkansas Probate Code was enacted by the General Assembly as Act 140 of 1949. Section 207 [57-620] of the act related to the appointment of temporary guardians. Under that act, a temporary guardian was appointed for ninety days, but there was nothing to prevent the reappointment of such guardian for an additional ninety days. This section was amended in 1951 by inserting the italicized language. Judge E. B. Meriwether, Professor, University of Arkansas School of Law, in an article appearing in Ark. Law Beview, Volume 5, Page 377, discusses amendments to the Probate Code. At Page 380 he calls attention to the amendment herein discussed, as follows:

‘ ‘ Section 12 clarifies Code Section 207, which limited a court-ordered temporary guardianship to ninety days. Nothing in the Code, however, prevented the court from appointing successive temporary guardians or reappointing a temporary guardian. Section 12 therefore provides that the temporary guardian shall be appointed for a specified period, ‘which period including all extensions thereof, shall not exceed ninety days ’. ’ ’

It is, therefore, at once apparent that the July 20th appointment of Bogers as temporary guardian was contrary to the provisions of the statute. While not argued, or relied upon, by appellee, it might be well to point out that the interim of eleven days between Bogers’ fourth and fifth appointments, does not result in making the court’s order valid. It was clearly the intent of the legislature in amending this section to prohibit the appointment of a temporary guardian, or the retention of an individual as temporary guardian, for more than ninety days. To hold otherwise, would, obviously, emasculate the statute as amended. The period of time that should elapse, following the expiration of a temporary guardianship, before the same individual could again be appointed temporary guardian, is purely academic, and, therefore, requires no discussion. It is certainly conceivable that a case could arise, which would require the appointment of a temporary guardian, with no need for a permanent guardian at the expiration of the ninety-day period; perhaps a year or so later an exigency would arise, which could, again, require the appointment of a temporary guardian. We render no holding as to whether the same individual, who had been appointed the year before, could then properly serve. In the case before us, from a practical standpoint, Rogers had continuously served for 360 days before the appointment in question.

There is yet another reason why the order should not have been entered. In Walthour-Flake Co., Inc. v. Brown, 228 Ark. 307, 307 S. W. 2d 215, this court pointed out that the provision for appointing a temporary guardian was designed to take care of emergencies. Under the Probate Code, notice must be given before a regular guardian can be appointed, and as stated in the cited case, ‘‘ * * * instances may well arise where such a delay would cause irreparable damage to the estate of an incompetent. Here, no such emergency seems to have existed.” In the instant case, it would likewise appear that no emergency existed which would necessitate this appointment. The letter from Dr. Dalton stated that Umsted’s mental status had improved, and that he was “relaxed, quiet and cooperative”. The principal purpose of a temporary appointment is to take care of urgent and emergent matters that have arisen, and where prompt action is essential before the legal requirements for the appointment of a permanent guardian can be met.

In accord with the reasoning herein set ont, we find, and hold, that the appointment of Homer T. Eogers as temporary guardian of Marvin Umsted, incompetent, by order entered on July 20,1962, was invalid, and the order is reversed.

While the appeal relates only to the appointment of Eogers as temporary guardian, appellants suggest that this court should also name appellants, or Mr. East, or all three, as permanent guardians. Of course, in the first place, there is no appeal from the failure of the court to appoint any of those mentioned. Secondly, without benefit of a record containing evidence relating to the qualifications of those seeking the appointment of permanent guardian, we are in no position to know who can best serve the interests of the incompetent. Finally, it would not appear from the record that appellants have performed the requisite and necessary acts for a hearing on the appointment of a permanent guardian; i.e., no notice appéars in the transcript as provided in Section 57-611, 1961 Supp. There is, of course, nothing to prevent appellants, after serving proper notices, from, requesting and obtaining a hearing on their petition for a permanent guardian.

Eeversed.

       Dr. Dalton’s statement is not in conformity with the provisions of the statute [§ 57-615, 1961 Supp.] which requires that the written statement given by a doctor shall be verified; there is also a requirement that the doctor’s qualifications be set forth in the statement.

       Mr. Umsted apparently had a birthday following the filing of the original petition.

       The record does not reflect that a written request for notice was filed, or that other requirements of Section 57-613 [“Request for special notice of hearings”] were complied with.

       Emphasis supplied.

       The burden, is upon appellants to see that proper notices are served.


author: Ed. F. McFaddin, Associate Justice.

text:
    Karoley v. A. R. & T. Electronics.
    5-2774
    363 S. W. 2d 120
    Opinion delivered October 29, 1962.
    [Petition for Rehearing withdrawn January 14, 1963.]

      B. W. Thomas and Richard W. Hobbs, for appellant.

      Luden Wulsin, Jr., Rose, Meek, House, Barron, Nash & Williamson, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question presented is the validity of an order setting aside a judgment rendered against a defaulting garnishee. Dates become significant in presenting the issue to be decided:

A. In 1959 Mary E. Karoley (appellant here) obtained judgment in the Pulaski Chancery Court against John D. Eeid for $12,000.00; and the judgment remained unpaid.

B. On May 23, 1961 Karoley filed interrogatories and obtained a writ of garnishment from the Pulaski Chancery Court against A. R. & T. Electronics, Inc. (appellee here), seeking to recover from the garnishee any amounts due by it to the said Reid, who was executive vice-president of that Company.

C. The writ of garnishment was served on May 25, 1961, and the last day fixed by law for filing answers to the interrogatories was June 14, 1961. No answer or other pleading of any kind was filed within said time; but on June 15, 1961 (one day after time) there was filed a “Motion of Garnishee”, which said in part:

“3. The Allegations and Interrogatories served on the Garnishee on May 25, 1961 contain matter which is beyond the scope of the Order of this Court dated January 16, 1961 and is irrelevant and beyond the scope of interrogatories permitted under the laws of the State of Arkansas.
“4. Garnishee requests the Court to issue an Order, striking Interrogatories No. 2, No. 3, No. 4, No. 5, No. 6 and No. 7 contained in Allegations and Interrogatories served on the Garnishee, May 25,1961. ’ ’

D. On June 22, 1961, the Garnishee filed an answer to Interrogatory No. 1, stating that the Garnishee was not on date of service, or at any other time thereafter, indebted to John D. Reid in any way whatsoever. This answer was several days after the time allowed by law for filing same, and, as aforesaid, no defensive pleading of any kind was filed within proper time.

E. Because of the failure of the Garnishee to answer or plead on or before June 14, 1961, Karoley, on June 29, 1961, moved for judgment against the Garnishee for the amount of the judgment and interest against Reid, as provided by § 31-512 Ark. Stats.; and the Chancery Court rendered such judgment against the Garnishee on June 29, 1961, and directed that execution should issue “at any time from and after the date of this decree”.

F. Execution was issued, and on July 7, 1961, the Garnishee, A. R. & T. Electronics, Inc., filed its motion to have the Court vacate and set aside the judgment rendered against the Garnishee on June 29, 1961. Without proper service of said motion •(§• 27-1210 Ark. Stats.), an order was made by the Chancery Court on July 7, 1961, which, in its entirety, reads:

‘ ‘ On this day is presented to the Court the Motion of Garnishee, A. R. & T. Electronics, Inc., in which it asks that the default judgment entered herein on June 29,1961, be temporarily vacated, and after a hearing on the merits that the vacation of said judgment be made permanent, and that the writ of execution issued ón June 29, 1961, be recalled.
“The Court being fully advised doth order that said judgment entered herein on June 29,1961, be, and the same is hereby, temporarily vacated and the Motion of Garnishee filed herein on this date, after due notice to counsel for plaintiff, shall be heard on the merits.”

G. On August 15, 1961, Karoley responded to the Garnishee’s motion of July 7, 1961, to set aside the judgment. The Pulaski Chancery Court made no further orders in the case until November 15, 1961, when the Court made permanent its order of July 7, 1961. The order of November 15, 1961, recited:

“It is ordered that the order entered herein on July 7, 1961 be, and the sarnie is hereby, made unconditional and permanent ...”

From the said order of November 15, 1961, Karoley has appealed. Able counsel have argued many nice questions in the briefs; but the decisive point is that the default judgment against the Garnishee, as rendered on June 29, 1961, was not completely and finally set aside at the term in which it was rendered; and the motion (of July 7,1961) to set the judgment aside did not comply with the statute applicable to setting aside a judgment after the lapse of the term (§ 29-506 et seq. Ark. Stats.).

I. The Court Was Correct In Rendering The Judgment Against The Garnishee on June 29, 1961. The Garnishee was served on May 25,1961; and was required by law to file some pleading on or before June 14, 1961. Nothing was filed within the said time; and the case of Harmon v. Bell, 204 Ark. 290, 161 S. W. 2d 744, is directly in point. In that case the garnishee filed no responsive pleading within the time fixed by statute and judgment was rendered against the garnishee, as provided by statute (§ 31-512 Ark. Stats.). When the garnishee appealed to this Court, we said: “This amounted to a failure to answer and judgment by default was properly taken against him. In Wilson v. Phillips, 5 Ark. 183, this Court held: ‘Where a garnishee fails to answer, no proof is necessary to charge him. The default admits his liability to the full extent of the plaintiff’s demand.’ ” So the judgment rendered against the Garnishee on June 29, 1961, was correct and proper.

II. The Order Of July 7th Did Not Finally And Completely Set Aside The Judgment Of June 29th. The terms of the Pulaski Chancery Court are the first Monday in April and October of each year (see § 22-406 Ark. Stats.). The judgment against the Garnishee was rendered on June 29,1961, which was a day of the April Term. At any time during that term, the Chancery Court had the power to set aside the judgment on its own motion and without any notice whatever to either party. Stinson v. Stinson, 203 Ark. 883, 159 S. W. 2d 446; Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50; Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797; Eakin v. Cities Service Co., 228 Ark. 979, 311 S. W. 2d 530; and West’s Digest, “Judgment” § 341.

But the order of July 7th, previously copied, did not purport to completely and finally set aside the judgment of June 29th: rather, the order of July 7th (a) recalled the execution, (b) “temporarily” vacated the judgment, and (c) stated that the motion of the Garnishee to set aside the judgment of June 29th would be heard on its merits “after due notice to counsel for plaintiff”.

If the order of July 7th had been intended to finally and completely vacate the judgment of June 29th, then the order certainly would not have used the word “temporarily”, and would not have stated that the motion to vacate would be heard on its merits “after due notice to counsel for plaintiff”.

The word “temporarily” is the vital word in the order of July 7th, and discloses that the Court recognized that something more had to be done before the judgment of June 29th would be finally and completely set aside. Webster’s Dictionary defines “temporarily” as meaning “for a brief period”, or “during a limited time”. In the early case of Knox v. Bierne, 4 Ark. 460, this Court had occasion to consider the word “temporarily”, and said that it meant something other than “permanent or lasting”. A reading of that opinion is convincing that “temporarily” means for a very limited time — -really only slightly more than the immediate present. The power of the Court to permanently set aside that judgment of June 29th was complete during the April 1961 term; but at the expiration of that term, the Court had no further power to set aside the said judgment against the Garnishee except by following the statute (§ 29-506 et seq. Ark. Stats.). The Garnishee failed to ask the Court to further act on the matter at the April 1961 term.

III. The Court Had No Power After The Term To Set Aside The Judgment Of June 29th. As previously stated, the terms of the Pulaski Chancery Court are the first Monday in April and October of each year (§ 22-406 Ark. Stats.), and the judgment of June 29th was rendered in the April 1961 term. After the lapse of the April term, the Chancery Court did not have the power to set aside the judgment of June 29th, unless the Garnishee complied with § 29-506 et seq. Ark. Stats., or filed bill of review. Terry v. Logue, 97 Ark. 314, 133 S. W. 1135; Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583; Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50; Jamieson v. Jamieson, 223 Ark. 845, 268 S. W. 2d 881. This is not a proceeding by bill of review; and in the oral argument before this Court, counsel for the Garnishee, with admirable frankness, conceded that the motion (to set aside the judgment) filed on July 7, 1961, did not comply with the statutory requirements for setting aside a judgment after the lapse of the term. We find such concession to be true.

The judgment of November 15, 1961, attempting to permanently set aside the judgment of June 29,1961, was rendered at the October 1961 term of the Chancery Court, and was not supported by the jurisdictional essentials prescribed by § 29-506 et seq. Ark. Stats. In criminal cases, a motion for new trial must receive final court action at the same term of the court at which judgment was rendered against the accused (see § 43-2202 Ark. Stats, and Town of Corning v. Thompson, 113 Ark. 237, 168 S. W. 128); so the cases involving motions for new trial in criminal cases are analogous to the cases on setting aside a judgment after the term in civil matters. In Siloam Springs v. McPhitridge, 53 Ark. 21, 13 S. W. 137, defendant McPhitridge was tried in the Circuit Court and judgment of -conviction rendered against him on September 27, 1887. We copy from the opinion of this court in that case:

“. . . at the same term of the court, he filed his motion for a new trial and in arrest of judgment, and the record says, ‘which motion is by the court taken under advisement, and hearing of said motion is continued. And it is ordered by the court that the execution of the judgment rendered in this cause be suspended until decision by the court upon said motion.’ “At the next term of the court, on April 20, 1888, the court sustained said motion in arrest of judgment, set aside the judgment entered at the preceding term, and gave judgment against appellant for the Avhole cost of the prosecution. ‘ ‘ This was beyond the power of the court. Its judgment upon the verdict convicting McPhitridge became final at the end of the fall term, and the pendency of the motion for new trial and in arrest and the order suspending execution of the judgment did not prevent the result. Had the court desired to reserve the matter of the motion for consideration, it should have set aside the judgment at the fall term. The judgment of September 27, 1887, is still in full force, and the order setting it aside is quashed as upon certiorari.”

In Mayor of Little Rock v. Bullock, 6 Ark. 283, judgment by default was taken against Field and Jeffries at the March 1810 term of the Circuit Court. At the March 1811 term, Bullock and Field appeared and moved to have the judgment set aside and showed that the City of Little Rock had consented. The judgment was set aside, but, on appeal, this Court said:

“After the term at which the judgment by default, and writ of inquiry, and final judgment were rendered thereon, the cause was no longer under the jurisdiction and control of the court, or the parties. The court not having the power to re-open the cause, it could not be done by the consent of the parties, for consent cannot confer jurisdiction. All the proceedings had in this cause subsequent to the final judgment at the March term, 1810, must be considered as coram non judice, and therefore void.
“The appeal not having been taken at the term at which that judgment was rendered, the same must be dismissed.”

CONCLUSION

Since the judgment of June 29th was not finally and completely vacated at the term at which it was rendered, and since, on the motion before it, the Chancery Court had no power at the October 1961 term to set aside the judgment rendered on June 29, 1961, it therefore follows that the judgment of June 29, 1961 is in full force and effect, and the order setting it aside is a nullity. The cause is remanded with directions to the Chancery Court to set aside its order of November 15,1961, and permit Karoley to have execution on her judgment of June 29, 1961.

George Bose Smith, J., not participating.

       For those interested in the ramifications of the litigation between Karoley and Reid, we give these citations; Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d, 332; Karoley v. Reid, 226 Ark. 959, 295 S. W. 2d 767; Reid v. Karoley, 229 Ark. 90, 313 S. W. 2d 381; Reid v. Karoley, 232 Ark. 261, 337 S. W. 2d 648; and Karoley v. Reid, 233 Ark. 538, 345 S. W. 2d 626.

       The said interrogatories were:
      “1. Please state if at the time of the service of this garnishment you have any goods, chattels, moneys, credits or effects in your hands or possession belonging to the defendant, John D. Reid, and if so, the value thereof.
      “2. Please state if John D. Reid is an employee of your corporation and if so, please state if he is working under any contract of employment, verbal or written, and if so, the terms of the contract with respect to any salaries or remuneration or bonuses or other moneys to be paid to the defendant, John D. Reid.
      “3. Please state if John D. Reid, during the past five years, has been an employee of your corporation and if so, please state whether he is paid for his services on a weekly, bi-weekly, monthly, bi-monthly or annual basis and please give the exact day of the week or month during the past five years that Mr. John D. Reid has been given any pay checks or any moneys from your corporation.
      “4. Please state if John D. Reid is indebted to the corporation for any advancements as to salaries or otherwise and if so, when such advancements were made to him and the total amount thereof before the date of the service of this garnishment.

        “5. If your answer to the foregoing interrogatory is in the affirmative, please state what you have in your possession to show as evidence of any indebtedness of John D. Reid to A. R. & T. Electronics, Inc. and state whether or not John D. Reid has executed any promissory note or made any assignments of future salaries in regard to said indebtedness and if so, the dates of the giving of such notes or other evidence of indebtedness or assignment.
      “6. If you state that John D. Reid is indebted to the said corporation, please state when the said debt is due and how it is to be paid and whether or not any demand has ever been made on John D. Reid for the payment of the said debt or any part thereof and whether or not any part of the said debt, if any, has been paid by John D. Reid during the past five years or since the inception of the debt and whether or not any deductions have been made during the past five years from any pay checks given to John D. Reid, and if any deductions have been made, whether or not they have been applied toward the payment of the debt or any part thereof.
      “7. Please state the exact amount of each pay check that has been given to John D. Reid during the past year after deductions for withholding taxes, social security and P.I.C.A. taxes.”

       The order of November 15, 1961, was a final and appealable order, since it purported to vacate and set aside a judgment which had been rendered at a previous term of Court. Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583.

       The validity of the service on the garnishee can hardly be questioned, in view of the statement previously copied in the motion of the garnishee, in which it is stated that the allegations and interrogatories were “served on the garnishee May 25, 1961.”

       The cited statute says ten days, but this has been enlarged to twenty days in a case like this one.

       Of course, the statute regarding setting aside final judgments after the term, has no application to temporary injunctions. Hardy v. Hardy, 217 Ark. 296, 230 S. W. 2d 6; Carter v. Olsin, 228 Ark. 629, 309 S. W. 2d 328.

       See also Feild v. Waters, 148 Ark. 325, 229 S. W. 735, involving motion for new trial in a civil ease, decided before Act No. 555 of 1953.


text:
    Summerhill v. Shannon.
    5-2808
    361 S. W. 2d 271
    Opinion delivered October 29, 1962.

      Dinning & Dinning, by W. G. Dinning, Sr., for appellant.

      Eugene L. Schieffler, for appellee.
   George Rose Smith, J.

On April 24, 1961, the appellee ’s car was struck from behind by a car owned by the appellant and being driven by his sixteen-year-old son, Gary. The appellee brought this action to recover his property damage of $182.52, seeking to hold the elder Summerhill liable under the provisions of Act 495 of 1961. Ark. Stats. 1947, § 75-315. The jury returned a verdict for the plaintiff in the full amount sued for.

Act 495, as it applies to this case, imposes liability upon the appellant for his minor son’s negligence if he permitted the boy to drive a motor vehicle "upon any highway”. This collision occurred upon a paved road on the schoolgrounds of the West Helena high school. The road leads from a parking area to the city street and is open for use by students and others having occasion to enter the schoolyard. The appellant insists that the road is not a highway within the meaning of the statute.

We cannot sustain this contention. A highway is commonly defined as a passage, road, or street which every citizen has a right to use. Bouvier’s Law Dictionary (Rawle’s 3d Rev.); Webster’s Second New International Dictionary. A highway includes every public thoroughfare, "whether it be a carriage way, a horse way, a foot way, or a navigable river”. Canard v. State, 174 Ark. 918, 298 S. W. 24. There we held that a roadway within the local fair grounds was a public highway. Upon the same reasoning we are convinced that the paved road in this case was a highway within the intent of the 1961 act. There is no good reason why the protection afforded by the statute should not be available to high school students and others having occasion to use the road.

Summerhill’s other arguments have to do with the matter of insurance. It appears that the plaintiff Shannon had an insurance policy upon which he had collected all but the first fifty dollars of his loss. At the trial Summerhill insisted that Shannon was not the real party in interest and that the jury should be informed of Shannon’s insurance coverage. Both contentions were rejected by the trial judge.

The rulings were correct. We considered' the first contention in McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566, and held that even though Mizell had been reimbursed by his insurer for all but $25 of his $789.50 loss he was still the real party in interest and was entitled to maintain suit in his own name. That ease was followed in Dowell, Inc. v. Patton, 221 Ark. 947, 257 S. W. 2d 364, where it was decided that the plaintiff’s collection of most of his damage under a $50 deductible policy could not be proved in a jury case either to show the plaintiff’s interest in the suit or to reflect upon his credibility as a witness. In principle those decisions control this case and require that the trial court’s action be upheld.

Affirmed.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Beck v. Rhoads.
    5-2789
    361 S. W. 2d 545
    Opinion delivered October 29, 1962.
    [Rehearing denied November 26, 1962.]

      McMath, Leatherman, Woods £ YoungdaM and G. Thomas Bisele, for appellant.

      Joe W. McCoy and W. H. McClellan, for appellee.
   Paul Ward, Associate Justice.

Appellants, Buford F. and Dean K. Beck, filed suit to regain possession of two parcels of land in Malvern, and incidentally to cancel a deed conveying said lands to appellees, W. E. and Cecilia H. Rhoads, who were in possession at that time. The circuit judge (a jury having been waived) found the issues against appellants who have appealed for a reversal.

The facts presently set out are not in dispute. Subject to the claim of appellees hereafter mentioned, appellants have held a good record title to said lands since about 1945. The land was included in the Waterworks Improvement District No. 16 of the City of Malvern (hereafter referred to as District) which was organized somewhere around the year 1900. The assessments of benefits against the land were not paid for the years 1950-1951, and foreclosure followed. The foreclosure decree is dated February 14, 1952, and the District was the purchaser at the sale which followed. The land, not having been redeemed, was deeded to the District on February 13, 1960. Three days later the District executed a quitclaim deed conveying the land to appellee W. E. Rhoads who went into possession. The following month Mr. and Mrs. Rhoads obtained a $10,000 title policy from the American Title and Insurance Company, and in May (1960) they executed a mortgage on the land to the Bank of Malvern to secure a loan of $3,500. The bank also obtained a title policy. Appellants’ suit was filed February 13, 1961.

Appellants make two basic contentions for a reversal. One. The trial court erred in refusing to give them a default judgment against the Rhoads. Two. The District’s failure to give appellants notice (as required by statute) of the foreclosure proceedings rendered the decree (of foreclosure) void, which in turn voided the deed to the District and likewise the deed from the District to appellees.

The Bank of Malvern was made a party to the suit because of its mortgage on the land. Hereafter we will refer to it as the bank and to Mr. and Mrs. Rhoads as appellees.

One. Although the issue of a default judgment has been argued at length by both sides we deem it unnecessary to discuss that question since we have reached the conclusion that the decree appealed from must be reversed on the merits of the case presented under the second contention mentioned above.

Two. Several questions are raised and must be discussed under this point.

(a) Basically it was appellees’ contention in the trial below, and it is their contention here, that appellants, having waited more than five years after the foreclosure decree, are barred from maintaining this suit under the provisions of Ark. Stats. § 37-108. The pertinent part of this section reads:

“All actions against the purchaser, his heirs or assigns, for the recovery of (lands sold by any collector of the revenue for the non-payment of taxes, and for) lands sold at judicial sales shall be brought within five [5] years after the date of such sale, and not thereafter. ...”

In support of this contention appellees cite, among others, the case of Cutsinger v. Strang, 203 Ark. 699, 158 S. W. 2d 669. There the Court, in construing § 8924 of Pope’s Digest (same as Ark. Stats. § 37-108), held appellant was barred from maintaining his suit after five years had elapsed in a situation comparable to that of this case, except for the fact that in the cited case there was no question of notice involved. Moreover, we think the Gutsinger opinion must be reappraised in the light of Act 195 of 1949 which appears in Ark. Stats, as Sections 20-412 et seq., relied on by appellants. The provisions of Section 17 of Act 195 (Ark. Stats. § 20-418.13) may be summarized as follows: (a) The Board of Commissioners (of any Municipal Improvement District), before filing suit to collect delinquent taxes, shall obtain a list of the names of the owners and a description of their property; (b) a copy of the list shall be attached to the complaint; (c) twenty days before filing complaint, a registered letter (with return receipt requested) shall be sent to each name on the list; (d) an affidavit of the person mailing the letter must be attached to the complaint.

Section 21 of Act 195 (Ark. Stats. § 20-446.1) also provides: “The owner of any land sold for delinquent installments due municipal districts shall have the right to redeem at any time within five (5) years from the date of sale. ...” We interpret this section to mean the owner would have five years to redeem under any circumstances — even if he had been given the statutory notice. Act 195 of 1949 has never been before this Court for interpretation but, after a careful study of its many provisions and particularly Section 17 summarized above, we do not construe Section 21 to mean the owner could not redeem after five years where he was not given notice of the foreclosure suit. Any other interpretation would seem to nullify the express purpose for which the act was passed, which was “to provide more protection for the owners of property located within municipal improvement districts. ...”

(b) The decisive question therefore is whether proper notice of the foreclosure suit was given to appellants. In this connection it is (and was) appellees contention that the decree of foreclosure is regular on its face and that, therefore, no evidence could be offered to the contrary. Supporting this contention they quote from the decree the following: ‘ ‘ That notice of the pendency of this suit was given for the time and in the manner required by law. ...” From this appellees conclude that Section 17 of Act 195 (summarized above) was complied with. This conclusion, however, is negatived by the emphasized portion of the decree copied below:

“That notice of the pendency of this suit was given for the time and in the manner required by law, as evidenced by proof of publication filed herein, showing that due notice of this suit was given by publication of a notice in a newspaper having a bona fide circulation in Hot Spring County, for two weeks consecutively, the first insertion being more than four weeks prior thereto.” (Emphasis ours.)

If it be true that appellants were not given notice, as they contend, then the foreclosure decree together with the deeds based thereon must be held to be void under the provisions of Ark. Stats. § 29-107 quoted below:

“All judgments, orders, sentences, and decrees, made, rendered, or pronounced, by any of the courts of the State, against any one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences, or decrees, shall be absolutely null and void.”

In the case of Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321 there appears this statement:

“The record here shows that there is a total lack of service upon any of the appellees; no pleadings either by complaint or cross-complaint to authorize the judgment. A judgment rendered without notice to the parties affected is void under our statute, Ark. Stats. 1947, § 29-107.”

The uncontradicted testimony is to the effect that appellants had no notice of any kind (either actual or by registered mail) that the foreclosure suit would be, or was in fact, filed in this case. If the foreclosure decree was void it is, of course, subject to colláteral attack under our decisions.

(c) Notwithstanding what we have heretofore said, appellees vigorously contend appellants’ pleadings failed to raise the decisive question of the lack of notice heretofore discussed. This contention appears to be based specifically on the ground that the “record” in the foreclosure proceeding consists not only of the decree but also of the complaint and other pleadings, that the “record” was not challenged by appellants’ pleadings. We are unable to find any merit in this contention. It is true that appellants ’ complaint deals extensively with matters foreign to the issues here raised (based on a forfeiture of the land to the state) but it does state that appellees claim an interest in the land based on a quitclaim deed from the District; then it states that the record entries are void for, among others, the following reasons: “There was no notice of sale of said lands given, as required by law.”' Also, on March 1, 1961 (18 days after appellants’ complaint was filed) the District filed its separate answer, stating the complaint did not state facts sufficient to constitute a cause of action and requested the court to dismiss the complaint. The court took no action on this request. Thereafter appellees (not having filed their answer within 20 days), on June 1, 1961, filed a motion asking time to file an answer. In this motion appellees stated (among other things) they purchased the land from the District February 29,1960, and their defense was the same as that of the bank, but no request was made to have appellants ’ complaint dismissed. A few days later the bank filed a substituted answer in which (among other things) it admitted the validity of appellants ’ claim of title, but stated appellants were divested of their title by reason of the following things: (then follows four pages describing in detail how appellees secured their title by virtue of the foreclosure, the decree, and the deed from the District. Many exhibits were attached.) At no place in the answer was the sufficiency of the allegation of the complaint challenged. In addition to all this the trial court admitted appellants’ testimony relative to the question of lack of statutory notice. Moreover, at one time appellants requested the court to treat the complaint as amended to conform to the testimony, and the record does not show this request was denied.

In view of all the above we are unwilling to hold the issue of lack of notice was not raised by the pleadings, or to hold that appellees were in any way misled. We find in the record no request by appellees to have the pleadings made more definite and certain.

(d) Appellees contend that appellants’ complaint should be dismissed for failure to properly abstract the record. We have carefully examined this contention but find no merit in it.

(e) Appellees finally contend that it was incumbent upon appellants to plead a valid defense to the foreclosure action. It was so held in Davis v. Bank of Atkins, 205 Ark. 144, 167 S. W. 2d 876. We are unwilling to sustain this contention for two reasons. One. The opinion in the cited case stated “The judgment against appellant here was not void but voidable”. We have already cited the statute which says a judgment or decree without notice is void. This Court can not by its decision change the plain wording of a Statute. Two. In our opinion this is not the kind of situation, as it was in the cited case, where it is incumbent upon the appellants to plead a meritorious defense — at any rate to do more than tender the amount of taxes, penalty, and costs as appellants have done. Act 195 mentioned heretofore in no way says or intimates that a land owner can redeem only where he has paid his taxes. It does, however, give him a right to redeem where his taxes or assessments have not been paid. Therefore, it was not necessary here for appellants to allege they paid the assessments on their land.

We conclude, therefore that the judgment must be, and it is hereby, reversed, and the cause is remanded for entry of a judgment in accordance with this opinion.

Reversed and Remanded.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice

(Concurring). The appellants, Buford F. Beck and wife, filed this suit in the Circuit Court against W. E. Rhoads and wife, the Bank of Malvern, Waterworks Improvement District No.. 16 of the City of Malvern, and other defendants. This is a. collateral attack on a foreclosure decree rendered in the-Chancery Court; and that is the point that gave me most, trouble; but I have concluded that the foreclosure decree-shows on its face that proper service was not obtained on Mr. and Mrs. Beck.

The Becks owned certain real estate (hereinafter called “property”) in Waterworks Improvement District. No. 16 (hereinafter called “District”) of the City of Malvern. The assessment of benefits was duly made by the-District against the property and annual payments were-made by the property holders for several years. However, in 1950 the Becks defaulted in making the payments; the-District filed foreclosure proceedings in the Chancery-Court of Hot Spring County and obtained a decree of foreclosure on February 14,1952 (which decree will be subsequently mentioned) ; a Commissioner was appointed to sell the property; the sale was made; the District purchased the property at the Commissioner’s sale; the sale was duly reported to the Court; and the report was approved on June 2, 1952. After a lapse of time, supposed to be the time for the redemption, the Court ordered the Commissioner to execute the deed conveying the property to the District; the deed was made on February 13, 1960; and approved by the Chancery Court the same day. Several days later the District sold the property here involved to W. E. Rhoads, and he executed a mortgage on the property to the Bank of Malvern. Then on February 14, 1961, Buford F. Beck and wife filed the present suit in the Hot Spring Circuit Court, seeking to recover possession of the property. Mrs. Beck had continued in possession of the property until some time in 1958, when she voluntarily moved away.

In the present case the Circuit Court held that the decree of foreclosure in the Chancery Court showed on its face that valid service had been had on the Becks, and refused to award them any relief. The reason I concur in the reversal of this case is because I believe the Chancery foreclosure decree shows on its face that there was no proper service on the Becks in the foreclosure suit brought by the said District; and the decree of a court of general jurisdiction (chancery court) can be attacked collaterally when the decree shows on its face an absence of proper service on the defendants. Winn v. Campbell, 94 Ark. 338, 126 S. W. 1059; West Ark. Digest, “Judgment” § 490.

Prior to the passage of Act No. 195 of 1949 the only service required in a foreclosure by a municipal improvement district was a notice published in a newspaper; and many property owners, living on their property, failed to see the notice in the newspaper and lost their property with no personal service of summons ever being obtained on them. To overcome this defect the 1949 Legislature passed Act No. 195, captioned, “An Act To Provide More Protection for the Owners of Property Located Within Municipal Improvement Districts. ’ ’ Section-17 of that Act (now found in § 20-418.13 Ark. Stats.) requires (inter alia): that, before filing a suit to collect delinquent installments, the Board of Commissioners of the District shall submit the list of the delinquent property to a competent abstracter “who shall compile a list of the names and last known addresses of the owners of record of all tracts . . about to be foreclosed; that, twenty days before the filing of the complaint, a registered letter, with return receipt requested, shall be sent to each such record owner of the property, containing a description of the property and the amount necessary to be paid; that as an exhibit to the complaint there shall be attached an affidavit of the person or persons who mailed said notices and a report as to whether the notices were returned; and that the amounts expended by the Board of Commissioners for obtaining the list and in sending the registered letters shall be' certified by the Board to the Clerk and shall be charged on a per tract basis to the delinquent lands and, if not paid, shall be taxed as costs in the suit. The said Act No. 195 of 1949 should be liberally construed to effectuate its purposes.

In the present case, the original complaint in the foreclosure suit brought by the District in 1952 is in the record, and there is no exhibit attached to the complaint; nor is there any reference in the complaint to any attempted compliance with the said Act No. 195. On the contrary, the decree of foreclosure shows on its face that service had been attempted under the law as it existed prior to 1949, because the decree recites, as contained in the Majority Opinion:

‘ ‘ The Court finds that notice of the pendency of this suit was given for the time and in the manner required by law, as evidenced by proof of publication filed herein, showing that due notice of this suit was given by publication of a notice in a newspaper having a bona fide eirculation in Hot Spring County for two weeks consecutively, the first insertion being more than four weeks prior thereto; . . .”

The foregoing is all that is recited in the decree as to service. The recitation as to the method of service by publication completely negatives any presumption that might be indulged to support the decree. If the decree had merely said, “the court finds that notice of the pendency of the suit was given for the time and in the manner required by law, ’ ’ we could indulge the presumption of sufficient service. But when the decree goes on, as it does, and tells what kind of service it was, then we are bound by the statement of the Court as to what the service was. The situation here is very much like that in Boland v. Kelly, 205 Ark. 539, 169 S. W. 2d 865, where the oral testimony was not brought forward and we were asked to indulge the presumption that the testimony supported the findings of the Court; but the record recited a publication that was wholly insufficient to sustain the sale, so we set the sale aside. That is the situation here: a full study of the record discloses that there was no proper service in the municipal foreclosure suit. Furthermore, the decree, after stating the amount of delinquent taxes and penalties on each tract, recites that there is assessed against each tract an attorney’s fee, court costs, and publication fee; and there is no reference to abstracter’s cost or cost of the registered letters. This shows that said Act 195 was not followed.

Without proper service, the decree is void, as the Majority is holding. I am glad that the Majority cited the case of Davis v. Bank of Atkins, 205 Ark. 144, 167 S. W. 2d 876. My views are stated in a Dissenting Opinion in that case, in which I said that a default judgment, unless supported by a service of summons, was a void judgment. It cannot be said in the case at bar that the Becks have lost all their rights by lapse of time, because Mrs. Beck testified that she continued to live on the property at all times until 1958, when she moved to Hot Springs; and this present action was filed on February 14,1961; so there was no lapse of time sufficient to bar the Becks.

Of course, the Becks owe and must pay the District the correct amount of the delinquent assessments, penalty, interest, and costs. When that is paid, they are entitled to recover. It would have been better if this entire proceeding had been conducted in the Chancery Court, but the litigants selected their forum and justice has been accomplished. For the reasons herein stated, I concur with the result reached by the Majority.

       In 8 Ark. Law Review, p. 886, there is the address of J. L. (Bex) Shaver, as President of the Arkansas Bar Association, entitled, “A Commentary on State and Improvement District Tax Sales”; and the address contains a discussion of Act 195 of 1949.