text:
    Burks v. Sims.
    5-1794
    321 S. W. 2d 767
    Opinion delivered March 2, 1959.
    [Rehearing denied April 6, 1959]

      J. Fred Jones, for appellant.

      Charles B. Thweatt, for appellee.
   Paul Ward, Associate Justice.

The issue presented by this appeal is whether the materialmen’s suit to preserve the statutory lien was commenced within 90 days after the last item was furnished.

Appellant, Cecil Burks, furnished material for the construction of a building in Pulaski County belonging to appellees, Mr. and Mrs. P. W. Sims, the building contractor being Walter James Wyma. The last material item was furnished by appellant on November 2, 1957.

Ark. Stats. Section 51-601 created the lien in favor of appellant. Under Section 51-608 he could have given 10 days notice to the Simses, or under Section 51-613 he could have filed an account with the Circuit Clerk of Pulaski County within 90 days after November 2. However, it was not necessary for appellant to comply with either of the above two sections provided he commenced a suit against the necessary parties within the said 90 days. See: Simpson, et al. v. J. W. Black Lumber Company, 114 Ark. 464 (at page 468), 172 S. W. 883; and Pfeiffer Stone Co. v. Brogdon, 125 Ark. 426 (at page 428), 188 S. W. 1187.

Such a suit was attempted by appellant. On January 28, 1958, (2 or 3 days before the 90 days elapsed), appellant filed a complaint in the Circuit Court of Pulaski County against the Simses (the owners) and Wyma (the contractor). It is conceded that proper service was had on the Simses. The service on Wyma will be discussed later.

Wyma was a necessary party to the suit. See: Simpson v. Black, supra; Cruce v. Mitchell, 122 Ark. 141, 182 S. W. 530; and: People’s Bldg. & Loan Assn. v. Leslie Lbr. Co., 183 Ark. 800, 38 S. W. 2d 759.

It becomes necessary, therefore, to determine whether appellant’s suit was commenced against "Wyma within the said 90 day period. First, we shall examine the pertinent statutes and also the service that was attempted on Wyma.

Ark. Stats. Section 51-617, which deals with procedure under the lien statutes provides that it shall be “the same as in ordinary civil actions and proceedings in Circuit Courts” with exceptions not applicable here. Section 27-301 (Ark. Stats.) provides that “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon.” We have held that the summons must not only be issued but must be delivered to an officer with directions to serve. See: Peace v. Tippett, 195 Ark. 799, 114 S. W. 2d 461, and Goodyear Tire & Rubber Co. v. Meyer, 209 Ark. 383, 191 S. W. 2d 826.

In the case under consideration the summons was issued for Wyma and placed in the hands of the sheriff of Pulaski County (with directions to serve) within apt time. The sheriff, however, was unable to get service on Wyma. The sheriff’s return showed the following: “I have this 12th day of February 1958 been unable to locate Wyma in said county — reported as out of town 1-31-58 and checked again 2-11-58 — gone to Dallas, Texas to live, latest report.” The reverse side of the summons has the following notation in writing: “1-31-58 return by 2-7-58 if no better address given by Atty. Jones.”

After the Simses had answered appellant’s complaint, alleging that Wyma was an indispensable party defendant, that no service was had on him, that there was a fatal defect of parties defendant, and that the court had no jurisdiction to establish the lien, the matter was submitted to the trial court on July 25, 1958. The court, without objection, treated Simses’ answer as a motion to dismiss, found the facts to be as we have heretofore set forth, and dismissed appellant’s complaint.

After much, deliberation we have decided that the trial court was in error. The vital question before the court was whether Wyma was, on January 31, 1957, a resident of Pnlasld County. If he was, in fact, a resident on said date, the action against him was, under the statutes above mentioned, commenced within the required time. If Wyma was not, in fact, a resident on said date, then the action was not commenced. That situation called for a determination of a question of fact. Since the Simses made the motion to dismiss, the burden was on them to show Wyma was not a resident of Pulaski County at the designated time. On that point no testimony was introduced on the motion and there is none in the record. Consequently, there is no evidence to support the judgment of the trial court. The notations on the sheriff’s return were not determinative of the issue of residence even if they be considered evidence. They were consistent with Wyma being a resident or a nonresident.

Appellant had a Warning Order for Wyma issued on June 26, 1958, which, however, commenced the action only as of that date. See: Missouri Pacific Railroad Company v. McLendon, 185 Ark. 204, 46 S. W. 2d 626, and Frank v. Frank, 175 Ark. 285, 298 S. W. 1026. Neither does it avail appellant anything that Wyma filed an answer on July 17, 1958, because, as to him, appellant’s suit was commenced as of that date. See: Standard Lumber Co. of Pine Bluff v. Wilson, 173 Ark. 1024 (at page 1031), 296 S. W. 27.

It follows, therefore, from the above that the cause must he reversed and remanded for the opportunity to introduce testimony and for further proceedings consistent with this opinion. It is so ordered.

Reversed and remanded.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Cook v. Haynie.
    5-1795
    321 S. W. 2d 201
    Opinion delivered March 2, 1959.

      Lookadoo, Gooch & Lookadoo, for appellant.

      Basil H. Munn and B. D. Bouse, for appellee.
   Sam Robinson, Associate Justice.

This is a contest over the possession of two little girls who are now with their maternal grandparents. Their father sought their custody by a habeas corpus proceeding. It was the order of the chancellor that the children should remain with the grandparents, and the father has appealed.

The appellant, Richard R. Cook, and Dorothy Jean Haynie were married at Arkadelphia, Arkansas, December 29, 1953. Two children were born of this marriage, Melinda Ruth and Rebecca Jean. "When this action was heard in the trial court, Melinda Ruth was about six months old and Rebecca Jean was something over three years old. On the 4th day of July, 1958, the mother, Dorothy Haynie Cook, came to her death as the result of a gunshot wound, in Nashville, Tennessee, where she and her husband and children were living at the time.

The record does not contain much evidence regarding the death of Dorothy, but it appears that shortly after the mortal wound was inflicted, Richard, by long distance telephone, called Mr. Haynie, Dorothy’s father, who lives at Prescott, Arkansas. Mr. Haynie, his wife, two daughters, and a minister, the Rev. Claude E. Shearer, and his wife, immediately left by automobile for Nashville. While they were in Nashville, Richard turned the little girls over to the Haynies, who brought them back to Prescott. Dorothy’s body also was returned to Prescott, where the funeral was had on July 7th. Richard and his father and mother also went to Prescott. After the funeral, Richard and his parents went back to Tennessee. On July 31st, Richard returned to Prescott and at that time the controversy started which gave rise to this litigation.

Apparently Dorothy came to her death as a result of a shot from a .22 rifle. Perhaps it was suicide, but Mrs. Haynie, Dorothy’s mother, was not satisfied with that theory, and she testified regarding a conversation with Richard as follows: “Well, I was sitting in the living room and he (Richard) drove up and he came on in just like he was at home. We always treated him just like a member of the family and I try to treat him that way. He came on in and sat down and I started to ask him questions and he said, ‘Well, I could tell you a lot of things but you will never know.’ I said, ‘Yes, we will; God will reveal it.’ I said, ‘Do you ever see Jean?’ And he said, ‘Sometimes,’ and I said — he kind of went off— and I said, ‘You killed Jean,’ and he said, ‘Yes, I did.’ Then I went in the kitchen and my husband brought up the fact that he knew he didn’t have any nerve because, you know, my son knocked him down for mistreating my daughter and he didn’t raise a hand. He said, ‘I would have shot him (the brother of Dorothy) if I could get my gun.’ And I said, ‘You would have shot my daughter, too, wouldn’t you?’ And he said, ‘Yes, I did it.’ Mr. Haynie said, ‘Get up out of my house; I won’t have that conversation in my house,’ and he didn’t stomp him. He (Richard) asked him (Haynie) three times to kill him. He said, ‘I went down to the river bridge three times to jump in but I didn’t do it.’ Then someone called the officers and they come in and I called him up to the chair and he said, ‘I am going to kill myself and leave a letter.’ ... I had Brother Shearer on the phone and lie said, ‘Richard, yon can’t afford to do that.’ ” On redirect examination Richard explained that when he said he killed his wife he meant that he had loaded the gun for the purpose of killing a snake; that he had not actually killed her.

Three times Richard asked Mr. Haynie to kill him and threatened to commit suicide. The Reverend Shearer advised him against that course. As a result of Richard’s statement about having killed Dorothy, his boast that he would have killed Charles Haynie if he could have gotten a gun, and his asking Mr. Haynie to kill him, and threats of suicide, Mr. Haynie picked him up and threw him out of the house. The officers were called and Richard was conducted from the premises and advised to leave town, but he was not arrested.

There does not appear to be much controversy about the facts as above outlined. The principal issues are in regard to the circumstances involved in the little girls being turned over to the Haynies in Tennessee; and whether Richard sought to get possession of both girls on July 31st or whether he merely asked that he be allowed to take the older of the little girls with him; and there is a very serious issue of whether Richard is so situated that he is able to take care of the little girls. The older girl is the beneficiary named in a $2,000 policy of life insurance left by her mother, and the Haynies say that Richard only wanted to take this girl with him on July 31st and did not ask for the little baby. Richard contends, however, that he asked for both girls.

Regarding the dispute as to the circumstances of the children being turned over to the Haynies in Tennessee, Mr. Haynie quotes Richard as saying, among other things, “Charlie, you can take the children on down to your house and if there is any money coming to the children I will see that you get it because I don’t know as I can ever send them any money.” On the other hand, Richard says he merely let Mr. Haynie have the children until such time as he could make further arrangements. Mr. Haynie testified that after the burial at the cemetery Richard came back to town, got in a car with his father and mother and was leaving town when he, Mr. Haynie, stopped him to inquire further about- his intentions with regard to the children. At that time Richard said that, “If there is any social security coming, we will see that you get it so it will help take care of the children.” Thereafter Richard never sent any money or anything else for the children. Incidentally, there is no income from social security or other like sources to help take care of the little children, except the $2,000 policy of life insurance left by the mother to the older child, and Mr. Haynie states emphatically that the money from that policy will be saved for the little girl.

Apparently Richard has never held a job for any substantial length of time and he has never supported his wife and children. Dorothy must have worked almost continuously since before the first baby was born or shortly thereafter, because she had worked for the Government for more than three years, and the older child was not four years of age at the time the mother came to her death. Richard testified that in the event the little children were given to him he intended to go to live with his father and mother and hire a maid at $40 a month to help look after the children. He stated that the maid would live on the premises. In considering this proposed arrangement, all of the essential facts must be reviewed. In the first place, Richard has never been able to make a living for his family. There is nothing to indicate that any sudden change has occurred that would enable him to do so immediately henceforth. Next, his father is not in good health; he has heart trouble, and he did not go to Dorothy’s funeral on account of the condition of Ms heart. Richard’s mother is crippled, in a helpless condition and confined to a wheel chair. So we have a situation where an unknown maid would have to look after the little baby in arms and the little three and one-half year old girl. This maid was not produced as a witness, and the court had no opportunity to pass judgment on her qualifications. On the other side of the picture, the Haynies have a good home; they are in sound financial circumstances. Mr. and Mrs. Haynie are still far from being old; they are both in their mid-40’s. They have a boy in college, a girl in college, and another girl in high school. Since the little girls have been with them, they have been doing nicely; the baby weighed only 14 pounds when she was turned over to the Haynies, and at the time of the trial she weighed 18 pounds.

Of course, the law is well established that it is only in exceptional cases that the custody of a child will be given to the maternal or paternal grandparents in preference to a parent. French v. Graves, 205 Ark. 409, 168 S. W. 2d 1108; Holmes v. Coleman, 195 Ark. 196, 111 S. W. 2d 474.

In the case at bar, we believe the special circumstances heretofore pointed out fully justified the chancellor in ordering custody to the grandparents.

Affirmed.

McFaddin, J., not participating.


text:
    Leach v. Arkansas County.
    5-1729
    321 S. W. 2d 206
    Opinion delivered March 2, 1959.

      W. A. Leach, for appellant.

      Wilbur Botts and Virgil R. Moncrief, for appellee.
   Sam Robinson, Associate Justice.

On November 30, 1957, the County Clerk of Arkansas County, pursuant to an order of the County Court, gave notice of a public hearing on a petition to employ professional appraisers to appraise all real and personal property within the County. Appellant filed objections to the appointment of such, appraisers. In all probability the County Court appointed the appraisers, because appellant appealed to the Circuit Court. But the record does not contain any order made by the County Court. In a hearing in Circuit Court it was the judgment of that Court that “the orders made in this cause by the County Court should be sustained and affirmed.” But the record does not contain the orders of the County Court sustained and affirmed by the Circuit Court. Therefore, of course, we cannot say the orders are invalid.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Hopson Produce v. Munoz.
    5-1745
    321 S. W. 2d 203
    Opinion delivered March 2, 1959.

      Shaver, Tackett <& Jones, for appellant.

      Franklin Jones, Marshall, Texas, Bert B. Larey and George F. Edwardes, for appellee.
   Jim Johnson, Associate Justice.

Appellants prosecute this appeal from a judgment awarding personal-injury damages to appellees Bamona Munoz and Patricia Elsa Munoz, the wife and three-month-old child of Pedro Munoz.

Munoz, and Ms wife and baby were in the process of moving in their automobile from Chicago to their original home in Laredo, Texas, and the car was loaded with all of their belongings. While traveling in a westerly direction along U. S. Highway 67, some eight miles east of Texarkana, upon a long, straight, level stretch of the two-lane paved highway, the Munoz car was approaching a 200 horsepower truck with refrigerated trailer, leased to appellant Ed Hopson Produce Company, Inc., and being driven easterly by appellant Forrest E. McDonald. There were no other vehicles upon the highway in sight as these vehicles were meeting at about 9:00 p. m. Each vehicle was traveling approximately 45 miles per hour. The right wheels of the plaintiffs’ car left the highway and traveled upon the north shoulder of the highway for a distance of 144 feet. Then the car turned at an angle from the north shoulder across the highway. The collision occurred at a point 4 feet and 5 inches south of the center line of the highway.

The testimony is conflicting as to how the collision occurred. Pedro Munoz, the driver of the automobile, claimed when he first saw the truck 600 or 650 feet down the road in front of him, it was gradually getting on his side of the road; he veered to his right to give the truck time to get by; he took the shoulder about 550 feet from appellants’ truck; that to avoid the impending collision he swerved to his left and was able to negotiate the turn without turning over, and tried to get across the road and out of the path of the approaching truck. The truck came back on the side of the road Munoz had taken in his effort to escape, and struck the Munoz automobile.

Forrest E. McDonald, the driver of the truck, claimed that when he first saw the Munoz car it was half a mile, or maybe more, away. The Munoz car had one light — the left light was out. McDonald testified, “As we approached each other, he dropped off the road, I thought he was going off on the shoulder and park, and I let off on the truck. I didn’t put on the brakes, I let off on it. I figured he was going on the edge of the road. When I got almost to him, he wheeled across the road. I didn’t have time to put on the brakes or anything.” Following the impact the car turned over a couple of times and came to rest on its wheels. The truck came to rest on its left side. The automobile was demolished and the truck was damaged beyond repair. The Munozes were thrown from the car and the mother and child received very serious injuries. Pedro Munoz sustained comparatively minor injuries requiring no hospitalization. Mrs. Munoz was hospitalized for 15 days in Texarkana, and the baby was hospitalized in Texarkana and Dallas for 62 days. The truck caught on fire and the occupants kicked the windshield out and escaped from the truck.

The Munozes had left Chicago on Sunday, spent the night in Farmington, Missouri, left there at 10 -.00 o’clock a. m., on Monday, the day of the accident, and drove to the place of the collision.

The truck, loaded with lettuce, had left Phoenix, Arizona, early Saturday morning en route to Memphis, Tennessee. Other than taking breaks along the way, the truck was driven constantly from Phoenix to the point of the collision — the drivers changing from time to time, each driving about the same amount of time, and one sleeping in the bunk while the other drove.

One of the assignments of error on appeal is that the court erred in giving Instruction No. 21, which reads as follows:

“You are instructed that if you preponderantly find from the evidence in this case that the driver McDonald discovered the position of the Munoz automobile and the perilous position or condition of the occupants thereof, or could have timely discovered the same by the exercise of due care, it would then become the duty of the operator of said truck to use all reasonable means within his power, consistent with the safe operation of his truck, to avoid the striking of said automobile, and if he failed to exercise such precaution after he discovered, or could have discovered such position, and you further find from the preponderance of the evidence that the collision and resulting damages, if any was caused by such failure on the part of the driver of the said truck, then you are told McDonald would be guilty of negligence which was a proximate cause of the collision.” (Emphasis supplied.)

The trial court was of the opinion that the evidence in this case did not justify submitting to the jury the issue of discovered peril and refused to give certain instructions requested by appellee dealing with that doctrine. We agree that the evidence is not sufficient to give rise to the discovered peril theory. See: Houck v. Marshall, 198 Ark. 938, 132 S. W. 2d 181; Roland v. Terryland, Inc., 221 Ark. 837, 256 S. W. 2d 315. But, if Instruction No. 21 is based on the theory of discovered peril, it is erroneous because of the wording “or could have timely discovered the same by the exercise of due care.” In the case of Carmichael, Adm. v. Mercury Motors, Inc., 224 Ark. 553, 275 S. W. 2d 15, it is pointed out that “discovered peril” means peril that is actually discovered and not peril that might have been discovered.

If the instruction is not based on the theory of discovered peril but on the principle of failing to keep a lookout, it is erroneous because the instruction told the jury that a failure to discover the peril of appellee would be negligence on the part of the driver of the truck and a proximate cause of the collision. Whether the failure to discover the position of Munoz was negligence on the part of the truck driver, and a proximate cause of the collision, was a fact to be determined by the jury and peculiarly within the province of the jury. Doniphan Lumber Co. v. Henderson, 100 Ark. 53, 139 S. W. 649.

We conclude that the Court’s Instruction No. 21 was erroneous. We do not discuss the other instructions because any defects in them will probably be eliminated on retrial in the light of this opinion.

For the error indicated, the judgment' is reversed and the cause is remanded.


author: Carleton Harris, Chief Justice.

text:
    Leggett v. Henslee.
    5-1799
    321 S. W. 2d 764
    Opinion delivered March 9, 1959.
    [Rehearing denied April 6,1959]

      Kenneth C of felt, for appellant.

      Bruce Bennett, Atty. General; By Thorp Thomas, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Emmett Earl Leggett was convicted of first degree murder, and is presently in the death chamber of the penitentiary awaiting execution. On August 16, 1958, through his counsel, appellant filed a petition with Lee Henslee, superintendent of the Arkansas State Penitentiary, alleging present insanity and requesting the superintendent to summons a jury of twelve persons to inquire into the insanity of Leggett in accordance with the provisions of Section 43-2622, Ark. Stats. (1947) Anno. Henslee refused to impanel such a jury, and directed a letter to appellant’s counsel in which he stated:

“As requested in the petition, and in compliance with the above law, I have made a thorough investigation into the matter of Emmett Earl Leggett’s mental competency, for the purpose of determining whether or not there are reasonable grounds for my believing that he is insane. I have had an opportunity to give him close personal observation during the time he has been in my custody; I have discussed the matter of his sanity with the Institution physician who has had an opportunity to observe him closely during such time; and, at my request, Dr. Granville L. Jones, Superintendent of the State Hospital and Dr. Charles V. Taylor, have made a further mental examination of Emmett Earl Leggett, August 14, 1958, and they have furnished me the following report, dated August 14, 1958, as to their findings:
“ ‘In accordance with your telephone request, Dr. Charles V. Taylor and I examined Emmett Earl Leggett in the office of the Assistant Superintendent, Captain James Bruton, at the Tucker Prison on August 14, 1958. I am enclosing a copy of the mental status as transcribed by Dr. Taylor.
“ ‘As you will note, Dr. Taylor and I believe Emmett Earl Leggett to be sane and responsible at the time of the examination. This is consistent with our previous examinations of last fall and with the official report of the hospital in 1956.’ ”

A copy of the report of Doctors Jones and Taylor was attached, in which the doctors related the manner and results of the examination, and their conclusion that Leggett is not legally incompetent.

Upon Henslee’s refusal to summons the jury, petition for writ of mandamus was filed in the Jefferson Circuit Court, praying that such court issue a writ of mandamus directing appellee to sustain the petition, and the requests contained therein. Henslee answered, stating that the proceedings provided under Section 43-2622 are discretionary upon the part of the superintendent; that he did not have reasonable grounds to believe that Leggett was insane; that he had made a thorough investigation into the matter of appellant’s present mental competency, and that an examination made of appellant, as hereinbefore set out, had shown Leggett to be mentally competent. On August 21st, the matter was presented to the Circuit Court, at which time appellant offered no proof, but stood on the petition. The court found: “That the Petitioner, Emmett Earl Leggett, did not present any evidence showing an abuse of discretion in not granting the sanity hearing, that the prayer of said petition should be denied,” and entered its judgment denying the petition. From such judgment, comes this appeal.

While the petition asks that the superintendent impanel a jury to determine the present insanity of Leggett, appellant argues that, having filed his petition suggesting insanity, it was his absolute right to offer proof to Henslee in support of the merits of the petition; i. e., that he had an absolute right to present evidence before the Superintendent to substantiate the allegations of insanity, and in furtherance of his request that a jury be impaneled. We do not agree. In Shank v. Todhunter, 189 Ark. 881, 75 S. W. 2d 382, the Jefferson Circuit Court refused to order the superintendent to proceed to hold an inquisition to inquire into the insanity of Shank. In affirming the judgment, this Court said:

“A casual reading of the statutes relied upon would indicate that, under ordinary conditions at least, the inquisition to determine insanity arising after the sentence of death seems to be upon the initiative of the Superintendent of the Penitentiary. Since the Superintendent is presumptively, at least, a man of somewhat keen observation, discriminatory powers, good judgment, Ms observation and judgment would be such that, upon the institution of inquisition by him, most careful consideration would be accorded to his views, but, on the other hand, his refusal to proceed under this statute necessarily demands a showing, by affirmative proof, of an abuse of discretion, or an unquestioned neglect of duty, before his conduct may be made the subject of judicial criticism.
“The superintendent of the penitentiary was requested to hold such inquisition. He refused. He would not initiate one. His refusal is in writing, and this matter comes to us upon an allegation that he has abused, or, at least, neglected to exercise, whatever discretion may be lodged in him by the statute, and that is the only question we have to determine.”

Likewise, in Howell v. Todhunter, 181 Ark. 250, 25 S. W. 2d 21:

“This brings us to a consideration of the question, whether the facts alleged in the petition call for the exercise of jurisdiction by the circuit court. It will be observed that * * * when the custodian of the prisoner is satisfied that there are reasonable grounds for believing that the defendant is insane, he may summons a jury of twelve persons to inquire into the present insanity of the defendant. This does not mean that there shall be such an inquisition merely on the suggestion of the insanity of the defendant. If it were true that a suggestion of insanity, after the death sentence had been pronounced, created on the part of the convicted person an absolute right to an inquisition for insanity, it would be within the power of the convicted person, or his friends, to indefinitely delay the execution of the sentence of death by repeated suggestions of insanity, followed by inquisitions in each instance. Hence the statute has given the custodian of the prisoner a discretion in the matter, and he is only required to act when he thinks there are reasonable grounds for believing the prisoner to be insane.”

See also Black v. State, 216 Ark. 805, 227 S. W. 2d 629. Accordingly, the sole question is whether Superintendent Henslee abused bis discretion. There is no indication that the superintendent arbitrarily acted, or refused to comply with the petition because of personal whim or animosity toward the prisoner; to the contrary, Hens-lee’s letter to counsel reflects that he had closely observed the prisoner during the time that he had been in his custody, and that he had caused two physicians from the State Hospital to examine Leggett, as heretofore set out. When appellant’s petition was presented to the Jefferson Circuit Court, no evidence was offered which would reflect that Henslee had abused his discretion; in fact, no evidence was offered at all, and appellant stood on his petition. As authority for his position that the superintendent should have taken testimony, appellant cites the case of Ware v. State, 146 Ark. 321, 255 S. W. 626, wherein the Circuit Court was reversed because of refusal to hear evidence in support of an allegation contained in a motion, but this was a refusal toy a court to take testimony. In the instant case, there was no refusal by the court to hear evidence; in fact, counsel was asked, “Is there anything further?”

No abuse of discretion having been shown, the judgment of the Circuit Court denying the petition, is affirmed.

       See 227 Ark. 393, 299 S. W. 2d 59, 228 Ark. 977, 311 S. W. 2d 521.

       Said section provides as follows: “When the sheriff is satisfied that there are reasonable grounds for believing that the defendant is insane or pregnant, he may summon a jury of twelve (12) persons on the jury list, drawn by the clerk, who shall be sworn by the sheriff, well and truly to inquire into the insanity or pregnancy of the defendant, and a true inquisition return; and they shall examine the defendant and hear any evidence that may be presented, and by a written inquisition, signed by each of them, find as to insanity or pregnancy. And, unless the inquisition find the defendant insane or pregnant, the sheriff shall not suspend the execution; but if the inquisition find the defendant insane or pregnant, he shall suspend the execution, and immediately transmit the inquisition to the governor.” The authority conferred on the sheriff by this section is now transferred to the superintendent of the penitentiary under the holding in Howell v. Kincannon, 181 Ark. 58, 24 S. W. 2d 951.


author: J. Seaborn Holt, Associate Justice.

text:
    Brown v. Sellers.
    5-1805
    321 S. W. 2d 384
    Opinion delivered March 9, 1959.

      S. L. White, for appellant.

      Langston & Walker and Wayne Foster, for appellee.
   J. Seaborn Holt, Associate Justice.

This is the third appearance of this case before this court. Sellers v. Brown, 225 Ark. 989, 287 S. W. 2d, 471, opinion February 20, 1956; and Sellers v. Brown, 228 Ark. 353, 307 S. W. 2d 543. Reference is made to these two cases for a more complete statement of facts and issues therein considered. On the first appeal (225 Ark. 989) Sellers and wife were appellants and the appellees were the official board members of the Central Assembly of Grod Church and there was involved an accounting between the Church and its then pastor, Sellers, title to the property of the Church, certain liens and claims of creditors against the pastor, Sellers, and the Church. That opinion contained this recital: “Upon trial of the issues, the trial court found, among other things, that the property both real and personal located at 20th and Broadway Streets in Little Rock, Arkansas, belonged to appellee church and not to appellants. The church’s interest in the real property was held to be subject to a mortgage. The court vested title to all personal property and furnishings in the church. The title to the real estate was subject to certain materialman’s liens and mortgage, aggregating more than $21,000. The decree provided that if the mortgage and liens were not paid within 45 days, the receiver was ordered to sell the property. Thereafter, the receiver held the sale and the appellees purchased the property on a submitted bid of $60,000. In addition, the trial court awarded appellees judgment against appellants in the sum of $48.06 * * * ,” and the trial court based its decree on the finding that a resulting trust in certain real and personal property had been established against Sellers and in favor of the church.

It appears that while this first appeal was pending and leading up to the second appeal, a large number of creditors were awarded judgments, some against Sellers and some against the church. All of these judgments were thereafter assigned to appellant, Shaw, trustee for the General Council (of appellant’s church), which had advanced funds for liquidation of all liens, to pay other creditors, and for the completion of the church building. Later, the church caused execution to issue on its judgment, as did Shaw, trustee, on those assignments of judgments against appellees, which Shaw held. A levy of execution was made on property belonging to Sellers, and he was then a non-resident, the court appointed a receiver to take charge of Sellers’ property and Sellers then proceeded with the second appeal to this court, and we reversed the cause, holding that, “ * * * the trial court erred in refusing to rule upon the material and vital issue presented, which, as indicated, was whether the judgment liens involved were enforceable against the property of the Sellers (appellants), and that the appointment of a receiver was, in the circumstances, premature.”

On remand of this second appeal case, the trial court ordered that the affidavit for general attachment filed by the church (appellants), against appellees (Sellers), be dismissed for want of equity; that all judgments against appellees held by Shaw, trustee, by assignment of the original creditors, be satisfied in full by the trustee, Shaw, and in effect that all judgments of creditors held against the appellees (Sellers) for materials furnished for the church and labor performed for it, all of which was for the church’s benefit, and for which the Sellers received no benefit, should be satisfied in full by the church, and the Sellers relieved of all liability therefor. The court also decreed further relief to the Sellers by directing that the church obtain complete exoneration from a judgment in the amount of $2,155.85 which the government held against both Sellers and the church. It appears undisputed that this judgment was compromised and settled for fifty cents on the dollar as far as the church was concerned, by the execution of a covenant not to sue. This money was used solely for the benefit of the church and not for the benefit of the Sellers.

We have concluded that the decree and orders of the trial court above, in this present case, were, on the record presented, correct. Accordingly, we affirm.


author: Ed. F. McFaddin, Associate Justice.

text:
    Crain v. Foster.
    5-1744
    322 S. W. 2d 443
    Opinion delivered March 9, 1959.
    [Clarification opinion delivered April 13, 1959]

      Melvin T. Chambers and J. M. Shackleford, for appellant.

      McKay, Anderson & Grumpier, for appellee.
   Ed. F. McFaddin, Associate Justice.

The facts are complicated and require some detailing; but, once understood, the result is clear. The question posed is whether Appellee Foster owned an undivided one-tenth interest (as a tenant in common) in a tract of 1,000 acres, or owned 100 acres in severalty. We conclude that appellee owned 100 acres in severalty; and we rest our opinion on the rule of equitable estoppel.

Ike Jermany owned about 1,000 acres in Columbia County, and died intestate prior to 1941. Z. W. Jermany, as one of the heirs of Ike Jermany, inherited an undivided one-tenth interest in the 1,000 acres. In May 1941 a partition suit was filed by Z. W. Jermany and others; and all the heirs of Ike Jermany were either plaintiffs or defendants. No Us pendens was filed in the partition suit. On June 30, 1941 the Chancery Court made a finding that the land could be partitioned in kind, and three Commissioners were appointed to view the land and make the partition. (§ 34-1822 et seq. Ark. Stats.) On July 17, 1941 the Commissioners’ reported the partition of the property, and Z. W. Jermany received in severalty 100 acres specifically described. On October 27, 1941 the Court approved the Commissioners’ report and made the final decree of partition, which was filed for record as a muniment of title. Z. W. Jermany took possession of the specific 100 acres awarded him in severalty, and the other heirs of Ike Jermany took possession of their described tracts in severalty. Z. W. Jermany rented his 100 acres and collected rents for several years.

But something had occurred prior to the entry of the final decree of partition (October 27, 1941) which caused the present litigation. While the Commissioners’ report was pending and before it was approved, Z. W. Jermany executed a mortgage to J. I. Phelps on October 14, 1941 conveying Z. W. Jermany’s undivided one-tenth interest in the 1,000 acres of land to secure a debt of $605.00, and the mortgage was filed for record on the same day. Z. W. J ermany mortgaged his undivided one-tenth interest in the 1,000 acres thirteen days before the final decree of partition.

Phelps assigned his debt and mortgage to E. S. Foster, who filed foreclosure suit against Z. W. J ermany in May 1945 and obtained foreclosure decree describing the property as Z. W. Jermany’s undivided one-tenth interest in the 1,000 acres of land. Foster purchased at the foreclosure sale, and on November 12, 1945 he received a deed from the Chancery Court, describing the property conveyed as all of Z. W. Jermany’s undivided one-tenth interest in the 1,000 acres of land.

Some time in 1950 appellant, Jack Crain, obtained timber deeds from a number of the heirs of Ike Jermany who had received their deeds to their several tracts in the partition suit; and Crain commenced cutting timber from the lands on which he held timber deeds, but he at no time entered on the 100 acres of land that had been awarded to Z. W. Jermany in the partition suit. Appellee, Foster, brought the present suit to enjoin appellant, Crain, from cutting the timber on any of the 1,000 acres of land, and for damages for timber that Crain had cut. Foster’s claim was that he owned an undivided one-tenth interest in the entire 1,000 acres of the Ike Jermany lands, rather than the 100 acres which Z. W. Jermany received in severalty in the partition suit. Foster claimed: (a) that when Phelps took the mortgage thirteen days before the partition decree, there was no lis pendens of record; (b) that Z. W. Jermany owned the undivided one-tenth interest in the 1,000 acres until the decree of partition was finally approved; and (c) that Foster foreclosed on the undivided one-tenth interest of Z. W. Jermany and owned that interest, rather than the 100 acres which Z. W. Jermany received in severalty in the partition proceedings.

So much for the detailing of the facts. After an extensive hearing, the Chancery Court found in favor of Foster, enjoined Crain, and held him liable to Foster for damages. Crain has appealed from the decree, and also from the failure of the Court to award him $400.00 damages against Foster because of timber lost on account of Foster’s temporary injunction. Many interesting legal questions are presented; we have been enlightened by able briefs and oral argument; hut we find it necessary to discuss only one point, which is: one who accepts the benefit of a decree is estopped to deny its validity. This is the rule of equitable estoppel.

When Foster filed this present suit, he alleged that he owned an undivided one-tenth interest in the entire 1,000 acres. Crain alleged that Foster was estopped to make such claim. Thus, estoppel was pleaded. The law is well settled that one who, with knowledge or notice of the facts, accepts or retains the benefit of a transaction, is estopped to deny the force and validity of the transaction. Two recent Arkansas cases involving this rule of equitable estoppel are: Johnson v. Darnell, 220 Ark. 625, 249 S. W. 2d 5; and State of Tennessee v. Barton, 210 Ark. 816, 198 S. W. 2d 512. In the last cited case, a man had obtained the benefits of a divorce decree rendered in Utah, and we held that he was estopped from questioning the validity of that decree. See also Illinois Standard Mtg. Co. v. Collins, 187 Ark. 902, 63 S. W. 2d 342. In Potts v. Bader, 215 Ark. 160, 219 S. W. 2d 769, we said: “The appellants cannot claim title to part of the land in reliance upon the deed and at the same time claim the rest upon the theory of its invalidity. Wood v. Hay, 206 Ark. 892, 175 S. W. 2d 189.”

The overwhelming preponderance of the evidence establishes that R. S. Foster accepted and treated as his own the specific 100 acres of land that had been awarded to Z. W. Jermany in severalty in the partition suit. When Appellee Foster treated the Z. W. Jermany 100 acres as his own property, he thereby estopped himself from claiming an undivided one-tenth interest in the entire 1,000 acres. Here is some of the testimony on this phase of the case:

(1) It will be remembered that Appellee Foster received his deed in his foreclosure suit against Z. W. Jermany on November 12, 1945. W. C. White testified that he had rented the 100-acre tract from Z. W. Jermany from 1941 to 1945; and moved from the 100-acre tract when word came to him that he would have to see Foster about further renting. Hodge Poole testified that in early 1946 he had a conversation with Appellee Foster, who told him to tell White that he would have to come to see Foster if he wanted to rent the 100-acre tract in 1946. Poole says he imparted this information to White. Foster, recalled on rebuttal, did not deny this testimony of Poole; so we have Foster sending word to the tenant on the 100-acre tract that he would have to see him about the rent for 1946.

(2) Odis Paschall testified that he rented the 100-acre tract from appellee, Foster, in 1946 and paid him the full rent for the 100-acre tract. Foster, recalled in rebuttal, did not deny this testimony of Paschall: he merely said he could not remember.

(3) Pinky Lee Mack and -Samuel Short' testified that each was one of the Ike. Jermany heirs and that each received a specific .tract in the partition suit. They testified that they sold the timber on their specific tracts to Foster’s son-in-law in 1953, who paid them the full price for the timber, not retaining any part of the money to pay to E. S. Foster (which he would have been entitled to receive if he still owned an undivided one-tenth interest in the 1,000 acres). Appellee, Foster, recalled on rebuttal, admitted that he knew of some timber sales from certain tracts of the 1,000 acres, but he thought his son-in-law had. given him one-tenth of the amount of the timber; that if his sondn-law did not, .he just forgot to do it. '

(4) Hadley McDowell téstified that in about 1946 Foster cut, or allowed to be cut, the hardwood timber from the Z. W. Jermany 100-acre tract, but that Foster did not allow the pine timber to be cut from that tract; and that Foster said that he did not want the pine timber cut because the land was his own. Foster denied the Hadley McDowell testimony; but the fact remains that the hardwood timber was cut from the 100-acre tract and the pine timber was not cut.

Foster made a sweeping denial that he had ever claimed to own the 100-acre tract; he said title to it was in another person; but we have pointed out in the numbered paragraphs the specific items of testimony .concerning some of which Foster made no denial. "Without detailing all the other evidence in the record, we reach the conclusion that, after Foster completed his foreclosure suit against Z. W. Jermany in 1945, Foster thereafter treated the Z. W. Jermany 100-acre tract as his own individual property; and is, therefore, estopped from now claiming that he has an undivided one-tenth interest in the entire 1,000-acre tract instead of ownership in severalty of the Z. W. Jermany 100-acre tract. It, therefore follows that when Foster obtained the temporary injunction against Crain from cutting timber on the other 900 acres of the Ike Jermany lands, Foster acted wrongfully and Crain is entitled to recover $400.00 as the undisputed amount of his damages.

The decree of the Chancery Court is reversed and the cause is remanded with directions to dismiss Foster’s suit, and award Crain $400.00 damages and all costs.

ON CLARIFICATION

Ed. F. McFaddin, Associate Justice. Our opinion was delivered in this case on March 9,1959; and on March 20, 1959 a number of persons — not parties to this appeal — filed a motion for clarification of our opinion. We refer to these persons as “movants”. They are: G. G. Waller, Levye Waller, W. H. Kitchens, Jr., Elf red Kitchens, H. G. McClurkin, Administrator of the Estate of Fred B. McClurkin, deceased, Lena McClurkin, J. P. McClurkin, Evelyn Measles, Calvin Dean McClurkin, Fred Wayland McClurkin, and Joe Ann McClurkin.

In the motion for clarification these movants say: that they have rights in certain of the lands involved in this case; that they were parties in the Trial Court; that their rights were recognized and declared by the decree of the Trial Court; that neither Crain nor Foster, nor any other person, appealed as to these movants; that the opinion of this Court, delivered on March 9, 1959, might be interpreted as affecting the rights of these movants, since the opinion says in the last paragraph: ‘ ‘ The decree of the Chancery Court is reversed and the cause is remanded, . . .” In view of the foregoing, the movants pray that we clarify onr opinion by stating that the rights of these movants are not affected by the appeal.

The movants are entitled to the requested clarification. In fact, their motion is not resisted. The rules, as to class representation and privies, do not apply to the situations of these movants. We have repeatedly held that a judgment cannot be rendered by a Trial Court for or against a person not a party. Goodman v. Moore, 22 Ark. 191; Sisk v. Almon, 34 Ark. 391; First National Bank of Springdale v. Frost, 98 Ark. 446, 136 S. W. 186; City of Bentonville v. Browne, 108 Ark. 306, 158 S. W. 161; Bryan v. Akers, 177 Ark. 681, 7 S. W. 2d 325, 58 A. L. R. 1128. The same rule necessarily applies as regards persons such as these movants who are not parties to an appeal in this Court. The opinion of this Court as of March 9, 1959 was not intended to, and does not, affect in any way the rights of these movants as decreed by the Chancery Court.

       The land was not exactly 1,000 acres, but all parties refer to it as such.

       There is some question as to the sufficiency of the service on some of the defendants; but that question becomes immaterial in the view we adopt as to equitable estoppel.

       Bouvier’s Law Dictionary says of severalty: “An estate which is held by the tenant m his own right only, without any other being joined or connected with him in point of interest during the continuance of his estate. 2 Black Comm. 179.”

         The instrument which Z. W. J ermany executed was a deed of trust to J. E. Booth, as Trustee for J. I. Phelps, to secure the debt of $605.00 due to Phelps, but it is more clarifying to refer to it as a mortgage. The practical effect is the same in this case.

       Some of these questions are: (1) the effect of our lis pendens statute (§ 27-501 Ark. Stats.) on our statute governing partitions (§ 34-1801) et seq. Ark. Stats.); (2) the effect of the failure to file a lis pendens in the partition suit; (3) the effect of the failure to obtain proper service on all of the defendants in the partition suit; (4) the effect of a purchase in a pending partition suit; and (5) the effect of § 34-1822 Ark. Stats, on titles acquired during partition proceedings.

       Here is a portion of Crain’s pleading: “That the plaintiff has, at all times since, recognized this 100 acres as his property to the exclusion of the heirs of Ike Jermany; and should he now be permitted to claim an additional l/10th interest in the other 900 acres he would be claiming 190 acres instead of 100 acres. “That by his acts he is estopped and barred of claiming any interest other than the land set aside to Z. W. Jermany as set out above . . . That he is guilty-of laches and estoppel as toward all other owners of any part of the original 1,000 acres of land.”

       In 19 Am. Jur. 682 et seq. “Estoppel" § 64, the holdings are summarized: “Estoppel is frequently based upon the acceptance and retention by cine having knowledge of notice of the facts of benefits from a transaction . . . which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions . . . Such estoppel operates to prevent the party thus benefited from questioning the validity and effectiveness of the matter or transaction in so far as it imposes a liability or restriction upon him, or, in other words, it precludes one who accepts the benefits from repudiating the accompanying or resulting obligation. It finds application in many different fields and under a wide variety of circumstances . . . It is also applied ... to prevent one who accepts the benefit of a judgment or decree from questioning its validity or opposing the enforcement of its terms . . .” Some interesting cases from other jurisdictions, applying the rule of equitable estoppel in situations analogous to the one at bar, are: Arthur v. Israel, 15 Colo. 147, 25 Pac. 81, 22 A.S.R. 381, 10 L.R.A. 693; Barrier v. Kelly, 82 Miss. 233, 33 So. 974, 62 L.R.A. 421; Marshall v. McDermitt, 79 W. Va. 245, 90 S. E. 830, L.R.A. 1917C, 883.


author: George Bose Smith, J.

text:
    Cockerham v. Barnes.
    5-1784
    321 S. W. 2d 385
    Opinion delivered March 9, 1959.

      Harrison é Harrison, by Todd Harrison, for appellant.

      Bruce Ivy and James E. Hyatt, Jr., for appellee.
   George Bose Smith, J.

This is a personal injury suit in which the appellee recovered $26,750 as compensatory damages for the loss of his left leg. The appellant contends that he was entitled to a directed verdict and, alternatively, that the court erred in refusing certain requested instructions.

Until the accident in question the plaintiff Barnes, a young man of twenty-three, had worked as a farm laborer on Coekerham’s farm ever since he was old enough to work. In July of 1955 Cockerham had his employees install a hydraulic irrigation system upon a forty-acre tract. The system consists of a main pipeline that lies on the ground along one side of the tract and four laterals of five-inch pipe that lie parallel and extend across the field. Bach lateral is equipped with sprinklers and is closed at its far end by a heavy metal plug that caps the end of the pipe. Water is drawn from a storage ditch and is forced into the system by a motor-driven pump.

The main line and three laterals were installed the first day, and the next morning the fourth lateral was put in. Late that afternoon Cockerham directed Barnes to flush out the fourth lateral with the help of Cockerham’s son Sonny, who was of college age. The plan, as outlined by Cockerham senior, contemplated that Sonny would close the shut-off valve through which the water passes from the main line into the lateral. Barnes was to walk across the field to the end of the lateral, remove the plug, and wave his hat as a signal for Sonny to open the valve so that the pipe would be flushed. The plan miscarried, for when Barnes reached the end of the lateral and started to remove the plug it blew off explosively and struck Barnes’ leg with such force that the leg was almost severed and later had to be amputated. Sonny did not testify, as the defendant offered no evidence ; but the jury doubtless believed that Sonny failed to close the valve or opened it too soon.

The appellant insists that the plaintiff’s injury was due solely to the negligence of a fellow servant, Sonny Cockerham, for which the employer is not reasponsible at common law. It is settled, however, that the fellow servant rule does not relieve the master from liability if his own negligence is a contributing cause of the injury. Shearman & Redfield on Negligence (Rev. Ed.), § 196. We think there was substantial evidence of negligence in addition- to that of young Cockerham.

An employer is under a duty to warn his employee about perils that the latter might, through ignorance or inexperience, fail to comprehend. Ward Furn. Mfg. Co. v. Mounce, 182 Ark. 380, 31 S. W. 2d 531. Barnes, a farm laborer, testified that he had had no experience with irrigation systems and that he knew nothing about high pressure or its dangers. Even though Barnes had helped to install this system the jury was not compelled to conclude that he should have realized that to stand in front of the plugged lateral was somewhat like standing before a loaded cannon. Had Barnes been cautioned he might have protected himself by keeping to the side as he removed the plug. There was also evidence that Sonny Cockerham was nearsighted, which his father knew, and may not have been able to see Barnes’ signal at a distance of a quarter of a mile. It was for the jury to say whether the defendant was guilty of negligence that was a proximate cause of the injury.

In submitting the issue of comparative negligence the court refused to include an interrogatory pertaining to the percentage of negligence attributable to Sonny Cockerham. The appellant contends that this fact should have been determined by the jury, so that his liability could be proportionately reduced by the application of the fellow servant doctrine. We need not speculate whether this argument would be sound if Sonny Cockerham were a party to the case, for he is not a party. When the concurring negligence of two persons contributes to cause an injury both are liable, Willbanks v. Laster, 211 Ark. 88, 199 S. W. 2d 602, and we are unable to see why an exception to the rule should be created when one of the wrongdoers happens to be a fellow servant of the plaintiff. The master’s freedom from liability under the fellow servant rule is not a sound basis for a distinction, since in most cases of concurrent negligence neither of the persons at fault is liable for the other’s conduct.

Complaint is also made of the court’s refusal to give two requested instructions, to the general effect that the master is presumed to have performed his duty toward his servant, that the master is not an insurer of his employee’s safety, and that the burden of proving a negligent act is upon the plaintiff. These familiar rules of law have often appeared in our cases, but it does not follow that the trial court commits reversible error by failing to incorporate these particular statements in his charge to the jury. Here the substance of the rules in question was adequately conveyed to the jury by the instructions with reference to the plaintiff’s burden of proof. For example, the presumption that the master has performed his duty toward his servant is not a true presumption in the sense that one fact is being inferred from proof of another fact; it is simply another way of saying that the plaintiff has the burden of proving negligence. Hence the refusal of such an instruction is not prejudicial if the matter has been covered by an explanation that the burden of proof is on the plaintiff. Ozan Lbr. Co. v. Bryan, 90 Ark. 223, 119 S. W 73. For the same reason there was no need for the court to include in its charge the other general rules that were offered by the defendant.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Allen v. First National Bank of Batesville.
    5-1751 & 5-1772
    321 S. W. 2d 750
    Opinion delivered March 9, 1959.

      E. M. Arnold, for appellant.

      W. J. Arnold and Fred M. Pickens, Jr., for appellee.

      E. M. Arnold, for appellant.

      W. J. Arnold and Fred M. Pickens, Jr., for appellee.
   Paul Ward, Associate Justice.

This litigation revolves around reciprocal wills executed by Mr. and Mrs. C. M. Edwards in 1950 and a will executed by Mr. Edwards in 1955. Mrs. Edwards died in 1952 and Mr. Edwards died in 1957. The parties interested in this appeal are: The Hazel Edwards Memorial Methodist Church at Newark, hereafter called the church; The First National Bank of Batesville which was designated by the 1955 will as the Executor and also the Trustee, hereafter called the bank, and; The collateral heirs of C. M. Edwards, hereafter called the heirs.

In view of the fact that there was no testimony taken in the lower courts, that there has been no trial on the merits so far, and that this appeal comes to us on the pleadings and the rulings thereon, we feel it will be necessary to summarize only such portions of the record as will clarify the issues involved and our disposition thereof.

Mr. and Mrs. C. M. Edwards lived in Newark most of their lives and each acquired extensive holdings in both real and personal property. Their only child was a daughter, Hazel, who died in 1922 in her adulthood. Mr. and Mrs. Edwards belonged to the Methodist Church at Newark. Apparently they were unusually attached to Hazel and it is sure they desired to perpetuate her memory. Soon after her death they constructed an elaborate church building for the Methodist Church in Newark which was and still is known as the Hazel Edwards Memorial Methodist Church.

In 1950 Mr. and Mrs. Edwards each executed reciprocal wills. By Mrs. Edwards’ will she left all her personal property to Mr. Edwards, and she left all her real property to the church, subject to a life estate in Mr. Edwards. Her will is not involved in this litigation except as hereafter mentioned. The 1950 wills of Mr. Edwards and Mrs. Edwards were alike except for their names.

In 1955 Mr. Edwards executed another will purporting to revoke previous wills, the pertinent parts of which we copy below:

“Article One: I hereby appoint and name the First National Bank, Batesville, Arkansas, to serve as Executor of my estate, and also to serve as Trustee of my estate.
“Article Two: This paragraph is placed in this will in order that my intent may be made certain. For many years the Hazel Edwards Memorial Methodist Church, Newark, Arkansas, has been the donee of many gifts on my part, and also on the part of my deceased wife, Maude Edwards, during her lifetime. As we have no child or children surviving us we had long planned to make substantial provisions for this church, which at the present time is the only Methodist Church in the City of Newark, Arkansas. The maker of this will bears no ill will of any kind toward any of his relatives, nor toward the relatives of his deceased wife, Maude Edwards, but after due and long reflection it is my will to create the trust, set out below, to provide substantial gifts to the Hazel Edwards Memorial Methodist Church at Newark, Arkansas, and since it now seems that my estate will be substantially in excess of Two Hundred and Fifty Thousand Dollars, it is my will to create the charitable trust that is fully outlined below, for the above mentioned Newark Church, and for other charitable causes related to the North Arkansas Conference of the Methodist Church.
“Article Three: I hereby give, devise and bequeath unto the First National Bank, Batesville, Arkansas, a bank organized under the law of United States of America, and unto its successors, if any, all of my estate of every kind, both real and personal and wheresoever may be located, absolutely and in fee simple, upon the following charitable trusts, uses, and conditions
“A. The trustee shall administer my entire estate after same has been delivered to the Trustee by the Executor.
“B. The Trustee shall hold the entire estate for the use and benefit of the Hazel Edwards Memorial Methodist Church, Newark, Arkansas.
“C. The Trustee shall pay to said Hazel Edwards Memorial Methodist Church each year an amount sufficiently large to pay for (1) the Pastor’s salary, (2) the maintenance and upkeep of the church and the parsonage of said church, and (3) any other payments to the said Church that the Trustee in its discretion thinks proper. The Trustee shall in the administration of this part of the charitable trust consult with the presiding Bishop of the North Arkansas Conference of South Central Jurisdiction of the Methodist Church to the end that the gifts that are made to the Church will be in-conformity to the program of the Methodist Church. The Trustee will not be bound to comply with the suggestions made by the presiding Bishop, but may at all times use its own discretion as to the proper disbursement of the funds. The Trustee shall have broad powers under this trust and can make disbursements for and in the name of the Newark Church to be used for purposes, programs and projects of The Methodist Church throughout the entire North Arkansas Conference. The Trustee shall have the power to use ‘net income’ only-in making the above gifts, and no gifts can be made from corpus except upon permission of the Chancery Court
In Article Four it is provided, among other things, that in the event the church ceased to exist, the “beneficiary under this trust would be the Board of Trustees of the North Arkansas Conference, or such corporation as might be formed under the direction of the Board of Trustees of the North Arkansas Conference of the Methodist church.”

Article Five provides in great detail for the powers and duties of the Trustee named in the will, and the next article provides for the powers and duties of the executor named in the will.

Litigation was instituted in the Probate Court and also the Chancery Court, and we are here dealing with appeals from both courts, the cases having been consolidated for briefing and oral argument only.

Probate Court Case No. 1772

The 1955 will of Mr. Edwards was filed for probate on March 14, 1957, and on the same day the order of admittance was entered. On September the 17th, 1957, the collateral heirs of C. M. Edwards filed a complaint in the Probate Court against the bank, the church, and others setting out their claim, as heirs to the estate. The complaint, after setting out the name, relation, and interest of each heir, and after referring to the two 1950 wills and the 1955 will and their contents, in substance sets forth two separate grounds for relief. Very briefly stated, these two grounds, in substance, are: (a) C. M. Edwards was incompetent to make all and any of the said wills, and (b) the two 1950 wills executed by Mr. and Mrs. Edwards constituted a contract to convey all their property to the church, that the church had elected to accept only a small portion of the estate of C. M. Edwards, that C. M. Edwards thereby died intestate as to the major portion of his estate, and that therefore said portion descended to his heirs.

On December 31, 1957, the defendants filed a motion to require the plaintiffs to elect the cause of action upon which they would rely, stating, in effect, that the plea of incompetency of C. M. Edwards when he executed the will in 1950 was inconsistent with the plea that he made a contract at the same time.

The Probate Judge on January 13, 1955, sustained the above motion and required the plaintiffs to elect which of the two causes of action upon which they desired to proceed. We think this was error.

The court placed too great a burden on the plaintiffs. It was impossible, or at least exceedingly difficult, for the plaintiffs to know at that time whether C. M. Edwards was competent or incompetent to make the wills in question. In fact they would never know for a certainty until the issue was decided in court. The two causes of action were pleaded, we think, alternatively as shown by the complaint and the prayer. In the complaint it is stated: “Plaintiffs further state that if the court finds C. M. Edwards to have been competent to make said wills as aforesaid in 1950 and in 1955 that it determine their rights” under the theory that the two 1950 wills constituted a contract. In the prayer to the complaint appears this language: “that if this court finds the wills executed by the deceased on or about May 27, 1950, and on or about December 30, 1955, valid that it determine . . .” their rights, etc.

In regard to the doctrine of election in equity cases, we like the rule as stated in 30 C. J. S. Section 205 under the subtitle “Double Aspect.” There, among other things, it is stated: “Under proper circumstances a bill in equity may be so framed as to ask for alternative relief, even if the two theories are inconsistent with each other, provided the facts alleged show plaintiff to be entitled to the relief sought by whichever aspect of the case the court finds is sustained by proof.” We think the “proper circumstances” were present in this case. The same parties were involved, the same kind of relief sought, and the issues were properly pleaded and prayed for in the alternative. In Henderson, et al. v. Harness, 184 Ill. 520, 56 N. E. 786, the question of election was considered where pleas were inconsistent, and the court said: “A bill in chancery may be framed with a double aspect and the prayer thereof be in the alternative— that if the chancellor shall decide against the complaint in one view, it shall grant him the relief in another.” Ark. Stats. Section 62-2004 (e) provides that procedure in Probate Court shall be the same as in courts of equity. The matter of election between two inconsistent remedies was considered in Wright v. Burhart, 35 Ariz. 246, 276 P. 837. It was urged “that the complaint does not show whether the action is upon quantum meruit or express contract . . .” The court, in refusing to require an election, .stated that it would not be right nor equitable for plaintiff to lose his claim for failure of proof, and that he must be allowed to plead it in different ways and not be subjected to the hazard of being “compelled to elect upon which class of evidence he must rely.”

In reaching the conclusion that appellants (the plaintiffs) should not have been required to elect, we are not overlooking the authorities presented by the appellees, and we recognize that the dividing line between when an election should be required and when it should not be required is not always clear and distinct, as is the case here. However, we feel that in equity matters any doubt should be resolved in favor of the pleader to the end that there may be a decision on the merits rather than on the pleadings and thereby avoid a possible miscarriage of justice. That view is in line with the authorities cited above and is not contrary to any of the decisions of this court on that exact point.

On March 21, 1958, the defendants entered a demurrer to appellants ’ other cause of action, and the same was sustained by the court and the complaint was dismissed. There are two reasons why we do not discuss that action of the court at this time. First, this cause, involving a contract for the conveyance of property, should be tried in a court of Chancery; and, secondly, the same question was considered and passed on in Chancery Case No. 1751 which is also before us on appeal and it will presently be discussed.

In view of what we have heretofore stated, the order of the Probate Judge requiring appellants to elect is reversed and the cause is remanded for further proceedings in the Probate Court consistent with this opinion.

Chancery Court Case No. 1751

On or shortly after September 17, 1957, the church filed a complaint in chancery court against the bank in which, in substance, the following allegations were made: (a) The bank is the executor of the last will of C. M. Edwards executed on December 30, 1955, which was admitted to probate on or about March 20, 1957; (b) The church is the beneficiary of a trust created by said will, (setting out the pertinent portions thereof); (c) Without waiving their rights under the 1955 will, they state that Mr. and Mrs. Edwards in 1950 executed the joint and mutual wills already mentioned (copies being attached); (d) Mrs. Edwards died testate on August 28, 1953, and her will has been probated; (e) The two 1950 wills constituted a contract whereby all the real and personal property belongs to the church; (f) The church desires to take under the 1955 will, but in event any court of competent jurisdiction should set aside the probate of the 1955 will, then they were entitled to a performance of the said 1950 contract. The prayer was in accordance with the above allegations.

We point out here, as is conceded, that if the church takes under the 1955 will it will get only a small portion of C. M. Edwards’ estate, and that the North Arkansas Conference of the Methodist Church would receive the balance under the terms of said will.

On or about December 30, 1957, the collateral heirs of C. M. Edwards filed an intervention in the above mentioned cause of action, setting out, in substance, the following: (a) C. M. Edwards died on or about March 6, 1957, leaving only collateral heirs who are these intervenors; (b) Since Mr. and Mrs. Edwards executed mutual wills in 1950 which constituted a contract binding Mr. Edwards to convey all his property to the church he was “thereafter estopped from making any future or additional wills attempting to dispose of any of his said property,” that the 1955 will was ineffective, and that no one, including the trustee bank, is entitled to receive or hold any of the property of C. M. Edwards; (c) The church, with full knowledge of their rights under the 1950 contract, elected to and did waive their rights to receive a major portion of C. M. Edwards’ estate, and that he died intestate as to the property not accepted by the church, and; (d) The church has waived its right to the estate under the 1955 will except the small portion provided for it in Article Three, and that all other provisions of said will are void and contrary to the 1950 contract. The prayer was in accord with the above allegations.

On February 12, 1958, the church filed a Motion to Dismiss the above intervention, stating: (a) Deny the heirs have any interest in the pending litigation; (b) The heirs, by filing their complaint in the Probate Court (heretofore set out), have elected to proceed in that court and so cannot proceed in this action; and; (c) The heirs’ claim herein is barred by the statute of non-claims, since it was not filed either with the executor of C. M. Edwards’ estate or in the Probate Court within the time allowed by said statute. Attached to the motion as an exhibit was the complaint filed by the heirs in Probate Court which was discussed in the first case.

Over the objections of the heirs the court granted the Motion to Dismiss, giving as one of its reasons, as set out in a previous finding, that ‘‘ The intervenors here were not privy in any way to a contract entered into by the testator, C. M. Edwards, and his late wife, Maude Edwards: and I think their intervention does not state a cause of action . . From the dismissal of their intervention appellants have appealed.

From our analysis of the pleadings and the applicable'law presented to us in the very able briefs and oral arguments by both sides, together with the authorities disclosed by our own research, we conclude that the trial court was correct in dismissing the intervention. Before setting forth our reasons for the above conclusion we point out that the outcome of a hearing in the Probate Court over the competency of C. M. Edwards to execute the 1950 and the 1955 wills might render this controversy moot. So, much of what we say hereafter must be considered in the light of the above noted eventuality.

We are unable to see how the heirs can recover on any theory advanced in this case unless and until they first establish that both the 1950 and 1955 wills of C. M. Edwards are void.

If it should finally be decided that the 1950 wills constituted a contract (giving all property to the church) and that the church has elected to take only a small portion of the estate of C. M. Edwards, it is the heirs’ contention that then C. M. Edwards died intestate as to the unclaimed portion and that it would go to them by the laws of descent and distribution. This contention or theory on the part of the heirs is based on the assumption that the 1955 will was void and inoperative because Edwards had already contracted in 1950 to convey all his property to the church and because he was estopped by the 1950 wills to make the 1955 will.

Putting it another way, appellants (the heirs) say the 1950 will of Mr. Edwards (being a contract to convey his property to the church) cannot be revoked by the 1955 will. We think appellants are in error in the above line of reasoning.

There is no such thing as an irrevocable will. Ark. Stats. § 60-406 provides that a will can be revoked by another will and only so with exceptions which do not apply here. The rule in this connection is well stated in 43 A. L. R. at page 1024 in this language:

‘ ‘ The statement is sometimes made that mutual wills executed in accordance with a contract are,, irrevocable, but this is true only to the extent that the provisions of such wills will be enforced by a court of equity. The general rule is that such wills are revocable as testamentary dispositions at any time although equity will enforce their provisions in certain cases in compelling specific performance of the contract. Therefore, a later will revoking a mutual one is admissible to probate though the testator violated his contract by executing it, and a reciprocal will which has been revoked, is not admissible though it may be enforced in equity.”

In support of the above, numerous cases are cited from many states. In dealing with the contractual feature of mutual wills, Bertal Sparks in his book, Contracts to Make Wills, at pages 112-113, has this to say:

“If the contract is thought of as a contract to pass property at death and the will thought of as a vehicle for passing the property much of the confusion and apparent conflict would disappear. The contract, not the will, gives the Promisee a right to the property and when litigation arises it is the contract that must always be established. Once the contractual right is established the interest of the Promisee is protected whether or not a will has been executed. When the will has been executed, but subsequently revoked, it merely confuses the issue to talk of enforcing the will or holding that the will was irrevocable in equity. The will is not enforced and there is no such thing as a will that is irrevocable in equity or anytuhere else.” (Emphasis supplied.)

The same rule is expressed another way in Page on Wills (Lifetime Edition) Yol. 4, Section 1709, “. . . revoeability”

“. . . revoeability is an essential element of a will and it is said that an irrevocable instrument cannot be a will whatever else it might be. Accordingly, it is held by the great weight of authority that a will which is made m performance of a contract to make a will is, as far as probate tribunals are concerned, as revocable as any other will.
“So a joint, mutual or reciprocal will which is made in performance of a contract to make a will is revocable even though there is a covenant not to revoke or the will contains a declaration that it is irrevocable, it may be revoked like any other will.”

The same result as would have followed from an application of the above announced principles was reached in the case of Janes, Ex. v. Rogers, 224 Ark. 116, 271 S. W. 2d 930. There husband and wife executed mutual wills and later, after the death of the husband, the wife executed another will. The Probate Court ordered the mutual wills to.be admitted to Probate but on appeal we said that was the wrong remedy, and the proper remedy was a suit in equity to enforce the contract.

The wisdom and practical application of the views above expressed are clearly demonstrated by a simple example. Suppose that C. M. Edwards in 1950 had contracted (and provided in his will) to give the church his home instead of all his property, would anyone question his right and power to make another will in 1955 leaving all his property, including his home, to John Doe. The answer is obvious that the 1955 will would be valid and could be probated. It is beside the point to say a conveyance of the home could be enforced in a proper action.

In accord with what we have heretofore said, it must follow that even though the 1950 wills (or the wills together with any evidence that might be offered) constituted a contract and even though the church has elected to take the smaller portion, the major portion of C. M. Edwards’ estate was disposed of by his 1955 will. Under the 1955 will, of course, the heirs took nothing.

Regarding the contract. As of the present it appears that no contract has been established. In the Jm^es, Ex. case, supra, this court said: “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.” The difficulty facing appellants is that they are in no position to either enforce or attack the contract since they have no interest in it. Ark. Stats. Section 27-801, provides that “every action must be prosecuted in the name of the real party in interest” with certain exceptions which do not apply in this case. The heirs were not a party to the 1950 contract, and, unless and until it is shown that C. M. Edwards was incompetent to make a will, they have no interest in his estate.

"We emphasize that if the heirs prevail in Probate Case No. 1772 and establish the incompetency of C. M. Edwards to make the 1950 will and the 1955 will they will not be precluded by our disposition of Case No. 1751 from enforcing their rights to the C. M. Edwards’ estate in any court of competent jurisdiction.

In. accordance with the above the order of the Probate Court in Case No. 1772 is reversed and the order of the Chancery Court in Case No. 1751 is affirmed subject to the preceding paragraph.

Harris, C. J., and Holt, J., would affirm both cases.


author: Paul Ward, Associate Justice. Carretón Harris, Chief Justice,

text:
    Moore v. Moore.
    5-1786
    322 S. W. 2d 77
    Opinion delivered March 9, 1959.
    [Rehearing denied April 13,1959]

      Howell, Price & Worsham, for appellant.

      Wayne Foster, for appellee.
   Paul Ward, Associate Justice.

Appellant, Beulah Moore, and appellee, Hugh J. Moore, (colored) were married in November, 1937, lived together until April 1, 1956, and on December 23, 1957 the appellant filed an action for divorce.

The complaint alleged acts of physical violence, and that she had an interest in certain real and personal property in Little Rock. The prayer was for a divorce, possession of the real property, alimony, costs and attorney’s fee. In due time appellee filed a general denial and also a cross-complaint for a divorce on the grounds of adultery.

After testimony was taken on behalf of both parties the trial court granted appellee a divorce and gave appellant nothing in way of a property settlement.

Ark. Stats. § 34-1209 reads, in all parts pertinent to this case, as follows: “If it shall appear to the court . . . that both parties have been guilty of the adultery, . . . then no divorce shall be granted or decreed. ’ ’

In this case it does appear to this court that both parties were guilty of adultery. The trial court found from the testimony that appellant was guilty of adultery (that being the only ground upon which appellee’s cross-complaint was based) and, since we cannot say this holding is not supported by the weight of the evidence, we see no point in reviewing that testimony.

We are also equally convinced by the uncontradicted testimony that appellee was also guilty of adultery. In that connection the testimony of Yvonne Powell was, in substance as follows: I live across the street from Alberta Powell, who is a widow and who has had children born to her since her husband died. I have seen appellee go over to her house regularly during the day and also at night; I have seen him leave very late at night; this has been going on over a period of several years; I have heard that appellee claims some of those children as his own. The record shows that the witness has been in a wheel chair all her life.

It is true that there is no evidence of the specific act of adultery on the part of appellee, but the same thing is true regarding appellant.

Prom the above it follows that the decree granting a divorce to appellee must be reversed.

It appears from the record that considerable personal and real property is involved, concerning the ownership of which the testimony was highly conflicting and unsatisfactory, but that matter may now be subject to further litigation.

Reversed.

Harris, C. J., Robinson, J., dissent.

Carretón Harris, Chief Justice,

dissenting.

I respectfully dissent to the majority opinion for the reason that it appears to me that this Court is substituting its judgment for that of the Chancellor. The trial court granted appellee a divorce, and this Court has reversed that decision by finding that appellee was guilty of adultery, as well as appellant. This reversal is based upon the testimony of one person, Yvonne Powell, and I certainly do not feel that a reversal is merited by such testimony. In the first place, we have frequently commented on the fact that the Chancellor has the witnesses before him, with the full opportunity to observe their demeanor, and manner on the stand, and that we will not reverse unless his findings are against the preponderance of the evidence. It may well be that the Chancellor did not believe this witness at all, and as a former Chancellor myself, I might say that I have heard witnesses testify to a state of facts that I did not believe, and to whose testimony, I accordingly gave no weight. However, if the testimony be taken at face value, I do not consider that adultery was established. The majority opinion summarizes the witness Powell’s testimony:

“ * * * I have seen appellee go over to her house regularly during the day and also at night; I have seen him leave very late at night; this has been going on over a period of several years; I have heard that appellee claims some of those children as his own.”

This testimony, to me, falls short of establishing adultery, and I do not believe that the Chancellor should be reversed on such evidence.

       My emphasis.