author: ENGLISH, C. J. :

text:
    Valentine v. Washington et al.

      Equity — Injunction.
    The appt-l’ant filed his bill in equity against tho defendants, alleging that on-the 1st of March, 1874, Mrs. DeValcourt and Washington entered into a. written contract, which was duly recorded, bv which site agreed to furnish him as much land as he could cultivate, and give him all excess of 1200-pounds of lint cotton for every fifteen acres cultivated. She was also to furnish him supplies while he was making tho crop, hut no part of the crop was to be delivered to him until all his indebtedness to her was settled. On the-7th of August of the same year, she, by deed of trust, duly recorded, conveyed to the plaintiff all her intPi-est in the crop, to secure the payment of a. debt to G-idirl, by the 1st of January, 1875. With power to take possession and sell, up >n default of payment. That Washington gathered and baled the crop, amounting to seven b-les, and sold Uto Willing. That his indebtedness to Mrs. DeValcourt was unsettled, hut amounted to more than the value of the cotton — that the trust debt was unsettled, and Willing was about to move the cotton beyond the jurisdiction of the court. Prayer for injunction to restrain him until a settlement of Washington’s account with Mrs. DeValcourt could be had, and plaintiff’s rights in the cotton should be determined. Upon demurrer to the bill, held: 1st. That the contract was in the nature of a mortgage, which Mrs. DeValcourt could en orce in equity. 2d. That by the deed of trust the plaintiff acquired all her rights in the crop,, legal and equitable, and was entitled to the injunction to restrain its removal.
    APPEAL from Qhicot Circuit Court in Chancery.
    Hon. T. E. Sorrells, Circuit Judge.

      Reynolds, for appellant.

      -contra.

   ENGLISH, C. J. :

This was a bill for injunction to prevent the removal of cotton covered by a deed of trust, etc.

The bill was filed in the Circuit Court of Chicot county, 23d ■February, 1875, by Mark Yalentine, trustee in the deed of trust, against Kate S. DeValcourt and Alexander DeValcourt, ■makers of the trust deed, and George Washington, a tenant of Mi*s. DeValcourt, John Bergman and Thomas E. Willing.

It appears from the allegations of the bill, and the exhibits, that on the 1st March, 1874, Mrs. Kate S. DeValeourt and 'George Washington entered into a written contract (acknowledged and recorded 24th October, 1874) by which Washington -agreed to work for Mrs. DeValcourt in the cultivation of a crop •of cotton and corn on Holly Ridge plantation, upon the terms ;and conditions following:

She was to furnish as much land on said plantation as he <could cultivate, the same to be cultivated in good and farm-like ¡manner; and she was to pay or turn over to him all excess of 1200 lbs. of lint cotton for every fifteen acres cultivated, he to ígin and bale the cotton. She agreed to sell and advance to 'him supplies while making the crop, and no part or interest in -said crop was to be assigned or delivered to him until he ^arranged satisfactorily with her for the payment of all indebtedness due from him to her.

It further appears that on the. 7th of August, 1874, Mrs. DeValcourt and her husband, Alexader DeValcourt, by deed ■•of trust of that date, conveyed to complainant, Mark Valentine, as trustee, all of the interest of Mrs. DeValcourt in a •certain crop of cotton and corn, then being grown on the Holly -Ridge plantation, on Chicot Lake, and the mules, wagons, and ".farming implements on said plantation belonging to her; to secure the payment of a debt of $1,000, jointly owed by Mrs. DeValcourt and her husband, to J. J. Gidirl, of the firm of Clapp, Bros. & Co. of New Orleans, to be. paid on or before-tbie first of January, 1875 ; with power to the trustee to take possession of the property, on default of payment, and sell at-public auction to pay the debt, etc. The trust deed wa& acknowledged, and filed for registration on the day of its, execution.

The bill after setting out and exhibiting the- deed of trust, and the contract between Mrs. DeValcourt and Washington, further alleges, in substance:

That during the year 1874, and in Older-to. enable Washings ton to raise said cotton, Mrs. DeValcourt advanced large sums, of money and supplies to him, which, with the use of the land on which the cotton was raised, created an indebtedness in her favor from him of $500, which had not been paid or satifacto--rily arranged; and that under said contract Washington was not entitled to possession of said cotton.

That, on the — day of January, 1875, Alexander DeVal-court, as agent of his wife, said Kate S., delivered to complainant the right of possession and control of all of the interest of said Kate S. in all of the cotton raised in 1874, on said. Holly Ridge plantation.

That Washington raised seven bales- of cotton during said year, on said plantation, which were tied up and ready for market. That in fraud of the right of the complainant, Washington had sold, or pretended to sell said cotton to defendant, Thomas E. Willing, who was acting as the agent of defendant, • John Bergman, and that Willing was about to remove the said cotton out of the jurisdiction of the court.

That the debt of Mrs. DeValcourt and husband secured by deed of trust to complainant was unsettled, but what amount remained still due, complainant was unable to allege.

That the indebtedness of Washington to. Mrs. DeValcourt, which was unsettled, amounted to more than the value of said «even bales of cotton.

That unless restrained by the court said cotton would be xemoved, and great and irreparable injury would be sustained by complainant.

Prayer that an order of injunction issue, directed to all of ■said defendants, enjoining and restraining each and all of them, their agents and attorneys, from removing said cotton, or interfering or intermeddling with the samé, until a settlement of the account of Washington with Mrs. DeValcourt could be "had, and the rights of complainant in said cotton ascertained and ■determined, and that the right of possession of complainant in said cotton be quieted, and for all other proper relief.

On the filing of the bill, the court being in session, an interlocutory injunction was granted.

At the return term, June 30th, 1875, the defendants having been served with process, the solicitor of Washington, Willing and Bergman, filed a demurrer to the bill, on the grounds :

“1. The complaint does not state facts sufficient to constitute a cause of action.

“2d. It appears upon the face of the complaint, that the court has no jurisdiction of the subject of the action.”

A seperate answer to the bill was also filed for Washington, and a joint answer for Willing and Bergman.

At the October term, 1875, the demurrer to the bill was taken up and heard by the court, and sustained, the interlocutory .injunction dissolved, and the cause continued, and a writ of inquiry to assess damages, ordered, returnable to the next term.

At the July term, 1877, the matter of damages having been submitted to the court at a previous term upon an agreed statement of facts, signed by complainant and the solicitor of Washington, Willing and Bergman, and taken under advisement, the court assessed against complainant, in favor of the defendants, who had appeared and pleaded, fifty dollars damages, and rendered a decree in their favor therefor, with costs.

The complainant took a bill of exceptions, putting upon record the agreed statement of facts, and appealed to this court.

The facts agreed on are, in substance, that the cotton in controversy, at the commencement of the suit, was at the gin-house of one J. E. Robinson, in Chicot county. That within one or two days previous thereto, the cotton had been, by defendant Washington, under the sale alleged in the complaint, delivered to the agent of defendant Bergman, so far as he had the right to deliver the same, and was by said agent marked with the mark of Bergman, and that after the issuance of the ■ interlocutory injunction complainant shipped the cotton to New Orleans, and there sold it in the usual course of business for $306.38.

That the damages caused by the alleged wrongfully suing ■out of said injunction, amounted to the aggregate sum of $50.

I. The court below sustained a demurrer to the whole bill, whether upon the ground that the facts alleged did not make a case for equitable relief, or on the ground that the court had no jurisdiction of the subject matter of the bill, does not appear.

The written and registered contract between Mrs. DeVal-court and her tenant, Washington, was in the nature of a mortgage for rent and supplies. The crop was unplanted at the time the mortgage was executed (1st March, 1874), and though, by statute, she had a lien for rent, the mortgage gave her a lien in equity upon the cotton crop of her tenant when it came into existence for both rent and supplies. Apperson & Co. v. Moore, 30 Ark., 56; Driver v. Jenkins, Ib. 120; Alexander v. Pardue, Ib. 356; Hamlet v. Tollman et al., Ib. 506; Tomlinson v. Greenfield, 31 Ark., 558; Roberts et al Jacks, Ib. 605.

The mortgage for supplies being at law invalid, she would have been compelled to resort to a court of equity to foreclose it and enforce her lien.

Had she not conveyed her interest in the cotton crop, by the-trust deed, to appellant, she might have filed a bill in equity to-foreclose the mortgage for both rent and supplies, and upon-an allegation that her tenant had attempted to sell the cotton, and that it was about to be removed from the jurisdiction of the court, she would, most unquestionably, have been entitled, to an interlocutory injunction to prevent its removal. High on Jurisdiction, Sec. 323.

By the deed of trust, she and her husband conveyed to-appellant, as trustee, all of her interestinthe cotton crop, butshe-could convey to him no greater interest, or rights, legal or-equitable than she herself had.

When Washington attempted to sell the cotton, and it was. about to be removed, as alleged in the bill, appellant had no. adequate remedy at law to enforce his lien under the trust deed,, or to prevent its removal. It was his duty as a trustee to protect the property, and upon the allegation of the bill he was, entitled to an injunction to prevent its removal.

Upon the two instruments and the allegations of the bill, he-made a •prima facie case for equitable relief, within the jurisdiction of the court, and the court erred in sustaining the-demurrer to the bill.

The interlocutory injunction having been dissolved upon the-erroneous sustaining of the demurrer to the bill', it follows that, the decree for damages and cost was also erroneous.

The decree must be reversed, and the cause remanded for-further proceedings.


source: Caselaw Access Project

author: English, C. J.:

license: Public Domain

text:
    State use Hecht & Bro. v. Spikes et al.
    Interpleader : Statute construed.

    Section 2671 Gantt's Digest, giving to the claimant of personal property which is levied on as the property of another, the right to give bond and suspend the sale, applies as well to property about to be sold under a special execution in attachment, as to that levied on under a general execution.
    Former Judgment: Pleading; evidence.

    Whore it is necessary to plead a former judgment in bar of an action, it can not be given in evidence, unless pleaded. And it can not be plealed when rendered after the commencement of the suit.
    Judgment: Evidence.

    A judgment condemning attached property to be sold, is pvima facie evidence in a suit between the plaintiff in attachment and an interpleader, that the title to the property isjin the defendant in the attachment, but is not conclusive.
    APPEAL from Randolph Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Moore, for appellants.

      Henderson & Oaruth, contra.

   English, C. J.:

On the 3d of August, 1875, this suit was commenced in the-Circuit Court of Randolph county, in the name of the State' for the use of Levi Hecht & Bro., against John F. Spikes,, sheriff of said county, and Samuel E. Murdock and William Thompson, sureties, on his official bond.

The complaint, after setting out the bond and its conditions,, alleged a special breach in substance as follows :

That on the 5th day of May, 1875, Hecht & Bro., in an-action by attachment, recovered a judgment in the Circuit Court of Randolph county against Brilliant & Son, for $399,. etc., and for costs, etc.

That on the 28th of May, 1875, a special execution issued on the judgment, commanding the sheriff to sell 600 walnut logs,, attached and condemned by the judgment, returnable in sixty days, which, on the da}r it was issued, came to the hands of defendant. Spikes, as sheriff, to be by him executed, etc. That he levied on the logs the 5th of June, 1875, but wholly neglected and failed to advertise and sell them, or otherwise obtain satisfaction of the execution.

At the return term, November, 1875, defendant demurred to the complaint, and on the 12th of August, 1876, the demurrer was overruled, and on the 18th of the same month they filed an answer.

On the 11th of August, 1877, by leave of the court, they filed an amended answer, in substance as follows :

I. Defendants admit that defendant, Spikes, was sheriff, that the special execution came to his hands, and was duly levied upon the property as alleged in the complaint; but aver that after said property was levied upon, and before it could be or was advertised for sale, “one Eli Heavener, claiming to be the lawful owner of said 600 walnut logs, interpleaded therefor, and by virtue of a bond, conditioned according to •law, tendered, said Spikes surrendered said walnut logs into the possession of said Eli Heavener, he having by due course of law, demanded the same, and being by law entitled to the possession of said property, said execution was suspended.”

II. That Brilliant & Son were not the owners of the logs.

III. That the legal fees for levying upon, advertising and selling said logs were not paid or tendered to Spikes.

- Concluding with a general denial of the breaches assigned, ;and an averment of performance of the conditions of the bond.

The case was submitted to a jury on the day the amended answer was filed.

The plaintiff read in evidence the original writ of attachment issued 16th of March, 1875, in the suit of Hecht & Bro. ■against Brilliant & Son, and the return of defendant, Spikes, as sheriff, thereon, showing that on the 23d of the same month he had attached 600 walnut logs lying on both banks of Eleven Point river, in Randolph county, as the property of Brilliant & Son.

Also the following record entry:

“RaNDOuph Circuit Court,

“Tuesday, May 11, 1875.

■“Levi Hecht & Bro. v. J. S. Brilliant & Son.

“Now, on this day, comes Eli Heavener, by attorney, and by leave of tbe court, files a motion for leave to interplead in this cause.”

Also the record entry of the judgment in the same suit, rendered by consent of the defendants therein for $399, debt, etc., 15th of May, 1875, reciting the attachment of the 600 walnut logs, condemning them to be sold in satisfaction of the judgment, and ordering a special execution for the sale thereof.

Plaintiff also read in evidence the special execution issued ■upon the judgment, 28th of May, 1875, with the return indorsed thereon, as follows :

“I hereby certify that the within execution was served by • levying the same on six hundred walnut logs, as the property of J. S. Brilliant & Son, on the 5th day of June, A. D. 1875, in the presence of Nan Johnson, at the county of Randolph ■and State of Arkansas.

“JohNE. Spikes, Sheriff.”

“I hereby certify that I have not sold the within 600 walnut logs, as commanded, for the reason that Eli Heavener claims the same as his property, as is shown by his pleading filed in the Randolph Circuit Court, and further has given to me, as sheriff of Randolph county, a good and sufficient bond for the delivery of said property in case he shall fail to establish his= claim to same as his property ; this the 24th day of July, 1875..

“JOHN F. Spekes,. Sheriff.

“Returned and filed, July 26, 1875.

“Ti-ios. T. RobiNSON, Olerlc.

“By Wm. A. Lucas, D'. C.”'

hiere the plaintiff rested.

The defendants were permitted to read in evidence, against the objection of the plaintiff, the following record entries :

“RANDOLPH Circuit Court,

“Wednesday, August 16,. 1876.

“Levi Hecht & Bro. v. J. S. Brilliant & Son.

“Now, on this day, comes Eli Heavener, by attorney, andl by leave of the court files his interplea in this cause.”'

“RaNdolph Circuit-Court,

“Thursday Morning, August 17, 1876.

“Levi Hecht &■ Bro., Plaintiffs, v. J. S. Birilliant & Son,, Defendants ; Eli Heavener, Interpleader.

“Now, on this day, comes the plaintiff, by attorney, and. moves the court to dismiss the interplea in this cause; and thereupon comes Eli Heavener, by attorney, and resists said motion, and after argument of counsel, said motion is, by the-court, overruled. Whereupon the plaintiffs, by attorneys, by leave of the court, withdraw said motion, and withdraw from, the case.

“And the interplea in this cause coming on to be heard, the-defendants, although solemnly called, come not, but make-default; whereupon Baber & Henderson, who were formerly attorneys of record for the defendants, notified the court that, they had withdrawn from the cause.

“Thereupon comes a jury, consisting of C. W. Brown andl eleven others of the regular panel, who, after hearing the evidence adduced, and instructions of the court, retired to con■•sider of their verdict; and after a brief absence, they returned into court the following verdict: ‘Wo, the jury, find the property, to-wit: Six hundred walnut logs, in controversy, to be the property of the interpleader, Eli Heavener.

‘C. W. BeowN, Foreman.’

“It is, therefore, by the court, considered and adjudged that the interpleader, Eli Heavener, be and he is hereby sustained in his possession of the property sued for, to-wit: Six hundred walnut logs, and that he have and recover of and from 'the plaintiffs all his costs in this suit pending.”

Defendants then introduced, as a witness, John E. Spikes, ■who testified in substance, that the property levied on by virtue of the execution, read in evidence by plaintiff, was the same property claimed by Eli Heavener, as shown in his return indorsed upon said execution. That no legal fees had been paid or tendered to him by plaintiff in the execution, or any person for them, for serving said special execution. On cross-■examination, he stated that he had agreed to serve all process .in favor of plaintiff without any fees being advanced to him, •but that after said agreement there had been a dispute about •some fees due in an attachment suit, and after that time he •considered said waiver by him for all fees for serving process for plaintiff at an end, but that he had not told them so at any time, or declined to serve their process without his fees first being paid.

Defendants also read in evidence [the bill of exceptions states] the bond returned by Spikes of Eli Heavener, with said ¡special execution ; [but the bond is not in the bill of exceptions, or in the transcript], and here defendants rested.

Levi Hecht was then introduced as a witness, who testified that Spikes had not given him any notice of requiring him to 'tender fees in advance for executing process in his favor, but Rad always told him that he would serve all process that came to his hands without fees being advanced; that he knew he could get the money at any time called for. That witness told him that if his attorneys said the commissions he claimed were legal for levying attachment in the case referred to by Spikes, he would pay them ; but that his attorney told him and Spikes that no commissions were due Spikes for levying an attachment where there was no order of sale of property attached.

John P. Blake testified, and [the bill of exceptions statesj fully corroborated the testimony of Levi Hecht.

The above being all of the evidence introduced on ' the trial of this cause, the court, against the objection of plaintiff, instructed the jury as follows :

“1. If the jury believe from the evidence that defendant, (Spikes) was ordered by a special execution in favor of plaintiffs, (Hecht & Bro.) against Brilliant & Son, issued upon a judgment of the Circuit Court of Randolph county, in favor of said plaintiff against said Brilliants, in which judgment the-property attached was adjudged to belong to said Brilliants, and that defendant, Spikes, after tender and waiver of his fees as such sheriff, from the plaintiff, failed, neglected and refused, to levy, advertise and sell said walnut logs, they must find for the plaintiff; unless they further find that after the levy of the execution upon such judgment, Eli Hcavener, as interpleader, in the Circuit Court, where the said judgment was rendered,, and said execution was returnable, recovered said property in his right, of which recovery the plaintiff had notice, in which case the jury will find for the defendants.

“2. If the jury find from the evidence that Eli Heavener, the interpleader herein, after the levy on the property in question, and before the sale thereof, claimed said property and. executed a bond in double the value of the property to the plaintiff in execution, to the effect that if said property or any portion thereof, should be adjudged subject to-execution, he would pay the plaintiff the value of the property so subject, and ten per cent thereon ; and if they find from the evidence that the defendant having the execution in his hands, as sheriff, had said property appraised by three disinterested house-keepers, as required by law ; and the defendant, as such sheriff, returned said bond with the appraisement annexed thereto, to the Circuit Court's of Randolph county, and that the interpleader, Levi Heavener, appeared in said Circuit Court and asked leave to interplead in said court, and upon the hearing of said interplea, said property was adjudged to be the property of said interpleader, they will find for the defendants, although they may find that the fees were tendered'the defendant, (Spikes) or waived or otherwise arranged.”

The jury returned a verdict in favor of defendants; and judgment was rendered against Hecht & Bro., for whose use the suit was brought for costs. A motion for a new trial was filed and overruled, and an appeal granted by the clerk of this court.

I. It appears that the interpleader’s bond relied on in the first paragraph of the answer of appellees as a justification to the sheriff, for not selling the logs under the special execution, was read in evidence on the trial, but appellant failed to bring it upon the record by incorporating it in the bill of exceptions taken to the decision of the court overruling the motion for a new trial. It was the duty of appellant who-seeks to reverse the judgment for error, to set out the bond' in the bill of exceptions, and having failed to do so, it must be presumed that the bond was- in good form — in the form prescribed by law, if there be any law authorizing a sheriff who-has levied upon properry under a special execution issued upon a judgment in a suit by attachment to suspend a sale, upon the execution of a bond by one who claims the property and desires-to interplead for it. Taylor v. Spears, 8 Ark., 433.

The bond, we presume, was not executed under the provisions of the act of 19th of January, 1861, of which sections 469 to 473 of Gantt’s Digest, under the general caption, •“ATTACHMENT,” and sub-title, “INTERPLEADER,” are made up, because that act provides for the bonding of property bjr a claimant, and an interplea and a trial of the right of property, where there is a levy of a writ of attachment upon property claimed by a person not a party to the writ, etc. In its language it does not provide for bonding property and inter-pleading for it, where it is levied upon under a special execution issued upon a judgment in an attachment suit condemning the property to be sold to satisfy the judgment, as in this case.

Sections 432 to 436, Gantt’s Digest, under “attachment,” provide that any person may claim property attached at any time before the sale thereof, etc., and have a trial of the right of property, and if the claimant be anon-resident, he shall give bond for costs : but no provision is made by these sections for the claimant to bond the property and stay the sale until there can be a trial of the right of property.

But no doubt, from the language used by the court below in the second instruction to the jury, the bond read in evidence was taken under the provisions of Sections 2671 to 2676, Gantt’s Digest, caption, “execution.”

The language of Section 2671 is general and comprehensive. It is, that “the sale of personal property upon which an execution is levied, shall be suspended at the instance of any person, other than defendant in the execution, claiming the property, •who shall execute, with one or more sureties, sufficient for double its value, a bond to the plaintiff in the execution, to the effect that if it shall be adjudged that the property, or any part of it, is subject to execution, he will pay the plaintiff the value of the property so subject, and ten per cent thereon, not exceeding the amount due on tbe execution, and ten per ■cent thereon.”

To give this statute a narrow construction, and hold that it applies only where a general execution is levied on property, and not where attached property is about to be sold under a •special execution, would make an omission in legislation, and leave a claimant in the latter case without the means of staying a sale until he could interplead and have a trial of the right of property, and perhaps drive him to a suit against the sheriff or purchaser at the sale.

It appears that Heavener had knowledge that the logs were attached before the judgment was rendered and the execution issued in the attachment suit, for he asked and obtained leave to interplead for the property on the 11th of May, 1875 ; and judgment was not entered until the 15th of the same month ; and he might have bonded and interpleaded for the logs under sections 469-71 of the Digest. But it might frequently happen that one owning property or having a lien upon it would have no notice that it had been attached as the property of another, until after the judgment and execution ordered in the attachment suit. In such case the claimant might interplead for the property under sections 432-4 of the Digest; but unless he could stay the sale by bonding it under sections 2671-76, the sheriff would have to proceed with the sale regardless of his interplea. But be this as it may, there was a further defense in the case.

II. Appellees were permitted to read in evidence, against the objection of appellant, the record of the trial and judgment on the interplea.

It is submitted that the record was inadmissible because the judgment was not pleaded.

Where it is necessary to plead a form.er judgment in bar of an action, it cannot be given in evidence unless pleaded, because of the general rule that the proof must correspond with the allegations.

In this case the judgment could not have been pleaded in bar of the action, because it was rendered after the suit was-commenced. Walker v. Bradley, 2 Ark., 578; Burton v. Hynson, 7 Ib., 502.

By the second paragraph of the answer of appellees, they pleaded that the title to the 600 walnut logs was not in Brilliant & Son, the defendant in the attachment.

The onus of proving this- plea was upon them. The logs having been attached and condemned to be sold by the judgment in the attachment suit as the property of Brilliant & Son, this made a prima facie case that the title was in them, but it-was not conclusive upon the appellees, who were not parties to the attachment suit. Appellees had the right to prove, as they pleaded, that the title to the property was not in Brilliant & Son. To prove this they offered in evidence the judgment upon the interplea of ITeavener.. Hecht & Bro., who are the-virtual plaintiffs in this suit, were the plaintiffs in the attachment suit in which Heavener interpleaded and claimed title to-the logs. There was a tidal and judgment, by a court of competent jurisdiction, that the title to the logs was in him, and not in Brilliant & Son. Hecht & Bro. had notice and opportunity to contest the interpleader’s claim. They moved to-dismiss the interplea, and, on the motion being overruled, they voluntarily declined any further contest. The trial proceeded, judgment was rendered for the interpleader, and they took no appeal as they might have done. This judgment was conclusive upon them, that the title to the logs was not in Brilliant & Son, but in the interpleader. Hershy v. Clarksville Institute, 15 Ark., 131.

III. The matter of tendering the sheriff his fees is. of nó consequence in this case. The statute requires them to be tendered before he can be compelled to execute process. State Use v. Brown et al., 30 Ark., 761, but no doubt he may waive the tender or payment of his fees in advance.

The judgment of the court below must be affirmed.


author: HarrisON, J.:

text:
    Trippe & Son v. DuVal et al.
    1. New That.,
    Although the verdict is against the weight of evidence, the court will not render judgment non obstante viredicio, or grant a new trial unless the substantial ri./hts of the party are thereby affected.
    2. Amendment After Verdict.
    An answer which is vague and indefinite, may be amended after verdict to conform to the proof.
    APPEAL from Sebastian Circuit Court.
    Hon. J. Brizzolari, Special Judge. .

      Rogers, for appellant.

      DuVal, contra.

   HarrisON, J.:

This was a suit by the appellants against the appellees, .for negligence and breach of contract as attorneys.

The complaint alleged that the plaintiffs retained and employed the defendants, who were attorneys, in consideration of certain reasonable fees and rewards to be paid them, to commence and prosecute a suit against one James M. Collins, for the recovery of the sum of $622.47, due and owing them by said Collins, on book-account, for goods sold and delivered him ; but that the defendants failed and neglected to commence the suit, whereby the debt became barred by the statute of limitations, and was lost to the plaintiffs.

The defendants filed the following answer :

“The defendants Benjamin T. DuVal and Raphael M. Johnson, say:

That after the formation of the partnership between them in the practice of law, the said plaintiffs sent by mail to the said defendant, DuVal, the account in said plaintiffs’ complaint mentioned, against the said James M. Collins, for collection, purporting to be for goods and merchandise sold and delivered by the plaintiffs to the said James M. Collins ; that said Du-Val, soon after the receipt of said account presented the same ko said Collins, and demanded payment thereof; that said Collins. denied that he owed said plaintiffs any thing on said •■account, and stated that he had, as the agent of one Henry Nathan, pui’chased said goods and merchandise in said account ■mentioned, from the plaintiffs, for said Nathan, and that said iplaiutiffs knew at the time said goods were purchased that he was the agent of said Nathan. That these defendants did not commence and prosecute a suit in this or any other court, for said Collins, for the recovery of said sum of money, because they, in good faith believed that judgment could not be recovered against said Collins upon said account. That in not bringing the suit, they acted in good faith, and according to the best and utmost of their skill and ability; and they further say, that the said plaintiffs have not been damaged by reason of suit not having been commenced and prosecuted on said account against said Collins.

There was a trial by a jury, and a verdict was returned for the defendants. The plaintiffs moved for a judgment non obstante veredicto, which was refused ; and the defendants were permitted, against the plaintiffs objection, to make the following amendment to their answer:

“The defendants, by leave of the court, for amendment to their answer, heretofore filed, say: that the said James M. 'Collins was not indebted to the said plaintiffs, in the sum of six hundred and twenty-two dollars and fifty-seven cents, or any other sum, for goods and merchandise sold and delivered upon the account placed in their hands for collection, in the*, manner and form as the plaintiffs have set forth in their complaint.”

The plaintiffs thereupon moved for a new trial; but their motion was overruled.

The appellants contend, that the answer did not deny, but in fact admitted, their cause of action, and they were consequently-entitled to judgment non obstante veredicto, as moved for by them.

Though the. answer, before the amendment, was vague and? indefinite, and might for that reason have been required to be* made more specific and certain; yet it did expressly deny that the plaintiffs sustained any damage or injury by their failure to institute the suit, and it obviously was the intention to> deny and put in issue the alleged indebtedness of Collins to the plaintiffs; and we must suppose it was with that understanding the parties went to trial; for the whole of the defendant’s evidence, which was admitted without objection, had, regard to that alone.

But it is insisted by them, that it was immaterial to their-right of action, whether they might have recovered against Collins or not; that by failing to bring the suit there was a breach of the defendants’ promise or undertaking, for which¡ they were entitled to a judgment against the defendants for at, least nominal damages.

Whether in a case such as this, the plaintiff be entitled to* judgment for nominal damages, we need not consider. Substantial justice is not, under our practice, to give way to mere-form.

It is a provision of the Code — Section 4619, Gantt’s Digest,. that the court shall “ in every stage of an action, disregard any ■error or defect in the proceedings which does not affect the ■substantial rights -of the adverse party,” and that, “no judgment shall be reversed or affected by reason of such error or defect;” and before the Code, the rule was well settled that though the verdict be against the weight of evidence, a new trial will not be granted the plaintiff, who can recover nominal ■damages only. Sedg. in Dam., 54; Macrow v. Hull, 1 Burr., 11; Farewell v. Chaffey, Ib. 54; State v. Miller, 5 Blackf., 384; Jennings v. Loring, 5 Ind., 250; Futch v. Walker, 1 Bail., 98; Elwell v. Bradham, 2 Spear, 186; Brantingham v. Fay, 1 John. Ca., 255; Fxparte Bailey, 2 Cow., 479; Remdell v. Butler, 10 Wend., 119.

In the case of Farewell v. Chaffey, Lord MaNSfield remarked, “ A new trial ought to be granted to attain real justice, but not to gratify litigious passions upon every point of summum jus,”

The amendment of the answer was rightly allowed. According to what we have said above, the effect of it was to make the answer more definite, and it was in conformity with the proof, as shown by the bill of exceptions, and also by the verdict — the jury specially finding that Collins was not liable to the plaintiffs.

“The court may, at any time, in furtherence of justice, and on such terms as may be proper, amend any pleadings or proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to facts proved.” Section 4616, Gantt’s Digest.

The plaintiffs excepted to certain instructions given the jury, and also to the refusal of the court to give others asked by them; but inasmuch as the objections have not been argued or insisted upon here, and we find them not well taken, or the rulings to the prejudice of the plaintiffs, it is unnecessary to notice them.

The judgment of the court below is affirmed.


author: Eakin, J. :

text:
    Chancellor v. The State
    Oriminal Proceedings : Presenting indictment.

    Where the record doeB not show that the indictment was brought into court, this court will reverse a judgment of conviction. The indorsement by the clerk upon the indictment, “filed in open court,” is not sufficient
    APPEAL from Benton Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      Gregg, for appellant.
    Henderson, Attorney-Gfeneral, contra.

   Eakin, J. :

There was, in this case, a trial and conviction, for manslaughter. There is nothing in the record to show that the indictment was brought into court by the grand jury. The indorsement of the clerk, “filed in open court,” is not sufficient. McKensie v. State, 24 Ark., 636.

Inasmuch as the supposed crime may be yet the subject of a proper judicial investigation, we forbear any comment upon the testimony, further than to say, in explanation of the course now pursued in declining to send down a certiorari of our own motion, that we think the jury must certainly have acted under ■a misapprehension of the law as given by instructions, or were influenced by their knowledge of facts not appearing in the record. We cannot find any proof, sufficient to sustain a verdict that the killing was by design, or done in the commission of an unlawful act, or under any such circumstances as to. make the defendant amenable to a judgment so terrible in its. disgrace.

Let the judgment be reversed, and the cause remanded, with the usual instructions in such cases adopted by this court as. to its practice. See McKensie v. State, supra; Green v. State, 19 Ark., 178; Holcomb v. State, 31 Ark., 427.


author: EaiiiN, J. :

text:
    L. R. & F. S. R. R. Co. v. Payne.
    "Witnesses : Susband and wife, incompetent.

    Husband and wife are not competent witnesses for or against each other.
    Evidence: Legislative power over.

    The Legislature has no power to divest rights hv prescribing to the courts, what shall he conclusive evidence.
    Railboads: Damages by; Statute construed.

    The true construction of the Act of February 3, 1875, for the recovery of dam-, ages for injuries by railroads, is, that the killing being shown or admitted, the presumption is that it was done by the train and resulted from want of due care ; but this presumption may be repelled by proof. And in ease the company may be liable at all, that liability is doubled by the failure to give notice of the injury required by the statute; but the failure to give notice-does not create a liability for an innocent act.
    APPEAL from Johnson Circuit Court.
    Hon. W. W. MaNSEIELD, Circuit Judge.

      Ciarle & Williams for appellant.

      Ford, contra.

   EaiiiN, J. :

Payne sued the railroad company before a justice of the peace, for damages resulting from breaking the leg of a horse and injuring him permanently — claiming $150. He recovered $100, and the road appealed to the Circuit Court, where, upon trial, the jury rendered a verdict against defendant for $200,, upon which judgment was entered. There was a motion for a new trial overruled, bill of exceptions and appeal.

There was a direct conflict of evidence as to the cause of the injury. Some witnesses testified that the train had run upon the horse and pushed him into a culvert; others swore roundly and directly that the train did not come within four feet of the-horse, but stopped before it reached the culvert, and that the-horse, which had been running along the track before the engine, jumped into the culvert and was injured. Amongst the witnesses for plaintiff who testified upon this point, was-his wife. Her testimony was admitted against the objections of appellant, which makes this one of the grounds of its motion for a new trial.

This was erroneous. Husband and wife are prohibited, from motives of public policy, from testifying for or against each other. Collins v. Mack, 31 Ark., 684. The evidence of the wife was material and may have influenced the jury in arriving at their verdict.

It is urged upon the court to rule, in this case, upon other points made by the record, involving the construction and validity of the act of February 3, 1875, entitled, “An act-requiring railroad companies to pay for damages to persons- and property, and for other purposes.”

The court, upon motion of plaintiff, and against the objections of defendant, gave, amongst others, the following-instruction : “If the jury believe, from the evidence, that the defendant’s engine, or cars, ran over or against the horse,, mentioned in the complaint, and that the animal died from wounds or injuries thus received, they should find for the plaintiff and assess his damages at a sum equal to the actual value of the horse on the day he was injured, together with six per cent interest thereon from that until the present day. But, if the jury find for the plaintiff, and also find that the •engineer, or conductor on the train, doing such injury, knew that the same was done, and failed within one week thereafter to cause to be posted, by the station master, or overseer at the nearest station-house, and at the nearest station-house and ■depot house, a correct description of said horse, including his. •color, marks, brands, and such other natural description as might have assisted in identifying said horse ; and also a notice •of the time and place where said horse was injured, and to keep such notice and description so posted for twenty days thereafter : then they should assess the damages of the plaintiff at double the actual value of said horse.”

The following, in effect, amongst others asked on the part ■of the defendant, were refused :

3. That the jury must not only find that the injury was inflicted by the train, but that it was done through the want of due care and skill or diligence on the part of defendant’s ■agents, or employees, or some of them in charge of the train.

4. That the company was not liable for injury to animals running at large in the range, and straying upon its track, where the company and its agents use due caution and reasonable care and diligence to avoid said injury.

5. That the onus jprobandi was on the plaintiff, notwithstanding the eighth section of the statute.

6. That the company could not be made liable under the Constitution and laws of the State for double damages, as provided by the second section of the statute.

There were other instructions, principally regarding the weight of evidence and the duties of the jury with reference to the conflict therein — which, on the whole, were well given, and need not be noticed.

The statute referred to provides, by section 1, that “all railroads, which are now, or may be hereafter built and operated, in whole or in part in this State, shall be responsible •for all damages to persons and property done or caused by the Tunning of trains in this State.”

The second section makes it the duty of the conductor or •engineer, when stock of any sort are killed, to make the advertisement, indicated in the instruction for plaintiff, and provides that “on failure to so advertise any stock so killed or wounded, that the owner shall recover double damages for all stock so •killed and not advertised.”

The fifth section provides a mode of arbitration between the ■company and the injured party.

The eighth section provides that “the killing of stock on any •railroad track shall be prima facie evidence*‘that it was done by the trains, and the onus to prove the reverse will be on the railroad company.”

There are other sections not bearing upon the points at issue.

The court below construed the first section of the act as imposing upon the road an absolute liability to pay for stock killed by the trains, and withdrew from the consideration of the jury all considerations of negligence on the one hand or ■due care on the other. This would be to make the railroad ■companies insurers of the safety of all the live animals in the State against injury from their roads, and would either take away from them defenses, which all other corporations and persons might by law set up, or make the killing of stock conclusive evidence of want of due care, and negligence. In the absence of express language we cannot suppose that the Legislature intended either. Railroads are useful to all -the community, in the development of the resources and increase of the wealth of the State. The exercise of their franchises, and the pursuit of their business, is lawful, and to hold them liable for unavoidable accidents which could not have been prevented by due care, is contrary to reason. It is not within the province of the Legislature to divest rights by prescribing to the courts what should be conclusive evidence. This matter was fully considered by this court in the case of, Cairo & Fulton Railroad Company v. Parks, 32 Ark., 131, which arose under a statute, which endeavored to make a county clerk’s deed of lands, sold for taxes, conclusive of its recitals against the true owner. Justice Walker, in delivering the opinion, remarked í “The Legislature may declare what shall be received as evidence, but it cannot make that conclusively true which may be shown to be false; at all events, if such facts are necessary to show that the substantial rights of property are to be affected, and he is made to lose his property.” Railroad companies, have the right to run their trains, and the consequent right of being protected in doing so, unless damage to others should result from some negligence, want of due care, or culpable neglect of reasonable precautions, imposed by the legislative power. It affects their substantial rights of property to be able to show the facts, and they cannot be constitutionally deprived of the power.

There are cases where this indisputable liability has been imposed upon railroads and sustained by the courts. It has generally been in those States whose circumstances and policy have required railroads to be fenced by the company, and where there have been express laws imposing this duty. These cases, obviously, rest upon the neglect of the company in fencing so as to keep animals off the track.

In Massachusetts, by statute, railroad companies are made absolutely liable for injuries by fire communicated from their engines ; but, in compensation, are given an insurable interest in any buildings along the route. The courts have sustained this law, but the nature of it is peculiar and exceptional, and the language too clear to admit of doubt.

In Georgia, by act of December 30, 1847, the Legislature «declared, in language substantially like ours, “that the several railroad companies of this State shall be held liable in law for any damage done to live stock or other property (to the owner «or owners thereof) by the running of the cars or locomotives •of such companies or their roads respectively.” This is very broad and very positive, yet the courts of that State have never .given it any other effect than to impose a prima facie liability •and to shift the burden of proving due care on the company. Macon & Augusta Railroad Company v. Vaughn, 48 Ga., 464. The court, in that case, said: “A railroad company is not liable for an unavoidable accident, even under our statute, in relation to stock. If, with every reasonable precaution, proper lookout and proper speed, and proper attention, an unavoidable damage ensues, the company which has, by law, a right under such precautions, to run its trains, is not responsible.” * * * * “The presumption is against the road, and the proof, under our law, must be made that there was no negligence, nor want of ordinary care.”

To the same effect, upon a similar statute, have been the sailings in Alabama. Mobile & Ohio Railroad Company v. Williams, 53 Ala., 595; same case, 13 Am. Railroad Rep., p. 153.

This is a rational construction of legislative intention, and applicable as regards injuries to stock to our own statute, which, in many respects, seems modeled upon that of Georgia. The court erred in excluding from the jury all considerations •of negligence. There were no formal pleadings in the case, but the jury should have been advised to consider all the circumstances developed by the evidence, as to whether the killing resulted from unavoidable accident or might have been prevented by the exercise of reasonable care on the part of ■defendant’s agents. They should have been instructed, also, that the burden of proof was on the defendant, to show that there had been no negligence, nor want of due care; but if it did show that, to find for defendant.

It is apparent that the verdict of $200 in this case is based upon an estimate of $100 as the value of the horse, and the-instruction for double damages, for want of-the subsequent notices prescribed by section 2 of the act.

The power of juries at law to render vindictive or punitive-damages for certain classes of torts, is based upon the idea of blending the interests of society with the rights of suitors, and rendering the administration of civil justice ancillary to the deterring influences of more direct punishments on behalf of' the State. The same idea has prompted the Legislature, at times, to prescribe double or treble damages to be rendered in behalf of individuals, in aid of some policy of the Legislature-directed to the protection of property, or the peace of society,, or the ready collection of the revenue of the State. We have many such laws upon our statute books, and the courts have-never considered them amenable to the charge of taking property of A for Bin any unconstitutional manner. For instance : By Sec. 3190 of Gantt’s Digest, owners of animals breaking through, or over sufficient fences, are made liable to double-damages for a second trespass ; and by Sec. 3192, the person, damaged by animals breaking an insufficient fence, is made liable in double damages for killing or otherwise hurting-them.

The only distinction between such cases and this is, that in those cited, the circumstances which aggravate the injury exist, and characterize it at the time it is done ; whilst in this case the-aggravation of damages is made to depend upon a certain neglect of certain directions of the statute, framed for the purpose-of giving notice to the neighborhood of the injury done. It is, common in this State to turn stock upon the range, where they are not under the constant supervision of the owners.. Injuries» to them cannot well bo known at the time by the owners,, whilst the agents of the road running the trains, are generally aware of it. The statute makes it the duty of the engineer or conductor of the train to give the prescribed notice, that the owner may have an opportunity of identifying his property and taking steps for his indemnification, or proposing, or receiving proposals for arbitration, whilst the matter is fresh. In. furtherance of this policy it is by another section made a misdemeanor in any employee of the road to mutilate, disfigure, or carry off the carcass of any animal killed, without notifying two citizens to note and preserve the marks and value.

The regulation is a reasonable one, and the Legislature seems to have considered its neglect such a mark of carelessness and disregard of the property of others, as to connect it' with the act of killing, and make the company liable in double damages for the act of its agent, attended with such subsequent, neglect. The distinction between the cases is too nice to form, the ground of a constitutional objection.

The Supreme Court of Nebraska, at the October term, 1877, in the case of Atchison & Nebraska Railroad v. Baty, held an act unconstitutional which gave double damages to the owner of live stock killed by a railroad, in case the value was not paid in thirty days after demand made therefor. It was supposed to be in conflict with that clause of their Constitution, declaring that all fines and penalties should be appropriated exclusively to the support of common schools, and also with the declaration that no person should be deprived of life, liberty or property, without due process of law. A careful consideration of the reasoning and authorities cited in that case, has failed to satisfy us of the correctness of the conclusion. It is a grave matter to declare an act of the Legislature null and void, and we decline to do so upon a question of doubt.

The true construction of the act in question is, that the killing being shown or confessed, the presumption is that it was done by the train, and that it resulted from want of due care. At common law the onus of proving these facts was on the plaintiff. The statute shifts the bui'den to the defendant, but does not preclude the company from showing that such due care was exercised in pursuit of its lawful business as to .absolve it from liability. In case the company may be liable •at all, that liability is doubled by neglect of its agents to give the notice prescribed by the statute, but the failure to give notice does not impose or create a liability for an innocent act. "Whether or not the fact that plaintiff had actual knowledge at the time of the injury to his horse, being present and witnessing the accident, renders the notice unnecessary, and prevents the liability for double damages from attaching, is a question ■not made by the instructions given or refused, and will not be noticed here.

For error in admitting the testimony of plaintiff’s wife, and also of removing from the jury the question of negligence or due care on the part of defendant, the judgment will he reversed .and the cause remanded for a new trial.


author: Eakik, J.:

text:
    Harrison v. Lamar.
    1. Admintstrat on : Statute construed.

    The word “estate,” in Secs. 6 and 7, Cfantt’s Digest, means the whole mass of the decedent’s property, both real and personal, and if it is of less value than $300, is given by the law proprio vigore to the widow; or if no widow, to the children of the deceased, and an order of the Probate Court is not necessary to vest it.

      2.-Order of Probate Court declaring estate in widow ; Notice to heirs; Recitals in order.

    The proceeding of the Probate Court to declare the estate in the widow is in rem, and no notice to the heirs is necessary ; nor is it necessary that the order recite all the jurisdictional facts.

      APPEAL from Madison Circuit Court.
    Hon. J. M. PittmaN, Judge.

      Gregg, for appellant.

      ■J. D. Walker, contra.

   Eakik, J.:

The pleadings in this case, as finally settled, present the case 'of an action at law by Roetna Lamar, one of the heirs of Young S. Lamar, deceased, to recover of John Harrison a tract of land. She rests upon her title by descent.

The defendant pleaded that the estate of said Young S. was of less value than $300 ; that he left a widow, Mary L. Lamar, in whom, by order of the Probate Court, the whole estate was "vested; that she afterwards inter-married with Garrett W. Davis and, with her husband, conveyed to defendant. Under ’the act of 1875, regulating this sort of action, the order of the Probate Court, and the deed of Davis and wife, were exhibited.

The first shows that on the 3d of February, 1866, upon ’.petition of the widow, and upon its being shown to the court that the estate did not amount to the sum, in value, of $300, it was ordered that the whole estate be vested in the widow, ■absolutely. •

The deed of Davis and wife, although executed by both, was not acknowledged by her in such manner as to be valid ’under the statute. To the deed and order plaintiff excepted, ■as evidence. The court sustained the exceptions to both, because the order did not show that the children had notice of the application ; and the deed was not acknowledged by Mrs. Davis in accordance with the statute. Defendant saved exceptions.

The cause was heard by the court, which, against the objection of defendant, permitted parol proof that the heirs were not notified of the proceedings in the Probate Court, being at, the time minors of tender age.

The defendant proved the purchase of the land from Davis, and wife; their attempt to execute the deed; his possession under it, and that the estate of said Young S. Lamar was in. fact of less value than $300. He offered to read the Probate-Court order from the record, which was refused. He then offered to read the deed, which was also rejected.

The court found for plaintiff, declaring its view of the law,, in effect, to be : That proceedings in the Probate Court of this nature, were in rem, and that notice to the heirs and creditors was not essential; but that the courts could not exercise the-jurisdiction unless the estate were of less value than $800, and subject to administration ; and these jurisdictional facts should be shown affirmatively by the record before they could be of' any binding force as against heirs without notice, and without, such showing might be collaterally questioned. Further, that the property claimed under the order should be specifically mentioned and described therein, or it would not pass from the-heirs without notice.

On the part of defendant it declared the law to be that the-Probate Court had power to vest the whole estate in the widow,, if it were worth less than $300, but refused to declare that it so passed by operation of the statute alone, or that-the Probate Court, even on proper application, could vest real, as well as. personal property, iu the widow. Judgment for plaintiff for a share of the lands; bill of exceptions taken, and appeal.

Section 6 of Gantt’s Digest, provides that upon the death of a person leaving a widow or children, and it shall be made to appear to the court that his “estate” does not exceed $800, “the court shall malee an order that the estate vest absolutely in the widow or children, as the case may be,” etc. This was. by act of January 2, 1851.

By an act passed two years afterwards, (Sec. 7 of Gantt’s Digest), it was provided that upon the death of a person leaving miuor children and no widow, andan “estate” less in value than $300, “his entire estate shall pass to and vest in his minor-children, for their support and education, and the court shall, not be required to appoint an administrator on such estate.”

There are no grounds for drawing a distinction between real and personal property in the construction of these acts. If' there were any, the “estate” must be considered as more aptly referring to real property. But under our system of administration, which regards the whole mass of property, real and personal, as assets for some purposes, in the hands of the-administrator the word estate has acquired a wider application, in a popular sense, and in this sense, doubtless, the Legislature meant to use it. It means the mass of property left by decedent, and if that, in the aggregate, should be less than $300 in value, the intention of the acts, taken together, is to give it to the widow, if living, or if there be no widow, to minor children.

Notwithstanding the difference in the phraseology of the-acts, which would seem to indicate that, in the widow’s case,, an order of the Probate Court is necessary to fix her rights, it. has, nevertheless, been held that the law, proprio vigore, gives, the right to the widow to retain in her hands the whole estate without liability to account, if it be in fact of less value than. $300. Hampton et al. v. Physic, adm’r., 24 Ark., 561.

In this case, however, there was an order of the Probate Court made in pursuance of law. It is a proceeding in rem, fixing the status of the property as to ownership, and declaring to all the world the course of devolution which, under the circumstances, the law gave to the property of the deceased. It did not vest the right so much as declare it, and it was not necessary that it should specify the personal property, or-describe the lands by metes, bounds or numbers. It carried the whole 'property without reserve, leaving nothing to be ■determined with regard to its identity, but the fact that it was 'part of the estate left by decedent — a fact, in this case, necessary to sustain the claim of either party. 'The statute does not ■prescribe any notice to be given to heirs or distributees. As to these small estates, they have no prima facie rights, the ■amount of the estate being admitted. They are taken out of the course of devolution prescribed to larger ones, and there being no right to be divested out of them, there is no other reason for making them parties than that they should have the right to question the amount of the estate — a fact admitted Rere, or rather not contested ; and there is no reason at all for ■making them parties by notice or otherwise, to the Probate ’Court proceedings, which would not, with equal or greater .force, apply to creditors.

Nor was it necessary that the order should recite all the ¡jurisdictional facts. Courts of Probate are courts of record, with a range of jurisdiction embracing only particular subject matter’s, but, within that range they are entitled to all presumptions in favor of the regularity of their proceedings, accorded to superior courts of record. Borden v. State, 11 Ark., 519; Bellows v. Cheek, 20 Ib., 424. When jurisdiction of the subject matter appears, the jurisdiction of the person is not open to inquiry in a collateral proceeding. Sturdy v. Jacoway, 19 Ib., 516; and Borden v. State, supra.

The presumption is that everything was rightly done, Welch v. Hicks, 27 Ark., 292; Thorne v. Province, 31 Ib., 190, unless the record affirmatively shows the contrary. Cook v. Loftin, 31 Ib., 567. Overriding all this, however, is the power of courts of equity to amend orders obtained by fraud. The order does recite that it appeared to the court that the whole of the estate did not amount in value to the sum of $300. That showed jurisdiction of the subject matter, and the-order, standing unimpeached, cannot be questioned in a collateral proceeding, nor could it be so weakened by lapse of" time as to make proof of want of notice admissible in a collateral proceeding. The court erred in excluding the order in the first place, and in afterwards admitting proof tending to show want of notice.

The property, by the order, vested absolutely, in fee simple,, in the widow. By her subsequent marriage soon afterwards with Davis, his marital right attached, to enjoy the property during coverture, and to have curtesy under proper conditions. These rights he might convey, and they would protect an alienee against an action of ejectment during their existence.. An abortive effort of the wife to join in the conveyance defeats the object as to the interests of the wife alone, leaving those of the husband to pass. It was not necessary, however, in this case to show any interest in the defendant. The outstanding title in the wife, even if there had been no sale, would defeat the recovery of plaintiff.

The court erred in its declarations of law, and in finding for the plaintiff, and rendering judgment accordingly, as well as. in sustaining exceptions to defendants exhibits to his answer..

Let the judgment be reversed and the cause remanded for a., new trial.


author: Eaicin, J. :

text:
    Ward v. Worthington.
    '1. Practice — Bill of Exceptions.

    An entry upon the record that a party upon a motion for continuance being sustained, agreed to admit the facts stated therein, upon which the parties went to trial, will not be noticed by this court, where these matters are omitted from the bill of exceptions.
    2. Replevin — Action by tenant in common:

    O.ie tenant in common cannot maintain replevin against his co-tenant for his part of the common crop, unless there has been a division of it, consummated by an assignment and appropriation of a part to each.
    APPEAL from Sebastian Circuit Court.
    Hon. R. R. Rutherford, Special Judge.

      Du Val & Oravens, for appellant.
   Eaicin, J. :

Worthington sued Ward in replevin, before a justice of the peace, stating in his affidavit, that his claim was “for 372 pounds of lint cotton, of the value of $37.20, which cotton is the one-half of the undivided crop made by him on Joe Ward’s farm,” “ which he is entitled to for cultivating said crop.” A writ was issued, some cotton seized, and a delivery bond •executed by defendant, to retain the property. After some very irregular proceedings, a very irregular verdict and judgment was rendered for plaintiff, and defendant below appealed to the Circuit Court.

There he filed an answer, denying that plaintiff owned the •cotton, or was entitled to possession ; and,

2d. Alleging that plaintiff owed him twenty-eight dollars for supplies, and money advanced; and had agreed to let him have a lien on said cotton, and hold it. A demurrer to the second paragraph was overruled. Upon trial in the Circuit Court the jury found for the plaintiff, that he have return of the cotton replevied, valued at $37.20. Defendant moved for a new trial, which being overruled, he excepted and appealed.

There was no evidence whatever of defendants’ lien. If we might notice a paper appended to the transcript and marked filed, it would appear that defendant moved for a continuance ■on account of the absence of a witness, who would prove that plaintiff acknowledged the existence of a lien ; and an entry of record showing that the plaintiff, upon a motion for a continuance being sustained, agreed to admit the facts stated therein, upon which the parties went to trial. But all these matters =are omitted from the bill of exceptions, and cannot be noticed. (P. &. Z. Phillips, v. Reardon & Son, 2 Eng., 7 Ark., p. 256.

For the rest, the substance of the evidence made this case. Worthington, the plaintiff, cultivated a crop of cotton on the farm of defendant. They hauled it together to a gin, and directed the ginner to put it up in two bales, one for each ; the plaintiff furnishing for the purpose his own bagging and ties. It was ginned and put up in two bales, one weighing over 400 pounds, and the other over 300 pounds. The defendant brought 300 pounds of seed cotton of his own, which was also ginned and put up in the smaller bale. Both were removed by defendant. Cotton was worth from 10 to 11 cents per pound.

Although the Code has abolished the distinction between the old common law forms of action, the proceeding by replev-in is peculiar; being intended for the recovery of specific property. Its distiuct nature and requisites must be preserved or the practice will fall into confusion. The recovery is for a specific article which must be identified, or for its value, which must be ascertained. Otherwise, however plain the rights of a party may bo to a money compensation, this form of action •ought not to be sustained. It is prompt and dangerous ; and those who resort to it should be careful to bring their cases by" proper evidence within its provisions and requirements.

There was no evidence before the jury of any division of the-crop, consummated by assignment and appropriation of a part, to each. The baling in two parcels was with a view to that,, but neither the weight nor value of bales was established,, except by remote approximation, nor was it shown that any assignment of a particular bale to each was made, so that he might say “this is my property.” It is not shown that tim-bales were equal in weight or value. The jury seem to have taken it as confessed by the pleadings before the magistrate,, and in the Circuit Court that the bale replevied weighed 372 pounds, because there was no distinct denial of that in the answer. There was no proof of it at all. It was sufficient for the answer to deny the property of plaintiff, and that did not of itself amount to an admission of its alleged value. Gantt’s. Digest, 4608, nor of its description.

The remedy, by replevin, for an undivided part of a crop, was not proper in the first place. The point was not taken and the case was tried on the merits, but it did not relieve the-plaintiff from showing facts to maintain his action. We think, the facts shown did not authorize the verdict, and a new trial should be granted.

Let the judgment be reversed, and the cause remanded for*the purpose.


author: EaKIN, J.:

text:
    Hendry v. Willis.
    1. Swamp Land Act : The swamp land act of September 28, 1860, made a grant in presentí of all lands coming within the description of the act. When they are properly designated and ascertained, the grant relates to the date of the act.
    2. Same : It made the Secretary of the Interior the judge of the lands coming within the meaning of the grant, and his decision, on this point, in the absence of fraud or imposition, is final.
    3. State’s Patent : Evidence; Recitals.

    The State’s patent for swamp lands may issue at any time after the selection is confirmed, and is evidence of title in the grantee, and prima facie evidence* of all facts recited in it, which are necessary to confer the power to issue it.
    4. Evidence : Official letters ; Exemplifications of record.

    A letter from the Commissioner of the General Land Office, stating what does- or does not appear on his records, is no.t evidence of the facts stated. Matters of record must be proved by exemplifications of the record. Negative-matter may be proved by the testimony of those familiar with the record and papers, but the testimony must be taken as of any other fact. Letters-will not do.
    APPEAL from Sebastian Circuit Court.
    Hon. R. B. Rutherford, Special Judge.

      JDuVal & Cravens, for appellant.
   EaKIN, J.:

This is an action at law by Hendry against Willis, begun* August 25, 1873, to recover land. Plaintiff claims, under a. patent from the Governor of the State, executed March 13,, 1872. The patent, in its preamble, recites the passage of the act of Congress of September 28, 1850, granting swamp and overflowed lands to the State ; that under the provisions of the-State acts, the Land Commmissioner of the State, on the 27th day of February, 1872, granted a certificate to and in favor of plaintiff for the lands described; that on the 13th day of March, 1872, he had certified that said lands had been confirmed by the United States to the State of Arkansas, as a por-tion of the lands granted by said act; and that the purchase money had been fully paid.

Defendant relied upon a patent from the President of the United States, dated August 15, 1860, issued to his grantor upon the location of a militaiy bounty land warrant, in pursuance of an act of Congress approved March 5, 1855, with continued possession in his grantor and himself, and the statute of limitations. He further showed, upon trial, that the purchase of the land from the United States was made on the 6th day of September, 1858, and, as the bill of exceptions states, “proved by several witnesses that the premises in controversy were not swamp and overflowed lands.”

Upon the trial, defendant, against the objections of plaintiff, was allowed to introduce, as evidence, an exemplification under the hand and seal of the Commissioner of the General Hand Office, of the official record of a letter from the Acting Commissioner of the General Land Office, dated August 11, 1877, to Ourtis <& Earle, attorneys at Washington City. The letter purports to be in response to an inquiry, and says that the land in question, describing it, “does not appear on our records as a swamp land selection.”

It happened, on trial, after the evidence was closed and the instructions settled, that plaintiff offered to introduce a deposition of J. N. Smithee, Commissioner of State Lands, which had been taken in the case by agreement of attorneys. The bill of exceptions states that this “had been overlooked by plaintiff’s counsel, who had come into the case just before the trial, to represent plaintiff’s counsel, who was absent.” Leave to read the deposition was refused. If admitted, it would have shown to the jury that the records of his office had been mutilated to such an extent as to prevent him from saying whether or not the land in question had ever been patented to the State from the United States government, but it was •selected as swamp land under the act of Congress of September 28, 1850, and confirmed to this State bjthe United States /government on the 14th of July, 1853, on list No. 1, Clarks-ville district, and that the entry appears to be regular and without conflict.

The court, for the plaintiff, instructed the jury if they found the lands had been confirmed to the State by the United States on the 14th of July, 1853, and that defendant was in possession, to find for the plaintiff; and that the Governor’s ■deed was evidence of title ; but refused to instruct that it was •evidence of the facts therein recited. '

Eor the defendant the court instructed: That to enable the plaintiff to recover, it must appear that the lands were selected, ■confirmed and deeded to the State as swamp and overflowed lands; that the defendant was entitled to a verdict on his patent from the United States, if it were the first and only ■deed, and the lands had not been confirmed to the State ; and ■that the deed from the Governor, although prima facie evidence of title, conveyed only such title as the State had at the time of the sale.

A verdict for defendant. A motion for a new trial was •overruled, and plaintiff appealed.

It is well settled that the act of September 28, 1850, made a grant to the State, in presentí, of all lands coming within the •description. When they are properly designated and ascertained, the grant relates to the date of the act.

By the second section of the act it is made the duty of the Secretary of the Interior to ascertain the lands passed by the grant, transmit a list of them to the Governor, and, when requested by the Governor, cause a patent to be issued to the State.

The power making the grant could impose its own conditions. It constituted the Secretary of the Interior the judge of the lauds in the State coming within the meaning of the grant, and his decision on this point, in the absence of fraud or imposition, should be considered final in all courts.

The act did not prescribe for the Secretary any mode or agencies for making out his list for transmission. The plan adopted has been so long in public use in the land departments of the Federal and State governments, and has been so often alluded to in legislation, that the laws of the State cannot well be construed without taking judicial cognizance of the system. The selections have been, in fact, made by agents of the State, sent to the Secretary of the Interior, through the Commissioner of the General Land Office, approved and returned to the Governor. These tests, so approved, have been properly marked upon the plats, and filed amongst the archives of the land office of the State. They have, from time to time, been, with all other books, papers and other matters concerning the State lands, transferred from one custodian to another, upon whom the duty of keeping them has been imposed. When these lists, so approved, have been transmitted to the Governor, they have been treated in our legislative and official acts as confirmed, and so we must understand the word.

At the time of the execution of plaintiff’s deed by the Governor, he was authorized by law to make it, upon being satisfied that the lands were confirmed, and the price paid the State. The right was determined by the confirmation, which fixed the character of the land, and vested it by relation, as of the date of September, 1850. The deed became evidence of title, because it was made in pursuance of law, and prima facie evidence of all those recitals in it necessary to confer the power. It would be attended with inconceivable inconvenience if every holder of the Governor's patent for swafnp lands were obliged to fortify his deed with proof aliunde, that the lands were of the chai’acter described in the congressional grant, had been confirmed to the State, and duly purchased by him and paid for. The court erred in declining to instruct the jury that the recitals of these facts in the patent made a prima facie case for the plaintiff.

It follows, also, from the authority given to the Secretary of the Inteiior under the act, that after confirmation of the lands by him to the State, the character of the land, as swamp and overflowed, would be conclusively fixed as against the United States, or any one holding under it by patent after confirmation. Whether such confirmation would preclude proof as to the real character of lands sold by the United States, or the State, after the passage of the act and before confirmation, is a question not necessary here to determine. It is enough to say that if the lands be really swamp and overflowed, the right vests in the State by the act, and when the fact is determined, by whatever method, this right has relation to the date of the passage of the act. Of course it would have no application to lands never selected.

There is no proper proof in this case that the lands were not swamp and overflowed at the time of the congressional grant. The language of the bill of exceptions, is: “Defendant then proved, by several witnesses, that the premises in controversy were not in fact swamp or overflowed land.” This is setting fiorth the result of the testimony rather than the testimony itself ; but waiving that, the proof refers to the time of trial, nearly thirty years after the act. From divers natural and artificial causes, the surface of the earth is continually changing, and lands which were wet, overflowed and unfit for cultivation in 1850, may be now high and arable ; and so vice versa.

The letter from the Acting Commissioner to the law firm of Curtis & Earle, was not admissible to prove facts stated in it, or absence of facts. It was mere heresay. Nor could it be made evidence b}7 any rule of the office requiring such letters to be copied, and giving them the character of quasi records.. Certified copies of them could only be evidence that such letters were written, not of the facts they contain, whether affirmative or negative. Negative matter can rarely be proved by the testimony of those familiar with the records and papers ;• but the testimony must be taken as for any other facts. Letters will not serve the purpose as between third parties. The court erred in letting the letter in question go to the jury.. They were thus warranted by the court to find that the lands in question had never in fact been selected, and believing'that, could not do otherwise than find for the defendant.'

The application of plaintiff to read the deposition of Smithee after the evidence had been closed and the instructions settled,, upon the ground that the attorney was not well acquainted with the case, and had overlooked it, was addressed to the sound discretion of the presiding judge. It devolves upon the-Cii’cuit Judges to preserve the due order of proceedings in their courts, and prevent the practice from falling into that, utter confusion to which, since the change to the Code system, it seems to be tending. To them is now entrusted the delicate duty of building upon the Code and moulding a clear, rational system of practice, adapted to the despatch of business, an.d the efficient administration of justice. In doing this they must exercise their discretion very frequently, and they can better-judge of the circumstances affecting any particular motion than we can here. For instance, it seems to us here that justice required that the testimony should have been admitted upon, the explanation given. It would not have taken the adverse-party by surprise. But it was unimportant. So much of it. as went to show that the lands were included in the confirmation, list of 1853, was incompetent. That list was a part of the official documents in his office, of which he was custodian, and what the list showed should have been proved by exemplification. The deposition would only have been of use to show the mutilation of the records, and thus explain the want of proof of the issuance of a patent to the State. If this were all, we would be loth, on this account, to declare it. an abuse of discretion and disturb the verdict.

For the error of the court in admitting improper testimony, and refusing proper instructions asked by the plaintiff, the new trial should have been granted.

Reverse and remand for a new trial and further proceedings consistent with this opinion.


author: David Nbwbern, Justice.

text:
    Donale Peter NAHLEN v. STATE of Arkansas
    CR 97-422
    953 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   David Nbwbern, Justice.

Dónale Peter Nahlen was convicted of two counts each of kidnapping and aggravated robbery. Pursuant to the so-called “three strikes and you’re out” sentencing statute, Ark. Code Ann. § 5-4-501(d) (Supp. 1995), Mr. Nahlen was sentenced to life in prison without parole. Mr. Nahlen maintains that § 5-4-501 (d) is “unconstitutionally vague, ambiguous, and unclear” and that his conviction therefore should be reversed. Mr. Nahlen also argues that his conviction should be reversed, and the case remanded, because the Trial Court prevented him from introducing, during the trial’s penalty phase, video-taped statements made by some of his friends and acquaintances about their opinions of, and their experiences with, Mr. Nahlen. The statute is not vague, but it is ambiguous. The Trial Court, however, chose to apply the more liberal alternative interpretation. Even though the statute was interpreted in a way favorable to Mr. Nahlen, it required imposition of a sentence oflife.without parole. The Trial Court’s refusal to admit the video tape in the sentencing phase thus becomes irrelevant. We affirm the • conviction and sentence.

Mr. Nahlen and a female friend entered a pharmacy and robbed the pharmacist and his employee of drugs and cash at gunpoint. The victims were made to lie on the floor while they were bound with duct tape. They managed to free themselves before the culprits left the store. The pharmacist and Mr. Nahlen exchanged gunfire as a result of which Mr. Nahlen and an innocent customer-bystander were injured. Mr. Nahlen and his companion were held until the police arrived.

Í. The “three strikes” statute

Aggravated robbery and kidnapping are both Class Y felonies. Under Ark. Code Ann. § 5-4-401(a)(l) (Repl. 1993), a defendant convicted of a Class Y felony may receive a sentence of not less than ten years and not more than forty years, or life. By its terms, § 5-4-401 (a)(1) does not foreclose the possibility of parole. Mr. Nahlen, however, was sentenced to life without parole because, pursuant to Ark. Code Ann. § 5-4-501 (d) (Repl. 1995), his aggravated robbery and kidnapping convictions qualified as felonies “involving violence” and because he had two or more prior convictions for violent felonies on his record. In other words, as this was Mr. Nahlen’s “third strike,” he received a harsher sentence under § 5-4-501 (d) than he would have otherwise received under § 5-4-401(a)(l). The provisions of § 5-4-501 (d) relevant to this case are:

(1) A defendant who is convicted of a felony involving violence enumerated in subdivision (d)(2) of this section and who has previously been convicted on two (2) or more separate and distinct prior occasions of one (1) or more of the felonies involving violence enumerated in subdivision (d) (2) of this section shall be sentenced to an extended term of imprisonment, without eligibility for parole or community punishment transfer, as follows:
(A) For a conviction of a Class Y felony, a term of not less than life in prison; . . .
(2) For the purposes of this subsection, a felony involving violence shall mean:
(A) Any of the following felonies enumerated as follows: . . .
(iii) Kidnapping, § 5-11-102;
(iv) Aggravated robbery, § 5-12-103; . . .
(3) (A) After reaching the verdict of guilty on a felony involving violence, the same jury or the same judge sitting without a jury shall sit again in order to hear additional evidence determined pursuant to the procedures outlined in § 5-4-502, and if it is then determined beyond a reasonable doubt that in fact the defendant has previously pleaded guilty or nolo contendere to, or been found guilty of, two (2) or more prior felonies involving violence, then the defendant shall be sentenced in accordance with the provisions of subdivision (d)(1) of this section. [Emphasis supplied.]

The problem is that § 5-4-501 (d)(1) contains the words “separate and distinct prior occasions” but §5-4-501 (3) (A) does not, and each of those subsections purports to provide when the three-strikes enhancement applies.

The State proffered three Arkansas judgments, as well as one from Montana, reflecting Mr. Nahlen’s convictions for aggravated robbery, a “violent offense” within the meaning of the three-strikes law. Each conviction resulted from Mr. Nahlen’s plea of guilty. The Arkansas convictions arose from incidents occurring on three different dates in three different counties. Mr. Nahlen was represented by a different lawyer in each of the three separate proceedings. In response to a request from Montana authorities, each of the Arkansas sentences was altered to provide that it would be served in Montana concurrently with the Montana forty-year sentence. Apparently Mr. Nahlen had agreed to plead guilty to the Montana charge if the Arkansas sentences could be served concurrently with his Montana sentence.

Mr. Nahlen requested that the Arkansas convictions be “treated as one instead of three” in light of his assessment that the three priors “all coincide and relate one to the other.” In light of the provision for application of the “three strikes” statute only when a defendant has been “convicted on two (2) or more separate and distinct prior occasions of one (1) or more of the felonies involving violence,” § 5-4-501(d)(l) (emphasis added), defense counsel conceded that the three aggravated robberies were all “different actions” but insisted that “the punishment for them was just one occasion and one sentencing and it was just run concurrent, one with the other.” (Emphasis added). Mr. Nahlen’s counsel maintained that the convictions “were all in one period of time” and “should be joined for purposes of this habitual statute.”

After the jury had returned its verdict of guilty on the four offenses charged, the Trial Court provided the jury with two additional verdict forms. One read as follows:

We, the Jury, find beyond a reasonable doubt that the Defendant has previously pled guilty or been found guilty on separate and distinct prior occasions of two or more prior felonies involving violence.

The other form contained the statement in the negative, i.e., “. . .we do not find. ...” The jury returned the positive form.

Although we make no determination whether it was proper for the Trial Court to submit the issue to the jury, as that is not an issue in this appeal, we conclude Mr. Nahlen has no basis for urging his ambiguity argument in view of the fact that, as the result of the verdict forms and instruction submitted to the jury, he received the benefit of the more liberal of the two possible interpretations.

We agree with the State’s position that Mr. Nahlen was eligible for an enhanced sentence under the statute whether the language in § 5-4~501(d)(l), or the language in § 5-4-501(d)(3)(A), controlled. Thus, Mr. Nahlen lacks standing to complain because he “clearly falls within the conduct proscribed by the statute.” Vickers v. State, 313 Ark. 64, 69, 852 S.W.2d 787, 790 (1993).

We do not ignore the part of Mr. Nahlen’s argument in which he refers to the statute at issue as “vague.” We reject that characterization in favor of the Trial Court’s and our conclusion that each alternative presented by the statute is clear but that each is inconsistent with the other. Thus, the statute containing both is ambiguous. Even if the statute were properly said to be vague, however, Mr. Nahlen could not prevail.

It is an accepted principle that when challenging the constitutionality of a statute on the ground of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning. If, by his action, that individual clearly falls within the conduct proscribed by the statute he cannot be heard to complain.

Burrow v. State, 282 Ark. 479, 481, 669 S.W.2d 441, 443 (1984). Mr. Nahlen had clear warning from the statute that, at a minimum, he was facing a sentence of life in prison without parole if he were found to have committed qualifying offenses on separate and distinct occasions.

“In order to challenge the constitutionality of a statute, a person must demonstrate that the challenged statute had a prejudicial impact on him. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982).” Greer v. State, 310 Ark. 522, 523, 837 S.W.2d 884, 885 (1992). Any ambiguity in the statute could not have affected Mr. Nahlen because he was eligible for the enhanced sentence under either of the inconsistent subsections.

2. Videotaped character evidence

In both the guilt-innocence phase and the sentencing phase of the trial Mr. Nahlen asked to be allowed to present a video-tape recording of character testimony by acquaintances from Montana. The State responded that it would wish to cross-examine any such witness. The request to allow the jury to view the videotape was denied in each instance as it was inadmissible hearsay.

Mr. Nahlen now argues that testimony as to a person’s character, based upon reputation, is not hearsay. Although not specifically made, the reference is apparently to Ark. R. Evid. 803(21) which excepts from inadmissible hearsay “Reputation as to character. Reputation of a person’s character among his associates or in the community.” We note that the rule does not provide that such evidence may be presented by other than a witness subject to cross-examination, and Mr. Nahlen supplies us with no authority on the point. The Trial Court ruled, correctly, that the tape-recorded statements, not subject to cross-examination in any form, would be hearsay.

The Trial Court also mentioned, again correctly, that if it were suggested to the jury that it could do other than that mandated by the three-strikes statute, it would amount to a nullification of the law. We agree. Mr. Nahlen was not prejudiced by the refusal to admit the tape into evidence because it could have had no effect on his sentence.

3. Rule 4-3 (h)

The record of trial has been examined for errors prejudicial to Mr. Nahlen to which objection was made at the trial. None has been found.

Affirmed.