author: Elsijane T. Roy, Justice.

text:
    William Rupert BONDS v. Cecil Ruth Bonds LLOYD
    75-315
    535 S.W. 2d 218
    Opinion delivered April 5, 1976

      Richard L. Peel, for appellant.

      Jon P. Shermer Jr., for appellee.
   Elsijane T. Roy, Justice.

Appellant William Rupert Bonds and appellee Cecil Ruth Bonds Lloyd, formerly husband and wife, were divorced in April, 1970, in Dallas, Texas. Custody of their minor child, William Jonathan Bonds, was given to the mother. In July, 1975, the sister of appellee called appellant in Russellville, Arkansas, stating that appellee apparently had abandoned Jonathan and to come pick up his child. Appellant did so. The next day after appellant returned to Russellville he filed a petition for custody in the Pope County Chancery Court alleging appellee had abandoned Jonathan and was unfit to retain custody. Five weeks later appellee responded by filing a petition for a writ of habeas corpus seeking the return of the child.

After an abbreviated hearing the chancellor decreed that the child be placed with the Pope County Welfare Department. The decree further required that the Dallas Welfare Office be requested to investigate the conditions under which the child was living and to state its intention as to the custody of the child pending resolution of the action. If so desired by the Dallas Welfare Office the child could be transferred there until the Dallas County courts could determine which parent should have custody.

Appellant argued for reversal that the Chancery Court of Pope County erred in refusing to hear the case on the merits and in refusing to determine which parent should have custody.

Carolyn Presley testified she was a sister of appellee Cecil Ruth Bonds Lloyd and that she lived in Irving, Texas, a short distance from Dallas, the home of appellee. She said she frequently visited in her sister’s home and often kept the children for her. The children were William Jonathan Bonds, son of appellant, who was six years of age at the time of the hearing, and Mrs. Lloyd’s twin daughters, four years of age, children of her present husband. The last time Mrs. Presley kept the three children for her sister she expected her to pick them up in a few days. When she heard nothing from appellee for three weeks she called Mr. Lloyd, her sister’s present husband, and requested that he come for the children because for financial and physical reasons she was unable to continue to feed and care for them. Mr. Lloyd advised her to call “Bill Bonds” and tell him to come get Jonathan, that he did not want him, and she could take the little girls to appellee’s mother, that he did not have time to take care of them.

Mrs. Presley testified her inquiries finally revealed Mrs. Lloyd had gone to California, that she had taken all of her clothes and none of the children’s things. This led her to believe the children had been abandoned, and for this reason she called Jonathan’s father to come for him and he was there within a few hours to get Jonathan. She testified the conditions in her sister’s home were very unsanitary. That while Mrs. Lloyd was in California Mr. Lloyd asked her to come over and clean the house, at which time she found half-eaten food all over the place, even under the children’s beds and “every time I swept out from under anything, out of closets ... hundreds of roaches, not just a few at a time, but gobs of them at a time, came out from everywhere every time I swept under anything. * * * Dirty clothes in piles all over the house. It was just horrible. Absolutely horrible. The smell would have driven anybody out.”

Other testimony concerning the deplorable condition of the house in which the children lived is too revolting to detail. Not until two weeks after Mr. Bonds picked up Jonathan did Mrs. Presley receive any inquiry from appellee concerning her own children.

Mrs. Ivy Sims, who lived in Texas at one time but now lives in Arkansas, testified that she used to baby-sit for appellee. Mrs. Sims essentially corroborated the testimony of Mrs. Presley as to the dirty, unkempt condition of the house and her testimony extended to the physical condition of the children as well as the house. Both women stated they had also seen evidence of maltreatment and physical abuse of Jonathan in addition to evidence of extreme neglect.

Appellant testified: Mrs. Lloyd’s sister, Carolyn Presley, called me and told me that Mrs. Lloyd had disappeared and abandoned Jonathan and wanted me to come get Jonathan and take care of him. I went after my son on a Saturday two hours after Carolyn Presley called me, brought him back here, and was in my attorney’s office the next Monday morning to seek custody of Jonathan. I consider that Jonathan had been neglected and abandoned by Mrs. Lloyd. I desire to have custody of Jonathan so that I can take care of him, rear him, give him an education and the opportunity to grow up to be a fine young man. My wife has approved of this and she very much desires that we have custody of Jonathan. I have already made arrangements for Jonathan to go to school here, to collect his shot records, birth certificate and have had him examined by the doctor. I own my own home and have one child by my present wife to whom I have been married five years. On cross-examination appellant admitted he had not kept up support payments for Jonathan.

Appellant’s present wife testified Jonathan’s physical condition indicated he was a very much neglected child. She corroborated her husband’s testimony and joined him in expressing a desire for Jonathan’s custody.

In Duncan v. Crowder, 232 Ark. 628, 339 S.W. 2d 310 (1960), the Court stated:

* * * Of course it is a universal rule of law that the paramount consideration in awarding custody of minor children is the best interest and welfare of the child. ‡ M

In Larkin v. Pridgett, 241 Ark. 193, 407 S.W. 2d 374 (1966), this Court said:

. . . [T] he best interest of the child is a matter of vital importance in a habeas corpus case like this one. (Citation omitted)

The physical presence of the child in Arkansas is a proper basis for the exercise of jurisdiction by the chancery court to determine whether there should be a change in custody of the child involved, even though other courts may have concurrent jurisdiction. Leflar, American Conflicts Law § 245 (1968) and Restatement, Second, Conflict of Laws § 79 (1971).

In Shaw v. Shaw, 251 Ark. 665, 473 S.W. 2d 848 (1971), an action for divorce was filed in Bazoria County, Texas, and custody of the children was awarded to the father. The mother in an action in Miller County, Arkansas, sought custody of the children on the basis of changed circumstances. Appellant-father contended the Arkansas chancery court failed to give full faith and credit to the Texas decree by not ordering immediate delivery of the children to him. We held in Shaw that the State where the child is physically present has the most immediate concern with the child and may be the best qualified jurisdiction to decide what will amount to his welfare.

This Court has held custody cases are not viewed as property cases and do not come within the rule of the full faith and credit clause of the Federal Constitution relating to foreign judgments. Tucker v. Tucker, 195 Ark. 632, 113 S.W. 2d 508 (1938).

Despite the above well established principles of law the trial court throughout the entire proceeding herein revealed obvious displeasure with having this matter in the Arkansas court and with appellant’s actions in going to get Jonathan even though he had been called to come for the boy. The trial court repeatedly referred to appellant as a “child-snatcher”, stating at one time in the hearing “That’s right, and I stopped snatching kids across the state line.” Appellant’s testimony that he only went to get the child after he was called was verified by the testimony of his wife and Mrs. Presley. It also is to be noted that appellant was not attempting to act in a surreptitious manner since immediately upon his return to Russellville he filed a petition for custody.

The record makes it apparent that almost before hearing any testimony the court determined it was going to send the case back to Dallas, as reflected by the following excerpts from the transcript:

The Court: I think you have made a sufficient record on it now on that part of it, because I am not to try Dallas facts on this thing now with the child here less than six weeks today.
Mr. Peel: I’d just like to make my record on it. I think the Courts here in Arkansas are supposed to try them.
The Court: We are going to sit here all day long and listen to something that better would be tried in Dallas is what I am getting at. They are all from Dallas. Let them go back home.
Mr. Peel: No, sir, not all from Dallas. There’s only two from Dallas, Mrs. Presley and Mrs. Lloyd.
The Court: Who else do we have here?
Mr. Peel: I have a lady from Grady, Arkansas. I have Mr. and Mrs. Bonds, also have the child that’s here right now. Most of the parties are from here, not from out of Arkansas.
The Court: What do they know about what’s happening in Dallas?
Mr. Peel: Your Honor, I know what you are talking about. You want to just send it back down there.
The Court: I certainly do.

Appellant’s attorney stated to the court that he would like to call Mrs. Lloyd as a witness, but the court refused, stating “I am not going to make a decision on the merits.” Then the court Iso commented:

He snatched the child across the state line. That’s the thing, in violation of an order. That’s the kind of thing I’ve been trying to stop for a long time, and I am not going to let this case be the exception.
Let them go there and litigate the case. I am not cutting anybody off, but I think this case needs to be in Dallas and I don’t think it ought to be here at all. The child has only been here forty-one days.

In Shaw, supra, we held the fact that a court of this State had the power to make child custody orders regardless of simultaneous jurisdiction of the courts of other states did not require the court to entertain the suit, unless it was to the best interest of the child that the Arkansas court decide the custody action. Thus to a large extent the matter is discretionary with the court.

An abuse of discretion has been characterized as acting improvidently or arbitrarily. Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898 (1967). See also Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851 (1916).

A review of the record herein reflects the chancellor acted in an arbitrary manner in that he determined he was going to send the case back to Dallas even before he heard the evidence to ascertain what action should be taken in the best interest of the child. The issues were drawn and all parties were personally before the court, and in reaching a decision on the matter he should have been guided by the well-established rule “that the welfare of the child is the polestar” in these cases.

Also we note that despite the pleas of both the appelleemother and the appellant-father requesting custody of Jonathan, the court placed him in custody of the Arkansas Welfare Department. The record does not reflect any reasonable basis on which the court made this decision.

Accordingly the case is reversed and remanded for proceedings not inconsistent with this opinion.

        Haller v. Haller, 234 Ark. 984, 356 S.W. 2d 9 (1962).


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    Lowell E. SMITH and Martha S. SMITH v. C. H. POND et al
    75-352
    534 S.W. 2d 769
    April 5, 1976

      Elrod, Elrod & Elrod, for appellants.

      Walker, Campbell, McCorkindale & Young, for appellees.
   PER CURIAM

This decree must be affirmed, owing to the appellants’ noncompliance with Supreme Court Rule 9. Instead of submitting an abstract of the record, as the rule requires, the appellants have simply printed the record, including 265 pages of testimony in question and answer form. That is followed by a ten-page brief, arguing only an issue of fact turning upon the preponderance of the evidence. Under our settled practice an affirmance is required. Sellers v. Harvey, 222 Ark. 804, 263 S.W. 2d 86; Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W. 2d 605. As pointed out many years ago, the rule is for the convenience of the court, to aid in the dispatch of its business. St. Louis & S.F. R.R. v. Newman, 105 Ark. 63, 150 S.W. 560. This instance demonstrates the need for the rule. This case and thirteen others were in the weekly submission on March 29. The printed abstracts and briefs totaled 2,516 pages, plus a number of exhibits. Obviously the court’s constantly increasing caseload cannot be managed if records are printed in full, in disregard of the rule.

Decree affirmed.


author: George Rose Smith, Justice.

text:
    James MANN v. RAY LEE SUPPLY
    75-343
    535 S.W. 2d 65
    Opinion delivered April 12, 1976

      Evelyn I. Drake, for appellant.
    No brief for appellee.
   George Rose Smith, Justice.

In this suit upon a $454.96 open account the trial court entered a default judgment against the appellant, for his failure to answer interrogatories propounded by the plaintiff. For reversal it is argued that the statute relied upon in the court below does not apply to interrogatories and that the court erred in entering judgment without notifying the defendant that a trial was to be held.

The appellant had filed a general denial. The plaintiff’s nine interrogatories were not answered within the 15 days allowed by the statute, which does apply to interrogatories. Ark. Stat. Ann. § 28-355 (Repl. 1962). The plaintiff then obtained an order directing the defendant to respond to the interrogatories within 10 days “and upon Defendant’s failure to so respond he shall be subject to the consequences set forth in Ark. Stat. Ann. 28-359.” The interrogatories were still not answered. More than 10 days later the court, apparently without further notice, entered an order finding that the defendant had failed and refused to answer the interrogatories within the 10 days and awarding a default judgment to the plaintiff.

The appeal is without merit. A party who has been warned of the consequences of default is not entitled to a second notice that would add nothing to the first, else the progression of notices would never end. For instance, when a defendant is served with a summons warning him to answer within a specified time, under the penalty of the complaint’s being taken as confessed, his failure to answer entitles the plaintiff to judgment. Pyle v. Amsler, 227 Ark. 785, 301 S.W. 2d 441 (1957); Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957); Alger v. Beasley, 180 Ark. 46, 20 S.W. 2d 317 (1929).

Here the court’s first order, explicitly authorized by § 28-359 (a), pointedly warned the defendant that his failure to respond within 10 days would subject him to the consequences set forth in that statute. Subparagraph (b) (2) (iii) of the section authorizes the court to enter judgment by default against a disobedient party. We see no need for still a second notice to a recalcitrant defendant. Of course, as we noted in Walden v. Metzler, supra, the entry of judgment did not foreclose the possibility of relief for unavoidable casualty or the like. Here, however, the defendant simply filed a notice of appeal, with no hint of any reason for his continued refusal to obey the court’s unmistakable order.

Affirmed.


text:
    Richard HILEMAN v. STATE of Arkansas
    CR 75-223
    535 S.W. 2d 56
    Opinion delivered April 12, 1976

      Frierson, Walker, Snellgrove & Laser, by: Mark Ledbetter, for appellant.

      Jim Guy Tucker, Atty. Gen., by. Jack T. Lassiter, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was found guilty of possessing marihuana with intent to deliver and was sentenced to a term of five years, two of which were suspended. We need discuss only two of his points for reversal, as the third is not likely to arise upon a retrial.

There is no merit in the appellant’s argument that he was arrested without probable cause and that therefore the marihuana found by the officers in their ensuing search of his vehicle was inadmissible. Officer McCasland testified that he stopped Hileman’s automobile at about the break of dawn, because Hileman’s headlights should have been on and because his brake lights did not seem to be working. Perhaps the officer’s belief about the need for headlights was questionable, but it is undisputed that Hileman’s brake lights were not working. Thus it cannot be said that the officer stopped the vehicle without probable cause.

We must, however, sustain the contention that the court should have stricken Officer Beach’s testimony that Hileman admitted that he had bought the marihuana in Missouri. This is a pertinent excerpt from the officer’s cross-examination:

Q. Did you at any time indicate to Richard Hileman that your only interest in the green vegetable material was to ascertain whether or not it was Arkansas dope and that you were not interested in an out-of-state dope problem?
A. Not to my knowledge. Possibly Í did. I don’t recall it.
Q. And possibly his statement could have been made in response to that?
A. Possibly, yes, sir.

We cannot agree with the State’s argument that the motion to strike in effect requested the trial court to declare the statement involuntary as a matter of law. An in-custody statement, as this one was, is presumed to be involuntary, with the burden being upon the State to prove the contrary. Mitchell v. Bishop, 248 Ark. 427, 452 S.W. 2d 340 (1970), cert. dismissed, 400 U.S. 1025 (1971). Here the presumption was not overcome, for the officer in effect conceded that he may have used a misleading artifice to obtain Hileman’s admission. The only certain way for the courts to disapprove the use of such artifices is to exclude any admission so induced.

A postscript: It is invariably with reluctance that we call attention to counsel’s disregard of our rules, but without such admonitions the rules fail to achieve one of their purposes, which is to assist Jhe court in its effort to handle its caseload. Rule 9 (b) requires that the appellant’s opening statement be free from argument and that it be concise, ordinarily not exceeding two pages in length. In this case the appellant’s statement of the case is highly argumentative. Moreover, it comprises seven printed pages, when a single page would have been more than adequate. And even with its length the statement is deficient, for it fails to tell the court what offense the defendant was charged with. We make it clear that the judgment is being reversed not as a result of the nonconforming opening statement, but in spite of it.

Reversed.


author: John A. Fogleman, Justice.

text:
    Jewel HILBURN v. FIRST STATE BANK of Springdale, Arkansas, Administrator
    75-353
    535 S.W. 2d 810
    Opinion delivered April 12, 1976
    [Rehearing denied May 17, 1976.]

      Franklin Wilder, for appellant.

      Joe B. Reed, Rudy Moore and James M. Roy Jr., for appellee.
   John A. Fogleman, Justice.

Since we agree with appellant that the probate court had no jurisdiction, we reverse its judgment without considering other points for reversal.

John Robert Hilburn died intestate October 16, 1974 at Springdale. He left a widow, Susan Jane Hilburn. He also left two sons, John and Steve Hilburn. The First State Bank of Springdale was appointed administrator. In the petition for appointment, personal property was valued at $10,000. Real estate was described as “value in question at this time.” The real property that was the subject of this proceeding was described in the inventory and a value of $15,000 was ascribed to it.

Jewel Hilburn was the mother of the decedent. She filed exceptions to the inventory, on the ground that the lands involved did not belong to the decedent. The widow filed a petition for statutory allowances and dower. The administrator filed a petition asking that it be authorized to sell all the property of the estate.

Jewel Hilburn filed a response to the widow’s petition, asking that the real estate be deleted from the inventory, and alleging that the land was not owned by the decedent and that the widow had surreptitiously secured and recorded an undelivered deed after the death of the decedent, knowing that the deed had never been delivered and that it had been secured by fraud and undue influence. Jewel Hilburn also filed a response to the petition for the sale of the realty and personalty, making the same allegations and asking that a hearing be had on her exceptions to the inventory. She later amended her response to the petition for sale of realty by alleging that at all times relevant to her execution of the deed under which appellees claim title to the realty, she was incompetent to execute a conveyance, by reason of her alcoholism resulting in brain damage. She also alleged that she had not intended to either execute or deliver the deed.

A hearing on these pleadings was held and the probate judge held against appellant Jewel Hilburn and dismissed her exceptions to the inventory. It should be noted at the outset that Jewel Hilburn was not an heir, distributee or devisee of her son, or a beneficiary of, or claimant against, his estate. She was a “third person,” i.e., a stranger to the estate. Ellsworth v. Cornes, 204 Ark. 756, 165 S.W. 2d 57.

The probate court is a court of special and limited jurisdiction, even though it is a court of superior and general jurisdiction within those limits. Huff v. Hot Springs Savings, Trust & Guaranty Co., 185 Ark. 20, 45 S.W. 2d 508; Branch v. Veteran’s Administration, 189 Ark. 662, 74 S.W. 2d 800; Lewis v. Rutherford, 71 Ark. 218, 72 S.W. 373. It has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto. Huff v. Hot Springs Savings, Trust & Guaranty Co., supra; Moss v. Moose, 184 Ark. 798, 44 S.W. 2d 825; Smith v. Walker, 187 Ark. 161, 58 S.W. 2d 946; Lewis v. Rutherford, supra. A probate court is without jurisdiction to grant equitable relief, even though it may apply equitable doctrines in probate matters properly brought before it. Jones v. Graham, 36 Ark. 383. See also, Merrell v. Smith, 226 Ark. 1016, 295 S.W. 2d 624; Bonner v. Sledd, 158 Ark. 47, 249 S.W. 556; Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36.

The constitution vested in the probate courts exclusive original jurisdiction “in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law. The judge of the probate court shall try all issues of the law and of facts arising in causes or proceedings within the jurisdiction of said court, and therein pending.” Art. 7, § 34, as amended by Amendment 24, § 1. Ark. Stat. Ann., Const. (1947). The statutory jurisdiction of the court is stated by Ark. Stat. Ann. § 62-2Ó04 (b) (Repl. 1971), viz:

JURISDICTION. The Probate Court shall have jurisdiction of the administration, settlement and distribution of estates of decedents, the probate of wills, the persons and estates of minors, persons of unsound mind and their estates, the determination of heirship, adoption, and (concurrent with jurisdiction of other courts) jurisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate; and all such other matters as are now or may hereafter be by law provided. The judge of the Probate Court shall try all issues of law and of fact arising in causes or proceedings within the jurisdiction of said court and therein pending. The court shall have the same powers to execute its jurisdiction and to carry out its orders and judgments, including the award of costs, as now exist in courts of general jurisdiction; and the same presumptions shall exist as to the validity of its orders and judgments as of the orders and judgments of courts of general jurisdiction.

The probate court’s lack of jurisdiction to determine contests over property rights and titles between the personal representative and third parties or strangers to the estate has long been recognized. Moss v. Sandefur, 15 Ark. 381; Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166; Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140; Gordon v. Clark, 149 Ark. 173, 232 S.W. 19; Huff v. Hot Springs Savings, Trust & Guaranty Co., supra; Ellsworth v. Cornes, supra. See also, Snow v. Martensen, 255 Ark. 1049, 505 S.W. 2d 20.

The enactment of the Probate Code did not enlarge the jurisdiction of the court to hear contests over property rights between the personal representative and third persons. See Cross v. McLaren, 223 Ark. 674, 267 S.W. 2d 956. See also, Mills v. Latham, 215 Ark. 128, 219 S.W. 2d 609. It was pointed out in Cross that the enlargement of the jurisdiction of the court by the Probate Code was by addition of determination of heirship, adoption, and concurrent jurisdiction to establish lost wills and for construction of wills “when incident to the administration of an estate.” The probate courts also remained courts of law, not equity, after the adoption of the Probate Code and were not consolidated with the chancery courts. Young v. Young, 201 Ark. 984, 147 S.W. 2d 736; Mills v. Latham, supra. See also, Thompson v. Dunlap, 244 Ark. 178, 424 S.W. 2d 360.

The distinction between probate jurisdiction and jurisdiction of matters which are cognizable only in equity has been recognized by us. See Bonner v. Sledd, 158 Ark. 47, 249 S.W. 556, where we held that the probate court had jurisdiction of a claim for services to a decedent under an oral contract to compensate the claimant by a testamentary bequest and devise, since the claimant did not seek specific performance of the contract. See also, Arkansas Valley Trust Co. v. Young, supra. Clearly, the relief sought by appellant was, like specific performance, peculiarly and exclusively within the jurisdiction of a court of equity. Myers v. Hobbs, 195 Ark. 1026, 115 S.W. 2d 880; McCracken v. McBee, 96 Ark. 251, 131 S.W. 450; Tandy v. Smith, 173 Ark. 828, 293 S.W. 735. See also, Salyers v. Smith, 67 Ark. 526, 55 S.W. 936.

Appellees rely upon Hobbs v. Collins, 234 Ark. 779, 354 S.W. 2d 551; Massey v. Doke, 123 Ark. 211, 185 S.W. 271; Arkansas Valley Trust Co. v. Young, supra; Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808; Gocio v. Seamster, 203 Ark. 937, 160 S.W. 2d 194; Jansen v. Blissenbach, 214 Ark. 755, 217 S.W. 2d 849; Carlson v. Carlson, 224 Ark. 284, 273 S.W. 2d 542; and Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709, to sustain probate court jurisdiction. They also cite Porterfield v. Porter-field, 253 Ark. 1073, 491 S.W. 2d 48 and Washam v. First National Bank, 248 Ark. 984, 455 S.W. 2d 96 as examples of the exercise of probate jurisdiction and seek to distinguish Ellsworth v. Cornes, supra, classifying as dictum the language adverse to their position. Most of the cases cited by appellees are readily distinguishable, others not quite so easily. Others are clearly inapplicable. See Jansen v. Blissenbach, supra; Massey v. Doke, supra; Arkansas Valley Trust Co. v. Young, supra; Gocio v. Seamster, supra. Gocio v. Seamster, and Carlson v. Carlson, supra, are consistent with appellant’s position. Porter-field v. Porterfield, supra and Washam v. First National Bank, supra, also seem consistent. At least there is nothing to indicate that they are inconsistent.

We first point out that we reviewed many of these cases in Snow v. Martensen, supra, where we reversed the probate court’s dismissal of a challenge by beneficiaries under the will of the decedent to the inventory filed by the personal representative who was the other beneficiary, and who had not listed a savings account, claiming it by right of survivorship. The personal representative claimed to be a stranger to the estate, insofar as that account was concerned and this was the basis of her motion to dismiss. We rejected that contention and in reviewing the cases distinguished Hart man v. Hartman, 228 Ark. 692, 309 S.W. 2d 737, in which the contest was between the widow and her husband’s estate and in which the validity of her assignment of the notes in question to her deceased husband was not passed on by the probate court. But we restated and applied the rule stated in Ellsworth v. Cornes, which appellee labels dictum, saying:

In Ellsworth v. Cornes, 204 Ark. 756, 165 S.W. 2d 57, we stated a rule which we still adhere to and by which we measure the jurisdiction and distinguish the case at bar. In Ellsworth we said:
Throughout its history, this court has held that Probate Courts are without jurisdiction to hear contests of and determine the title to property between personal representatives of deceased persons and third persons claiming title adversely to the estates of deceased persons. [Omitting citations]

We held that the parties to the controversy were not “third parties” claiming adversely to the estate. Our approval of the rule so recently should have laid to rest any contention that our early position on the matter was not still in effect. We did not specifically overrule Hobbs v. Collins, supra, in Snow, but it is not wholly consistent with Ellsworth, to which we adhered, and it was not necessary to overrule it in reaching our result in that case. We did not, however, hold in Hobbs that the probate court had jurisdiction. We took the position that failure of the administrator to object to probate court jurisdiction barred him from raising the jurisdictional question on appeal, upon the authority of Park v. McClemens, supra. In Park (where three justices dissented), we said that the probate court should have taken and retained jurisdiction under the authority of Hartman, because, by agreement and cooperation of the parties, the question of ownership of the funds involved was submitted to that court. In the first place, Hartman was not authority for the court’s holding. But more importantly, both cases are aberrations that should be eliminated from our otherwise unvarying application of the rule that subject matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Hervey v. The Farms, Inc., 252 Ark. 881, 481 S.W. 2d 348; Catlett v. The Republican Party of Arkansas, 242 Ark. 283, 413 S.W. 2d 651; Risor v. Brown, 244 Ark. 663, 426 S.W. 2d 810; Magnet Cove Barium Corp. v. Watt, 215 Ark. 170, 219 S.W. 2d 761. And subject matter jurisdiction cannot be conferred by consent of the parties. Risor v. Brown, supra; Sheffield v. Heslep, 206 Ark. 605, 177 S.W. 2d 412. Sugar Grove School Dist. No. 19 v. Booneville Special School Dist. No. 65, 208 Ark. 722, 187 S.W. 2d 339; Thornton v. Commonwealth Federal Savings & Loan Assn., 202 Ark. 670, 152 S.W. 2d 304. We have said that it is not only the right but the duty of this court to determine whether it has jurisdiction of the subject matter. Arkansas Savings & Loan Assn. Board v. Corning Savings & Loan Assn., 252 Ark. 264, 478 S.W. 2d 431.

The jurisdictional question is one relating to subject matter. Huff v. Hot Springs Savings, Trust & Guaranty Co., supra. Appellees’ contention that it was waived is without merit.

The judgment of the probate court upholding the validity of the deed and determining the title to the property as between appellant and appellees was void for want of jurisdiction. Ellis v. Shuffield, 202 Ark. 723, 152 S.W. 2d 535; Huff v. Hot Springs Savings, Trust & Guaranty Co., supra; Ellsworth v. Carnes, supra. This case, however, is one which may properly be transferred to the chancery court for trial because of the probate court’s lack of jurisdiction to grant the equitable relief sought by appellant. Merrell v. Smith, supra; Davis v. Davis, 221 Ark. 961, 302 S.W. 2d 769.

Since appellant has not only acquiesced in the procedure in the probate court, but actually invoked its jurisdiction, she thereby caused the incurrence of costs incident to the entire proceeding which might have been avoided by timely objection to the jurisdiction. For this reason, she shall not be relieved of costs adjudged against her in the probate court and costs on appeal are assessed against her. Huff v. Hot Springs Savings, Trust & Guaranty Co., 185 Ark. 20, 45 S.W. 2d 508; Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166.

Appellees have complained that appellant has violated Rule 9 by an insufficient abstract of the record and moved for a dismissal of the appeal for that reason. We no longer entertain such a motion. Whatever deficiencies exist have no bearing on the jurisdictional question on which we decide this appeal. Appellant’s abstract of the record relating to that point is certainly sufficient to give this court a clear understanding of that question. The motion is denied. Rule 9 (d), (e), Rules of the Supreme Court of Arkansas, Vol. 3A, Ark. Stat. Ann. (Supp. 1975).

The judgment is reversed and the cause remanded with directions to transfer the contest over the realty to the Chancery Court of Washington County.

Byrd, J., dissents.

Roy, J., not participating.

      Nevertheless, we were even then troubled about the apparent inconsistency of Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808 and Carlson v. Carlson, 224 Ark. 284, 273 S.W. 2d 542 with Moss and Ellsworth, but found it unnecessary to reconcile them. The conflict was more apparent than real. In Thomas, the controversy was between the woman who was found to be the legal widow of the decedent and his heirs. The widow was also the administratrix and was in somewhat the same position as the personal representative in Snow. Actually the Ellsworth court read Thomas to support the rule here applied, just as we did in Snow. In Carlson, the controversy was between the personal representative and the widow. In upholding the probate court jurisdiction we referred to Ellsworth.


author: J. Fred Jones, Justice.

text:
    Ben SHINN et ux v. Richard HEATH, Director of the Department of Finance and Administration of the State of Arkansas
    75-284
    535 S.W. 2d 57
    Opinion delivered April 12, 1976

      Chambers & Chambers, by: Melvin T. Chambers, for appellants.

      James R. Cooper, H. Ray Hodnett, Robert G. Brockman, and James R. Eads Jr., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Ben Shinn and his wife from an adverse decree of the chancery court on a petition they filed for the return of $6,461.65 in income taxes assessed for 1967 through 1970 and paid under protest. The question on this appeal is whether the appellants were residents of Arkansas and liable for income tax under the Income Tax Act of 1929, Ark. Stat. Ann. § 84-2001, et seq. (Repl. 1960).

Under § 84-2003 an income tax is imposed upon every individual resident of Arkansas and § 84-2002 (9) and (10) defines resident and nonresident as follows:

“(9) The word ‘resident’ means natural persons and includes for the purpose of determining liability to the tax imposed by this act upon or with reference to the income of any taxable year, any person domiciled in the State of Arkansas and any other person who maintains a permanent place of abode within the State and spends in the aggregate more than six [6] months of the taxable year within the State.
(10) The word ‘nonresident’ when used in connection with this act, shall apply to any natural person whose domicile is without the State of Arkansas, or who maintains a place of abode without the State, and spends in the aggregate more than six [6] months of the taxable year without the State.”

The appellants were born and reared in Arkansas and the substance of their testimony was to the effect that for the past several years they have been engaged in building and selling motels, primarily in the State of Texas. It was their contention that their residence for tax purposes followed their occupation, in that they lived in the motels they would construct until the motel was sold and they would then move on to a new location and build and sell another motel. It was their contention, and they so testified, that they maintained a mailing address in Magnolia, Arkansas, and would return to Magnolia periodically to pick up their mail from a post office box they maintained in Magnolia. All of their relatives lived in and around Magnolia. Some of the motels were sold before they were finished and in other instances the motels were built and operated by the appellants until they were sold.

Mr. and Mrs. Shinn filed Arkansas income tax returns for 1967 and gave their home address as “Post Office Box 338, Magnolia, Columbia County, Arkansas.” In 1968 the Shinns filed a “nonresident (resident for part of year)” income tax return in Louisiana for 1967 and showed their home address as Box 338, Magnolia, Arkansas. Their 1968 and 1969 federal and state income tax returns showed the same address. On January 19,1975, Mr. Shinn registered to vote in Arkansas and on his affidavit for registration he designated his home address as 916 Highland, Magnolia, and after designating his school district and voting precinct in Magnolia, he stated he had lived at that address for eight years.

According to Mr. and Mrs. Shinns’ testimony, most of their time was spent in and around Tyler, Texas. They said that in 1969 they contemplated building a home in Tyler, but the motel business took them to other parts of Texas and they never did buy a lot or build a home in Tyler. They said they owned a house in Magnolia from 1962 until they sold it in 1970, but they never did live in the house. They said the house in Magnolia was unfurnished; that the house was under construction for about 18 months while they were in and out of Magnolia; that it was never furnished and that they sold it unfurnished. They said that since that time, however, [apparently since 1970] they have built a home in Magnolia.

Mr. Shinn said the reason they did not furnish the original house in Magnolia was that a banker from whom he borrowed money in Tyler, Texas, insisted that they settle down in Tyler, and they were thinking of doing so. He said he had been building and selling motels in Texas since 1959; that he maintained an office in a trailer on the job site while a motel was under construction and he would move it from job to job in various towns where he constructed motels.

Both Mr. and Mrs. Shinn had Arkansas driver’s licenses which they had kept and renewed through the years. Mr. Shinn said he would be unable to pass a driver’s examination in Texas. Mr. Shinn said he was registered to vote in Arkansas for the purpose of obtaining a liquor permit in connection with a motel he had built in Texarkana, Arkansas, while living across the state line in Texas. He said that while they kept the house in Magnolia from 1967 to 1970, he had a next-door neighbor look after it and mow the lawn. He said he never did vote in Arkansas and had no intention of doing so when he executed his voter registration affidavit. Mr. Shinn said he did not know what address J. W. put on his income tax returns. Mr. Shinn then testified in part as follows:

“Q. Mr. Shinn, while you were in Texarkana, did you intend one day to return to Magnolia where you say your relatives and . . .
A. No, I really didn’t. I loved Texas and I like it and still like it, and I really intended to stay in Texas, but I didn’t. But, anyhow, Texas, one time I thought we would live in Texas because all our business was there.
Q. But you did, in fact, change your mind and return to Arkansas?
A. I wiil have to say we are in Arkansas now, uh huh.
THE COURT: Did you tell anybody in Texas you were from Arkansas or did you hold yourself out to be from some place else?
A. If I was in Greenville, Texas, I am from Greenville, Texas. In Tyler, from Tyler, Texas. Wherever I was living, at that time that is where I was living.”

Mrs. Shinn testified that from January to May, 1967, they were in Manny, Louisiana; from May 1 to September 21, 1967, they were in Arkansas and were unemployed during that time. She said that from September, 1967, to June, 1968, they were in Sherman, Texas; that following vacation in 1968 they were in Tyler, Texas, from August, 1968, to August, 1969; that from August, 1969, to December, 1969, they were in Greenville, Texas; that the motel jobs they had in Green-ville and Tyler overlapped and that while they were operating the motel in Tyler before they sold it, they began construction on one in Greenville. She said that following their vacation in 1970, they were in Alexandria, Louisiana, from February to July; that they were on vacation in August, 1970, and were in Texarkana from September, 1970, to March, 1971. She said they were building a motd in Texarkana, Arkansas, but were living in Texarkana, Texas. She said they lived in furnished apartments much of the time and owned no furniture.

On cross-examination Mrs. Shinn said that when they built the house in Magnolia in 1962, they thought they would live there. She said they kept the house and did not rent it until 1970 when they sold it. She said she also had an Arkansas driver’s license and had purchased it in Arkansas when she began to drive and had maintained it ever since. Referring to the house built in Magnolia in 1962, Mrs. Shinn testified as follows:

“Q. Did you ever intend to come back and live at that house?
A. When you say ever, that is a long time. That covers an awful lot of time. But as we became more and more busy in our work in other parts of the country, we decided that since we were not using the house, we would sell the house.
Q. You sold the house in 1970 after you had owned it since 1962?
A. I believe we sold the house, I think, in 1969.”

We deem it unnecessary to discuss the testimony further for the reason that this case actually turns on the statutory definition of who is a resident for tax purposes under the above statute. The appellants have designated the points on which they rely for reversal as follows:

“I. That section 84-2002, sub-sec. 9 of Arkansas statutes annotated does not include the appellants as being residents of the State of Arkansas for the time or years involved herein.
II. That section 84-2002, sub-sec. 10 of Arkansas statutes annotated excludes the appellants as ‘residents’ of the State of Arkansas for and during the time, or years, involved herein.
III. Exclusive of the definition contained in statutes involved the appellants are not subject to the taxes for the years involved for the following reasons:
a. They were not residents of the State of Arkansas at the times involved.
b. They were residents of the State of Texas during the times involved.
IV. The appellants are not restricted from changing their domicile or residence.
V. The appellants are entitled to a ‘Commercial Domicile’ for income tax purposes [under] sub-sec. B of § 84-2055, Ark. Statutes Anno.”

In defining the word “resident” within the meaning of the statute here involved, the appellants rely on the general definition as set out in Shelton v. Shelton, 180 Ark. 959, 23 S.W. 2d 629 (1930), and Jarrell v. Leeper, 178 Ark. 6, 9 S.W. 2d 778 (1928), rather than as specifically defined in § 84-2002 (9) (10), supra. The Shelton case involved the appointment of administrator and the question was whether the administrator was a resident of the county in which he was appointed. The statute under which the appointment was made, Crawford & Moses’ Digest, § 5, recited in part as follows:

“ ‘Letters testimentary and of administration shall be granted in the county in which the testator or intestate resided; or, if he had no known residence. . . . ’ ”

This court quoted from Krone v. Cooper, 43 Ark. 547 (1884), in the Shelton case, as follows:

“ ‘We may conclude from the cases that, in contemplation of the attachment laws, residence implies an established abode, fixed permanently for a time, for business and other purposes, although there may be an understanding all the while to return at some time or other to the principal domicile; but so difficult is it found to provide a definition to meet all the varying phases of circumstances that the determination of this question may present, that the courts say that, subject to the general rule, each case must be decided on its own state of facts.’ See also Jarrell v. Leeper, 178 Ark. 6, 9 S.W. (2d) 778.”

In Shelton we found that the trial court correctly held that the decedent resided at Brinkley, Monroe County, at the time of his death, and that the trial court did not err in holding the letters void. In Shelton we cited other cases in which the words “resident” and “residence” were defined for the various purposes pertaining to the case involved and in doing so we said:

“In Smith v. Union County, 178 Ark. 540, 11 S.W. (2d) 455, this court held, in construing the statute providing for the listing of property for taxation, (§ 9890, C. & M. Digest): ‘Residence, as used in § 9890, Crawford & Moses’ Digest, means the place of actual abode, and not an established domicile or home which one expects to return to and occupy at some future time.’ The same construction was placed upon the word ‘residence’ under the taxation laws as had been given it under the attachment laws of the State.”

If the appellants in the case at bar were relying on the definition of residence for purposes of listing property for taxation, as set out in Smith v. Union County, and cited in Shelton, the statute applicable to Smith v. Union County clearly distinguishes the meaning in that case from the definition applicable in the case at bar. Crawford & Moses’ Digest, § 9890, provided as follows:

“Every person of full age and sound mind shall list the real property of which he is the owner, situated in the county in which he resides. ...” (Our emphasis).

In Krone v. Cooper, supra, cited in Shelton, the action was an attachment on a judgment in personam and in that case this court further said:

“The terms ‘resident’ and ‘non-resident’ used in the provisions of our statute governing attachments, have never been defined by this court, and the provisions themselves do not profess to determine the meaning that was intended in their use. No exact definition of these terms, to fit all cases, is practicable, for the reason that their meaning varies with the subject matter to which they are applied.
* * *
... A mere presence, or temporary sojourn, in this state, whether on business or pleasure, unaccompanied by the intention of remaining for a length of time that would give some idea of permanency, would not constitute residence within the meaning of the attachment laws, though by permanency we are not to understand a determination to stay always. Such residence, when established, may be lost by departure from the state with the intention of not returning, or of taking up an abode elsewhere; but a mere temporary absence from the state, without this intention, would not render one amenable to the attachment law as a non-resident.”

The Civil Code pertaining to attachments, as brought forward in Ark. Stat. Ann. § 31-101 (Repl. 1962), simply refers to “residents” and “nonresidents” without further definition.

Jerrell v. Leeper, supra, relied on by the appellants, was also an attachment case and in that case this court said:

“What constitutes a nonresident within the meaning of our attachment law was considered and thoroughly dis-
cussed in the case of Krone v. Cooper, 43 Ark. 547. The court recognized that the words ‘resident’ and ‘nonresident,’ as used in our statute relating to attachments, had never been defined by this court, and that no exact definition, which will fit all cases, is practical. The court recognized that domicile has a broader meaning than residence, and includes residence.”

The statute here involved, § 84-2002 (9) and (10), supra, defines a resident for tax purposes under subsection (9) as any person domiciled in the state of Arkansas and also any person who maintains a permanent place of abode within the state and spends in the aggregate more than six months of the taxable year within the state. Subsection (10) defines a nonresident as a person whose domicile is without the state of Arkansas, or who maintains a place of abode without the state, and spends in the aggregate more than six months of the taxable year without the state. Although the appellants contend that they were not domiciled in Arkansas, they argue that the statutory requirement of spending more than six months of the taxable year in Arkansas makes the place of their domicile unimportant. The second exclusion of subsection (10), appellants argue, “excludes those who maintain a place of abode outside of the State and spend more than six (6) months of the taxable year outside the state.”

Actually the appellants failed to prove that they maintained any particular place of abode outside of Arkansas, they did maintain such place of abode in Magnolia but testified they did not abide there. In any event, to adopt the construction advocated by the appellants would put the two subsections into conflict. Subsection (9) makes “any person domiciled in the State of Arkansas” a resident. The primary rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. Duty v. City of Rogers & Benton Cty., 255 Ark. 309, 500 S.W. 2d 347 (1973). In determining legislative intent, the courts look to the language of the whole statute or Act. John B. May Co., Inc. v. McCastlain, Comm’r, 244 Ark. 495, 426 S.W. 2d 158 (1968). In order to give effect to every part of a statute, it is the court’s duty, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. McLeod v. Santa Fe Trail Transp. Co., 205 Ark. 225, 168 S.W. 2d 413 (1943). To carry out the general purpose and intent of a statute, either civil or criminal, the words “and” and “or” are convertible. Williams v. State, 99 Ark. 149, 137 S.W. 927 (1911); Pickens-Bond Const. Co. v. NLR Elec. Co., 249 Ark. 389, 459 S.W. 2d 549 (1970). Subsection (10), supra, can be made consistent with subsection (9) by reading the “or” which follows “state of Arkansas” as an “and.” Even so, the case at bar falls within the purview of what we said in Cravens v. Cook, Comm’r, 212 Ark. 71, 204 S.W. 2d 909 (1947). In that case it was stipulated that Congressman Cravens was domiciled in Arkansas but that he maintained a place of abode in Washington and that he spent more than six months each year without the state. In rejecting his contention that he was exempt under the last clause of subsection (10), supra, this court said:

“Appellant argues, however, that under the last clause (Subdivision (10) of § 14025, Pope’s Digest) it must be held that appellant is a nonresident, within the meaning of the tax law, because it was stipulated that he had maintained a place of abode without the state and had spent more than six months of each year without the state.
We cannot agree with this contention. We think the words ‘place of abode’ as used in this Act mean something more than a place of temporary sojourning, and that they imply a degree of permanence that did not attach to appellant’s stay in Washington. This court has frequently held that ‘place of abode’ as used in our statute relating to service of process means a place where a person has fixed his permanent home, and that a given place may be a ‘place of abode’ of a party, though he may be actually absent therefrom for a long period of time. DuVal v. Johnson, 39 Ark. 182; McGill v. Miller, 183 Ark. 585, 37 S.W. 2d 689; Shephard v. Hopson, 191 Ark. 284, 86 S.W. 2d 30; Husband v. Crockett, 195 Ark. 1031, 115 S.W. 2d 882. In the last cited case we held that ‘usual place of abode’ is synonymous with residence.
The stipulation shows that appellant was a resident of Arkansas, and did not establish or maintain without the state such a ‘place of abode’ as would constitute him a nonresident.”

We have accepted “place of abode” and “residence” as synonymous terms within the context of an insurance policy. Central Mfr’s Mut. Ins. Co. v. Friedman, 213 Ark. 9, 209 S.W. 2d 102 (1948). But we have held that “domicile” and “residence” are not synonymous terms since “residence” denotes an act, and “domicile” denotes an act coupled with an intent. Jarrell v. Leeper, supra.

In Leflar, Conflict of Laws, § 10, is found the following language:

“Under the common law every person has a domicile; when any person attains his age of majority he at that moment has a domicile previously assigned to him by law. He may thereafter acquire a new domicile, but if he does not acquire a new one the old one persists. The principle manner by which a new domicile can be acquired is by physical presence at a new place coinciding with the state of mind of regarding the new place as HOME. N«,w domicile arises instantaneously when these two facts concur.”

See also Restatement (2d) of Conflicts of Laws, §§ 11-20 (1971).

In Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W. 2d 60 (1970), this court said:

“We have held that to effect a change of domicile from one locality or state to another, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it and there must be a new domicile acquired by actual residence in another place or jurisdiction, with intent of making the last acquired residence a permanent home. Weaver v. Weaver, 231 Ark. 341, 329 S.W. 2d 422, and cases cited therein.”

In Charisse v. Eldred, 252 Ark. 101, 477 S.W. 2d 480 (1972), a case involving residential qualifications to vote and run for office under an election statute, the word “residence” was treated an synonymous with “domicile” in the context of the statute, but in that case we held that the question of intent (to make a certain place one’s domicile) is one of fact to be ascertained not only by the statements of the person involved, but by his conduct as well.

The chancellor in the case at bar determined that the appellants were residents of Arkansas, and that determination is sustained by evidence in the record. Although the appellants contend that they were physically located outside of Arkansas, numerous documents prepared by appellants listed Arkaneas as their address. Furthermore, appellants had Arkansas driver’s licenses and they owned a house in Arkansas which they did not rent. Mr. Shinn registered to vote in Arkansas in 1970 and declared that Arkansas had been their residence for the eight previous years. The appellants lived at no place outside Arkansas with the intent, or even the stated intent, of staying there. The appellants argue that they did not intend Arkansas to be their residence, but in Charisse v. Eldred, supra, we said:

“ [T]he fact finder is not bound to accept claims of intent when the circumstances point to a contrary conclusion. * * * When acts are inconsistent with a person’s declarations, the acts will control, and declarations must yield to the conclusions to be drawn from the facts and circumstances proved.”

The appellants’ contention that they were entitled to a “commercial domicile” for income tax purposes under Ark. Stat. Ann. § 84-2051 et seq. (Supp. 1975) is without merit. That statute applies to income “from business activity which is taxable both within and without this state.” (§ 84-2056). There was no evidence in the case at bar the appellants paid any income tax in the State of Texas or that Texas even had an income tax law. See Collins v. Skelton, 256 Ark. 955, 512 S.W. 2d 542 (1974).

The decree is affirmed.

Fogleman, J., concurs in the result; Byrd, J., dissents.

      The returns show that J. W. Powell of Magnolia, Arkansas, made out the returns.


text:
    E. G. BALENTINE v. STATE of Arkansas
    CR 75-220
    535 S.W. 2d 221
    Opinion delivered April 12, 1976

      Herby Branscum Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

E. G. Balentine was convicted of perjury in the first degree (Ark. Stat. Ann. § 41-3001 [Repl. 1964]) at a jury trial and was sentenced to the state penitentiary for a period of five years with four years suspended. On appeal to this court he has designated the points he relies on for reversal as follows:

“The trial court erred in denying appellant’s motion to quash the indictment.
The trial court erred in refusing to allow appellant to introduce the testimony of Steven Taylor before the grand jury.
The trial court erred in denying appellant’s motion for a directed verdict.
The trial court erred in allowing the prosecuting attorney to ask appellant irrelevant and immaterial questions about matters simply to inflame the jury.
That the verdict is contrary to the evidence and to the law.”

The facts appear as follows: On August 29, 1974, the prosecuting attorney for Stone County filed an information accusing Balentine of delivering a controlled substance, marijuana, in violation of Ark. Stat. Ann. § 82-2517 (a) (1) (ii) (Supp. 1975). A warrant was issued on the information but it was never served on Balentine, and apparently no further action was taken in connection with the information.

In September, 1974, the grand jury was in session in Stone County and, among other matters, it was investigating the illicit drug and controlled substance traffic in Stone County, and was attempting to determine the source of the contraband.

On September 25, 1974, Balentine and several high school students and young people in the area were subpoenaed as witnesses before the grand jury. Two of the young people testified that they had purchased marijuana from Balentine and Balentine testified in part as follows:

“Q. Well, wherever you lived in August of 1973,1 would ask you about a day in August 1973 when Dennis Brandon was there at your house and ask whether or not you sold two ounces of marijuana to Steven Taylor for $12.00?
A. No, sir, I never sold no marijuana to Steven Taylor.
Q, Did you sell two ounces of marijuana to Steven Taylor for any price?
A. No, sir, I didn’t.
Q. Did you sell any quantity of marijuana to Steven Taylor on that date?
A. No, sir, I didn’t even know Steven Taylor until just back in the summer sometime was the first time I ever met Steven Taylor.
Q. Have you ever sold any marijuana to Steven Taylor?
A. No, sir.
Q. Have you ever sold any to anybody else?
A. No, sir.
Q. Have you ever given any marijuana to anybody?
A. No, sir, I haven’t.”

On November 18, 1974, the grand jury indicted Balentine for perjury in the first degree, in that on September 25, 1974, he “did corruptly swear, testify or affirm falsely that he had never sold marijuana to anyone and that he had never given marijuana to anyone, and the testimony so testified was material, and against the peace and dignity of the State of Arkansas.”

At the trial on June 10, 1975, Orville Johnson, the foreman of the grand jury before whom Balentine and the other witnesses appeared, testified that the grand jury, among other matters, was investigating the source of marijuana and illicit drugs and controlled substances coming into Stone County. He said that Balentine was called as one of approximately 25 witnesses who were questioned. He said that some of the other witnesses indicated that they had obtained marijuana from Balentine, but Balentine testified he had never sold or given away any marijuana. He said that many of the approximately 25 witnesses admitted using marijuana but were very evasive as to where it came from. He said that Balentine’s name finally came up as the immediate source from whom some of the witnesses had purchased marijuana. He said that Balentine’s denial that he had ever sold or given away marijuana greatly impeded the grand jury’s progress in its investigation as to the source of contraband coming into Stone County.

Steven Taylor testified that he was 20 years of age and had smoked marijuana “fairly regularly” since he was about 15 years of age. He testified that he bought two ounces of marijuana from Balentine in August, 1973.

Eddie Jordan testified that he had been smoking marijuana for two or three years and had known the appellant Balentine for about a year. He said he testified before the grand jury and that he purchased some marijuana from Balentine about two months before the grand jury was in session. Both Taylor and Jordan testified in detail as to where and when they purchased marijuana from Balentine and the amount they paid for it.

Balentine testified in his own behalf. He did not state his age but testified that he lived with his wife in a house he built around 1968 or 1970. He said he had seen Steven Taylor but did not know him in August, 1973. He said he only met Taylor a little more than a year ago and he denied selling any marijuana to Taylor in August, 1973. He denied owning a trailer near the fair grounds where the prosecuting witnesses said they purchased marijuana from him. He said everybody thought the trailer near the fair grounds belonged to him but it actually belonged to his daughter and her husband. He said that he was building a house for his daughter and son-in-law and would occasionally stay in the trailer with them. He also said he had seen Eddie Jordan and had inquired as to who he was, but that he had never sold any marijuana to Jordan.

The appellant, in support of his contention that the trial court erred in denying his motion to quash the indictment, relies on Claborn v. State, 115 Ark. 387, 171 S.W. 862 (1914), but that case is distinguishable from the case at bar. In Claborn v. State the appellant who had been indicted by the grand jury for carrying a concealed weapon was called to testify before the grand jury which was investigating the charge against him and for which he had been indicted. As a result of the appellant testifying that he had not carried a concealed weapon, he was indicted, tried and convicted of perjury. On ap eal Claborn contended that the indictment should have been quashed because the allegedly perjurious testimony resulted from a violation of his constitutional right against self-incrimination. This court agreed with that contention and in reversing the perjury conviction said:

“An indictment for perjury based upon alleged false swearing in a criminal proceeding pending before the grand jury against the person himself giving the alleged false testimony, is fatally defective unless it alleges that the accused voluntarily appeared before the grand jury to give the testimony upon which the indictment for perjury is predicated.”

The indictment in the case at bar does not show that appellant was called to testify as a witness on a charge then pending against him before the grand jury. See Warren v. State, 153 Ark. 497, 241 S.W. 15 (1922); State v. Roberts, 148 Ark. 328, 230 S.W. 15 (1921). The record does not show why Balentine was indicted for perjury rather than for selling marijuana; but, be that as it may, Ark. Stat. Ann. § 28-532 (Supp. 1975) provided for Balentine, immunity from prosecution based on his testimony before the grand jury. Therefore, the reasoning of the court in State v. Roberts, supra, is applicable to the case at bar. In the Roberts case we said:

“The question propounded might or might not have elicited information incriminating the defendant himself. But he could not refuse to answer on that ground, for the reason that the statute protects him from the use of his own testimony in the prosecution of a charge against himself. Crawford & Moses’ Digest, § 3122; State v. Bach Liquor Co., 67 Ark. 163; Ex parte Butt, 78 Ark. 262.”

The appellant’s contention that the trial court erred in failing to admit into evidence a transcript of Steven Taylor’s testimony before the grand jury is without merit. The court sustained an objection to the admission of this transcript because it was not material to the perjury charge against the appellant. The transcript was available to the appellant on cross-examination of the witness and, furthermore, the appellant made no offer of proof.

The appellant’s contention that the trial court erred in denying his motion for a directed verdict is likewise without merit. In Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975), quoting from Burks v. State, 255 Ark. 23, 498 S.W. 2d 336 (1973), we said:

“ ‘ . . . a directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence.’ ”

The basis for the appellant’s motion for directed verdict in the case at bar was that the state failed to prove the materiality of the appellant’s testimony before the grand jury. In Smith v. State, 153 Ark. 645, 241 S.W. 37 (1922), this court was considering perjury resulting from testimony before a grand jury and in that case we said:

“In the case of Smith v. State, 91 Ark. 200, a syllabus reads as follows: ‘In an investigation before a grand jury any testimony is material whose necessary effect is to suspend, if not prevent, further investigation of a subject of inquiry, as where defendant’s false testimony prevented the grand jury from investigating whether liquors in a given instance had been sold illegally.’ ”

The grand jury foreman, Orville Johnson, testified that the false testimony of the appellant delayed the grand jury in finding the source of the marijuana being distributed in Stone County. Thus a fact issue existed for the jury.

The appellant’s contention that the trial court erred in allowing the prosecuting attorney to ask appellant irrelevant and immaterial questions about matters simply to inflame the jury is also without merit. When a defendant testifies in his own defense, he may be asked, in good faith, about other crimes he may have committed for the purpose of testing his credibility, but he cannot be asked if he has been charged, indicted or accused of other crimes. Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971); see also Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974).

There is no merit in the appellant’s contention that the verdict was contrary to the evidence and to the law.

The judgment is affirmed.


text:
    THURSTON NATIONAL INSURANCE COMPANY v. George W. DOWLING
    75-328
    535 S.W. 2d 63
    Opinion delivered April 12, 1976

      Putman, Davis & Bassett, for appellant.

      Little, Lawrence, McCollum & Mixon, by: James G. Mixon, for appellee.
   Elsijane T. Roy, Justice.

Appellant Thurston National Insurance Company issued a fire insurance policy to appellee George W. Dowling which covered a dwelling house owned by appellee. The face amount of the policy was $8,000, and it contained a $50 deductible provision. In May, 1973, the house was totally destroyed by fire, and after settlement negotiations proved fruitless suit was filed by appellee to recover the sum of $8,000, plus statutory penalty, interest and attorney’s fee.

Appellant first denied the allegations of the complaint but later amended its answer, admitting liability to the extent of $7,950 by reason of the fire loss, but denying that it was liable to appellee for penalty, interest and attorney’s fee for the reason that appellee had at all times demanded the sum of $8,000.

Appellant deposited $7,950 into the registry of the court, a stipulation of facts was filed and both sides then moved for summary judgment. The trial court entered summary judgment in favor of appellee, holding that the $50 deductible provision in appellant’s policy of insurance was void as being contrary to and in violation of the Arkansas Valued Policy Law. The court accordingly under the provisions of Ark. Stat. Ann. § 66-3238 (Repl. 1966) awarded penalty, interest and attorney’s fee to appellee. From that judgment this appeal follows.

For reversal appellant urged that the trial court erred in ruling the deductible provision of appellant’s fire insurance policy violated the Arkanaas Valued Policy Law and in awarding penalty, interest and attorney’s fee to appellee.

Ark. Stat. Ann. § 66-3901 (Repl. 1966) commonly referred to as the Valued Policy Law, states:

A fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered to be liquidated demand and against the company taking such risk, for the full amount stated in said policy, or the full amount upon which the company charges, collects or receives a premium; provided, the provisions of this section shall not apply to personal property, (emphasis supplied)

Appellant’s position is that the full amount of the policy is $7,950 after being reduced by the deductible. However, the policy, under Item No. 1, clearly shows that the full amount of insurance stated in the policy is the sum of $8,000.00 on a one-story frame dwelling. The parties stipulated appellant had one basic policy for rural dwellings which always included a deductible provision and it did not offer the same coverage without a deductible clause for a premium in a different amount. Hie deductible provision, therefore, diminishes the actual amount of recovery to an amount less than “the full amount stated in said policy”.

Our cases have very carefully protected full recovery of the insured under the Arkansas Valued Policy Law. In several cases we have held invalid provisions in fire policies which have attempted to limit or diminish the companies’ liabilities to amounts less than the full amounts of the policies.

In the case of Farmers Home Mutual Fire Ass’n v. McAlister, 171 Ark. 574, 285 S.W. 5 (1926), this Court struck* down a clause in a fire policy which limited the liability of the insurance company to two-thirds of the actual value of the property which had been totally destroyed by fire. We held that under the Arkansas Valued Policy Law any clause in the policy which limits liability in the event of a total loss is void.

In Fireman’s Insurance Company v. Little, 189 Ark. 640, 74 S.W. 2d 777 (1934), a policy provision was voided which tended to limit the company’s liability to the actual cash value of the insured property. In the case of Tedford v. Security state Fire Insurance Company, 224 Ark. 1047, 278 S.W. 2d 89 (1955), a limitation in a fire policy was struck down which restricted the amount an insured could recover to the amount of his interest in the insured property. The basis of this decision was the Valued Policy Law, and the Court stated:

Since the enactment of the statute in 1889 this court has consistently held it cannot be evaded by contrary policy stipulations. * * *

In the case of Interstate Fire Insurance Company v. James, 252 Ark. 638, 480 S.W. 2d 341 (1972), this Court also voided a policy provision which limited the company’s liability to a pro-rata share of the insurance in force against a particular dwelling which was totally destroyed by fire. This Court quoted with approval from the case of Hensley v. Farm Bureau Insurance Co., 243 Ark. 408, 420 S.W. 2d 76 (1967), as follows:

This provision in the policy avails appellee nothing in the way of defense in this case as the insured property was a total loss.

Our cases hold that where a total loss is involved a clause which diminishes recovery to less than the full amount stated in the policy is void. The parties stipulated appellee’s “dwelling was totally destroyed by fire”.

For the foregoing reasons the case is affirmed.


author: Carleton Harris, Chief Justice.

text:
    WHEELING PIPE LINE, Inc., A Delaware Corporation v. John A. EDRINGTON
    75-260
    535 S.W. 2d 225
    Opinion delivered April 19, 1976

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Mitchell D. Moore, P.Á., for appellee.
   Carleton Harris, Chief Justice.

Appellee, John A. Edrington, brought this action against appellant, Wheeling Pipe Line, Inc., and others to recover for damages that resulted to his cotton crop from the application of a contaminated herbicide. The other defendants, not involved in this appeal, were Monsanto Company, the manufacturer of the herbicide, and Maxwell Oil Company, Inc., its distributor. Appellant transported the herbicide from Monsanto to Maxwell.

The trial court submitted the case to the jury on the theories of breach of warranty (against Maxwell and Monsanto) and negligence (against appellant). The jury returned a verdict for appellant of damages in the amount of $24,-583.00. In answers to special interrogatories, the jury found that Monsanto had been guilty of a breach of warranty, and appellant guilty of negligence; the jury apportioned the responsibility by allocating 50 per cent to Monsanto and 50 per cent to appellant.

Following this verdict the trial court granted Monsanto’s motion for judgment n.o.v. and entered a judgment against appellant for $24,583.00. On appeal, appellant relies upon one point, viz-,

“It was error for the trial court, after granting the motion for judgment notwithstanding the verdict of Monsanto Company, to then enter a judgment against the remaining defendant, Wheeling Pipe Line, Inc. for the full amount of the damages, rather than 50% of the damages, based upon the answers of the jury to the interrogatories propounded by the court.”

It is appellant’s position that it cannot be held liable for the full amount for the reason that the jury found against Monsanto for breach of warranty, and against appellant for negligence; accordingly, it is argued that since the two were not joint tortfeasors who were jointly and severally liable for the full judgment, the judgment for the entire amount cannot properly be entered against Wheeling. It is pointed out that under Arkansas law, a breach of warranty has historically been treated as a matter of contract and not as a matter of tort.

We think appellant has misconstrued the real issue. Edrington established that he was damaged, and he was thus entitled to full damages from someone. Appellant does not question the judgment n.o.v. for Monsanto — there is no contention that it should not have been granted. Rather, the only contention is that Wheeling, which the jury had found 50 per cent guilty, should not because of the n.o.v. judgment, be required to pay the full 100 per cent of damage found by the jury. When does a court properly grant a judgment n.o.v.? Such a judgment can only be granted when the court should have properly directed a verdict fpr the movant, rather than permitting the issue to go to the jury in the first place. See Swafford Ice Cream Company v. Sealtest, 252 Ark. 1182, 483 S.W. 2d 202, and cases cited therein. In other words, the actual result of the judgment n.o.v. is that Monsanto’s purported liability should never have been submitted to the jury. This left only Wheeling as a defendant from whom damages could be recovered. Of course, we have said that a plaintiff can recover from any defendant if his (plaintiff’s) negligence was less than 50 per cent. This is even true where there are several joint tortfeasors, though the negligence of the defendant ultimately liable is considerably less than that of the plaintiff himself. Walton v. Tull, 234 Ark. 882, 356 S.W. 2d 20.

In the case before us, as pointed out, the net result of the n.o.v. judgment in behalf of Monsanto was that there was only one defendant, and the question of breach of warranty was completely removed from the case. This left only a case in tort. Appellee (plaintiff) was not guilty of any negligence and accordingly entitled to collect the full amount of his damages from appellant. The jury’s apportionment of responsibility between defendants does not affect the joint or several liability of any single defendant for the full amount of the damages; rather, apportionment only affects defendants’ rights against each other.

Affirmed.


author: Frank Holt, Justice.

text:
    Clifford COPELAND and POTLATCH CORPORATION v. Verner HOLLINGSWORTH
    75-358
    535 S.W. 2d 815
    Opinion delivered April 19, 1976
    [Rehearing denied May 24, 1976.]

      Wright, Lindsey & Jennings and Richard E. Grijjin, for appellants.

      Huey & Vittitow, for appellee.
   Frank Holt, Justice.

This appeal results from a jury verdict against the appellants for damages to appellee’s tomato crops sustained from the spraying of 2,4,5-T herbicide. Pursuant to a written contract, appellant Copeland sprayed appellant Potlatch’s timberland with this herbicide.

Appellants assert that the trial court erred in giving certain instructions to the jury. Appellants first argue that neither strict liability nor res ipsa loquitor was alleged in the complaint and, therefore, the trial court erred in submitting the case to the jury on theories not pleaded. Appellee responds that the allegation in his complaint that the herbicide was a “known hazardous chemical was sufficient to advise the Appellant and to constitute the theory of strict liability.” We cannot agree with appellee. Suffice it to say that the only theory affirmatively alleged in the complaint was negligence. The issues were joined on the allegations of various acts of negligence by appellants. Neither is it asserted that the pleadings were amended to conform to the proof. It was the duty of the court to submit a cause to the jury only upon issues raised by the written pleadings, or within the pleadings treated as amended to conform to the proof. Ozark Fruit Growers Assn. v. Tetrick, 130 Ark. 165, 197 S.W. 30 (1917). See General Motors Accept. Corp. v. Whatley, 182 Ark. 378, 31 S.W. 2d 526 (1930). Therefore, in the case at bar, it was reversible error for the trial court to instruct the jury on strict liability and res ipsa.

Appellants also assert error in that part of an instruction which tells the jury it is the duty of one applying regulated herbicides to use a high degree of care. Appellants argue that the reference to “high degree of care” was erroneous and prejudicial and is not the law in Arkansas. As appellants point out, the instruction is a modification of AMI 1301 on explosives. Suffice it to say that the proof adduced was insufficient to justify this instruction.

Appellants also contend for reversal that the trial court erred in giving instructions which identified appellant Copeland as an employee when all the evidence shows he was an independent contractor. The theory of the individual contractor relationship does not apply whenever there is a negligent application of an inherently dangerous substance. The Hammond Ranch Corp. v. Dodson, 199 Ark. 846, 136 S.W. 2d 484 (1940); Walton v. Sherwin-Williams Co., 191 F. 2d 277 (8th Cir. 1951). In Hammond we quoted with approval:

‘As a general rule the employer is not liable for the negligence of an independent contractor. There are, however, certain exceptions to this general rule. One of such exceptions is that the law will not allow one who has a piece of work to be done that is necessarily or inherently dangerous to escape liability to persons or property negligently injured in its performance by another to whom he has contracted such work. This is espeically true where the agency or means employed to do the work, if not confined and carefully guarded, is liable to invade adjacent property, or the property of others, and destroy or damage it. **** [B]ecause of the very great likelihood of the poisonous dust or spray spreading to adjoining or nearby premises and damaging or destroying valuable property thereon, it could not delegate this work to an independent contractor, and thus avoid liability.’

It is possible upon a retrial, of course, that appellee can sufficiently adduce proof to meet this requirement.

We deem it unnecessary to consider the appropriateness of the other instructions since the same evidence is not likely to be presented on retrial. Furthermore, since we remand, we do not reach appellant Potlatch’s contention that if the judgment is affirmed, it is entitled to judgment over against appellant Copeland for complete indemnification of the damages which were assessed against it in favor of appellee.

Reversed and remanded.

Byrd, J., dissents.

      This allegation appears only in appellee’s complaint against appellant Potlatch.


text:
    Nolan McCOY Jr. v. STATE of Arkansas
    CR 75-218
    535 S.W. 2d 439
    Opinion delivered April 19, 1976

      Harold L. Hall, Public Defender, by: Michael Castleman,
      Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

On May 9, 1974, appellant Nolan McCoy was charged by informations with the delivery of heroin and the delivery of marijuana. Appellant was tried to the court and found guilty on each charge and was sentenced to five years in the state penitentiary.

For reversal appellant first contends “the state failed to establish a proper chain of evidence. ” We find this contention without merit.

Perry Randall, an undercover agent for the Little Rock Police Department, testified he purchased heroin from appellant on October 31, 1973. Almost immediately after the purchase he returned to the police department where he appropriately marked, initialed, sealed and tagged the heroin with property tag No. 817 and then stored it in the narcotics safe.

He testified further that thereafter he purchased marijuana from appellant which he brought back to the police department where he again logged, tagged, sealed and stored it in the narcotics safe under property tag No. 860.

Officer Jerry Royster testified he transported a package with property tag No. 817 to Manuel Holcomb at the Arkansas State Health Department. That later he transported a package bearing property tag No. 860 to James Henry at the Arkansas State Health Department, and that both packages were taken from the locked narcotics safe at the police department.

Holcomb, chemist for the State Health Department, testified he received the substance with tag No. 817 from Officer Royster and assigned it a laboratory number. The substance proved after analysis to be heroin, and he had kept it in his possession since its reception.

Chemist James Henry testified to a similar procedure for the substance tagged No. 860, which he found to be marijuana.

The drugs which were introduced at the trial were identified as the substances received from appellant by the undercover agent, according to tagging procedures and numbers assigned, and by the chemists for the State Health Department, who verified receipt, analysis and possession until the date of trial. Thus custody and control was established at each stage of the procedure.

Appellant next urges that his arrest was illegal and he should be given credit for all time spent in jail from his arrest on April 11, 1974, until the felony information was filed on May 9, 1974.

Appellant contends his arrest was illegal because it was authorized on the basis of a warrant originally issued in the name of Robert Curry, which name at some time before arrest was scratched out and appellant’s true name inserted.

The warrant contained two additional accurate descriptive elements, appellant’s alias “Monk” and his correct address. Officer Randall testified that appellant was known to him as “Monk”, and he identified “Monk” at the trial as being McCoy and as being the person from whom he made both purchases.

The Fourth Amendment to the Constitution of the United States does not require an arrest warrant to set forth the name of the arrestee. The constitutional requirement is that no warrant shall issue unless the description is sufficient to identify the person to be seized. “By the common law, a warrant for the arrest of a person charged with crime must truly name him, or describe him sufficiently to identify him.” (emphasis supplied) West v. Cabell, 153 U.S. 78, 14 S. Ct. 752, 38 L. Ed. 643 (1894). The inquiry is not whether the correct name was used, but whether the person has been sufficiently described for identification. See also 22 C.J.S. Criminal Law, §311.

Thus the arrest warrant sufficiently described appellant so that his identity was established with reasonable certainty despite the use of the erroneous name.

Furthermore, appellant was sentenced to only five years, and the addition of his pretrial incarceration time (less than a month) does not exceed the maximum penalty of thirty years for delivery of heroin or ten years for marijuana. There is no absolute right to pre-sentence detention credit absent some constitutionally impermissible basis; i.e., a denial based on poverty. See Parker v. Estelle. 498 F. 2d 625, (5th Cir. 1974), rehearing denied 503 F. 2d 567, cert. denied, 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975). In the absence of a statute so providing, it is not error to refuse credit for pretrial incarceration where the defendant was sentenced to less than the maximum. Amato v. U.S., 374 F. 2d 36 (3d Cir. 1967).

In Howard v. Blackwell, 389 F. 2d 84 (5th Cir. 1967), the appellant was sentenced to ten years which was less than the maximum. The court found in Howard that in such circumstances it will be presumed that credit had been given for 184 days of pre-sentence incarceration.

It should also be noted that at trial appellant raised no objection to his sentence, nor did he request credit for that period of time he now alleges to be an illegal incarceration. The absence of an objection precludes appellant from raising the point for the first time on appeal. Gregory v. Gordon, 243 Ark. 635, 420 S.W. 2d 825 (1967).

Finding no reversible error, the case is affirmed.


text:
    Howard WEEMS v. Purl Fuss BOILLOT
    75-370
    535 S.W. 2d 817
    Opinion delivered April 26, 1976
    [Rehearing denied May 24, 1976.]

      Epley & Epley, Ltd., by: Alan D. Epley, for appellant.

      Maberry & Buice, by: R. Edward Buice, for appellee.
   George Rose Smith, Justice.

This is an appeal from the trial court’s refusal to set aside a default judgment in an action upon a promissory note. There were two defendants, Howard Weems and McKinley Weems, co-makers of the note. Howard alone appeals. Although three points for reversal are argued, the principal issue is whether the court erred in simultaneously setting aside the default judgment against McKinley but refusing to set it aside as to Howard.

The original amount of the note was $7,029.73. The complaint alleged, and an indorsement on the note showed, a part payment of $3,252.45, leaving an unpaid balance of $3,-777.28. No answer having been filed by either defendant within 20 days after the ostensible service of summons, the plaintiff filed a motion for a default judgment. The court granted that motion, the judgment reciting that evidence for the plaintiff was introduced, with exhibits and other matters and proof.

The defendants jointly filed a motion to set aside the judgment. McKinley asserted that, contrary to the sheriff’s return, he was not actually served with a summons. The proof was that Howard asked the deputy sheriff to leave both summonses with Howard, but Howard failed to tell McKinley anything about the matter. There is no appeal from the trial court’s finding that McKinley was not properly served and that the default judgment against McKinley should be set aside.

Howard was properly served, but in the motion he asked that the default judgment against him be set aside on the ground that it was for an excessive amount, as he had made a payment of $6,000 upon the note. The court denied Howard’s application for relief, holding that Howard had shown no unavoidable casualty, excusable neglect, or other just cause for his failure to file a timely answer. Ark. Stat. Ann. § 29-401 (Repl. 1962).

In seeking a reversal Howard relies primarily upon a one-sentence decision, apparently written by our court reporter in an 1842 case: “HELD, that when there are several defendants, one of whom is not served with process, nor appears, and judgment taken by default, against all, it is erroneous as to all.” Moss v. Gibson, 4 Ark. 427 (1842). No other Arkansas case on the point is cited.

The Moss decision is no longer a correct statement of the law, for either of two reasons. First, its basis was the common-law theory that a judgment is an indivisible entity, which cannot be vacated only in part. There is really no sound basis for the rigid common-law view. Consequently only about five jurisdictions now adhere to that position, with 20 or more taking the opposite view. Annotation, 42 A.L.R. 2d 1030 (1955). The annotator cites several cases holding that the judgment may be set aside in part when, as here, one of the defendants was not properly served with process.

Secondly, the Civil Code, adopted in 1868, cannot be reconciled with the earlier notion that a judgment is an unbreakable unit. The Code declares that in an action against several defendants the court may render a judgment against one or more of them, leaving the action to proceed against the others. Ark. Stat. Ann. § 29-103 (and see § 29-104). That part of the Civil Code was construed in a case that came before us twice: Parke v. Meyer, 27 Ark. 551 (1872), and Parke v. Meyer, 28 Ark. 281 (1873). There, as here, one defendant was served with process, the other was not. A default judgment was entered against the former. Upon his appeal we cited the Civil Code provision and sustained the trial court’s discretionary power to enter a default judgment against one defendant only. We adhere to that view and consequently reject the appellant’s insistence that the Moss case requires the default judgment against Howard Weems to be set aside. Whether a more favorable subsequent judgment against McKinley Weems may inure to Howard’s benefit, under such cases as Burt v. Henderson, 152 Ark. 547, 238 S.W. 626 (1922), need not be determined now, for that possibility may never become an actuality. It is not our practice to decide abstract questions of law.

The other two points for reversal may be disposed of together. It is argued that after Howard Weems failed to file an answer he was entitled to notice that a hearing would be had upon the question of how much he owed and that he could not constitutionally be denied that notice. We do not agree. The summons served upon him carried the statutory warning that he was required to answer within 20 days, under the penalty of the complaint’s being taken as confessed. Ark. Stat. Ann. § 27-306. One explicit warning is sufficient. Mann v. Ray Lee Supply, 259 Ark. 565, 535 S.W. 2d 65 (1976). Our holding in Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555 (1974), is easily distinguishable, for there the defendant appeared in the case, albeit belatedly, and contested the plaintiff’s unliquidated claim for damages. This appellant failed to file any pleading until after the court had entered a default judgment, apparently upon proper proof adduced by the plaintiff. Brittain v. Mammoth Spring Motor Co., 233 Ark. 468, 345 S.W. 2d 373 (1961).

Affirmed.

Byrd, J., dissents.