author: Paul Ward, Justice.

text:
    Brown v. Smith
    5-3900
    405 S. W. 2d 249
    Opinion delivered June 6, 1966
    [Rehearing denied July 25, 1966.]

      Jack D. Mulvihill, John Harris Jones, for appellant.

      Bose, Meek, House, Barron, Nash So Williamson, for appellee.
   Paul Ward, Justice.

The issues presented here concern primarily the heirship to certain real property. There is little, if any, dispute over the pertinent facts involved.

Joe Mercer Bennett died in 1963 intestate and without issue. We may hereafter refer to him as the “deceased”. His father, J. A. Bennett, died in 19o7 and his mother, Eula Mercer Bennett, died in 1940. Mr. and Mrs. J. A. Bennett had no offspring except the deceased.

When the deceased passed away he left several parcels of real estate and considerable personal property— the personal property not being involved on this appeal.

For convenience the real estate will he referred to by “item numbers” with a brief description of each. During the administration of the deceased’s estate the real estate ivas converted to cash, and the sale's price of each item will also be indicated.

Item No. 1. Home place, being Lot 8 Block 13—$10,-566.79. Item No. 2. Old Blythe Building—$24,568.94. Item No. 3. Bennett-Barlow Building—$6,073.65. Item No. 4. Not involved on this appeal. Item No. 5. Lot 6, Block 4—$15,635.11.

In the final distribution order in the deceased’s estate the trial court made allocations of the real estate proceeds in the manner set out below.

Items No. 1 and No. 2 were given entirely to the heirs of Mrs. Eula Mercer Bennett—said heirs being referred to hereafter as the “Mercer heirs” who are the appellees.

Item No. 3 ivas given % to the Mercer heirs and % to the heirs of J. A. Bennett—referred to hereafter as the “Bennett heirs” -who are the appellants!

Item No. 5 was given entirely to the Bennett heirs.

The Bennett heirs excepted to the court’s ruling as to Items No. 1 and No. 2, and now, as appellants, prosecute this direct appeal for a reversal.

The Mercer heirs excepted to the court’s ruling as to Items No. 3 and No. 5 and now, as appellees, prosecute this cross-appeal.

(direct appeal)

Hems No. 1 and No. 2. In 1905 and 1912 J. A. Bennett (father of the deceased) purchased these parcels of land. Shortly thereafter he and his wife (Eula Mercer) deeded the property to W. !D. Trotter for $1 and other good and sufficient consideration—the deed being duty-recorded. A few days later Trotter and his wife, for the same recited consideration, deeded the property to Mrs. Eula S. Bennett—the mother of the deceased.

The trial court held, in effect, that upon the death of Eula in 1940 the property, subject only to her husband’s courtesy right (extinguished of course when he died in 1957), descended to the deceased (her son); that her son took the property as a maternal ancestral estate, and; that therefore, at the son’s death, the property ascended to the heirs of his mother (Eula Mercer Bennett).

Appellants, in an exhaustive array of authorities, urge three general reasons why they think it was error for the trial court to give all the proceeds derived from items 1 and 2 to appellees.

It is first contended, in effect, that there was no valuable consideration for the conveyance from J. A. Bennett to his wife—that in reality it was a gift to his wife. It is contended, of course, that this fact (if it be a fact) demands a reversal.

Based on the above assumed fact, appellants rely on two cases from other jurisdictions which, they say, hold in effect that the property (under the facts and circumstances of this casé) must go or ascend to the purchaser for value—the person who actually acquired the property and brought it into the family, meaning the father. Under these two rulings, appellants say, the property must go to them—the heirs of J. A. Bennett. The cases relied on are Reed v. Geddes (1926) 287 Pa. 274, 135 Atl. 232, and In Re Knight’s Estate (1943—Cal. App.), 136 P. 2d 68. We refrain from discussing these eases at length because we do not think they are decisive of the issue.

Finally, appellants make an extended and forceful argument, supported by citations from many authorities, to the effect that the issue here is controlled by “The common law tradition”. It is pointed out that “The policy of the common law was to keep the real property in the line of the ancestor by whom it was brought into the family”. Appellants insist that in this instance the mother should be disregarded, because she paid nothing for tiie property. Hence, it is argued, it was the father who brought the property into the family and who should therefore be treated as the propositus or stock of descent.

This argument overlooks a basic characteristic of ancestral estates. Such an estate can he created only by a gift, devise, or inheritance to a person who is related by blood to the donor. In Kelly’s Heirs v. McGuire, 15 Ark. 555, at 587, we defined a new acquisition, as distinguished from an ancestral estate, in this way: “It must be understood, however, that a new acquisition, in the sense intended by the statute, is one which the intestate has acquired by his exertions and industry ; . . or by will or deed from a stranger. ’ ’ Of course ‘ ‘ stranger’ ’ means a stranger to the blood, not someone that the donee did not know.

The same point was again made in West v. Williams, 15 Ark. 682, where land owned by Lewis C. Taylor had been left by his will to his wife, Elizabeth. It later passed by Elizabeth’s will to her descendants and became an ancestral estate in their hands. We held specifically that the land had been a new acquisition as far as Elizabeth was concerned, saying: “ . . . the estate, when in Mrs. Taylor’s hands, was not an ancestral estate at all, but a new acquisition, within the definition of such estates given in the case of Kelly et al, v. McGuire & wife, et al, because she held it by devise from her husband, Lewis C. Taylor, who, so far as this record shows, was a stranger to her blood, both paternal and maternal.” In the case at bar it follows that the tracts now in question were held by Eula S. Bennett as a new acquisition, because she received them from her husband, who was not related to her by blood.

Ark. Stat. Ann. § 61-110 (1947), in material part, reads:

“Incases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother the estate shall ascend to the mother and her heirs, ...”

The wording of the statute is plain, its meaning is clear and it needs no explanation. It is of course true that here the decedent’s estate could not go to his father or mother because they had died previously, but the statute also includes their heirs. Here there can be no question about where the estate of deceased (items 1 and 2) came from —it came from his mother.

It is our conclusion therefore that the trial court was right in holding that the proceeds should go to the heirs of the mother.

(cross appeal)

Item No. 3. This property was purchased by J. A. Bennett and E. E. Barlow. In 1921 J. A. Bennett conveyed his undivided % interest to his wife, Eula. This transaction put the property in the same category with items 1 and 2 previously awarded to the Mercer heirs. The trial court, however, gave % to the Bennett heirs and % to the Mercer heirs. Apparently the trial court took the view that J. A. Bennett owned the property or an interest therein because of the following factual situations. When the estate of Eula Bennett was administered, J. A. Bennett was the administrator. The record discloses two things: (a) J. A. Bennett personally collected and kept part of the rents from the property; (b) Later it was decided to partition the property between the Bennetts and the Barlows. Pursuant thereto J. A. Bennett and the deceased (Joe M. Bennett) executed a deed to the Barlows, and the Barlows executed a deed to J. A. Bennett and his son.

There is nothing in the above transaction which shows J. A. Bennett had or claimed any interest in the land. The rentals he drew from the property were due him as the owner of a curtesy interest in the property, and the administration proceedings so indicated.

As for the partition deed referred to above, the rule is well established that a partition deed conveys or creates no title but merely severs the unity of possession, 40 Am. Jur. p. 107, § 126 (Effect of Partition); Hutchison v. Sheppard, 225 Ark. 14, 279 S. W. 2d 33, and; Johnson v. Ford, 233 Ark. 504, 345 S. W. 2d 604. It is not contended that the deceased ever conveyed his interest to his father.

Thus it appears that the deceased (son of J. A. and Eula Bennett) inherited the property from his mother (just as he did items 1 and 2) and it, therefore, ascended, at his death, to the appellees. No part of the property ascended to the heirs of J. A. Bennett.

Item 5. This property was deeded by Mr. and Mrs. J. A. Bennett to their son Joe Mercer Bennett (deceased) in 1921—when Joe was sixteen or seventeen years old. The recited consideration was $1 and other valuable consideration.

The trial court ruled that all the proceeds of the property went to appellants. On cross-appeal appellees contend the trial court erred, and that one-half should have been given to appellees. We do not agree with this contention. Apparently both sides agree that if this conveyance was for a valuable consideration, then the property, upon the death of Joe, should be divided between the heirs of his father and mother. Likewise, if this was a gift or advance from father to son, the property would ascend to the heirs of the father.

We think the trial court was correct in holding the conveyance was a gift or advancement. In the case of Holland v. Bonner, 142 Ark. 214, 218 S. W. 665, we held that:

"The question as to whether or not a conveyance or transfer of money or property is regarded as a simple gift,' advancement, or a sale, is to be determined by the intention of the parent. The question as to what was the intention is generally purely one of fact to be ascertained from the circumstances of the transaction.”

In Neal v. Neal, 194 Ark. 226, 106 S. W. 2d 595, we find this statement:

“A transfer of land by a parent during his life time to a child will be presumed to constitute an advancement of a portion or the whole of that child’s share in the parent’s estate, where the consideration expressed is nominal, and natural love and affection.”

It occurs to us that such a presumption would especially apply here because of the age of the grantee —it seems hardly likely he would have paid full value for the land.

(distribution order)

In the original Distribution Order the trial court required that the shares of two missing paternal heirs be held by the clerk for one year, and, if not found, their shares be distributed equally among the other Bennett heirs. It is contended this violates Ark. Stat. Ann. § 62-2911 (Supp. 1965). We see no merit in this contention. First, we do not find where appellants made any objection. Second, we do not understand how appellants can be prejudiced by the order. Third, the statute gives the court the right to make an “ultimate Distribution” of the funds.

The decree of the trial court is affirmed on direct appeal and modified, as indicated, on cross-appeal.


source: Caselaw Access Project

author: Osro Cobb, Justice.

license: Public Domain

text:
    Borden v. Armstrong
    5-3829
    403 S. W. 2nd 731
    Opinion delivered June 6, 1966

      John L. Anderson and Roscopf and Raff, for appellant.

      E. J, Butler and Townsend & Toionsend, for appellee.
   Osro Cobb, Justice.

The New Castle-Barrow Hill Boad Improvement District was formed in 1961 under the lengthy provisions of Chapter 12 of Title 20 of Arkansas Statutes Annotated. On September 25, 1961, the county court of St. Francis County entered an order officially creating said district. The purpose of said district was to improve and pave some twenty-five miles of county dirt road, which was frequently impassable in adverse weather, at a cost then estimated at approximately $850,000. It was contemplated that said improvements would be made with one half of the cost being matched by funds from the federal government.

In March of 1964 the commissioners of the district, noting that the costs of materials, labor and equipment had substantially increased, advised all of the parties at interest by letter that said increase in cost would be anywhere from 20 to 30 per cent above that originally estimated. The landowners involved were requested to indicate their approval or disapproval of continuing the project in view of the added cost, and the landowners were further advised that if a majority disapproved the increased costs the project would be abandoned. The added costs involved no changes in plans or specifications for the improvements originally contemplated.

The commissioners appointed Jason L. Light as assessor for the district. On March 23, 1964, Mr. Light filed with the county clerk his detailed assessment of benefits against the parties at interest in the total sum of $1,280,530.33. The assessor made no report as to assessment of damages to the landowners. He testified that the project was devoted to the improvement of an existing county road without substantial changes in its location, and that the project involved benefits and no damages to the landowners except those incident to taking lands. Issues as to damages are discussed under that heading in this opinion.

On May 19, 1964, some ninety landowners joined together in instituting a suit in chancery as a class action against the commissioners of the district, alleging that the assessments of benefits as made by the assessor were grossly contrary to the representations made to the landowners at the time of the formation of the district; that said assessments of benefits were excessive to such an extent as to be confiscatory in nature; and that said assessments of benefits were inequitable as between the various landowners. Appellants’ complaint prayed the following' general relief:

(a) That the commissioners and the assessor for the district be enjoined and restrained from proceeding with the levy and collection of said inequitable and excessive assessments.

(b) That the commissioners be ordered and directed to file with the clerk of the county court the plans and specifications, together with engineering surveys and cost estimates, on any further construction plans.

(c) That the commissioners be ordered and directed to divulge to the landowners the results of the so-called election which was held pursuant to the terms of the letter of the commissioners to the landowners on March 10, 1964.

(d) That the commissioners and the assessor be ordered and directed to make any further assessments in accordance with assessed benefits which are fair, reasonable and equitable to the landowners.

Appellees’ answer denied any modifications in the plans and specifications of the original project but did admit the increase in cost therefor over the original estimate ; and also denied any excessive or inequitable or unfair assessments of benefits as to any landowner in the district, and prayed for dismissal of the complaint.

The chancellor invoked the assistance of a special master, Fred MacDonald of Brinkley, to conduct hearings as to the issues joined in the pleadings and to report to the court. Extensive hearings were held and much testimony taken. The transcript of proceedings has required five separate volumes. The findings and conelusions of the special master in chancery covered some fifty-six pages. The master resolved all of the issues joined between the parties in favor of appellees. Formal exceptions to the report of the master were timely filed by appellants. The chancellor, after reviewing the report of the master, after hearing thereon with respect to the exceptions taken thereto, and after hearing arguments of counsel and receiving written briefs on behalf of the parties, on the 8th day of July, 1965, entered a decree approving and confirming the report of the master and finding that all of the exceptions of appellants to the report of the master should be denied and overruled, and upon said findings dismissed appellants ’ complaint. From this adverse decree appellants are now here on appeal.

Appellants urge thirteen separate points, all of same being related to and connected with their ten stated exceptions to the report of the master.

We note that appellants’ points 1, 5, 6, 7, 8, 9, 10, 11, 12 and 13 all relate to the work of the district assessor; his method in making the assessment of benefits ; alleged inequity and invalidity of such assessment; his failure to assess damages in certain cases; and that his assessments were arbitrary and confiscatory. We combine all contentions of appellants as to assessments into a single discussion.

The Assessment of Benefits

The record before us reflects that in 1957 and 1958 the A. P. Capers Company, a company specializing in assessment work, appraised all the property located in St. Francis County for county and city tax purposes. Procedures set forth under Act 153 of the Acts of 1955, State of Arkansas, were followed. Bare farm lands in the territory were broken down into six different types of cultivatable land, and each type was in turn broken down into four categories, depending on accessibility as to roads, soil type, crop production, etc. All of the land on Crowley’s Ridge, including the land in the instant road improvement district, was designated as an “F” type, or the lowest value land. In this classification, cultivatable land located on a hard-surface road was valued at $70 an acre; on a gravel road $60' an acre; on a dirt road $50 an acre; and on no road $40 an acre. Woods land and waste land on a hard-surface road was valued at $25 an acre; $20 on a gravel road; $15 on a dirt road; and $10 without a road. Following these appraisals, county taxes were assessed based upon 20 per cent of said appraised values.

There was considerable new construction in the improvement district subsequent to the Capers report. As to such new improvements, Mr. Light, who had worked with the Capers Company in St. Francis County in compiling its appraisal report, made trips about the district personally inspecting such new improvements, and thereafter employed the recognized factors for appraisals of same as used by the Capers Company and as set forth in the Assessor’s Manual (1956) introduced into evidence as an exhibit to the testimony of witness Cleo C. Perry. Said manual is an implementation of the provisions of Act 153 of 1955.

When all appraisals of properties in the district had been completed, Mr. Light then applied the same yardstick as to each parcel of property in assessing benefits and in extending the annual district tax that would be due. The district included approximately 500 separate appraisals of property. The assessed benefits for each parcel of property were computed at 3.88 times the assessed value (approximately 20 per cent of the appraised or market value). Annual district taxes were computed and extended at 3.34 per cent of said assessed benefits.

A few examples from the report of the district assessor indicate his complete fairness and impartiality in the discharge of his duties. Parcel No. 5407 is owned by Turley Davis, one of the appellants. This parcel contains 31.55 acres of land, fronting for one half mile along the road proposed to be improved. This acreage had been assessed by the county, based upon the Capers report, at $245 for land and $255 for improvements—a total of $500. Mr. Light multiplied the $500 by 3.88 to arrive at the total benefits to be assessed for the district, which amounted to $1,940. Annual taxes for the district were then extended at a percentage of 3.34 per year, resulting in an annual tax of $64.67. This owner received maximum benefits and his district taxes were in equitable proportion thereto.

Parcel No. 4943, owned by appellant E. W. Borden, contains 40 acres not directly on the road and was assessed by the county at $85. The district assessor assessed benefits of $329.80 and an annual tax of $11.

Parcel No. 2737 involves 40 acres in a more cultivatable condition than Parcel 4943 and carried a county assessment of $140. District benefits were assessed at $543.20 and an annual tax extended for the district of $18.10.

Four Meadowcliff subdivisions located some five miles from Forrest City and included in the road district were also assessed by individual subdivided lots. Each vacant lot had been assessed by the county at $100, and using the same formula, the district assessor assessed benefits at $388 and extended annual taxes due per vacant lot at $12.94. Where residences had been completed on these lots, assessments were proportionately increased. Some of these assessments by Mr. Light indicated that he had computed the value of said residences at $10,000 or more. The record does not show the exact size of the lots platted for residential purposes. It is clear that in relation to the land area involved the lots were assessed at from 20 to 25 times as much as other miscellaneous lands in the district.

Lee B. Horton, owner of Tracts Nos. 5318-19-20, 5324, 5324-1 and 5331, testified that the assessed benefits against his properties were reasonable in all respects and a great many other owners of property in the district testified likewise.

In Board of Improvement of Waterworks Improvement Dist. No. 22 v. Southwestern Gas & Electric Co., 121 Ark. 105, 180 S. W. 764 (1915), we said:

“It is claimed by appellees that the assessors did not attempt to make an assessment according to benefits, but merely adopted an arbitrary method which disregarded the elements which go to make up benefits, and had no relation to the real benefit to the property from the proposed improvement. The two assessors testified that they were familiar with the real property in the district, and that in the meetings and in the conference between the members of the board they gave consideration to the method of assessment and reached the conclusion that all the property in the district would be relatively benefited in proportion to the value thereof, and they assumed that the assessment made by the county assessor was correct and that a percentage assessment based on the valuation would represent the true benefits to be derived from the improvement. It is not shown that the assessment of values made by the county assessor was incorrect. In fact, it must be assumed that the assessment made by that officer was approximately correct—as near correct as can be. When valuations are assessed by the county assessor and equalized by the board of equalization, it is reasonable to assume that the assessment is as near a correct one as human agency can devise. So it can not be said that there was anything arbitrary in the action of the board of assessors in accepting as correct the county assessment as a basis of valuation. ’ ’

Furthermore, Ark. Stat. Ann. § 20-1206 (Repl. 1956) authorizes the commissioners of such an improvement district to require the assessor to re-assess the benefits in said district not oftener than once a year, etc. Should the improvements contemplated by the district result in the construction of additional homes in the Meadowcliff subdivisions, such additional values can be seasonably assessed for the benefit of all parties in the improvement district.

Appellants suggest that some of the commissioners owned some of the lots in the Meadowcliff subdivisions and that as such owners they were receiving preferential treatment and special benefits. The record does not support this. On the contrary, assessments of benefits for the subdivision are in line with assessments of the district generally. We note that the vacant lots in the subdivisions are of necessity appraised at a minimum of $500 each in order to result in assessed value of $100.

Appellants contend that the assessments of the district assessor were invalid because he performed most of his official duties before taking and filing his oath of office. This contention is without merit. In Gregg v. Road Improvement Dist. No. 2 of Jackson Cty., 169 Ark. 671, 277 S. W. 515 (1925), we said:

“We are of the opinion that a failure to take the prescribed oath before the proper officer affords no grounds for nullifying the assessment. . . . The legal qualifications of the assessor can not be called in question collaterally so as to invalidate the assessment.”

Appellants further complain that assessment of benefits against the American Telephone & Telegraph Company were arbitrarily reduced by the commissioners. The answer to this contention is that the properties of A.T. & T. had been assessed by the Public Service Commission on a basis of 33 1/3 per cent of true value, whereas county assessments made following the report of the Capers Company were computed on a basis of 20 per cent of the true value, and it was therefore necessary for the improvement district to reduce its assessment as to A.T. & T. so as to bring it in line 'with assessments of benefits of other property owners in the district, and reduction in assessment to accomplish this purpose was entirely proper.

Appellants contend that assessments as made are confiscatory. It should be noted that the costs of the improvements contemplated by the district are not attacked as being excessive for the improvements to be made; that the United States Government is to defray one half of the cost of these improvements; and that in another section of this opinion reference is made to other possibilities of aid to the district in meeting its obligations for said improvements.

Our statutes require that assessments be made in relation to benefits derived, and make no mention of the ability of the beneficiaries to pay. See Arkansas Statutes Annotated, Title 20, Chapt. 12 (Repl. 1956). The trial court found that the landowners would receive all the benefits and enhancement of the values of their properties as reflected by the report of the district assessor. We therefore find no merit in this contention of appellants.

From a practical standpoint, we doubt that the improvement district assessor could have devised and pursued a sounder and better method in arriving at fair and equitable assessments of values and benefits for the district. While appellants represent a minority of the property owners in the district and contend that their annual taxes for the district are too high and oppressive, even they do not suggest that the district itself be dissolved and terminated. After a review in depth of this record concerning the assessments made by the district assessor, we find no error in relation to the work of the assessor for the district and we therefore find no merit in any of the contentions of appellants in regard to same.

Damages of Landotvners

The record in this case reflects no proof of damages by appellants except in cases where revisions in the location of the county road have resulted or will result in the taking of some additional lands. This road improvement district has the power of eminent domain under the provisions of Ark. Stat. Ann. § 20-1223 (Repl. 1956). "When the plans and specifications for the improvement were filed with the county clerk, some five separate orders of the county court were made and entered, condemning the necessary additional lands for said improvement. It appears from the record that there was no proof of publication of notice prior to said condemnation orders as required by Ark. Stat. Ann. § 76-917 (Repl. 1957).

The special master in chancery made the following statement in his report to the court:

“According to the testimony of W. V. Armstrong, the 10% contingency cost, as set up in the Bond Issue, was for the purpose of acquiring right of ways from the various property owners and the payment of any other expenses to the District, and this said 10% of the construction cost had been set aside for these contingencies.”

It is therefore clear that the proceedings in the chancery court in this case and the decree entered dismissing appellants’ complaint in no way prejudice the rights of the landowners to timely assertion of their claims for compensation and damages by reason of the faking of any portions of their lands and improvements thereon. It also affirmatively appears that such claims are to be paid by the improvement district from its contingency funds. In any event, such landowners have their statutory remedies in the courts if acceptable settlements are not concluded between them and the improvement district. See Ark. Stat. Ann. § 20-1223, supra, and Ark. Stat. Ann. §§ 35-201 thru 35-208 (Repl. 1962).

The Good Faith of the Commissioners for the District

All remaining points urged by appellants relate to the good faith of the commissioners and we discuss same jointly.

"When it appeared that the costs of the improvements under the original plans and specifications would substantially exceed the original estimates, the commissioners forwarded to all parties at interest Avithin the district their letter of March 10, 1964, which is quoted in full because of its significance in this particular discussion :

‘ ‘ Forrest City, Ai’kansas
“March 10, 1964
“Mr. E. W. Borden
“Colt, Arkansas
“Dear Mr. Borden:
“Re: New Castle-BarroAV Hill Road Improvement District assessment and Taxes
“Since we began the organization of the above-styled improvement district to raise one-half of the money necessary to match Federal funds for the other half to improve and pave 25 miles of road in the above mentioned district, the costs of materials, labor and equipment have increased to the point AAdrere the tax against the properties of the landOAvners in the district will be anywhere from twenty to thirty percent more than Avas represented when the Commissioners and Representatives of the district circulated the petition for organization thereof. For example, if your road tax was $100 when the petitions Avere circulated, it Avill be approximately $130 noAv.
“Mr. Jason L. Light, Assessor of the District, has noAv completed the assessment of betterments of all lands located Avithin the district, Avhich list also shows AAdrat each landoAvner’s tax will be per year. The assessment of betterments is on file in the St. Francis County Clerk’s Office, and you can make inquiry there if you desire. If it isn’t convenient for you to do this, then you may see one of the Commissioners and get him to explain your tax to you.
“We enclose herewith for your convenience a ballot to be signed by you, either approving or disapproving the increase which has come about as a result of the general increase in cost of labor, equipment and materials during the past two or three years. Please return the ballot by April 10, 1964. If we do not hear from you one way or the other about this, we will assume that the assessment of betterments and tax rolls prepared by Mr. Light are satisfactory with you.
“If we get the approval of the majority of the landowners in the district, either by affirmative assent or consent, or by silent acquiescence, or both, the Commissioners of the district intend to go ahead, sell the bonds, match the funds of the Federal Government, and let the contract or contracts for the road improvement initially contemplated.
“We expect to make the final decision within the next thirty days. You are welcome to come in and look at the proposed assessment rolls and tax extensions. We feel that most of you realize that the proposed improvement will increase the value of your property three times or more. We also feel that you are aware of recent newspaper articles in which it appears that the Governor of the State of Arkansas is considering the possibility of eventually taking over projects of this nature and that there is a possibility that this tax load might be assumed by the State of Arkansas sometime in the near future. We also hope that you realize that as new homes are built in the road improvement district, the assessed valuation of the district will increase and the road tax will decrease. We expect this to happen rather rapidly.
“Very truly yours,
/s/ John C. Lindsey Jr.
/s/ W. Y. Armstrong
/s/ Earl E. Horton
/s/ Edward R. Harris
/s/ J. W. Alderson Jr.
“Commissioners of New Castle-Barrow Hill Road Improvement District
“Filed May 19, 1964
“Mamie N. lYood, Clerk”

One hundred thirty-five landowners formally replied, indicating their approval of going’ ahead with the project, whereas 77 opposed. The 77 opposed represent about 25 per cent of the total number of owners.

It is obvious from the letter of the commissioners that they are seeking to get maximum federal help and possibly state help as well in the project, and it appears that the landowners will therefore receive benefits much in excess of the cost as pro-rated to them.

Appellants argue that no engineering report was ever filed by the commission with the county clerk and that no report was ever filed or information given to the landowners as to the nature and type of bonds to be sold by the district. Appellees concede that these have not been done. However, no statutory requirement exists for such actions by the commission, nor have appellants cited a single case authority in support of these contentions. See Ark. Stat. Ann. § 20-1204 (Repl. 1956).

In summary, we find nothing in this record indicating bad faith on the part of the commissioners in the performance of their duties for and on behalf of the improvement district.

The trial court rejected all of the exceptions filed by appellants to the report of the special master in chancery, and we have concluded that the action of the trial court in dismissing appellants’ complaint is supported by a preponderance of tbe evidence and should not be disturbed. Orrell v. E. C. Barton & Co., 240 Ark. 211, 398 S. W. 2d 685 (1966).

The Gross-Appeal of Appellees

The chancellor assessed all of the costs in this litigation, including the fees of the special master in chancery, against appellees. Of this action appellants do not complain, but appellees appeal. We have concluded under the facts of this particular case that the chancellor did not abuse his discretion in his assessment of the costs against appellees. Thomas v. Smith, 215 Ark. 527, 221 S. W. 2d 408 (1949); City Electric St. Ry. Co. v. 1st Nat'l Bank, 65 Ark. 543, 47 S. W. 855 (1898); Trimble v. James, 40 Ark. 393 (1883).

Having found no prejudicial error in the trial of this case, the decree of the trial court is affirmed on appeal and affirmed on cross-appeal.


author: Oseo >Cobb, Justice.

text:
    Pirtle v. Dalmasso
    5-3927
    403 S. W. 2nd 740
    Opinion delivered June 6, 1966

      G. Thomas Eisele, for appellant.

      John D. Thweatt and James M. Thweatt, for appellee.
   Oseo >Cobb, Justice.

Acting upon the premise that no legally-constituted County Republican Committee existed in Prairie County, the Republican State Central Committee purportedly called a special Republican primary election to be held in said county on September 7, 1965, to elect a County Central Committee and for other purposes. The following notice was published in Prairie County on August 5 and again on August 12, 1965:

“CITIZENS OP PRAIRIE COUNTY:
“All persons desiring to be Republican candidates for public office or Republican candidates for County Committeeman, and Delegates and Alternate Delegates to the County Convention, shall pay their ballot fees to Mrs. Jerry Pirtle, Des Arc.
“Piling deadline to be 12:00' Noon, August 14, 1965.
“Election to be held September 7, 1965.”

On August 24, 1965, appellee filed a petition in the-chancery court charging:

“... that the acts of the defendants in calling and in attempting to conduct a special primary election in Prairie County, Arkansas, prior to the date of the regular Republican Party Primary Election to be held in 1966 is without authority under the laws of the State of Arkansas and the rules of the Republican Party of the State of Arkansas; that the statutes of the State of Arkansas and the procedures for calling and conducting party primary elections prescribed by the Statutes of the State of Arkansas have been violated by the defendants in calling said special primary election and in attempting to conduct same and that the holding of said special primary election should be enjoined and restrained by this court, and the defendants should be enjoined individually, collectively and in their respective capacities as officers and representatives of the Republican Party of the State of Arkansas from conducting or attempting to conduct said primary election.”

Appellee further alleged in his complaint:

(a) That he is a life-long Republican.

(b) That he was serving as vice-chairman of the Republican County Committee in Prairie County in 1963 when the chairman, J. R. Harvey, died.

(c) That he has served in the capacity of County Chairman since 1963.

(d) That the regular Republican party primary election was held in 1964, at which time candidates for positions on said County Committee were unopposed.

(e) That at the last general election appellee did not see fit to utilize his entire political energy in support of the Republican nominee for governor to the exclusion of the Republican nominee for president of the United States, which attitude incurred the wrath of appellants, all of whom are exclusively interested in the political welfare of the individual nominee for governor.

(f) That he has served continuously since 1963 as the Republican member of the County Board of Election Commissioners.

Appellants, in answering the allegations of appellee, stated in their answer:

(a) That they did not have information sufficient to form a belief as to appellee being a life-time Republican.

(b) That appellee has not represented the interests of the Republican Party or furthered the interests of said party in Prairie County.

(c) That they admit that the Republican Party does not recognize appellee as a Republican Party Committeeman or as the chairman of the Republican Party Committee of Prairie County.

(d) That they admit they contend appellee should not be permitted to serve in such capacities or to represent the Republican Party on the Prairie County Board of Election Commissioners.

(e) That the calling of the said special Republican primary election in Prairie County was valid under the rules of the party and under the laws of the state of Arkansas.

Appellants prayed for dismissal of the complaint.

On September 29, 1965, a hearing was conducted which included taking the testimony of Truman Altenbaumer, Executive Director of the Republican State Committee, that of appellee, and that of Billy M. Garth, Circuit and County Clerk of Prairie County. The Rules of the Republican Party, adopted by the Republican State Convention of 1962, were offered in evidence, along with other exhibits as to filings in the Republican primary in said county for the primary election of 1964.

Following said hearing the chancellor, on October 22, 1965, entered the following decree:

“On this 29th day of September, 1965, this cause coming on to be heard, come the plaintiff, Joe Dalmasso, in person and by his attorneys, John D. Thweatt, James M. Thweatt, and Sam A. Weems, and the defendants in person and by their attorney, Gr. Thomas Eisele. All parties announcing ready for trial, the Court heard oral evidence, argument of Counsel, and being fully advised as to the law and facts, the Court does find: That there was in existence in Prairie County during the period in question a duly elected, qualified and acting Republican Party Central Committee; that the applicable law requires that any vacancies subsequently occurring in the Committee shall be filled by the Committee itself; and that any special primary election conducted by the defendants for the purpose of filling vacancies in the Prairie County Republican Party Central Committee prior to the regular party primary elections to be held in July, 1966, would be contrary to the Statutes of the State of Arkansas and should be enjoined.
“It is thereupon considered, ordered, adjudged and decreed by the Court that the temporary injunction of this Court prohibiting the defendants from holding the special primary election scheduled for September 7,1965, be made permanent, and the defendants are hereby permanently restrained and enjoined from holding any special Republican Party primary election in Prairie County, Arkansas, prior to the regular primary elections to be held in July, 1966; and that the plaintiff have and recover of the defendants his costs herein expended.”

From this adverse decree appellants are here on appeal. Appellants urge:

(1) That there was no evidence to support the decree.

(2) That there was no evidence to support appellee’s claim that he is chairman of the Prairie County Republican Committee.

(3) That the Republican Party was entitled to conduct the special primary election pursuant to its own rules.

(4) That if there were in existence a Prairie County Republican Committee, the method of filling vacancies thereon as contemplated by the party rules is a lawful and reasonable way to accomplish this result.

(o) That, assuming that there was in existence a lawful County Republican Committee, it and appellee failed to exercise and exhaust the remedies provided by the party rules for challenging the holding of a special primary election, and therefore are estopped from doing so now.

We first discuss appellants’ point 3, inasmuch as our conclusion as to this point is dispositive of the case on appeal. The Rules of the Republican Party, § 23 (b), under which the special primary election was purportedly called, provides as follows:

“In all special primary elections, the State Chairman shall, subject to approval of the State Executive Committee, appoint a representative who shall conduct the election in accordance with the latos of the state of Arkansas.” (Italics ours.)

Ark. Stat. Ann. § 3-216 (Repl. 1956) provides as ■follows:

“General primaries—Time for holding—Special primaries.—The primary elections of all political parties shall be held on the second Tuesday in August preceding the general election. Special primary elections may be called to fill vacancies and this law shall govern the same as far as applicable. [Init. Measure of 1916, No. 1, § 2, Acts 1917, p. 2287; Acts 1919, No. 19, § 1, p. 11; C. & M. Dig., § 3758; Pope’s Dig., § 4722]”

Ark. Stat. Ann. § 3-205 (Supp. 1965) relates to.party pledges, time of filing, ballot fees, etc. in connection with legalized primary elections, and we quote therefrom :

“Party pledges—Time for filing—Ballot fees.— . . . All candidates for county and township offices shall file any such pledge required with the Secretary of the -County Committee not later than 12 o’clock noon on the ninetieth day before said election and shall pay the ballot fees prescribed for said office not later than the ninetieth day before said election. ’ ’

The Rules of the Republican Party, § 12 (d), made a part of the record in this case, provides as follows:

“The Chairman of the County Committees shall cause to be published once a week for two (2) consecutive weeks in a newspaper of general circulation within their respective counties, not earlier than one hundred twenty (120) days prior to the date of the preferential primary nor later than the one hundredth (100th) day before the preferential primary, notice of the name and address of the Secretary of the County Committee with whom all persons desiring to he Republican candidates for public office or Republican candidates for County Committeeman, and delegates and alternate delegates to the County Conventions shall pay their ballot fees, such notice to state the last day and hour on which such candidates may legally qualify. ’ ’

Appellants do not contend that the rules of the Republican Party supersede the statutory law of Arkansas in the holding of primary elections.

Appellants urge us to reverse the decree of the chancellor and “to make clear that the time schedules provided for general party primaries ‘are not applicable’ to special primaries and that political parties may proceed with the latter upon reasonable notice and under reasonable time schedules as ascertained by the political parties as one of its own prerogatives.” Appellants cite no case authority from this court or from any other jurisdiction supporting this contention. Indeed there is no language contained in the Arkansas statutes cited above from which we can find that the legislature intended that any provision of our present election statutes should not apply to both special and general primary elections. We have concluded that had the legislature so intended it would have expressly so provided, and it certainly did not do so in Ark. Stat. Ann. §§ 3-205 to -216, supra, which make no distinction between special primaries as contrasted with general primaries.

We have concluded that the calling of this special primary election upon published notice of only 33 days prior to the date of the election did not comply with our election statutes, which require candidates in such an election to file and qualify 90 days before the election, which was an impossibility in this case, and that the decree of the chancery court so finding should be affirmed:

Inasmuch as we are holding that the primary election was not called in accordance with the statutes of Arkansas, we find it unnecessary to discuss at length the other points raised by appellants on this appeal.

In cases reaching us involving elections we frequently decide questions which would be moot under the same circumstances in normal litigation. We do this for the reason that the public interest requires that substantial questions concerning the election laws be set at rest without delay. Moorman v. Taylor, 227 Ark. 180, 297 S. W. 2d 103 (1957); Cain v. CarlLee, 171 Ark. 155, 283 S. W. 365 (1926).

During the oral argument in this case, counsel for appellants stated that the regular Republican primary for 1966 had been called in Prairie County and that representatives of both factions of the party in said county had filed as opposing candidates for election to positions on the Republican County Committee. It thus appears that a primary election will shortly be held which will settle the question of party leadership in Prairie County.

Appellants indicate concern as to the exact places in which the 1966 Republican primary may or must be held in Prairie County. Ark. Stat. Ann. § 3-204 (Supp. 1965) provides that primary elections of each political party shall be held at the same place and on the same day. In Newton County Republican Central Comm. v. Clark, 28 Ark. 965, 311 S. W. 2d 774 (1958), we said:

‘ ‘ The words in the Act do not mean that there will necessarily be held a balloting in the same room. The words ‘same place’ could mean in the same general locality. Certainly the requirements would be satisfied if in one room of a building there were the officials and ballot boxes for holding the Republican Primary, and in another room there were the officials and ballot boxes for holding the Democratic Primary. ’ ’

Appellants express concern over the procedure to be followed in selecting judges and clerks at the various precincts for said general Republican primary election. Ark. Stat. Ann. § 3-220 (Repl. 1956) provides in part as follows:

‘Disagreement of central committee as to appointment of judges and clerks—Procedure.—Hereafter, whenever the members of the Central Committee shall not agree unanimously on the appointment of the judges and clerks to serve in any primary election, in any precinct, then in that case, the minority shall have the right to appoint one [1] judge and one [1] clerk to serve in each precinct, and the majority shall have the right to appoint only two [2] judges and one [1] clerk in each such precinct..

While this statute is not directly applicable to the factional situation existing in Prairie County as reflected by the record in this case, appellants not being represented on the contested County Committee as presently constituted, it may nevertheless be of some benefit to the parties in arriving at an agreed distribution as to the appointment of judges and clerks for the forthcoming primary election.

The task of selecting judges and clerks to serve in all of the voting precincts of Prairie County for the Republican primary election in 1966 could be a formidable one in a county where said party has not heretofore held a contested primary election. It may well require the joint efforts of both factions of the party in Prairie County in order to adequately man the precincts with such election officials. Furthermore, our election statutes clearly contemplate that no faction of an organized political party will be captiously disregarded in such .matters.

We conclude that the call of said special primary election, published some 33 days before the proposed election on September 7, 1965, was not in compliance with our mandatory election statutes and was contrary thereto, and thus of no effect. We therefore further conclude that the action of the trial court in entering its decree enjoining and restraining the holding of said election should be affirmed, and the case is affirmed on said basis.


author: Guy Amsler, Justice.

text:
    Warbington v. State
    5192
    405 S. W. 2d 281
    Opinion delivered June 6, 1966
    [Rehearing- denied July 25, 1966.]

      Marvin B. Gambill, Memphis, Tenn., for appellant.

      Bruce Bennett, Attorney General, Fletcher Jaclcson, Asst. Attorney General, for appellee.
   Guy Amsler, Justice.

On September 30, 1965, appellant was convicted on three morals charges, involving a seven year old girl. The jury fixed his punishment for carnal abuse [Ark. Stat. Ann. § 41-3406 (Repl. 1964) ] at five years in the state penitentiary, two years for indecent exposure [Ark. Stat. Ann. § 41-1127 (Repl. 1964)] and one year for unlawful fondling of a child [Ark. Stat. Ann. § 41-1128 (Repl. 1964)]. Appeal was perfected in apt time.

Appellant’s first argument for reversal concerns “merger of offenses.” Since all of the charges grew out of the same incident it is contended that the cause should be remanded for a trial on one charge at a time and that the other two either be dropped or presented separately. Neither before nor during trial, nor in his motion for a new trial did appellant raise this point. He permitted the court to consolidate the charges for trial, proceeded through two days of hearings and presented his motion for a new trial without uttering a word in protest.

In Carter v. State, 230 Ark. 646, 326 S. W. 2d 791, we said:

“This alleged error was first raised by appellant in his motion for a new trial. It comes too late for this court to consider it. We have consistently adhered to the rule that before an alleged error, in felony cases of a lesser degree than capital, may be considered by this court on appeal, the complaining party must first make an objection, call for a ruling from the trial court, make and preserve an exception from an adverse ruling, and the matter complained of must be assigned as error in a motion for a new trial.”

Had the suggestion of overlapping crimes been brought to the attention of the able trial judge he doubtlessly would have taken such action, by way of severance or abatement, as the law and facts warranted. Having, without objection, gone to trial on all three charges, hoping perhaps that if the jury found him guilty it would be of a crime carrying a lesser penalty, he is not in a position to utter initial protest in this court. He was obliged to present his objection to the trial court. Matz v. State, 196 Ark. 97, 116 S. W. 2d 604; 21 Am. Jur. 2d, Criminal Law, §§ 469, 470.

Since the sentences were all made to run concurrently, it is apparent that the appellant was not prejudiced by a failure of the trial court to order some procedure other than that followed.

It is next contended that “the evidence is insufficient to sustain the crime of carnal abuse.” The relevant facts may be stated rather briefly. Appellant h'ad spent the night before the incident complained of with an employee of his named Shipp who lived across the street from the little girl’s home in West Memphis, Arkansas. Appellant, with Shipp and others had consumed some alcoholic beverages that night. The next morning about 8:30 Mrs. Shipp came over for a visit with the little girl’s mother and shortly thereafter appellant arrived. He had a drink and then went to the store to purchase some items for one or both of the women. Sheila (the girl victim) accompanied him. While on this mission appellant purchased a bottle of liquor. On returning he offered the women a drink but they declined and he took one alone.

Appellant had planned a trip to Tennessee that day so he went to the Shipps’ house to get his luggage and start on his journey. Sheila again went with him to say “goodbye.” The little girl was gone longer than her mother thought necessary so she asked Mrs. Shipp to investigate.

Shortly after Mrs. Shipp left, the little girl came running home looking “real scared” and entered the bathroom. An examination by her mother revealed that she was bleeding and according to the mother “had been torn and scratched.”

Sheila was taken to the family doctor who found a small bruised area, with “a very small amount of bleeding” in the vestibule of the vagina-superior region. This was described as the area external to the hymenal ring. The injury was minimal.

Appellant drove to Savannah, Tennessee, and from there called Sheila’s mother during the afternoon and according to the mother asked a number of times, “Are you sure you and the children are all right?” The jury could have weighed this circumstance as an indication of apprehension on the part of appellant concerning what had transpired that morning at the Shipp residence.

The little girl testified that after they entered the Shipp home appellant sat down in a chair and lifted her to his lap; that he placed his hand between her legs inside the front of her pants, moved one finger around; that it hurt and she immediately had a desire to go to the bathroom. Appellant released her but followed her to the bathroom exposing himself at the same time. Shortly thereafter Mrs. Shipp appeared on the scene. Appellant categorically denied any improper conduct with or toward the child. He offered no witness other than himself, except a number of his neighbors who vouched for his g*ood reputation.

The proof was ample for carrying the case to the jury on the question of carnal abuse. Holland v. State, 237 Ark. 649, 375 S. W. 2d 234 (1964); Watt v. State, 222 Ark. 483, 261 S. W. 2d 544 (1953).

A further contention for reversal is that the trial court should have stricken the little girl’s testimony “as being totally unreliable.” Harris v. State, 238 Ark. 780, 284 S. W. 2d 477 (1964), is relied on. A casual comparison of the testimony of the children in these two cases will demonstrate a marked difference in ability to relate facts.

The direct and cross-examination of Sheila covered 33 pages of the transcript and while there were instances of inability to remember and some minor conflicts, her testimony as a whole evidenced a remarkable ability, for a seven year old child, to remember details and give expression to her views. To illustrate, on cross-examination:

“Q. Did you, personally, talk to Mr. Harrison? [the prosecuting attorney]
A. No, sir. My mother and father did.
Q. What?
A. Sitting there.
Q. Where did they talk to him?
A. In here.
Q. Did you talk to Mr. Fogleman about this too?
A. No, sir. Not here. Mr. Fogleman wasn’t here.
Q. Where did you talk to Mr. Fogleman about this?
A. Up there at West Memphis City Hall.
Q. At City Hall. Have you talked to him since that time, since that at City Hall?
A. Not that I remember, except for this morning.
Q. What?
A. Except for this morning, I think, he asked me one question.
Q. Who else have you talked to about this ease, this matter?
A. No one.
Q. Have you talked to your mother about it?
A. Yes, sir. My mother and father asked me about it?
Q. Asked, you what?
A. About it.
Q. About it, when was this?
A. The day that it happened.
Q. Sheila, have you talked to your mother and father about this since that Municipal Court hearing?
A. No, sir. Because, Mother told me to go ahead, forget it, because it was over with.
Q. When did she tell you that?
A. The day after.
Q. The day after the hearing in Municipal Court?
A. Yes, sir. She didn’t know we were going to have to come up here, I guess.
Q. She didn’t know it, you guess, and you haven’t talked to her about it this past week any time?
A. Not that I remember.
Q. And haven’t talked to her about what you were going to say up here ?
A. No, sir. All I told them, I, just going to tell the truth.
Q. When did you tell them that?
A. The day that they told me we were going to have to go in West Memphis, I said, ‘Mother, don’t worry, I will tell the truth’.”

Again on cross-examination:

“Q. You did talk to your mother that day, before you went to the doctor, didn’t you?
A. Yes, sir.
Q. She was real excited?
A. She was worried.
Q. What?
A. Worried.
Q. Worried. When was she worried?
A. After I told her.”

We unhesitatingly conclude that there was no abuse of discretion by the trial judge in refusing to strike Sheila’s testimony.

The motion for a new trial alleges error in refusing appellant’s requested instruction no. 3, which was a “cautionary” instruction relating to the testimony of Sheila. It would have told the jury to “consider her testimony with great care and caution, being careful to give it only such weight and credit as it should receive. You should consider her faculty of accurate memory and her ability to observe and relate past events.”

The court gave the customary instruction on weight of the evidence and credibility of the witnesses and it would appear that appellant’s instruction no. 3, if given, would have removed the child’s evidence from the general rule as to weight and credibility without supplying a proper yardstick. The admonition to give her testimony ‘ ‘ only such weight and credit as it should receive ’ ’ would have placed the jurors in the position of having to determine for themselves what criterion to utilize in evaluating her evidence and this is not a procedure to be encouraged.

We have said that the giving of a cautionary instruction is discretionary with the trial court and that such discretion will not be limited unless grossly abused to the prejudice of the accused. Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747 (1947); Caldwell v. State, 214 Ark. 287, 215 S. W. 2d 518.

There was no abuse of discretion by the court in refusing appellant’s requested instruction no. 3 and appellant was not prejudiced thereby.

Affirmed.


author: Hugh M. Bland, Justice.

text:
    Owen v. Merts
    5-3931
    405 S. W. 2d 273
    Opinion delivered June 6, 1966
    [Rehearing denied July 25, 1966.]

      Carlton Currie, for appellant.

      Gregory & Claycomb, for appellee.
   Hugh M. Bland, Justice.

This is a suit for specific performance of a contract to sell shares of stock in the Pine Bluff National Bank and involves the construction of a mutual stock option contract containing a stock restriction on the shares issued to the organizing parties.

In July of 1961 twelve individuals decided to organize the Pine Bluff National Bank. To effectuate the organization these twelve persons, together with the President and Vice President, entered into an agreement entitled “Mutual Stock Option” set out verbatim as follows:

“To assure continuity of responsibility, to prevent domination of Pine Bluff National Bank by any other bank, institution or venture through stock acquisition, and to assure that substantial stock ownership will remain in persons devoted to growth and development of said Bank and not as a speculative venture, the Organizers of said Bank have entered into this Mutual Option agreement. The shares of stock set aside for management shall also he under the terms of this Mutual Stock Option with the same rights as the Organizers of said Bank.
Said Organizers and management are hereinafter referred to as Organization Group. In the event that any member of the Organizational Group within a period of five years from date of charter of said Bank desires to sell his shares of stock of Pine Bluff National Bank, such shares shall first be offered to the remaining members of such Organizational Group at its book value at the time of such offer. Notice of such offer shall be sent by certified mail to the President and to the Cashier of said Bank. Said Organizational Group shall have thirty days from receipt of such notice within which to make payment for the shares of stock so offered, and if such payment is not made within such thirty days, the offeror shall be released from this option as to such stock offered. Book value shall be taken as of the most recent determination by said Bank of such book value.
The considerations for this agreement are the mutual options and the fact that members of said Organizational Group have been permitted to purchase more stock of said Bank than made available to other persons.
Upon exercise of such option, the remaining members of such Organizational Group may exercise such option pro rata in equal shares.
Devolution of such shares upon death shall not be treated as a “sale” of such stock, but the successor in interest of any such decedent shall be bound hereby. ’ ’

In this action the appellants and appellees constitute the Organizational Group as defined in the Option Contract.

The bank had only been open a few months when some discord developed among the organizers, the end result being that the Organizing Group developed into two factions. Subsequently ten parties holding shares subject to the Option Contract, properly following the requirements set out in the Option Contract, offered to sell their shares. At a meeting held June 17, 1965 eight of the letter offers were communicated to the parties. After each offer was read a motion was made by another offerer and seconded by a third offerer that the offer to sell be rejected. All of the other offerers voted to reject the offer. This same procedure was followed for all eight offers and all eight were rejected. Four parties at the meeting*, appellants here and plaintiffs below, objected to the voting procedure, did not take part in the voting, and stated they reserved their rights under the Option Contract.

On July 2, 1965 the final two offers were communicated to the Organizational Group and the same procedure was followed that occurred at the June 17th meeting. On the same day the last two offers were voted on and rejected the appellants gave all but one offerer a letter of acceptance. A letter of acceptance was sent by certified mail to the remaining offerer. The letters of acceptance suggested that delivery of the stock and payment therefor be made at Pine Bluff National Bank on July 9, 1965 at 10 A.M. Appellants went to the Bank on July 9th to pay for and take delivery of the shares. Some of the appellees were present but refused to deliver; others did not appear at the Bank. None of the shares in controversy have been delivered or paid for.

Appellants filed an action for specific performance under the terms of the Option Contract, also asking for damages for delay in delivery of the shares of stock.

The chancellor held that the offers did not constitute “one” offer on the part of the defendants (appellees) as the Option Agreement specifically provided for a sale of stock by “a member” of the Organizational Group. The fact that some of the offers were made on the same date (but not all of them) would not constitute one offer. The chancellor further held that even if there were concerted action this would not constitute “one” offer.

The chancellor laid particular stress on that part of the Option Agreement that stated the shares shall first be offered to the “remaining members of such Organizational Group.” After stating that the decisive question was: “Who has the right to exercise the option for the purchase of the offered shares of stock!”, the chancellor answered this question by holding that the option could be exercised only by the remaining members of the Organizational Group and that the option contemplated group action rather than individual action. This being so, the chancellor held there were only two methods by which the option could be exercised, i.e., by the unanimous or majority action of the remaining memhers. Since the remaining majority elected not to exercise the offers, the chancellor held that the offered shares of stock were free of the restrictions of the Option Agreement, except that the minority might insist that the stock not be sold to another bank, institution, or venture whose plans are to dominate the bank and that the stock be sold to persons devoted to the growth of the bank. The court further held that the 1,500 shares set aside for the management (president and vice president) of the bank should be under the terms of the Stock Option with the same rights as the organizers of the bank; that if the holders of this stock were to be a part of management of the bank, they were duty bound to offer their shares of stock to the Organizational Group for reassignment to the succeeding president and vice president. The chancellor later clarified this part of his opinion by holding that the present president and vice president have the right to sell their stock free of the terms of the Option Agreement so long as they are a part of management of the bank, but that if either of them should terminate with the bank, not having previously in good faith disposed of his stock before that time, he could not carry those shares of stock with him.

The chancellor also held that the Stock Option was not, as defendants (appellees herein) contended, a joint adventure because it did not have as its purpose the making of a profit by its signatories.

For reversal the appellants rely upon seven points:

1. The Stock Option is a Contract. The appellees agree with this contention.

2. Eights under a multi-party contract are (1) joint, (2) several, or (3) joint and several. Appellants’ main point here is that the chancellor based his opinion on the theory of “majority and minority” rights which might be proper if the Stock Option were a joint adventure, but the chancellor held that the Stock Option was not a joint adventure and, therefore, majority or minority rights have no bearing on the Stock Option Contract.

3. Rights to Purchase under the Stock Option are “Several Rights.” Appellants contend that the right to purchase under the Stock Option is several, separate and distinct, and could be exercised by any party to the contract. They point out that the real objection to majority rights is that while it took fourteen parties to make a contract which was to last for five years, seven or more parties are now given the right to terminate the contract six months after it became effective.

4. The practical construction of the contract by the parties was that the right to purchase is a several right. Appellants contend that the practical construction came about in this way:

The first cashier of the bank, Nipper, resigned and went to another bank in April of 1965. His successor was Kirkland, an appellee. Nipper owned 500 shares of stock in the bank subject to the Option Contract when he left the bank. Nipper wanted to sell and Kirkland to buy Nipper’s 500 shares. Since Nipper’s shares were subject to the option restriction, an offer to sell the shares by Nipper would give the remaining parties a right to buy their pro rata part of the shares. Thus, in order to effect a transfer of the shares from Nipper to Kirkland it became necessary for the parties themselves to reach a practical construction of the Stock Option. To effect this transfer all the parties (except one who had died) signed an instrument entitled Limited Waiver of Mutual Stock Option. Under this instrument Kirkland received Nipper’s 500 shares of stock without the option rights of a member of the Organizational Group, but subject to the stock restriction. Appellants contend that by the execution of this instrument all the parties agreed that the right to purchase shares under the option could not be waived without the consent of all the parties to it.

5. The offers to sell were accepted and tender of payment made. Refusal of tender placed each individual appellee in default. Appellants contend that it was not necessary for them to make a physical tender of the cash, but it was sufficient if they were ready, able and willing to perform.

6. Appellants are entitled to specific performance of the contracts to sell the offered shares of stock. Appellants contend that the shares offered are unique, not readily available on the market, and will give appellants effective working control of the bank.

7. Appellants are entitled to damages for delay in delivery of the shares. Appellants claim that between the time they accepted appellees’ offers and appellees’ refusal to deliver, the book value of the stock declined axid that they are entitled to the difference between the book value of the stock as of July 9, 1965 and as of the date of actual delivery.

Appellants axid appellees agree that the Stock Option is a contract. In the interpretation of contracts, the rule is to ascertaixx the intention of the parties and to give effect to that intention where this caxx be done consistently with legal principles. Sydeman Brothers, Inc. v. Whitlow, 186 Ark. 937, 56 S. W. 2d 1020; Sternberg v. Snow King Baking Powder Company, 186 Ark. 1161, 57 S. W. 2d 1057; Dewey Portland Cement Company v. Benton County Lumber Company, 187 Ark. 917, 63 S. W. 2d 649.

In the case of Sternberg v. Snow King Baking Powder Company, supra, this court said:

“In determining the meaning of a contract, the court must look at the whole contract and ascertain what the parties did thereunder and how they construed the contract.”

This court, in Temple Cotton Oil Company v. Southern Cotton Oil Co., 176 Ark. 601, 3 S. W. 2d 673, quoting from 6 R.C.L. 837, at page 608 said:

“The intention of the parties, which courts seek to discover in giving construction to a contract, is to be gathered, not from particular words and phrases, but from the whole context of the agreement. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be upon the entire instrument, and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the courts can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from beginning to end, and all its terms must pass in review; for one clause may modify, limit, or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized, if that course is reasonably possible. Each of its provisions must be considered in connection with the others, and, if possible, effect must be given to all. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. The courts will look to the entire instrument, and, if possible, give such construction that each clause shall have some effect and perform some office. Likewise, where a contract as a whole discloses a given intention, they will be construed, if possible, so as to be consistent with the general intent. ’ ’

See, also, Webster v. Telle, 176 Ark. 1149, 6 S. W. 2d 28.

The Stock Option contract was introduced in evidence. Its terms are plain and unambiguous. The first paragraph of this contract shows that it was the intention of the parties to prevent domination of the Bank by any other bank, institution or venture through stock acquisition, reserving substantial stock ownership in the organizers. The shares of stock set aside for management were placed under the terms of this mutual option agreement. Specific provision was made for the sale of shares of stock. Any organizer desiring to sell his stock, within five years from date of charter of said Bank, was to first offer such shares to the remaining’ members of the Organizational Group at its book value at the time of such offer, notice to be sent by certified mail to the President and to the 'Cashier of said Bank. The Organizational Group was to have thirty days from receipt of such notice within which to make payment for the stock so offered, and if such payment is not made within the thirty days, the offerer would be released from the option as to the shares offered.

The consideration for this agreement is the mutual option and the fact that members of said Organizational Group have been permitted to purchase more stock of said Bank than was made available to other persons.

Appellees contend that the letter of acceptance of the offers was conditional and that the tender itself was not complete citing Smith v. School District No. 89 of Crawford County, 187 Ark. 405, 59 S. W. 2d 1022, and a number of cases following the holding in the above case. We have carefully examined these cases and find that the fact situation is not the same and we believe that the holding of this court in Byford v. Gates Bros. Lumber Co., 216 Ark. 400, 225 S. W. 2d 929, is more applicable to the facts in this case. In that case the court held that the offerer’s acceptance is not conditional merely because it cites terms which in any event would be implied from the original offer. It must be borne in mind that both the offer and the acceptance were made under the terms and conditions of the original Stock Option Agreement which, provided that the price of the stock was to be fixed at book valne and appellants adding to the letter of acceptance a paragraph stating, “We reserve any rights which we may have against the president and director certifying as to the book value of such stock,” did not'attach any new conditions to the contract but made the offer and acceptance more explicit in view of the terms of the Stock Option Contract.

The tender, under the circumstances of this case, was complete. In Williston on Contracts (3rd Ed.), § 833, it is said:

“What Amounts to an Offer To Perform. It is said that the strict rules of tender are not applicable to a conditional offer to perform a concurrent condition ; that what is essential is that it shall appear to the court and shall have been made clear to the other party to the contract that the exchange agreed upon would be carried out immediately if the latter would do his part. This requirement involves both ability on the part of the plaintiff to perform and an indication of that ability to the other party. The actual production of the money or other thing which the plaintiff is to give is said to be unnecessary.
As the courts have said ‘the word “tender,” as used in connection with such a transaction, does not mean the same thing as when used with reference to the offer to pay money where it is absolutely due, but only a readiness and willingness to perform in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness.’ ”

See, also, Loveless v. Diehl, 236 Ark. 129, 364 S. W. 2d 317.

Appellees contend that the court was correct in holding the option could be exercised only by the remaining members of the Organizational Group and that the option contemplated group action rather than individual action. Appellees further contend that since the remaining majority elected not to accept the offers, the offered shares of stock were free of the restriction of the Option Agreement. With these contentions we cannot agree. The stock held by each of the organizers was personal property. Ark. Stat. Ann. § 67-318 (Repl. 1966). The owners of this stock had a right to dispose of it in any manner they saw fit, the same as any other personal property, so long as they complied with the terms of the Stock Option Contract. The undisputed facts are that ten of the original Organizational Group offered their stock for sale in the manner and under the terms and conditions of the Stock Option Agreement. Within the time set out in said agreement the appellants accepted this offer under the terms of said agreement. The only practical construction that could be placed on the terms of this agreement is that when the offer for the sale of stock was made by the ten members, the “remaining group,” constituting the appellants, had an individual right to exercise their option to purchase.

The chancellor held that in order to effectuate the sale of the stock it required a majority of the parties to accept any offer and that less than a majority could not accept. With this holding we cannot agree. To so hold would require writing into the option contract a provision that is not there. Courts will not rewrite contracts for the parties. McLeod v. Meyer, 237 Ark. 173, 372 S. W. 2d 220, 223.

The parties themselves placed a practical construction on the option contract when all parties to the original contract, except Brown who had died on June 15th and Nipper who was selling the stock, signed the Limited Waiver permitting a transfer from Nipper to Kirkland. In the interpretation of contracts the construction the parties themselves have placed on the contract is entitled to great weight. Temple Cotton Oil Company v. Southern Cotton Oil Company, supra. This practical construction by the parties is given great weight in our holding that the right to purchase is a several right.

The courts have uniformly held that shares of stock not readily procurable, as here, are subject to a suit for specific performance. 49 Am. Jur., Specific Performance, § 131, and cases cited therein. See, also, 130 A.L.R. 920.

In the case of Fanney v. Virginia Investment & Mortgage Corp., 107 S. E. 2d 414 (Va. 1959) the court said:

“On the other hand, a court of equity will, in a proper case, decree specific performance of a contract for the exchange of stock. It is generally held that where, as here, the stock is not readily purchaseable in the market and its pecuniary value is uncertain and not easily ascertainable, specific performance of a contract for its sale or exchange will be enforced. See Kennerly v. Columbia Chemical Corp., supra, 137 Va. at page 245, 119 S. E. 265; 17 Mich. Jur., Specific Performance, § 70, p. 107; 49 Am. Jur., Specific Performance, § 131, p. 154. This is especially true where, as is the case here, the purpose of the contract is to prevent the control of the corporation by antagonistic interests. 49 Am. Jur., Specific Performance, § 132, pp. 155, 156.”

In a supplement to the complaint appellants seek damages for delay in delivery of the stock. Appellants’ offer to purchase on June 9, 1965 was rejected and they contend the stock has declined in value and, therefore, they are entitled to the difference of the book value as of that date and the date of actual delivery. This contention is grounded upon the claim that they (appellants) were in essence the equitable owners of the stock as of the date it should have been transferred to them.

The general rule is that one cannot recover both specific performance and damages. 81 C.J.S., Specific Performance, § 162. In Virginia Public Service Company v. Steindler, 187 S. E. 353 (Va. 1936) the Virginia Supreme Court had before it an analogous situation and the court there said:

‘ ‘ The question for decision may be thus put: Is the holder of a certificate of stock, who elects to sue in equity to compel the transfer of the stock to his name, after receiving the same together with all dividends accumulated during the controversy, with interest thereon, and after selling the stock pending the litigation, entitled to recover of the corporation damages measured by the decline in the market value of the stock between the date the transfer should have been made and when it was actually made, when such decline was due to no fault of the coi’poration ?
Although the question is not free from difficulty, we think it must be answered in the negative.”

The court then went on to note that upon refusal of the corporation to issue the new stock certificate in the purchaser’s name he then had the option to either seek damages or the specific performance from the corporation to transfer the stock. Then the Court noted that the claimants were not entitled to the damages claimed, stating:

“By their form of action the complainants have insisted that they were the equitable owners of the stock as of the date it should have been transferred to them. They have demanded that they be clothed with all of the incidents of ownership as of that date, and on this theory they have obtained the transfer, and have collected all dividends on the stock, with interest. They have thus obtained every right which a stockholder had as of the desired time. But one of the incidents of ownership of property, which complainants overlook, is that the property is subject to depreciation as well as appreciation in value. This is a risk which every owner of property assumes. It is a risk which the complainants took when they asked that they be placed in the position of owners of the stock as of August, 1931.”

In the case at bar it was not alleged or shown that the decline in book value of the stock was due to the fault of the offerers and we, therefore, hold that the appellants are not entitled to any damages by reason of the delay in delivery of the stock.

In view of our holding in this case we deem it unnecessary to discuss the merits of the cross-appeal which is hereby dismissed.

Reversed and remanded with directions to enter a decree not inconsistent with this opinion.

Habéis, C. J., not participating.


author: Carleton Harris, -Chief Justice.

text:
    Burks v. State
    5203
    405 S.W. 2nd 935
    Opinion delivered September 12, 1966

      Smith & Smith, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Att-y. Gen., for appellee.
   Carleton Harris, -Chief Justice.

Robert Lee Burks, an inmate at the State Penitentiary, filed his petition for a writ of habeas corpus on December 29, 1965, in the Desha County Circuit Court, setting out that on or about April 21, 1958, after entering a plea of guilty, he was sentenced to serve a term of three years in the penitentiary by the Desha County Circuit Court on a charge of grand larceny. The record reflects that this three years was to run consecutively to a term of fifteen years, which Burks was already serving, following a conviction in the Lincoln County Circuit Court in December, 1957, of assault with intent to kill. Burks’ petition alleged, inter alia, that he was intimidated, forced to sign statements and told to plead guilty by Superintendent Lee Henslee of the Arkansas State Penitentiary; that he was threatened with death by the superintendent, unless he entered such a plea; further, that he had been without counsel, and was not aware of his constitutional rights. Upon the filing of the petition, counsel was appointed to represent Burks, and a hearing was held before the Desha County Circuit Court, at which time Burks testified in his own behalf. This testimony reflects that appellant had escaped from the penitentiary, and it was subsequent to this event that the charge of grand larceny (stealing an automobile) was filed against him. Burks stated that, because of the escape, the superintendent “did have quite a bit of malice in his heart against me. *** I had been terrorized quite a bit by the superintendent.” At the conclusion of the hearing, the court entered its order, finding no merit in the contentions raised by petitioner, and dismissing the petition. Prom the judgment so entered, appellant brings this appeal.

Por reversal, appellant relies principally upon our case of Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204, but there are clearly factual differences in the two cases. Por one thing, Swagger was a nineteen-year-old boy, who had never before been convicted of any crime. The record does not reflect appellant’s age, but does reflect that Burks was already serving a fifteen year sentence for assault with intent to kill at the time of the events here complained of (his plea of guilty to grand larceny). Furthermore, in Swagger, the court did not tell the defendant that an attorney would be appointed for him, if desired.

Appellant’s charge of intimidation by the superintendent has a rather hollow ring. Burks, under the statute, could have received a sentence of twenty-one years for grand larceny, and, in addition, could have received as high as five years on the charge of escaping from the penitentiary. However, as previously stated, he was only given a three-year sentence on the larceny count, and the record does not reflect that an escape charge was even filed against him. It does not appear from these circumstances that the superintendent (or any other state official) acted against Burks with animosity or in a spirit of revenge. Appellant says in his brief that his statements of intimidation by Henslee are not contradicted, but it could not be otherwise — since Mr. Henslee is deceased. The Attorney General’s office pointedly comments that appellant’s account of intimidation is directed at one who is unable to answer.

The judge of the Desha County Circuit Court is also the judge of the Jefferson County Circuit Court, and this jurist was presiding at the time that Swagger entered his plea of guilty in Jefferson County. After briefly discussing the 8%vagger case, the trial judge, in the instant matter, commented that, after the reversal in Swagger, before accepting a plea of guilty from any prisoner, the court would first “read the information to him and instruct him that he did not have to plead guilty, that he may get him an attorney and get him a jury trial; that if he does not have funds with which to employ an attorney, the court will appoint him one and then ask him what’s his wishes. That was done in this case and he indicated that lie did not wish an attorney and wished to plead guilty.” This statement is in accord with the docket entry made -when appellant entered his plea of guilty in the Lincoln County Circuit Court, “4-21-58 plea of guilty after all his constitutional rights were explained to him and sentenced to three years in the State Penitentiary, same to run consecutively with what time he has in the penitentiary on previous sentence.”

We agree with the trial court that appellant’s petition is without merit.

Affirmed.

       This court, on October 18, 1965, by per curiam order, announced the adoption of Criminal Procedure Rule No. 1, such rule setting up the procedure to be followed by prisoners who assert an unlawful conviction or sentence, or a violation of a constitutional right. The instant matter will be disposed of as though it were filed under this rule.


author: Ed. F. MoFaddin, Justice.

text:
    Stewart v. State
    5197
    406 S. W. 2nd 313
    Opinion delivered September 12, 1966
    [Rehearing denied October 17, 1966.]

      Harold B. Anderson, for appellant.

      Bruce Bennett, Attorney General; Jaclc L. Lessen-berry, Asst. Atty. Gen., for appellee.
   Ed. F. MoFaddin, Justice.

The first question on this appeal is whether the confession was voluntarily made by the appellant. This case has been before us on previous occasions. See Stewart v. State, 233 Ark. 458, 354 S. W. 2d 472, Cert. Denied, 368 U. S. 935; Stewart v. State, 237 Ark. 748, 375 S. W. 2d 804, Cert. Denied, 379 U. S. 935. For angles of this case in other courts, Stewart v. Henslee, 206 F. Supp. 137, 311 F. 2d 691, 373 U. S. 903; and Stewart v. Stephens, 244 F. Supp. 982.

The voluntariness of Stewart’s confession wa¡á an issue discussed and decided in the Opinion of this Court in Stewart v. State, 237 Ark. 748, 375 S. W. 2d 804, Cert. Denied 379 U. S. 935. That decision by us was on March 2, 1964; and at that time the Arkansas practice was to allow the jury to determine the issue of the voluntariness of the confession, in accordance with the holding of the United States Supreme Court in Stein v. New York, 346 U. S. 156, 97 L. Ed. 1522, 73 S. Ct. 1077. But on June 22, 1964, the United .States Supreme Court delivered its Opinion in the case of Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205, in which case the United Supreme Court held that the trial judge — and not the jury — should make the determination of the voluntariness of the confession before such confession was introduced in evidence to the jury. This is all discussed in our Opinion in the case of Nelson v. State (decided on September 13, 1965), 239 Ark. 678, 393 S. W. 2d 614.

After the decision in Jackson v. Denno, (supra), Stewart filed a petition in the United States District Court for the Eastern District of Arkansas; and, in keeping with Jackson v. Denno, that Court, in Stewart v. Stephens, 244 F. Supp. 982, on June 30, 1965, entered an order reading in part as follows:

‘ ‘ The State of Arkansas is given seven months from June 30, 1965 to either allow the trial court to conduct a hearing on the issue of voluntariness of Stewart’s confession or to retry him. If, for good cause shown, it becomes impossible or inappropriate to try him within that period of time, application may be made to this Court by either Stewart or the State for a reasonable extension of time.”

Pursuant to that order, the Pulaski Circuit Court conducted a hearing on November IT, 1965, to determine the issue of the voluntariness of the confession made by the appellant Stewart. The State produced four witnesses, being: Charles W. Tracy, a criminal investigator for the State; Ray D. Vick, Chief of Police of North Little Rock; Paul R. McDonald, Captain of the Arkansas State Police; and Hon. Frank Holt, formerly Prosecuting' Attorney and later Justice of the Arkansas Supreme Court. These witnesses testified as to the voluntariness of the confession. The appellant offered no testimony to the contrary. The appellant’s attorney stated near the conclusion of the hearing:

“I think, Tour Honor, we are not so much concerned with the physical violence to the defendant, as we are with the subtle means of getting him to-confess. We think such means were taken.
“THE COURT: Develop it.
“MR. ANDERSON: I think the record develops it within the Federal Rules of the Constitution.”

The Circuit Court entered its judgment, finding and holding that the confession was voluntarily made. We have carefully reviewed the testimony and we find that the Trial Court was correct in such finding and holding.

In the Trial Court from whence comes the present appeal, the appellant sought to raise other issues in addition to that of the voluntariness of the confession. And now, on this appeal, appellant argues these other issues. Assuming, without deciding that such issues could be raised, we now dispose of them in an effort to prevent further delays

(a) The appellant insists that he was proceeded against by information instead of by grand jury indictment. This point has long been settled adverse to the appellant. In Washington v. State, 213 Ark. 218, 210 S. W. 2d 307 (Cert. denied by U. S. S. Ct., 335 U. S. 884, 93 L. Ed. 423, 69 S. Ct. 232), we said:

“Appellant was tried on an information filed by the prosecuting attorney, rather than on an indictment returned by a grand jury; and appellant claims that prosecuting him by information is violative of his rights under both the State and Federal Constitutions. Amendment 21 of the State Constitution reads: “ ‘That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the prosecuting attorney.’
“This amendment has been upheld by this court against such attack as is here made, in numerous cases, some of which are: Penton v. State, 194 Ark. 503, 109 S. W. 2d 131 and Smith et al v. State, 194 Ark. 1041, 110 S. W. 2d 24. The United States Supreme Court has repeatedly held that a State can —if it so desires — provide for a prosecution by information instead of by indictment. Some of these cases are: Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232, 4 S. Ct. 111; Bolln v. Nebraska, 176 U. S. 83, 44 L. Ed. 382, 20 S. Ct. 287; and Gaines v. Washington, 277 U. S. 81, 72 L. Ed. 793, 48 S. Ct. 468.”

(b) The appellant insists that his rights were violated in several respects, and relies heavily on Escobedo v. Ill., 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758; and Miranda v. Ariz., 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (decided June 13, 1966). We find all such claims of the appellant to be without merit. In Johnson et al. v N. J., 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772, the United States Supreme Court held, on June 20, 1966, that the holding in Escobedo v. Illinois affected ‘ ‘ only those cases in which the trial began after June 22, 1964, the date of that decision.” The trial of appellant Stewart (affirmed by this Court in 237 Ark. 748, 375 S. W. 2d 804, and being Case No. 5102 herein) began on August 5, 1963, and the verdict of guihy was returned on August 7, 1963. So the holding in Escobedo v. Illinois affords no relief to the appellant. Likewise, in Johnson v. New Jersey, supra, the United States Supreme Court, on June 20, 1966, held that the holding in Miranda v. Arizona ‘ ‘ applies only to cases in Avhich the trial began after the date of our decision one week ago. The convictions assailed here were obtained and trials completed long before Escobedo and Miranda were rendered, and the rulings in those cases are therefore inapplicable to the present proceeding.”

(c) Appellant also urges other points, all of which we have examined and find to be without merit.

Affirmed.

       Un this hearing before the U. S. District Court for the Eastern District of Arkansas, there is a footnote in the opinion which seeks to summarize all the various instances in which the United States District Court reviews State court decisions. For what it may be worth, we copy the said footnote: “Under those decisions, this Court in determining the right of a habeas corpus applicant to personal liberty must keep in mind: 1. That this Court is not concerned with the guilt or innocence of the petitioner, but only with whether he has been deprived of any right guaranteed to him under the Constitution and laws of the United States; 2. That the State Court’s adjudication of a federal claim is not conclusive but carries only the weight that federal practice gives t6 the conclusions of a court of another jurisdiction on federal constitution issues;
      3. That jurisdiction of this court to adjudicate the petitioner’s federal claims is not affected by procedural defaults incurred by the petitioner during the state court proceedings except in those rare instances when he, after consultation with competent counsel, or otherwise, has understandingly and knowingly bypassed the privilege of seeking to vindicate his federal claims in the state courts;
      4. That in any case where the habeas corpus petitioner alleges facts which if proved would entitle him to relief, this Court must grant a full and plenary evidentiary hearing where:
      (a) the merits of the factual dispute were not resolved in the state court hearing;
      (b) the state factual determination is not fairly supported by the record as a whole;
      (c) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing;
      (d) there is a substantial allegation of newly discovered evidence;
      (e) the material facts were not adequately developed at the state court hearing; and
      (f) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
      5. And that since controlling weight may not be given to a prior denial of an application for habeas corpus unless the prior determination was made on the merits, the applicant must be urged to present all of his federal claims in one proceeding to prevent the possibility that this Court will be used to thwart, or at least procrastinate the orderly enforcement of the state’s criminal laws through the use of successive applications by a state prisoner.”


author: George Rose Smith, Justice.

text:
    Martin v. Martin
    5-3902
    405 S. W. 2d 934
    Opinion delivered September 12, 1966

      Virginia H. Ham and Q. Byrum Hurst, for appellant.
    No brief filed for appellee.
   George Rose Smith, Justice.

This is an appeal from the chancellor’s refusal to set aside a default judgment against the appellant, in the sum of $1,-165, for child support and an attorney’s fee. It is insisted that the default was due to such a misunderstanding between counsel as to constitute an unavoidable casualty.

Mrs. Martin obtained a divorce in 1959. On June 7, 1965, her attorney, John L. Sullivan, notified Martin by letter that he had filed a motion for judgment for the arrears then due and that the matter had been set for hearing on June 15. Martin engaged his present counsel, who filed a motion for a continuance on June 14, asserting a meritorious defense. Despite the pendency of this motion a default judgment was entered against Martin on June 22. His attorneys promptly asked that the judgment be set aside, but after a hearing the chancellor denied the relief sought.

Where an attorney’s failure to resist an application for a default judgment is attributable not to any fault <on his part but to a misunderstanding between counsel, there is such an unavoidable casualty that the judgment should be vacated, even after the expiration of the term. Kochtitsky & Johnson v. Malvern Gravel Co., 192 Ark. 523, 92 S. W. 2d 38o (1936). Here, according to the appellant’s uncontroverted abstract of the record, his attorney, Virginia Ham, firmly believed that no definite date for the hearing had been fixed. Her office was next door to the courtroom; she could have been notified in ■a matter of moments. On the other hand, Judge Sullivan thought that the matter had been reset by agreement for ■June 22, but he conceded that Mrs. Ham might have misunderstood. Neither lawyer questions the other’s good faith, nor is the conduct of either of them open to criticism. In the circumstances we think the motion to set aside the judgment should have been granted, to the end that the issues may be tried on the merits.

Reversed.