author: Lyle Brown, Justice.

text:
    Elbert GRISSOM v. STATE of Arkansas
    5821
    491 S.W. 2d 595
    Opinion delivered March 19, 1973

      Richard. L. Proctor, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gene O'Daniel, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

At approximately 3:00 a.m. on April 6, 1972, Sheriff Doug Batey of Clay County and two of his deputies went to the home of appellant. Grissom’s daughter had sworn out a warrant because Grissom had threatened to kill her. Grissom took the officers by surprise and killed all three of them. A single information was filed, charging Grissom with the three deaths. He was tried in Cross County on a change or venue, found guilty and given three life sentences. Five points are relied upon for reversal. They will be enumerated as they are discussed.

POINT I. The trial court erred in refusal to grant appellant's first motion for continuance. The case was set for trial for August 22, 1972. On August 11 there was a hearing at Jonesboro on defendant’s motion for continuance. It was argued that an amended information had been filed on August 2 and the defense had not had time to prepare for trial on the basis of that charge. The three original informations each charged appellant with separate killings; the amended information did nothing more than consolidate the three charges. Hence there was no merit in that pleading. Counsel for appellants insisted that their client had not been made available to them until August 8, since appellant was in jail in Craighead County, one of the attorneys lived in Clay County, and the other in Cross County. Counsel for appellant did not explain any prejudice that had resulted because of lack of frequent communication with their client. The next argument advanced for a delay was that appellant had not been furnished a list of witnesses. The prosecuting attorney assured the court that the list would be forthcoming immediately. Considering the wide latitude of discretion possessed by the court in such matters, and in further consideration that appellant’s counsel did not at that hearing contend any prejudice, we cannot say the court committed error.

POINT II. The court refused to order a mental examination of appellant, at county expense, by a psychiatrist engaged in private practice. (A mental examination was provided through the State Hospital at State expense.) We held contrary to appellant’s point in the case of Hale v. State, 246 Ark. 989, 440 S.W. 2d 550 (1969).

POINT III. The court erred in refusing a continuance immediately prior to trial. On the morning of the fixed trial date, appellant presented another motion for continuance. It was contended that the names of the State’s witnesses had not been timely furnished. A list of 43 witnesses was furnished defendant’s counsel on August 15; another list of six more was furnished on August 16; and three more names were furnished on August 19. In the first place the motion was rather tardy in that it was submitted in a matter of minutes prior to the hour set for trial; secondly, appellant makes no contention in his brief that the time of furnishing the lists caused him any prejudice. As we answered a similar contention in Baker v. State, 215 Ark. 851, 223 S.W. 2d 809 (1949): “[N]o prejudice was shown to have been suffered by the defendant.” Secondly, under this point appellant asked for, and was denied, a continuance because he had come into possession of certain funds with which to begin psychiatric examination. The court did not abuse its discretion in rejecting the request. The funds were said to have come into appellant’s possession four days before the trial. The case had been transferred to another county on a change of venue and a full panel of jurors had been summoned for duty; and over forty witnesses were in attendance. The court may well have concluded that under the circumstances the request had not been timely made, that is, in time to have saved the expense of jurors and witnesses. That reason might not have alone been sufficient, but there was the added fact that claimant had been given an examination by the staff of the State Hospital and there was no evidence of psychosis.

POINT IV. The court erred in allowing the widows of the victims to testify. Objection was made by counsel for appellant to a certain line of testimony by the first widow who testified, the objection was sustained and the court by appropriate admonition restricted the type of questions to be propounded. We have examined the testimony of the widows and we percieve nothing prejudicial. The questions propounded elicited the residence of the deceased officers and the circumstances under which they left their homes on the night of the slayings, very little more. Again, we are unable to say the trial court abused its discretion.

POINT V. The court should have granted a mistrial because of the lack of time to prepare for the defense of insanity. This point is substantially repetitious of an argument advanced under Point III. Further comment is unnecessary except to say that we have considered the point and find it to be without merit.

Affirmed.

Fog lemán, J., not participating.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Sam WELCH v. Flossie WELCH
    5-6207
    491 S.W. 2d 598
    Opinion delivered March 19, 1973

      Kenneth Coffelt, for appellant.

      John W. Cole, for appellee.
   John A. Fogleman, Justice.

For reversal of the decree denying a divorce to appellant upon the ground of desertion and granting appellee’s counterclaim for divorce on the ground of indignities to the person and awarding appellee a one-third interest for life in certain real estate, appellant argues that not only is the decree clearly against the preponderance of the evidence, but it is without substantial evidentiary support. He also contends that, under the evidence, he is clearly entitled to a decree of divorce on the ground of desertion.

We agree with appellant that the part of the decree granting appellee’s counterclaim is not adequately supported by the evidence, for want of corroboration. It is true that we require only slight corroboration in a case as sharply contested as this one. Anderson v. Anderson, 234 Ark. 379, 352 S.W. 2d 369. Still, an examination of both appellant’s and appellee’s abstracts of the evidence reveals that the only corroboration of appellee’s statements, that she had left appellant because his nagging made her nervous, was the testimony of her sister that she observed that appellee was very, very nervous and that the doctor to whom appellee was taken by the sister said that appellee was nervous. No one other than appellee testified that appellant was guilty of the conduct with which he was charged.

The granting of a divorce on this ground requires a showing of habitual, continuous, permanent and plain manifestation of settled hate, alienation and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Settles v. Settles, 210 Ark. 242, 195 S.W. 2d 59; Welborn v. Welborn, 189 Ark. 1063, 79 S.W. 2d 98; Preas v. Preas, 188 Ark. 854, 67 S.W. 2d 1013; Simpkins v. Simpkins, 136 Ark. 588, 207 S.W. 28. This construction of the statute goes to the very verge of safety and is to be cautiously applied. Preas v. Preas, supra; Calhoon v. Calhoon, 209 Ark. 80, 189 S.W. 2d 644; Kurtz v. Kurtz, 38 Ark. 119. Because of the extreme caution required, careful attention must be given to the corroborating evidence. See Malone v. Malone, 76 Ark. 28, 88 S.W. 840. In doing so, we keep in mind that the requirement of only slight corroboration applies with full force to this ground. Anderson v. Anderson, supra; Sowards v. Sowards, 243 Ark. 821, 422 S.W. 2d 693. When we give the testimony this kind of consideration, we are unable to say that the corroborating evidence in support of appellee’s testimony is sufficient.

It was not necessary that appellee be corroborated upon every assertion by her or every detail of her testimony, or every element or essential of her grounds for divorce. Anderson v. Anderson, supra; Powell v. Powell, 243 Ark. 463, 420 S.W. 2d 528; Sowards v. Sowards, supra; Coffey v. Coffey, 223 Ark. 607, 267 S.W. 2d 499. Still, since it is for the court to say whether the alleged offending spouse is guilty of acts and conduct indicative of settled hate and plain manifestation of alienation and estrangement and whether they have been pursued in a manner and to an extent sufficient to render the complainant’s condition so intolerable as to justify the severance of the marriage bonds, the testimony may not be mere statements of generalities constituting statements of opinions, beliefs and conclusions of the witness, but must be directed toward specific language, acts and conduct. Coffey v. Coffey, supra; Settles v. Settles, 210 Ark. 242, 195 S.W. 2d 59; Preas v. Preas, supra; Welborn v. Welborn, 189 Ark. 1063, 76 S.W. 2d 98; Bell v. Bell, 105 Ark. 194, 150 S.W. 1031. If it is not so directed, it is not sufficient. Burnside v. Burnside, 192 Ark. 1177, 90 S.W. 2d 490; Walldren v. Walldren, 187 Ark. 1077, 63 S.W. 2d 845; Arnold v. Arnold, 115 Ark. 32, 170 S.W. 486. Where, however the testimony of a sole corroborating witness discloses that he knew very little of the material issues, and his statements are based on impressions and hearsay, it will not suffice. Highsmith v. Highsmith, 219 Ark. 123, 240 S.W. 2d 5.

Corroboration, in the sense of our divorce laws, is testimony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that material testimony of that witness is true. Where a particular fact or circumstance is vital to a complainant’s case, some evidence thereof, in addition to the complainant’s testimony, is necessary to constitute corroboration. Gabler v. Gabler, 209 Ark. 459, 190 S.W. 2d 975. Certainly, it was vital to appellee’s counterclaim to show that a course of conduct pursued by appellant was the cause of her intolerable condition, i.e., her nervousness, and testimony which failed to show either the conduct or its relationship to her condition is not adequate corroboration. See Shelton v. Shelton, 102 Ark. 54, 143 S.W. 110. While indignities may mean numerous things in various circumstances, it is necessary that, in order to constitute grounds for divorce, they must be constantly and persistently pursued with both the object and effect of rendering the condition of the opposing party intolerable. Gibson v. Gibson, 234 Ark. 954, 356 S.W. 2d 728.

It has long been recognized that the problem is more difficult and dangerous where there is no actual bodily harm. Kurtz v. Kurtz, supra. We have reversed a decree of divorce on the ground involved here, where none of the witnesses corroborated a plaintiff’s testimony as to any mistreatment of him by his wife, even though one of the witnesses, a physician, testified that the husband was in bad health and that he concluded, from the husband’s “physical history,” that this condition had been adversely affected by domestic discord. Parnell v. Parnell, 211 Ark. 1028, 204 S.W. 2d 469. There is no evidence except for appellee’s testimony which even tends to show that it was more probable that appellee’s nervousness was the result of appellant’s conduct rather than other causes. Appellee testified that she had previously been a patient in the State Hospital. While she attributed this hospitalization to appellant’s conduct, neither the physician who committed her nor any member of the hospital staff was called to testify. When we consider that appellee’s only corroborating witness testified that she knew nothing of the marital relationship except what appellee told her, that her testimony relating to appellee’s nervousness is a statement of the witness’ opinion or conclusion, unsupported by any testimony connecting it with any word, act or conduct of appellant, and the fact that the nervousness could have been attributable to other causes, we cannot say that there was corroboration of appellee’s testimony.

Appellant’s contention that he is entitled to a divorce is not well founded. It is true that no one contends that appellee did not leave him in November, 1970, and remain away for more than one year. His proof also fails for want of corroboration. Appellee filed a general denial of the complaint, which put all material allegations in issue. The burden of showing that he gave her no cause for absenting herself from him lay upon appellant. Johnson v. Johnson, 107 Ark. 262, 154 S.W. 503.The ground must be estáblished by corroborating evidence. Rie v. Rie, 34 Ark. 37. Appellant testified that there was no cause. Appellee’s testimony is sharply contradictory. She stated that she left because his constant nagging made her nervous. In the absence of corroboration of either of the parties, their testimony is counterpoised. Since she was opposing his claim for divorce, conflicts between her testimony and his must be resolved in her favor. Johnson v. Johnson, supra; Rie v. Rie, supra. In order to make a prima facie case for desertion, it was necessary for appellant to show that appellee left him without cause or justification. McKay v. McKay, 172 Ark. 918, 290 S.W. 951. The most that can be said of the testimony of appellant’s sister, his onlv corroborating witness, is that she did not know of appellant’s mistreating appellee, and that she never knew of appellee’s talking about his nagging her. Appellee’s sister only said that she observed nothing unusual when visiting in the home and that she had no personal knowledge of the cause for appellee leaving appellant. In order for the corroborating evidence to be sufficient, it must tend to show that appellee left appellant without cause. There is no such corroboration here.

Although it seems that chances for a reconciliation are remote here, we cannot subvert the divorce statutes to grant a divorce to either party without establishment of a prescribed ground. It must be remembered that important property rights hinge upon a determination whether one or the other party is entitled to a divorce.

The decree is affirmed, except for those parts granting her a divorce and awarding her an interest in appellant’s real estate. The cause is remanded for such further proceedings as may be appropriate with relation to costs of suit, additional attorney’s fees and support payments.


text:
    Lillie WALPOLE v. Irene Kelly LEWIS
    5-6198
    492 S.W. 2d 410
    Opinion delivered March 19, 1973

      L. A. Hardin, for appellant.

      Curtis E. Rickard, for appellee.
   John A. Fogleman, Justice.

Lillie Walpole brings this appeal from a judgment of a probate court holding that certain attempted deletions in one paragraph of a purported will of Lovie Harris were ineffective because the result of eliminating the words stricken would increase the estate that appellant would take. She asserts two points for reversal: first, that the holographic will requires no attestation, and, second, that the “strike outs” and obliterations made by the testatrix on her will operate only as a revocation of the parts stricken and obliterated without the necessity of any attestation.

Sam Gibson was appointed administrator of the estate of Lovie Harris on the 16th day of March, 1972. Soon after his appointment, he went to the house where his decedent had lived to remove her personal property, and found some papers and documents, including an abstract, old receipts, and a handwritten will dated July 3, 1961, in a box in a closet. He passed the will along to his attorney, Fred Briner. On March 30, 1972, he presented to the probate court this will, a typed instrument of a testamentary nature dated June 3, 1967, which appeared to bear the unattested signature of Lovie Harris, and another typed instrument dated in October 1968, which was also signed “Lovie Harris” without attestation. Gibson, by petition, asked the court to determine the validity of the various wills.

Appellant filed an answer, alleging that Lovie Harris had told her that she had bequeathed the homeplace to appellant, and prayed that the will of July 3, 1961, be admitted to probate, since that will, as altered, was consistent with these statements. Irene Kelly Lewis petitioned the court to admit the same will to probate, but to disregard the obliterations as not having been made with the intent of revoking any part of the will. The heirs of Lovie Harris, insofar as known to the administrator, were all collateral heirs, but neither of the responding parties was among them. After hearing evidence, the probate court admitted the will to probate, reciting in its order that it was a holographic will, but held that the “strike outs” in paragraph one were ineffective as a revocation, as they, in effect, made a new testamentary disposition, requiring attestation, which was lacking. The court held that the “strike outs” in two paragraphs of the second page constituted a revocation of those paragraphs because they eliminated specific bequests, and there was no residuary clause. The court directed that this will be admitted to probate, insofar as the first paragraph was concerned but denied effect to the two paragraphs on page two.

The will in question is reproduced as an appendix as it appears in the record in order to aid in an understanding of our disposition of the case.

The parties and the probate court treat the will in question as if it must be regarded as holographic. While it probably qualifies as such, we consider it also to be entitled to probate as an attested will. The same will can be sustained both as holographic and attested. Mason v. Bowen, 122 Ark. 407, 183 S.W. 973, Ann. Cas. 1917D 713. We consider probate appeals de novo. Ross v. Edwards, 231 Ark. 902, 333 S.W. 2d 487. We consider the evidence sufficient to establish the will as an attested will.

An instrument signed at the end by the testatrix, in the presence of two attesting witnesses, is valid as an attested will if the attesting witnesses sign as such at the request of and in the presence of the testator. Ark. Stat. Ann. § 60-403 (Repl. 1971).

It has long been recognized that it is not necessary to have the testimony of both attesting witnesses to establish due execution of a will. Actually, a will may be established without the testimony of either of them or even against their testimony. Rogers v. Diamond, 13 Ark. 474; Evans v. Evans, 193 Ark. 585, 101 S.W. 2d 435; Leister v. Chitwood, 216 Ark. 418, 225 S.W. 2d 936. The present requirements for establishing an attested will are set out in Ark. Stat. Ann. §§ 62-2117, 2118 (Repl. 1971), which we have said must be read together and construed to permit establishment of the will by any legally admissible evidence of the requisite facts in order that the testator’s wishes may not be thwarted by straitlaced construction of statutory language. In re Altheimer’s Estate, 221 Ark. 941, 256 S.W. 2d 719. Under these statutes and the Altheimer decision, authenticity may be supplied by the testimony of any two credible witnesses who are disinterested, by whom the testator’s handwriting may be proved, and proof of such other facts and circumstances (such as the handwriting of attesting witnesses whose testimony is unavailable) as would be sufficient to prove a controverted issue in equity. It is clearly recognized that common law rules as to proof of the execution of wills are in force, unaffected by any of our statutes and that, if attesting witnesses are unavailable, it is possible to prove the genuineness of their signatures and to raise a presumption that the will was duly executed. See Committee Comment, Ark. Stat. Ann. § 62-2118. In Altheimer, we reversed the judgment of a probate court rejecting a will, on the basis of the testimony of one attesting witness, and proof of the handwriting of the testatrix and the other attesting witness.

Here we have virtually the same evidence. Margaret Bright testified that she witnessed this will at the request of Lovie Harris, who, she believed, mentioned that it was her will. She stated that the writing on the will and the signature thereto were definitely in the handwriting of Mrs. Harris and that Mr. Turley, the other attesting witness was present at the time. Mrs. Bright lived across the street from the testatrix for 26 of the 30 years of their acquaintance and saw her daily while the two were neighbors and at least twice a week after the witness moved to Little Rock from Saline County. Jim Turley, the son of Arthur F. Turley, had known Lovie Harris since he was five or six years old and was her pupil in school. He was the operator of the gasoline filling station where Mrs; Harris did business and signed tickets for her purchases until she became ill and unable to drive a car. He said that the signature at the bottom of the will was hers and identified the signature of his father. Mrs. Flossie Turley, a widow of Arthur F. Turley, also said that the signature of his name looked like his handwriting and his signature.

Neither of these three witnesses had any interest whatever in the matter at the time of their testimony. Nothing was shown which would be calculated to impair their credibility. We take the requirement of testimony of “credible disinterested witnesses” to be somewhat similar to that of the “unimpeachable evidence” of “disinterested witnesses” formerly required for proof of a holographic will by Revised Statutes, Chapter 157, Section 4, Kirby’s Digest, § 8012, Fifth Paragraph; Pope’s Digest 14512, Fifth Paragraph. We said that the latter requirement was satisfied when there was no evidence reflecting on the character or testimony of the witnesses testifying. Smith v. Boswell, 93 Ark. 66, 124 S.W. 264; Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982. We find the three witnesses in this case to be disinterested and credible.

The only element not expressly shown by this testimony is the request of the testatrix that Arthur Turley sign as an attesting witness. Although it is clear that Mrs. Bright signed in the presence of Turley, it has never been required in Arkansas that the witnesses attest simultaneously or that they sign in the presence of each other. Coleman v. Walls, 241 Ark. 842, 410 S.W. 2d 749; Rogers v. Diamond, 13 Ark. 474. In determining whether there is sufficient proof of the only lacking essential, we follow our historical practice of avoiding a strict technical construction of statutory requirements where there is no indication of fraud, deception, imposition, or undue influence. If that were not done but few wills could be sustained. Hanel v. Springle, 237 Ark. 356, 372 S.W. 2d 822; Rogers v. Diamond, supra. As a corollary, the meeting of some of the requirements for due execution may be inferred from all the attending circumstances. Hanel v. Springle, supra; Rogers v. Diamond, supra. See also, Janes v. Williams, 31 Ark. 175. The only fair inference to be drawn from the circumstances shown here is that Arthur F. Turley signed as an attesting witness at the request of Lovie Harris. As we said in Hanel, it would be a strict, if not a dangerous, construction to require proof that the testator made a specific request of each witness to sign his name as a witness before the will is held valid.

The applicable rule in testing the sufficiency of the evidence to justify drawing such an inference was stated ed in Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W. 2d 321, by quoting from Corpus Juris, and restated in Leister v. Chitwood, 216 Ark. 418, 225 S.W. 2d 936, and Edwards v. Knowles, 225 Ark. 1024, 287 S.W. 2d 449, thus:

No presumption of the due execution of a will arises from the mere production of an instrument purporting to be a last will , and testament * * *. Where, however, in proceedings for the probate of an instrument as a will it appears to have been duly executed as such, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with all the requirements of law, including those relating to publication, attestation in the presence of the testator, and the affixing of the testator’s signature prior to those of the witnesses.

Application of the rule in Anthony clearly réquires that the will before us be sustained as an attested will. Even though the will there was typewritten, the names of the testator, Donnell, and the attesting witnesses appeared in the same relative positions as they do in the Harris will. It was stipulated that the signatures of Donnell and one of the attesting witnesses, D. B. Anderson, were in the handwritings of the respective signers. As here, there was no attestation clause and only the word “Witnesses” appeared above the purported signatures of D. B. Anderson and L. M. Guthrie. There, as here, the will was found among the testator’s papers; Anderson was deceased, but his signature was proven. Guthrie made an affidavit that Donnell came to Guthrie’s office alone and asked affiant to sign a paper which Donnell said was his will, but that D. B. Anderson was not present and affiant was not present when Anderson signed. There we said that the effect of the testator’s actions amounted not only to a substantial, but a literal, compliance with statutory requirements.

Appellant contends that the will should be considered as if the portions stricken out were eliminated, while appellee asks that the attempted cancellation or obliteration be disregarded. Ark. Stat. Ann. § 60-406 (Repl. 1971) provides that a will may be revoked by the testator, in whole or in part, by being canceled or obliterated with the intent and for the purpose of revoking the same. The probate judge held that there was an unrebutted presumption that the markings on the will were made by the testatrix; that the “strike outs” in paragraph one had the effect of increasing the estate, and for that reason, the attempted revocation was ineffective, because it would have resulted in a new testamentary disposition without attestation.

Present statutory authority for will revocation is found in Ark. Stat. Ann. § 60-406. It permits revocation of all or part of a will by cancellation or obliteration by the testator. At the outset, we should say that if that which is essential to the validity of the whole will is canceled or obliterated with the intention of revoking it, the whole will is revoked. Starnes v. Andre, 243 Ark. 712, 421 S.W. 2d 616. But if the marks made here were made by the testatrix, it seems clear to us that she had no intention of revoking the whole will, and the revocation must be held partial unless the attempted revocation would render the entire will invalid. We should then direct ourselves to the question whether the defacement of the will was done by the testatrix. The probate court held that there was an unrefuted presumption that the marks were made by the testatrix with the intent to revoke. We think the proper rule in this regard is stated in 95 C.J.S. 281, Wills § 385, as follows:

Where a will is found among the effects of the testator, and when so found has been canceled, defaced, or obliterated in whole or in part, the prima facie presumption, in proceedings, for the probate of the will, is ordinarily that the cancellation, defacement, or obliteration was made by the testator or by his direction, and that it was done with the intention of revoking the will or the parts thereof canceled or obliterated.
* # *
Where only a paragraph or clause of . will has been excised, the inference is that decedent attempted an alteration intending the remaining portions should constitute the will, and it may be admitted to probate, provided proof of the excised portion can be satisfactorily established. * * *
The presumption of animus revocandi may be rebutted, either by direct evidence or by circumstances tending to a contrary conclusion. The burden is on the proponent of a will to overcome the presumption, as by showing that no revocation was intended, or that the will was unrevoked and in existence at the time of the testator’s death, or that if such spoliation had occured before death, the testator lacked knowledge thereof, or that if he mutilated the will himself, he lacked testamentary capacity at the time he did so. The proponent is not required, however, to prove whose rjiame was obliterated or what words were obliterated.
Where a testator obliterates, deletes, or cancels a will, having a present intent to make a new will, as a substitute for the old, and the new will is not made, it is presumed that the testator preferred the old will to intestacy and effect will be given the old will.

This rule has been recognized in Arkansas if the acts of mutilation or obliteration are sufficient to constitute a revocation. Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873. We cannot say that the indulging of this presumption (or perhaps more properly a strong factual inference) was improper.

Partial revocation by cancellation by running lines through certain words in a will has been upheld in Arkansas under a statute much like Ark. Stat. Ann. § 60-406, which prohibited revocation except by certain methods. Cook v. Jeffett, supra; Jeffett v. Cook, 175 Ark. 369, 299 S.W. 389. The change in language of the statute is not significant insofar as application in this respect is concerned.

In Cook v. Jeffett, we quoted, with approval, the following statement appearing at 28 R.C.L. 185:

Nevertheless the courts, in deciding whether a will must be reattested after the making of the erasures, draw a distinction between an erasure which merely indicates an intention to expunge a clause or portion of the will and one which gives a new meaning to the words not erased. In the latter, but not in the former, case a reattestation is required. The general rule therefore is that when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt will be abortive if made without the attestation required by law, and the will as originally drawn will be given effect.

We also held in the two Jeffett cases that where the whole or part of a will clause is crossed out (by lining out) there may be a revocation, even though the words crossed out remain legible. Furthermore, we said that when cancellation or obliteration of a clause or part of a clause does not affect the remainder of the will such cancellation or obliteration is effective as to such parts.

We are not particularly concerned with the obliterations in the paragraphs which related to an automobile and clothing, except as they may relate to determination of the intent of the testatrix as to the entire will, or as to the first paragraph. The beneficiaries of these bequests have not appealed. However, the action of the testatrix here is so nearly like that of Mrs. Jeffett in the JeffettCook litigation that we must reach the same conclusion reached by the court there, i.e., that the manner of obliteration here is plainly indicative that a complete revocation such as was the case in Starnes v. Andre, 243 Ark. 712, 412 S.W. 2d 616, was not intended.

This brings us to a consideration of the effect of the attempted obliteration in the paragraph relating to the bequest of the real property. If this will is considered as an attested will, there can be no doubt that, under the rule approved in thé Jeffett cases, the obliteration would not be effective without reattestation, because it gives a new meaning to the words not erased. That is, instead of appellant and her husband (now deceased) being devisees contingent upon the failure of appellee to survive the testatrix, they would become the outright beneficiaries of this bequest.

We are inclined to the position that the will should be considered for the purpose of this appeal as an attested will, even though its body is in the handwriting of the testatrix, and the will is properly signed by her. She seems to have been well informed as to the Arkansas requirements for attestation. If she had not intended that the will be so considered, she would not have gone to this trouble. While it is apparent from the drafts of typewritten instruments in the record which the testatrix apparently signed but did not cause to be attested, that she intended to make a change in the will which was admitted by the probate court, she never made these wills effective.

On this state of the record, we affirm the judgment of the probate court.

Jones & Byrd, JJ., concur.

Appendix to opinion in Walpole v. Lewis, 5-6198

Conley Byrd, Justice, concurring. To me the result should be the same whether the document be considered as a holographic or an attested will. Ark. Stat. Ann. § 60-406 (Repl. 1971), with reference to revocation of a will provides:

“Except as provided in Section 23 [§ 60-407], a will, or any part thereof, can be revoked only
a. By subsequent will; or
b. By being burnt, tom, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence and by his direction. If such act is done by any person other than the testator, the direction of the testator and the facts of such injury or destruction must be proved by two [2] witnesses who are not benefited by the revocation of the will. [Acts 1949, No. 140, § 22, p. 304.]

In Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925), with reference to partial obliteration we pointed out that when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt will be abortive if made without the requirements of the law for the making of a will and the will ás originally drawn will be given effect.

While the obliteration here made was presumably made by the testatrix still the mere drawing of the lines does not qualify the obliteration as a holographic will. Ark. Stat. Ann. § 60-404 (Repl. 1971), provides:

“Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three (3) credible disinterested witnesses to the handwriting and signature of the testator. . . .”

The lines drawn through the instrument involved have not been proved to be in the proper handwriting of the testator. Consequendy, I would affirm even if the instrument should be considered a holographic will.

Jones, J., joins in this concurrence.

      Margaret Bright might have been a contingent devisee, but could not benefit whether the revocation was effective or not, because Irene Kelly Lewis survived the testatrix.


author: J. Fred Jones, Justice.

text:
    Arkansas Department of Correction ex rel Terrell Don HUTTO, Commissioner of Correction v. Andy DOYLE
    5-6205
    491 S.W. 2d 602
    Opinion delivered March 19, 1973

      Ray Thornton, Atty. Gen., by: Robert H. Crank, Asst. Atty. Gen., for appellant.

      Harkey ir Walmsley, for appellee.
   J. Fred Jones, Justice.

This is an appeal by the Arkansas Department of Correction, hereinafter called the state, from a circuit court judgment on a jury verdict in favor of Andy Doyle on his counterclaim for set-off against farm rent he owed the state in the amount of $29,291.90 and judgment over against the state in favor of Doyle for $684.56.

The facts as near as we can determine from the record before us, appear as follows: On November 6, 1969, the state entered into a lease agreement with Mr. Doyle whereby Doyle, as highest bidder, leased for the crop years 1970 and 1971 a part of Tucker State Prison Farm in Jefferson County, Arkansas, described as two tracts in the lease as follows:

“Consisting of 1,500 acres, more or less, known as the One Camp area with an assigned allotment of 300 acres rice and 200 acres cotton, and 1,800 acres, more or less, known as the Two Camp area with an assigned allotment of 300 acres rice and 200 acres cotton.”

Under the terms of the lease Mr. Doyle agreed to pay an annual rental of $103,651.50 to be paid in installments as set out in the lease. He paid the agreed rent for 1970 and paid two of the installments in the total amount of $74,359.60 for 1971. In that year a controversy arose between the parties and Mr. Doyle withheld, and refused to pay, the balance of the agreed rent for 1971 in the amount of $29,291.90.

The state filed suit against Mr. Doyle for the balance of the 1971 rent due under the contract and also alleged in its complaint that in February, 1970, the United States Department of Agriculture reduced the rice allotment by 15% on the entire state farm and thereby reduced the rice allotment on -the lands leased to Mr. Doyle from a total of 600 acres tp a total of 510 acres. The state then alleged that Mr. Doyle planted 575.8 acres of rice on the leased land in 1970 and 594.2 acres in 1971, and that because Mr. Doyle overplanted his rice allotment for these two years, the state was forced to plow up 65.8 acres of rice it had planted on its own acreage in 1970 and 84.2 acres in 1971, in order to avoid a marketing quota penalty for overplanting its overall allotment on the entire farm. The state alleged that the defendant’s refusal to plow up his overplanted allotment damaged the state in the amount of $9,791 in 1970 and $18,591 in 1971. The state also alleged in its complaint other elements of damage for waste committed by Mr. Doyle on the leased lands and prayed judgment against Doyle for all three items.

Mr. Doyle filed an answer arid counterclaim. His am swer was of general denial and his affirmative counterclaim, as amended, is as follows:

“He states that he is entitled to a set-off against the payment required under the lease in the amount of $29,021.25 because of a forced reduction in his rice planting, and because the plaintiff improperly computed the cotton allotment payments to him.
That he is entitled to a set-off in addition to the reasons stated in the original answer for the reason that the Plaintiff improperly took approximately ten (10) acres of property covered by the Defendant’s lease and used same in the construction of a landing strip for aircraft.”

At the trial of the case the state introduced the lease agreement and the parties stipulated that $74,359.60 had been paid on the 1971 rent and that $29,291.90 was withheld from payment by Mr. Doyle, whereupon the state rested its case. At this point the trial court granted Mr. Doyle’s motion for a directed verdict as to the alleged damages for waste committed on the property, and Mr. Doyle went forward with the proof in support of his counterclaim. The verdict of the jury is not in the record except as contained in the “judgment on the verdict” which appears as follows:

“. . . said jury retired to consider its verdict; and after deliberating thereon, returned into court the following verdict:
‘We, the jury, on instructions of the court, find for the Plaintiff on its complaint in the sum of Twenty-Nine Thousand Two Hundred Ninety-One Dollars and Ninety Cents ($29,291.90).
We, the jury, find for the Defendant on his counterclaim in the amount of Twenty-Nine Thousand Nine Hundred Seventy-Six Dollars and Forty-Six Cents ($29,976.46).’
IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that Andy Doyle do have and recover of and from the State of Arkansas in accordance with the verdict of the jury, Six Hundred Eighty-Four Dollars and Fifty-Six Cents ($684.-56) and interest thereon from this date until paid at the rate of six per centum per annum; together with all his costs herein paid, laid out and expended; for all of which execution may issue.”

The state first contends that the trial court erred in entering judgment over against the state of Arkansas on the counterclaim and we agree. Article 5, § 20, of the state Constitution. In State v. Ark. Brick & Mfg. Co., 98 Ark. 125, 135 S.W. 843, and State ex rel Attorney General v. Lovett-Carnahan Co., 179 Ark. 43, 14 S.W. 2d 233, we held that in a suit by the state against an individual, only the amount the state owes the individual may be set-off by counterclaim against the amount an individual owes the state, where both claims arise out of the same transaction.

The state next contends that there was not sufficient competent evidence to support the verdict of the jury on the counterclaim and with this contention we also agree. Since we are unable to find supporting evidence for the jury verdict, we review the evidence in some detail.

Mr. Doyle’s counterclaim was based on three elements of alleged damage. 1. Forced reduction in rice planting. 2. Improper computation of cotton allotment payments and, 3. the taking of 10 acres of his leased land for an airstrip. The burden was, of course, on Mr. Doyle to prove these elements of damage and the amount thereof. For evidence on the first two of these elements, Mr. Doyle relied heavily on the answers to interrogatories he had propounded to the state on pretrial discovery. The pertinent interrogatories and answers thereto appear as follows:

“INTERROGATORY NO. 11: State the total cotton allotment for all of the lands owned by the plaintiff for the years 1970 and 1971 and the payment rate for cotton per acre for such years.
ANSWER: A. The 1970 allotment for the Arkansas Department of Correction was 2073.0 acres. The domestic allotment was 65% of 2073.0 acres which was 1347.4 and this acreage was the payment total or what the United States Department of Agriculture would pay a subsidy payment on. The support payment was based on 16.80 cents per pound which was 705 # projected yield per acre. The payment rate per acre was $118.44 for calendar year 1970.
B. The 1971 cotton base allotment for the Arkansas Department of Correction was 1398.4 acres which also was what the United States Department of Agriculture payment was based upon and actually any amount of cotton acreage could be planted on any farm, at least 90% of the base acreage had to be planted. The payment rate was $99.00 per acre which was figured by a 660 # projected yield payment times 15 cents per pound support payment.
INTERROGATORY NO. 12: State the amount paid to the defendant for such years.
ANSWER: A. The amount of support payment or subsidy assigned to Andy Doyle by the United States Department of Agriculture in 1970 was as follows:
1. 1970 Cotton support (Andy Doyle) $ 32,747.06
2. 1970 Cotton support (Dept, of Corr.) 126,839.00
Total Cotton support payment... $159,586.06
B. The amount of support payment on subsidy assigned to stockholders on Twin Rivers Farms by the United States Department of Agriculture in 1971 was as follow;
1. 1971 Cotton support (Twin Rivers
. Farms) $ 30,595.59
2. 1971 Cotton support (Dept, of Corr.) 107,846.01
1971 Total Cotton support payment.. .$138,441.60
INTERROGATORY NO. 14: State the rice allotment in acreage for all of the lands of the plaintiff for the years 1970 and 1971.
ANSWER: A. The Department of Correction 1970 Rice allotment was 2197.6 acres on January 8, 1970 which was a reduction of 14.08% from calendar year 1969.
B. The Department of Correction 1971 Rice allotment was 2197.6 acres on January 1, 1971 which was the same as the previous year 1970.”

We now examine the evidence that went to the jury as to the rice, cotton and airstrip in that order. It was stipulated that when the Department of Agriculture reduced the state’s 2,200 acre rice allotment by 15%, the state so advised Mr. Doyle and the state advised that it wanted him to reduce his 600 acre rice allotment by 15% but Mr. Doyle objected. It was further stipulated that when the state made this request of Mr. Doyle, it did not offer to reduce the rent which he had agreed to pay.

The lease agreement was read to the jury and a copy of it was left with them. Mr. Doyle’s attorney obtained permission of the. court to read to the jury certain of the interrogatories and answers propounded by him to the state. As to the rice acreage reduction, he read to the jury the interrogatories and answers as follows:

“Question: State the rice allotment in acreage for all of the penitentiary lands for the years 1970 and 1971.
Answer: The Department of Correction 1970 rice allotment was 2197.6 acres, which was a deduction of 14.08 percent from the calendar year 1969.
The Department of Correction 1971 rice allotment was 2197.6 acres on January 1, 1971.”

Mr. Eugene Johnson was then called as an expert witness for Mr. Doyle. He testified that he is employed by the Jackson County Agricultural Stabilization Conservation Service as a program specialist and compliance supervisor and went with Mr. Doyle to look at the state land involved in this case when Mr. Doyle was thinking about bidding on it. He testified that he was familiar with the income from rice lands in the area of Jackson County and that from the standpoint of yield and profit he would consider the rice lands leased by Mr. Doyle in Jefferson County about the same as that in Jackson County. He then testified that rice land should normally yield in the neighborhood of 90 to 100 bushels per acre; that the average price per government report for the past few years had been $2 to $2.30 per bushel, but that the buyers actually paid during the past two years between $2.35 and $2.50 per bushel. This witness then was asked to multiply the average yield of rice per acre by $2.50 and testified that the normal income from rice land would be $225 per acre. This concluded the proof on the alleged loss sustained by Mr. Doyle as to the reduction in his rice allotment.

Mr. Doyle did not testify in this case and there is not one syllable of evidence in the entire record as to the number of acres he actually planted in rice, the number of bushels per acre the land actually produced, or the market price he received for the rice he did plant. If Mr. Doyle did plant 575.8 acres of rice in 1970, as alleged by the state, drat was only 24.2 acres short of his full lease allotment and there is no evidence at all in the record as to why he failed to plant the full 600 acres. If Mr. Doyle did plant 594.2 acres of rice in 1971, that was only 4.8 acres short of his full 600 acre lease allotment and likewise there is no evidence at all as to why he did not plant the other 4.8 acres. The evidence on this item consisted only of expert testimony as to the productive capacity of the land and the general market price of the rice rather than the number of acres planted and the reasons for not planting the full lease acreage allotment if such was the case.

Turning now to the cotton subsidy payments, the 400 acre allotment was not actually questioned or involved in this case and subsidy, as such, was not mentioned in the lease. All the evidence on this item was derived from answers to the interrogatories propounded to the state by Mr. Doyle and the testimony of Mr. Johnson. It appears that the United States Department of Agriculture made subsidy payments on cotton allotment acreage in the amount of $118.44 per acre in 1970 and $99 per acre in 1971. We are concerned here with cash subsidy paid by the government and not with cotton acreage planted or not planted. According to the answers to interrogatories Nos. 11 and 12, supra, this subsidy was not paid on the total cotton allotment but was paid on what was termed “domestic” cotton acreage allotment which was only 65% of the total cotton allotment acreage and on the entire state farm amounted to 1,347.4 acres in 1970 and 1,398.4 acres in 1971. Answer A to interrogatory No. 12 says that the amount of support or subsidy assigned to Andy Doyle by the United States Department of Agriculture in 1970 was $32,747.06 and for 1971 it was $30,595.59. There is no evidence in the record whether Mr. Doyle did or did not plant, harvest and sell the full 400 acres of cotton allotted to him under his lease.

As already stated, Mr. Doyle’s attorney requested and received leave of the court to read some of the interrogatories to the jury. As to the subsidy payments, instead of reading to the jury the questions and answers as they were asked and answered (supra), the record is simply as follows:

“BY MR. HARKEY: Ladies and Gentlemen, I prepared and filed what we lawyers call interrogatories, which is just a law word meaning questions, tor them to answer. I asked them certain questions and they gave certain answers.
One Question: State the total cotton allotment for all of the lands owned by the plaintiff, that is the Arkansas Board of Correction, for the years 1970 and 1971 and the payment rate for cotton per acre for such years.
BY MR. GINGER: We object to this; if he has got some proof on this that is fine but this is a discovery pleading.
BY MR. HARKEY: I have never known of interrogatories to be discovery, Judge, this is filed in the case and the answers were under oath; as I understand the law that is evidence.
BY THE COURT: Overruled. Go ahead.
Answer: The 1970 allotment, and as I was saying these answers were given to my questions to these people under oath, for the Arkansas Department of Correction was 2073.0 acres. The projected payment was based on 16.80 cents per pound which was 705 pounds projected yeild per acre. The payment rate per acre was $118.44 for calendar year 1970. Now, in another answer to interrogatories:
On the 1971 cotton base allotment for the Arkansas Department of Correction, and this was 1398.4 acres. The payment rate, and I quote their answer, was $99.00 per acre for the year 1971.
I asked them another question: State the amount paid to Andy Doyle for these two years, 1970 and 1971.
Answer: The cotton support payment to Andy Doyle for the year 1970 according to their answer under oath was $32,747.06. The same payment for the 1971 cotton support was $30,595.59, the same amount Mr. McLarty has written up here.”

Mr. Eugene Johnson also testified as to the cotton subsidy. He testified that the federal government does not care what part of a farm a cotton allotment is planted on as long as it’s under one farm contract. He said that under a landlord and tenant relationship such as that between the state and Mr. Doyle, the federal government did not care how the money for cotton allotment is divided so long as it’s fair and equitable. He also said the federal government did not care how fnany acres of cotton allotment Mr. Doyle got under his lease as long as the total planting was not exceeded. As to the remainder of his testimony pertaining to the cotton allotment, the record is as follows:

“Q. . . . Now you mentioned to the jury earlier, Gene, that you had read these answers that die Board of Corrections gave under oath to these questions I asked; you have read those, have you not?
A. Yes, sir.
Q. I want you to assume for me that Andy Doyle entered a suitable bid and got a lease to 400 acres of cotton; will you assume that, first?
A. Yes, sir.
Q. I want you to assume for me that in these interrogatories which have been read to the jury and are in evidence that for 1970 the support payment would be $118.44 per acre; will you assume that for me?
A. Yes, sir.
Q. Now have you checked these figures at my request on this sheet before you got on the witness stand?
A. $118.00 times 400 acres.
Q. Is this the correct figure?
A. Yes, sir.
Q. I want you to assume that in 1971 the payment was $99.00 per acre; have you checked to see that this figure is correct?
A. Yes, sir.
Q. And have you checked on the board the other figures to see that my arithmetic is correct?
A. No, sir.
Q. You have checked, however, the 1970 and 1971 cotton payments?
A. Yes, sir.
Q. Gene, have you checked the other figuring on the cotton payments for me, forgetting the 10 acres or 15 acres of rice at 24.2, that is the amount Andy should have received assuming the penitentiary took the bids and said, ‘You are going to have 400 acres of cotton?’
A. Yes, sir.
Q. Is the difference in the amount paid and the amount he should have received this figure?
A. Yes, sir.
Q. And you have checked that?
A. Yes, sir.
Q. Is the difference in the amount paid and the amount he should have received this figure?
BY MR. BRIDGEFORTH: Your Honor, I object to this is the amount he should have received; that is the whole lawsuit; that assumes a lot more opinion than the man has expressed here so far.
BY THE COURT: Sustained.
Q. Well, Mr. Johnson, just assume that these people told Andy he would pay them $103,000.00 a year and give him 400 acres of cotton and then they were going to take it back; 400 acres times this is this amount, right?
A. Yes, sir.
Q. And have you subtracted the amount paid from this amount computed?
A. Yes, sir.
Q. And is it this figure?
A. Yes, sir.
Q. Have you done the same thing on the 1971 cotton?
A. Yes, sir.
Q. And is it this figure?
A. Yes, sir.”

The manner in which the interrogatories and answers were presented to the jury, together with the testimony of Mr. Johnson based on erroneous assumptions, could only have left the impression with the jury that the subsidy was paid to the state on the total cotton allotment for the entire farm in the amounts of $118.44 for 1970 and $99 for 1971, and the state only remitted to Mr. Doyle $32,747.06 for his 400 acre allotment in 1970 and only $30,595.51 in 1971. Such may have been the actual situation but such was not the proof by competent evidence. The answers as actually made to the interrogatories would indicate that the United States Department of Agriculture figured the subsidy payments due Mr. Doyle on his 400 acre cotton allotment exactly as it figured the subsidy due the state, and paid him on the basis of his “domestic” allotment which was 65% of his actual allotment. As already stated, there is no evidence that Mr. Doyle did not plant and harvest 400 acres of cotton, and there is no evidence that the state had anything to do with his subsidy payments.

The state offered as rebuttal, the testimony of Mr. W. B. Abbott, the executive director of the ASCS office at Pine Bluff in Jefferson County. He was asked to state to the jury what the total penal farm cotton allotment was for 1970. Objections to this question were sustained because that question had already been answered in the answers to the interrogatories propounded to the state by Mr. Doyle. He was then asked, “Now could you tell us the distinction between a cotton allotment and the domestic cotton allotment?” Objections were also sustained to this question on the ground that the question had already been answered and it was not rebuttal testimony. We are unable to find the answer to this pertinent question in the record and, we think the trial court erred in sustaining the objection to this question.

As to the damage alleged by Mr. Doyle on the ground that some of his land was taken for an airstrip, Mr. Bill Steed, the prison farm coordinator for 1970 and part of 1971, testified by deposition that the airstrip was under construction and had not been completed at the time Mr. Doyle took over; that the airstrip was a “grass strip” consisting of not over ten acres, located “north of the shop between the main gate and the shop.” The record is silent as to the date Mr. Doyle took over in relation to the date of the contract.

Mr. Johnson also testified pertaining to the airstrip. A part of his testimony on this point appears in the record as follows:

“Q. Now I want you to assume for me a couple of things before we get into the larger figures, I want you to assume for me that the penitentiary took bids from people all over the State and Andy got the high bid for $103,631.50 on 3300 acres of land, assume that first; second, I want you to assume that the penitentiary decided they needed an airstrip and instead of putting the airstrip on their own land they just decided to put it on Andy’s and that their testimony from their own witnesses that they took somewhere around 10 acres of his ground, would you assume those things for me to be true to be evidence before this jury?
A. Yes, sir.
* * #
Q. I would like for you to tell this jury if $50.00 an acre loss per acre to that bean land down there would be a fair figure?
A. Yes, sir.”

Mr. Doyle, who certainly should have known more about this case than any witness who testified, did not testify at all. As to the loss of land in the airstrip on the “One Camp” area, the lease covered 1,500 acres more or less. There is no competent evidence in the record that the airstrip was built on “bean land,” or that it was built after Mr. Doyle leased the land, or that Mr. Doyle did not still have 1,500 acres more or less after the airstrip was constructed, or that Mr. Doyle would have planted beans or anything else on the airstrip land had it not been used for an airstrip.

We conclude that the judgment in favor of Mr. Doyle on his counterclaim must be reversed and this cause should be remanded for a new trial on his alleged elements of damage as a set-off against the judgment in favor of the state.

Reversed and remanded.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Floyd ISAACK v. Cain DAVIS and Carrie Mae DAVIS, his wife
    5-6206
    491 S.W. 2d 784
    Opinion delivered March 19, 1973
    [Rehearing denied April 16, 1973.]

      Smith, Stroud, McClerkin ir Conway, for appellant.

      Tackett, Moore, Dowd ir Harrelson, for appellees.
   Conley Byrd, Justice.

This appeal involves the validity of a foreclosure proceeding by The Miller County Improvement and Drainage District. The land involved is 22.5 acres lying north of Dooley Ferry Road in the E'A SEM of Sec. 1, T 15 S, R 27 W. Appellees Cain and Carrie Mae Davis have been the record owners since 1948, and the land has always been assessed and the ad valorem taxes paid in their names. The improvement district was formed in 1956. Appellant Floyd Isaack had bought the land at Sheriff’s sales for delinquent ad valorem taxes but the appellees, nonresidents, always redeemed them. When the Improvement District’s assessment books were prepared, the supposed owner of the 22.5 acre tract was shown to be “Smith.” Admittedly, nobody by the name of Smith has ever owned the lands involved. The constructive notice by newspaper publication in the foreclosure suit was as follows:

DESCRIPTION OF TAXES AND NAME LAND PENALTY COSTS
Miller, County, Ark. 1963 1964 1965 $
Tax Tax Tax
Smith Wá m SEH Pen. Pen. Pen.
North of Road, Sec.
1, T 15 S, R 27 W 3.50 .88 3.50 .88 .20

On December 22, 1966, pursuant to a foreclosure decree upon the above constructive service of process, the lands were sold to appellant for Ten Dollars. After the time for redemption ran out, a deed was issued to appellant.

At the trial it appeared that appellant had paid the improvement district assessments for 1962,. .and probably 1963. Appellees testified that they did not know that their lands were in the improvement district.

For reversal of the trial court’s decree holding the constructive service invalid, appellant relies upon Ark. Stat. Ann. § 21-546, § 21-547 (Repl. 1968), and our holding in Leonard v. Thompson, 228 Ark. 136, 306 S.W. 2d 869 (1957).

Section 21-546 provides for a foreclosure of delinquent improvement district assessments in chancery court and provides that: “Said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of the said lands be incorrectly alleged in said proceedings, and such judgment shall be enforced wholly against such lands. ...” However a subsequent provision specifically provides that the newspaper publication shall contain a list of supposed owners together with a descriptive list of the delinquent lands.

Section 21-547 provides that neither attorneys’ ad litem nor guardian ad litems shall be required and “. . . provided, that no informality or irregularity in holding any of the meetings provided for herein, or valuation, or assessment of the lands, or in the name of the owners, or the number of acres therein, shall be a valid defense to such action. . . ”

Arkansas Statutes § 20-1124 (Repl. 1968), requires the collector to make out a list of delinquent improvement district assessments on or before October 15th of each year, "... which list shall include the name of the supposed owner as the same appears on the tax books, a description of the property and the amount of the tax due thereon. . . .” Ark. Stat. Ann. § 20-1128 (Repl. 1968), provides that a certified copy of such list shall be filed with the complaint when the improvement district files its action to foreclose the delinquent assessments.

Based upon the foregoing statutes in Leonard v. Thompson, supra, we upheld the validity of an improvement district sale in the name of the supposed owner as shown by the ad valorem tax books because Thompson had failed to record his deed and assess his taxes as required by Ark. Stat. Ann. § 84-414. Had he so assessed his lands, he would have been shown on the assessment books as the supposed owner. We followed the same rule in Sadler v. Hill, 243 Ark. 247, 419 S.W. 2d 298 (1967).

The appellees on the other hand seek to uphold the trial court’s decree on the authority of Simpson v. Reinman, 146 Ark. 417, 227 S.W. 15 (1920). In that case we held, under the statute there involved, that a constructive notice in the name of the supposed owner was insufficient when the actual owner was in possession and could easily have been identified. We need not go so far in this instance. As we understand the theory of constructive service by publication, its aim is to give the true owner possession of such facts as will lead to actual notice. To better effectuate that purpose Ark. Stat. Ann. § 21-546 (Repl. 1968), properly requires that such notice list the “supposed owner’’ of the lands. When the true owner properly complies with the tax laws (Ark. Stat. Ann. § 84-414) his name is placed on the ad valorem tax books as the “supposed owner” and in preparing the delinquent assessments the collector has the information to prepare the delinquent list that is to be attached to the foreclosure complaint.

Other courts in considering the validity of constructive service where the name of the “supposed owner” is involved have upheld the validity thereof where the name of the “supposed owner” when coupled with the description of the real estate is not misleading. See Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58 L. ed. 1363 (1914). In doing so however, it points out that the general rule in cases of constructive service of process by publication tends to strictness in interpretation of the statutes to assure notice.

When we consider that no person by the name of Smith ever owned the lands of appellees; that appellees only owned a part of EVi of SEM; and that they had a neighboring owner by the name of Smith, we cannot say that the publication in question was not misleading. Consequently, we agree with the trial court that the foreclosure decree was void for lack of notice. To interpret Ark. Stat. Ann. 8 21-546 (Repl. 1968) as making the name of the supposed owner wholly immaterial, when the same section requires the name of the supposed owner to be shown, could raise serious questions as to constitutional due process. It’s an axiom of statutory construction that in the construction of laws that construction will be adopted which makes the law valid. Furthermore, it takes but little effort to determine the supposed owner of the property as shown by the ad valorem tax records.

Affirmed.

George Rose Smith, Fogleman, and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. This case is another demonstration of the adage that hard cases make shipwreck of the symmetry of the law. Perhaps I would not be concerned about the result in this case, if I did not feel that it has virtually returned us to the court’s position in Simpson v. Reinman, 146 Ark. 417, 227 S.W. 15, and ignored the later severe limitations on the effect of that case, which have stopped just short of an outright overruling. I am aware that the majority professes not to go so far as Simpson v. Reinman. My reading and rereading of the majority opinion and the opinion in that case have not enabled me to find where the majority stopped short of the earlier holding.

It should be noted that in Simpson v. Reinman, the true owner was in actual possession of the land. Here, the chancellor found that the land was unoccupied, and the evidence to support that finding is really uncontradicted. In the opinion on motion for rehearing, the principal basis for the majority’s distinguishing Ballard v. Hunter, 74 Ark. 174, 85 S.W. 252, aff’d 204 U.S. 241, 27 S. Ct. 261, 51 L. Ed. 461 (1905), Pattison v. Smith, 94 Ark. 588, 127 S. W. 983, and Crittenden Lumber Company v. McDougal, 101 Ark. 390, 142 S.W. 836, was the fact that the lands involved in all those cases were unoccupied. The very distinction there made would avoid the application of Simpson v. Reinman and prevent the result reached here.

We declined to overrule Simpson v. Reinman or to express any opinion as to the correctness of that decision in Taylor v. Heinemann, 199 Ark. 1101, 137 S.W. 2d 742, but pointed out that it was decided by a divided court and took great pains to distinguish the earlier case. At the same tíme we said that we would not extend that holding, as we would have to do to affirm the decree there in question. We again refused to extend the effect of Simpson v. Reinman in Pinkert v. Lamb, 215 Ark. 879, 224 S.W. 2d 15, and again went to great lengths to distinguish the cases. In Pinkert, the actual owner of the property involved was Ella Srith, widow of James H. Stith. The notice published showed the supposed owner as James H. Smith and wife Ella. We relied, in part, upon our decision in Ballard v. Hunter, supra, and its affirmance by the United States Supreme Court in Ballard v. Hunter, supra, where that court was unable to find any want of due process in the provision that the proceedings and judgment should be in the nature of proceedings in rem and that it should be immaterial that the ownership of the lands might be incorrectly alleged therein. We said that an extension of Simpson v. Reinman to the facts of the case would render the statutory provision relating to the effect of an incorrect statement of the name of the supposed owner absolutely meaningless.

In Leonard v. Thompson, 228 Ark. 136, 306 S.W. 2d 869, the court pointed out that the bench and bar had been put on notice that Simpson v. Reinman would not be extended. It is clear that in both Taylor and Leonard this court has had reservations about the correctness of the holding in Simpson v. Reinman. In Leonard, we avoided a direct overruling of Simpson v. Reinman by pointing out two specific, subsequent statutory changes. The first came within 60 days. It required the collector to list the name of the supposed owner as the same appeared on the tax books in making his delinquent list. See Act 534 of 1921 [Ark. Stat. Ann. § 20-1124, et seq. (Repl. 1968)]. Section 7 of Act 172 of 1929 [see Ark. Stat. Ann. § 84-414 (Supp. 1971)] required that every owner of real property deliver to the assessor a list of his real property. There we said that Thompson claimed to be the owner of the lands since 1947 and could not void the improvement district foreclosure sale on the ground that he was not named in the published notice as owner of the land, because his own failure to comply with Act 172 of 1929 brought about the situation of which he complained. Again we pointed out the significance of the fact that there was actual possession of the land by the true owner in Simpson v. Reinman.

As late as Sadler v. Hill, 243 Ark. 247, 419 S.W. 2d 298, we recognized the limitation of the effect of Simpson v. Reinman by the 1921 act and rejected the nebulous constitutional argument which appears in the majority opinion as a wraith-like shadow.

In this case appellees have been the owners of the property since May 11, 1948. This was the only property they had in Arkansas. They gave the taxing authorities no address. All their acts of ownership disclosed by the testimony postdate the delinquent tax sale.

I find nothing in Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58 L. Ed. 1363 (1914) which is applicable here. I do not understand it to relate to a “supposed owner” statute or to a proceeding in the nature of a proceeding in rem in which the pertinent statute expressly states that an error in the name of the supposed owner is immaterial. It seems to me that Ballard was such a case and would govern here.

I respectfully submit that the majority has not stopped short of the holding in Simpson v. Reinman, but has actually extended it to apply to unoccupied lands, in spite of that case’s own limitation, after 33 years during which the court has put the bench and bar on notice that this dubious authority would not be extended. I would reverse the decree.

I am authorized to state that Justice George Rose Smith and Mr. Justice Jones join in this dissent.

      On motion for rehearing this was a 3-2 decision.


author: Frank Holt, Justice.

text:
    Linda Joyce WASHINGTON v. STATE of Arkansas
    5814
    491 S.W. 2d 594
    Opinion delivered March 19, 1973

      Omar F. Greene, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was fined $50 and sentenced to 30 days imprisonment on a charge of shoplifting (second offense). She contends that the trial court, sitting as a jury, should have directed a verdict of acquittal because the state failed to produce in evidence the coat which “was allegedly involved in the shoplifting.” It appears that the property was released to the local merchant.

The state adduced evidence that a saleslady in a local department store observed the appellant wearing a coat which was missing from a sales rack. The appellant was asked if she had decided to buy it. When the sales person’s attention was diverted, apparently by two confederates, the appellant left the store and was apprehended wearing the coat. Appellant testified that the coat was given to her several months previously by her husband and that it was stained or soiled from use. Therefore, appellant asserts the state was required to produce the coat inasmuch as it would be the best evidence as to whether it was a new or used coat. Further, without the coat she could not offer witnesses to identify the coat as being her own.

It is well established that in a criminal case it is permissible for a witness to testify concerning tangible objects which are involved without producing the articles. Maynard v. State, 252 Ark. 657, 480 S.W. 2d 353 (1972), Swearingin v. State, 251 Ark. 700, 474 S.W. 2d 111 (1971), Scott v. State, 251 Ark. 918, 475 S.W. 2d 699 (1972), Washington v. State, 248 Ark. 318, 451 S.W. 2d 449 (1970), and Meyer v. State, 218 Ark. 440, 236 S.W. 2d 996 (1951). In the latter case we observed:

“ ‘The best evidence rule deals with writings alone, not with objects, and the fact that exhibition of such objects to the jury would more clearly and forcefully explain their nature, appearance or condition, is not a valid objection to oral evidence concerning such matters.’ ”

The trial court correctly refused a directed verdict.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Mazelle BITTLE and I. G. BITTLE v. Allen SMITH
    6216
    491 S.W. 2d 815
    Opinion delivered March 26, 1973

      Williams ir Gardner and Lynn Wilson, for appellants.

      Ike Allen Laws, for appellee.
   Carleton Harris, Chief Justice.

Mazelle Bittle, one of the appellants herein, was injured on November 24, 1967, while a passenger in an automobile being driven by her son, this car colliding with the car owned by appellee, Allen Smith. Mrs. Bittle, together with her husband, appellant I. G. Bittle, instituted suit against Smith seeking damages. Mrs. Bittle asserted various disabling injuries and Mr. Bittle sought damages for the loss of consortium, companionship, care and services of his wife. Mr. Smith answered with a general denial. On trial, the jury returned a verdict of $1,500 for Mrs. Bittle, but nothing for her husband. Thereafter, appellants moved to set aside the verdict and asked the court to grant a new trial, it being appellants’ position that under Ark. Stat. Ann. § 27-1901 (Repl. 1962), the verdict should have been vacated because it was not sustained by sufficient evidence, and a new trial should have been granted under Ark. Stat. Ann. § 27-1902 since the amount of actual pecuniary loss sustained was in excess of the verdict. The court denied this motion and from the order of denial, appellants bring this appeal. For reversal, it is simply asserted that “The trial court erred in not setting aside the verdict and granting a new trial.”

Actually, the issue is Ark. Stat. Ann. § 27-1902, which provides as follows:

“A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.”

Appellants vigorously contend that the uncontradicted evidence reflects an actual pecuniary loss in excess of $1,500 and that accordingly, they are entitled to a new trial. Medical bills totaling $609.55, occasioned by the wreck, are admittedly uncontradicted, and appellants rely on the contention that Mrs. Bittle was unable to work for twenty-six weeks and three days, amounting to a pecuniary loss in wages of $2,105.71. Adding this amount to the medical bills makes a total of $2,713.26, which appellants assert to be the actual pecuniary loss sustained.

Appellants argue that the situation presently before us is very similar to that presented in the case of Law v. Collins, 242 Ark. 83, 411 S.W.2d 877, the appeal in both cases being based on Ark. Stat. Ann. § 27-1902, except that in Law the trial court had granted a new trial while here it has refused to grant a new trial. We might here state that this one fact makes a vast difference for the granting or refusing of a new trial is a discretionary act by the court, and we only reverse where an abuse of discretion is clearly shown. In other words, since the trial court refused to grant a new trial, appellants must demonstrate that the court abused its discretion in order to prevail in this case.

We are unable to say that the Yell County Circuit Court abused its discretion, and in making this finding, we give no consideration to a fall sustained by Mrs. Bittle on a parking lot in December, 1968, and injuries sustained when a box fell on her head in 1970, mentioned by appellee in his brief, since these events did not occur until a number of months after the contended loss of working time heretofore set out.

A review of the medical evidence is in order. Dr. D. H. Martin of Ola testified that Mrs. Bittle came to his clinic early on the morning of November 24, stating that she had been in an automobile accident, and complaining of discomfort to the right side of her head and left hip. She was admitted to the hospital at Danville and Dr. Martin testified that he found no external evidence of injury and, after x-rays, no findings of any bone pathology. Her left hip was bruised, but there were nó bone fractures, nor were there any bruises on her head. About forty-eight hours later she was discharged and went home, feeling better, but still with some headaches. On December 2, 1967, she again came to his office complaining of feeling “addled” at times and she had bruises on the side of her left leg near the hip; also, she complained of headaches and was given darvon to ease pain. At his direction, she returned one week later, still complaining of headaches and the doctor referred her to a neurologist, Dr. William K. Jordan of Little Rock. Martin saw her occasionally through 1968, and stated that he last saw her on June 17, 1971, when “she only wanted her workmen’s compensation papers filled out, and I suggested to her that we have Dr. Jordan do that, since he was treating her neurologically.” On January 24, 1968, Dr. Martin wrote a note to Morton’s Frozen Foods, employer of Mrs. Bittle, that Dr. Jordan recommended that Mrs. Bittle not work for approximately three months, and on April 18, 1968, Dr. Martin gave Mrs. Bittle a copy of a letter to him from Dr. Jordan’s secretary, stating that Dr. Jordan wanted Mrs. Bittle to take four months off from work. Several other notes from Dr. Martin addressed “To Whom It May Concern” are also in the record with reference to particular days that Mrs. Bittle was to see Jordan, and accordingly would not be able to work.

Dr. Jordan, who first saw Mrs. Bittle on December 22, 1967, testified that she described the automobile wreck and from his examination, he considered that her problem was probably a “post-traumatic cerebral syndrome”. He said that the symptoms given originally were not the same as those subsequently stated. The doctor described various tests that were given and mentioned that he had prescribed mebaral which sometimes helped patients with post-traumatic cerebral syndromes. Jordan stated that he advised Mrs. Bittle, on February 16, 1968, to stay away from work for four months, feeling that she would have a more rapid recovery by not working and remaining quiet. “My main reason in suggesting that, though, was because either she or Dr. Martin told me that she continued to have her symptoms, and I thought that complete rest might help her. My main notion was therapeutic.” The doctor’s testimony is very lengthy and comprehensive and he mentions a number of possibilities but, the issue being as previously stated, there is no necessity to detail this testimony. He did state that in his opinion she had no permanent disability, and he said he considered there was a causal connection between the accident and her condition, “assuming the validity of the accident and the facts and so forth as they were given to me.”

Though not considering the subsequent accidents previously referred to, we think there was still evidence from which the jury could have concluded that Mrs. Bittle’s disabilities were not entirely due to the automobile accident of November, 1967. For instance, Dr. James Pennington of Ola who had been Mrs. Bittle’s physician for several years, when asked about her condition “health wise” prior to the date of the accident, replied, “Well, she had had some female trouble and low back strain, and I believe that’s the main things that I have treated her for.”

Dr. Martin mentioned that since November, 1967, he had treated her for female problems, a respiratory infection, and he mentioned that due to her various symptoms, it was suggested that she take tests to determine if she was a diabetic. Dr. Jordan mentioned that Mrs. Bittle had told him that she had had her thyroid removed and had had several female operations. Probably more important than these matters is the fact that Mrs. Bittle, a few days after the accident, returned to her job and worked for two weeks and the jury might well have considered that if she were able to work for this length of time so soon after the accident, the difficulties mentioned could have had their origin elsewhere. Let it be remembered that it is within the province of the jury to determine fact situations; they were not required to believe the testimony of any witness, and particularly that of the Bittles since they were interested parties, and their testimony, under the law, is considered disputed as a matter of law. Turchi v. Shepherd, 230 Ark. 899, 327 S.W. 2d 553 and Conway v. Hudspeth, 229 Ark. 735, 318 S.W. 2d 137.

The trial court, of course, observed all of the witnesses and was in a paramount position to determine whether the verdict was unjust. Since a pecuniary loss exceeding the amount of the verdict (due to the collision) was not definitely established, we are unable to say that the trial court erred in refusing to set aside the verdict. No other error is suggested, and when the evidence shows that a plaintiff is entitled to recover substantial damages, and does obtain a substantial verdict ($1,500 constituting substantial recovery), a judgment will not be reversed because of inadequacy if there be no other error. Smith v. Arkansas Power & Light Company, 191 Ark. 389, 86 S.W.2d 411.

Affirmed.

      No evidence was offered by appellee.

       It is not clear what this referred to.

      Post-traumatic cerebral syndrome is an illness characterized by symptoms which follow an injury to the head not severe enough to cause a concussion.

      The doctor mentioned that he referred her to a gynecologist. This was apparently a Dr. Wallace. From the record:
      “A. April 7, 1969. Dr. Wallace wrote me a letter, ‘Dear Dr. Martin: Your patient, Mrs. Bittle, saw me following her DNC and cortization. She had almost a complete occlusion of the cervical canal, causing her bleeding. There was. no evidence of cancer. I did a conization and inserted a plastic tube to be left six weeks. ...’
      Q. Doctor, what is a DNC?
      A. The cervical canal is dilated and the uterus is scraped.”


author: George Rose Smith, Justice.

text:
    Refugio RODRIGUEZ et al, v. Richard B. ADKISSON, Judge
    5817
    491 S.W. 2d 814
    Opinion delivered March 26, 1973

      Henry J. Osterloh for petitioners.

      Jim Guy Tucker, Átty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for respondent.
   George Rose Smith, Justice.

The two petitioners, Refugio Rodriguez and Ramon Cantu, were charged with the unlawful possession of marijuana, with the intent to deliver it, in violation of Act 590 of 1971 as amended by Acts 67 and 68 of 1972. Ark. Stat. Ann., Title 82, Ch. 26 (Supp. 1971), as amended. Having pleaded not guilty in the trial court, the petitioners now seek a writ of prohibition to prevent the case from being tried and to obtain a dismissal of the charges. The petitioners’ theory is that Act 68 of 1972 is unconstitutional and that the invalidity of the act may be put on issue by their petition for a writ of prohibition.

We find no merit in the contention that prohibition is the appropriate remedy. Basically, the petitioners are charged with a violation of Act 590 of 1971, the Uniform Controlled Substances Act, which provides a criminal penalty for the possession of marijuana with the intent to deliver it. Ark. Stat. Ann. § 82-2617. Act 590 was amended by Act 67 of 1972, which, among other things, raised certain of the offenses from misdemeanors to felonies. Act 590 was also amended by Act 68 of 1972, which provides, in part, that the possession of more than one ounce-of marijuana creates a rebuttable presumption of an intent to deliver it to someone else.

Prohibition involves jurisdictional issues. For the writ to issue, it must appear that the trial court is about to act in a matter beyond its jurisdiction and that the petitioner has no other remedy to prevent the threatened usurpation of power. Harkey v. Matthews, 243 Ark. 775, 422 S.W. 2d 410 (1967). Here the petitioners contend that Act 68 involves a denial of due process, in that the mere possession of more than one ounce of marijuana does not reasonably and necessarily give rise to the conclusion that the possessor intends to deliver it. Even so, the trial court’s jurisdiction obviously does not depend upon the validity of Act 68. The State may decide not to invoke the presumption. Act 68, even if invalid, may be found to be separable from the more comprehensive uniform act. Actually, the petitioners are contending that the mere passage of Act 68 had such a far-reaching effect upon Act 590 that it is no longer illegal to possess more than an ounce of marijuana. To state that contention is to answer it.

Writ denied.


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. Coy C. PARK
    5-6224
    491 S.W. 2d 791
    Opinion delivered March 26, 1973

      Gannaway, Darrow & Hans haw, for appellant.

      Holmes ir Holmes, for appellee.
   Lyle Brown, Justice.

Appellant sought judgment on the basis of its ownership of a promissory note purportedly executed by appellee. The trial court, sitting as a jury, held that appellant failed to meet its burden of proof that appellee did in fact sign the note. We shall refer to appellant as U.S.F.& G. and to appellee as Park.

On March 7, 1960, Park purchased from Kern-Limerick, Inc., a large crawler tractor for $14,557.92. U.S.F.&G. contends that Park executed a promissory note for part of the down payment, which note was negotiated to First National Bank of Little Rock; that after the bankruptcy of Kern-Limerick it was discovered by the bank that Kern-Limerick had inserted nonexistent equipment in several notes held by the bank. In fact it is undisputed that the note in question referred to a Model E-24 Winch, which was found to be nonexistent. Park insists that he did not make a note for part of the down payment; in fact he contends that he made the full down payment in cash, which amounted to $2400. U.S.F.&G., under a blanket bond, made First National whole and by this suit the insurance company seeks reimbursement.

On behalf of U.S.F.&G., Davies B. Campbell testified. He said he was the senior lending officer of First National in 1960 and handled the bank’s dealings with Kern-Limerick, which company had a line of credit of $300,000; that in the course of his employment he was called on to compare hundreds of signatures; that he had compared the signature on the note in question with two known signatures of Park; and that in his opinion the signature on the note was genuine. Campbell said he wrote Park in May I960; and instructed him to make his note payments directly to the bank. Campbell said he thereafter recieved a telephone call from Park wherein Park explained that he did not own a winch, that the note in question was a side note for part of a down payment on a tractor; and that Park intended to pay the note. Campbell also related that he inspected Kern-Limerick’s work sheet on the Park transaction and that it showed a down payment of $1000 and a note for $1400. On cross-examination the witness conceded that Kern-Limerick negotiated several irregular notes to First National; in fact the total of all irregular notes ran slightly over $125,000. He conceded that in one instance it was established that another note negotiated to them by Kern-Limerick was a claimed forgery.

Coy Park insisted that he made a cash down payment of $2400. He exhibited his conditional sales contract which recited that he had made a down payment in that amount. The contract further recited that he owed a balance of $12,157.92,_ payable in monthly installments. (Kern-Limerick negotiated that contract to C.I.T. Corporation at Memphis.) Park liquidated that note. He was shown the signature on the note sued on herein and admitted that it “looks like mine” but he insisted that he did not sign that note. Park further testified that when he received a letter from First National regarding payments on the note, Park telephoned the bank and explained that he did not owe it any money.

U.S.F.8cG. first contends there is no substantial evidence from which the court could render a verdict for Park. We do not agree. In addition to the positive testimony of Park that he did not sign the note, he produced the original conditional sales contract which recited a down payment of $2400. Also, the court had a right to consider the likelihood that some official of Kern-Limerick could have forged the signature; this in view of the divers irregular notes negotiated by Kern-Limerick in an amount exceeding $125,000, and in two instances there were claims for forged notes.

Secondly, it is contended for reversal that the court refused to consider the signature testimony of Mr. Campbell as that of an expert. When Park’s counsel objected to Mr. Campbell testifying as an expert the court said Campbell could give his opinion based on his experience. That statement of qualification did not mean that the court was raising the status of Mr. Campbell to that of a professional in handwriting identification. Even had witness Campbell qualified as a professional, the court would not be bound to accept his testimony as conclusive. We have said it is within the province of the fact finder to determine the value and weight to be given to the testimony of experts. Home Indemnity Co. v. Jelks, 187 Ark. 370, 59 S.W. 2d 1028 (1933).

Finally U.S.F.&G. complains that the trial court did not submit to itself as a jury, the various signatures for comparison. They were so compared. The court said . these signatures look very similar, the note and the answer, all of them look very similar”. Yet the court went ahead to say U.S.F.&G. had not met its burden of proof.

Affirmed.


text:
    W. R. ALSOBROOK v. Ira TAYLOR, et ux, et al
    5-6215
    491 S.W. 2d 808
    Opinion delivered March 26, 1973

      Hall, Tucker & Lowell, for appellant.

      Cambiano ér Cree, for appellees.
   John A. Fogleman, Justice.

This case involves the validity of a tax sale of lands in Conway County, Arkansas. Appellant W.R. Alsobrook claimed title to the property in question by a deed executed by the Commissioner of State Lands on April 10, 1964, based upon a forfeiture of the lands for nonpayment of the taxes due thereon for the year 1960. He filed an action to cancel the claims of appellees to the lands as clouds upon his title so acquired, after the former owner’s attorney paid the taxes for the year 1970. Appellees counterclaimed, praying for the cancellation of the deed under which appellant claimed. The chancellor held the tax sale void without specifying any reason, canceled appellant’s deed for forfeited lands and dismissed his complaint for want of equity. Appellant contends that the chancery court erred in its decree because the alleged irregularities in the tax sale upon which the forfeiture was based were not prejudicial and because no proceeding to set aside the sale was commenced within the period allowed the landowner for redemption after the sale. We affirm.

Appellees, by their answer and counterclaim and by amendment to the counterclaim, alleged that the tax sale for the taxes of 1960 was invalid for several reasons. Since we reach the conclusion that the sale was unquestionably void because the Clerk of the County Court failed to keep a record of the proceeding of the levying court as required by Ark. Stat. Ann. § 17-408 (Repl. 1968), we do not discuss any of the other grounds of invalidity asserted. In passing, we note that there was never any confirmation proceeding by the state in the Chancery Court of Conway County, as authorized by Ark. Stat. Ann. §§ 84-1315, 84-1318, et seq. (Repl. 1960).

. The County Clerk of Conway County testified that, in the official records kept by the clerk at that time, there was no record of any meeting of the Quorum Court of Conway County in 1960 and no record of the vote of the justices of the peace on the levy of taxes for that year. He stated that he examined the record book in which this record should have appeared and that no pages appeared to be missing from the record.

Tax levies are made by the county court, commonly called the quorum court, consisting of the county judge and a majority of the justices of the peace of the county. Ark. Stat. Ann. § 17-401 (Repl. 1968). The clerk of the county court is required to attend and keep in the County Court Record a fair written record of the proceeding and to enter on the record the names of those members of the court voting in the affirmative and those voting in the negative on all propositions to levy a tax. Ark. Stat. Ann. § 17-408. The vote of a majority of the members of the court is necessary to a decision on every question submitted. Ark. Stat. Ann. § 17-406 (Repl. 1968).

The keeping of the record by the clerk is mandatory, and a levy of taxes is void unless the record shows affirmatively the names of the members of the court voting on the question. Blakemore v. Brown, 142 Ark. 293, 219 S.W. 311. Every essential proceeding in the course of levy of taxes must appear in some written and permanent form in the record of the bodies authorized to act in the premises. Alexander v. Capps, 100 Ark. 488, 140 S.W. 722. Where there is no record evidence that a tax was levied, the court acts correctly in finding that there was no proper levy and holding a tax sale based thereon void. Morris v. Levy Lumber Company, 103 Ark. 579, 148 S.W. 252; Alexander v. Capps, supra. The record must at least show that a vote was taken upon the tax levy. The record which is required by Ark. Stat. Ann. § 17-408 is the only competent evidence of the tax levy. Alexander v. Capps, supra.

Appellant relies upon Hudson v. Marlin, 196 Ark. 1070, 121 S.W. 2d 91, as authority that certain irregularities in the assessments of lands and the conduct of the tax sale do not render the sale void. Since none of these steps related to the levy of taxes, we do not consider this case applicable where the steps involved are the very essence of the legislative proceeding to subject property to taxation, and the question is not only the determination of the rate of taxation but whether particular taxes be levied at all. For the same reason we cannot apply the holding in such cases as Benham v. Davis, 196 Ark. 740, 119 S.W. 2d 743, that technical irregularities not prejudicial to the rights of the owner will be disregarded after the statutory period of redemption. We could not say that the lack of any record whatever of the levy of any taxes on the property is a technical irregularity. We hasten to point out that the court found substantial compliance with statutory requirements about other procedural matters in Benham and the authority upon which it is based.

Appellant also contends that, upon the authority of Scott v. Mills, 49 Ark. 266, 4 S.W. 908, it is error to hold his deed void in view of its status as prima facie evidence of title. That case may be readily distinguished, as this court has previously done. There, we held that the objective in making such a deed prima facie evidence of title was to relieve the grantee from making proof that all things necessary to vest title in the state had been done until evidence is introduced tending to show that the deed conveyed no title. We held this prima facie evidence was not overcome by a certificate of the clerk that he could not find any record or evidence of the tax assessor’s oath of office, the abstract of lands subject to taxation for the year in question to have been delivered by the assessor to the clerk, the notice of the collector that he would meet the taxpayers, the notice of the clerk of sale of delinquent lands, the proof of publication of notice of sale, the certificate of the collector as to sale, and a record showing that the collector offered the lands for sale by beginning at the northeast corner. We said that the effect of this certificate, if it was even admissible, was to show that such of these records or evidence required to be filed or recorded in his office had been lost, that a part of them was not required to be filed there and that a part, if not all, of these records and evidence was immaterial, and could not affect the grantee’s title. Later, in Allen v. Phillips, 87 Ark. 185, 112 S.W. 403, we held that a deed from the Commissioner of State Lands was no more than prima facie evidence of title in the grantee and was overcome when production of all the records which should have shown a critical step in the proceedings failed to show that it was taken. We pointed out that the court was not considering a case such as Scott v. Mills, supra, where the clerk merely stated that he could not find certain records that might or should have contained the evidence sought after, but that the proof showed that the . records were in existence and that all were produced. We said that this was the only evidence that could be adduced to show that the requisite action was not taken and that the purpose of the court records is to furnish evidence of the proceedings had by the court. This case clearly falls under the rule of Allen v. Phillips, supra, rather than Scott v. Mills, supra. There is no indication here that anything has been lost, and resort to the only competent evidence on the subject indicates that, if any action was taken, the mandatory record was not kept.

Appellant’s bare statement that the tax sale should not have been set aside because appellees did not institute a proceeding within the two-year period allowed for redemption from the tax sale is not supported by any argument in his brief. He does not even cite any authority for his statement, but did refer to Ark. Stat. Ann. § 84-1201 (Supp. 1971) in his complaint. There was no response to the counterclaim. Appellant did not plead Ark. Stat. Ann. § 84-1118 (Repl. 1960) or Ark. Stat. Ann. § 34-1419 (Repl. 1962) and cannot rely upon them for the first time on appeal. Alexander v. Capps, 100 Ark. 488, 140 S.W. 722. Furthermore, Ark. Stat. Ann. § 84-1118 applies only to technical irregularities and not to the failure to levy taxes. Leigh v. Trippe, 91 Ark. 117, 120 S.W. 972; Alexander v. Capps, supra. The chancellor stated in his opinion that Ark. Stat. Ann. § 34-1419 did not apply. It seems to have been first mentioned in appellant’s oral motion for a decree in his favor when he rested his case. We agree with the chancellor. It was stipulated that the lands were wild and unimproved and not fenced or under cultivation. This statute of limitations can only be invoked by one in actual possession of the land. National Property Owners v. Hogue, 229 Ark. 743, 318 S.W. 2d 151; Hixon v. Fulks, 210 Ark. 204, 194 S.W. 2d 870.

The decree is affirmed.

      In this case the step involved confirmation of the sale under the overdue tax sale pursuant to which the state claimed title under a sale purportedly conducted in the proceeding prescribed by that act, long since repealed.