text:
    Intl. Harvester Co. et al v. Lyle Brown, Circuit Judge
    5-4043
    408 S. W. 2d 504
    Opinion delivered November 21, 1966

      Owens, Mclicmey & McHaney and Aulrey & Good-son, for appellant.

      Charles A. Potter, for appellee.
   Paul Ward, Justice.

This is a Petition for a Writ of Prohibition asking this Court to enjoin the Circuit Judge from proceeding further in a damage suit filed in his court in Miller County.

The pertinent facts, which are not in dispute, are hereafter briefly stated.

On February 28, 1966 Arney Hayes filed a suit, in Miller County Circuit Court, against the International Harvester Company (called International) and Eaton, Yale & Towne, Inc. (called Eaton) for damages resulting from the purchase of an allegedly defective truck from International, parts of which had been manufactured by Eaton, and “that by reason thereof defendants breached the implied warranty of merchantability”. The complaint alleged: that International was a foreign corporation, authorized to do business in Arkansas, and that the designated agent for service is The Corporation Company, 221 West Second Street in Little Rock, and; that Eaton is also a foreign corporation, and its designated agent for service was R. G-. Hengst, 100 Erieview Plaza, Cleveland, Ohio. The prayer was for judgment against both defendants in the sum of $3,298.94. Service of summons on International was had on its agent in Little Rock, and service on Eaton was had by mailing a copy of the summons to its office in Ohio.

To the above complaint the defendants (petitioners herein) filed separate “Motions to Quash Service”, alleging: Both are foreign corporations, duly qualified to do business in Arkansas; both have registered agents for service in Little Rock, and; neither has a place of business or officer in Miller County.

The allegations in the motion not being disputed, the trial court overruled said motion as to International, holding its designated agent in Little Rock was served and that Miller County was the proper venue. The court sustained the Motion to quash as to Eaton because service was attempted by mailing the summons and a copy of the complaint by registered mail to R. G. Hengst in Cleveland, Ohio. The court further held, however, that Eaton had a designated agent for service in Little Rock and that service on that agent would give Miller County jurisdiction.

Both petitioners objected to the above ruling of the trial court, and they now petition this Court to enjoin further proceedings in Miller County.

All parties agree that only one decisive question is presented to this Court, to-wit: Is the action below governed by Ark. Stat. Ann. § 27-611 (Repl. 1962), as contended by respondent, or by Ark. Stat. Ann. 27-613 (Repl. 1962), as contended by petitioners.

For reasons hereafter set forth we have concluded the petitioners are correct, and that the Writ of Prohibition must be granted.

Section 27-611, relied on by respondent, reads: “Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.”

We construe this section to apply only where there has been “personal injury” or where there has been actual force or violence — such as a collision between two automobiles. This is the interpretation placed on the statute in Terry v. Plunket-Jarrell Grocery Co., 220 Ark. 3, 246 S. W. 2d 415, and we think the decision is sound. No such factual situation exists in the case under consideration. Here Hayes ’ cause of action is predicated on a breach of contract, or on a breach of an implied warranty.

Section 27-613 reads:

‘ ‘ Every other action may be brought in any county in which the defendant, or one of several defendants, resides or is summoned.”

It is here admitted that neither of the petitioners resided in or was served in Miller County.

It is to be noted that section 27-611 originated as a part of Act 317 of 1941, but that section 27-613 is an exact copy of § 96 of the Civil Code of Arkansas. Section 27-613 is clearly shown to be a “venue” statute. It is preceded in the Code by more than ten other sections relating to venue in different factual situations, none of which include those in this case.

It cannot be disputed that section 27-613 applies to corporations. See: Harger v. Oklahoma Gas & Electric Co., 195 Ark. 107, 111 S. W. 2d 485.

Writ granted.


source: Caselaw Access Project

author: Osro Cobb, Justice.

license: Public Domain

text:
    Frank Knox v. J. A. Williamson, County Judge
    5-4018
    408 S. W. 2d 501
    Opinion delivered November 21, 1966

      William E. Henslee, for appellant.

      Hout, Thaxton So Hout and Smith, Williams, Friday So Bowen, By Herschel H. Friday, John G. Echols, for appellee.
   Osro Cobb, Justice.

The dispositive question raised on this appeal is whether a nursing home rendering services of a nursing home may be classified as a county hospital under the provisions of Amendment No. 17 to our present Constitution. Section 1 of Amendment No. 17 provides as follows:

“•County court house, jails and hospitals. — The power and right is hereby vested in the qualified electors of each respective County in this State by a majority of the said electors voting on the question, to authorize the construction, reconstruction, or extension of cmy County Court House, County Jail, or County Hospital, and to authorize the levy of tax not to exceed one-half of one per cent on the dollar of the valuation of all properties in such County subject to taxation to defray the costs and expenses thereof, or to take up any indebtedness existing at the time of adoption hereon incurred in building, construction, or extending any County Court House, Jail, or Hospital. [As amended by Amendment No. 25.]” (emphasis supplied)

On December 21, 1965, a special election was held in Jackson County at which a majority of the voters participating in the election voted in favor of constructing an addition to a nursing home building owned by the county, in order to provide needed additional accommodations and nursing home facilities for the citizens of Jackson County. Construction bonds in the sum of $250,000.00 were authorized to be issued to complete the proposed improvements. Suit was instituted in chancery seeking a permanent injunction against appellee, the County Judge of Jackson County, as to any further proceedings in connection with the levy and collection of a building tax and the issuance of the bonds for the project, it being contended that a nursing home was not a county hospital and that the instant construction project was not authorized under the provisions of Constitutional Amendment No. 17, nor authorized by any other statute or constitutional amendment.

The case was heard by the Chancellor upon the pleadings and upon stipulation of the parties as to the pertinent facts. We quote from such stipulation as follows :

“That the proposed construction will be an addition to a building owned by tbe County which building now meets the minimum standards for licensing as a ‘Nursing Home’ under the provisions of Act No. 414 of the Acts of Arkansas of 1961, but does not meet the minimum standards thereunder for licensing as a ‘hospital’. After the construction is completed, the building, as it then exists, will still meet the minimum standards for licensing as a Nursing Home, but not as a hospital, under the said Act No. 414. The building will be hereafter referred to as ‘Nursing Home’.
“The Nursing Home will provide medical and nursing services to patients, but will not provide all of the services that would be required to be provided by a building qualifying as a hospital under the provisions of Act No. 414 (which type of building will be hereafter referred to as ‘G-eneral Hospital’). The major areas of service provided by a G-eneral Hospital and not by a Nursing Home are surgical, X-ray and obstetrical. Other similarities and differences between a Nursing Home and a General Hospital include:
“(a) Every patient in either a Nursing Home or a General Hospital must be under the medical supervision or care of a physician and all medications administered under the direction of the physician. Provision must be made in the case of either type patient for emergency treatment. Neither type institution is required to have physicians constantly present.
“(b) Both G-eneral Hospitals and Nursing Homes are required to have nursing staffs under the supervision of a registered nurse. Both may also employ licensed practical nurses.
“(c) G-eneral Hospitals are required to have surgical departments offering services and having facilities of a type approved by rules and regulations of the Arkansas State Board of Health. Nursing Homes are not required to have surgical facilities or offer surgical services.
“(d) General Hospitals are required to have obstetrical departments, with labor beds, delivery-rooms and nurseries, with the facilities, and offering the services prescribed by the Arkansas State Board of Health. Nursing Homes are not required to have such facilities or offer such services.
“ (e) Nursing Homes are required to have facilities for recreation and dining for ambulatory patients which are not required of General Hospitals.
“(f) A General Hospital is required to have a more elaborate bedside call system to enable patients to summon assistance than are Nursing Homes, although Nursing Homes are required to have a call system sufficient to enable patients to attract attention.
“(g) A General Hospital is an institution designed for performing more intensive services to the sick and infirm than is a Nursing Home, but a Nursing Home also provides services to the sick and infirm and a ‘Boarding Home’ or home providing primarily domiciliary care would not be eligible for licensing as a Nursing Home under Act No. 414.
“(h) Because of the ‘central core facilities’ (operating room, delivery room, X-ray equipment, et cetera) required in a General Hospital and not in a Nursing Home, the cost per square foot of constructing a Nursing Home is considerably less than the cost of constructing a General Hospital to house the same number of patients.
“(i) A General Hospital is required to provide facilities for emergency treatment, as prescribed by the Arkansas State Board of Health. A Nursing Home is not required to have such facilities.”

The Chancellor held that the nursing home was a type of hospital within the meaning of Constitutional Amendment No. 17 and denied appellant injunctive relief as to the construction project, and the case now reaches us on appeal.

In a recent case decided by this Court, Raney v. Raulston, County Judge, 238 Ark. 875, 385 S. W. 2d 651 (1965), we held that the construction of a combination general hospital and nursing home as a single facility could properly and validly be built and equipped under authority of Amendments 17/25 of our Constitution. In the case before us, there is no showing that the nursing home facility owned by the county, which is proposed to be expanded, is in any way consolidated with a county general hospital, nor is it suggested in the record that the administrative personnel of a county general hospital will control and operate the expanded nursing home facility.

The stipulation of facts in this case illustrates the numerous and substantial differences in the services of a nursing home and those of a hospital.

We have liberally construed Amendment No. 17 in the past. See Garner v. Lowery, 221 Ark. 571, 254 S. W. 2d 680 (1953); Hollis v. Erwin, County Judge, 237 Ark. 605, 374 S. W. 2d 828 (1964), and also in Raney v. Raulston, County Judge, supra. We have also said that in construing the provisions of the constitution we endeav- or to effectuate as nearly as possible the intent of the people in passing the measure, and, if necessary, as á means of attaining that end, a liberal interpretation will be warranted, but we have also added, “as it may be ascertained from the language used”. See Walton v. Arkansas Construction Commission, 190 Ark. 775, 80 S. W. 2d 927 (1935). But to say that the nursing home in this instance, an entirely separate facility,- is a hos-pita-1 within the meaning of Amendment No. 17 would require us to go far beyond the bounds of a liberal construction of Amendment No. 17.

We have therefore concluded that the nursing home project in this case was not a county hospital project as contemplated under the provisions of Amendment No. 17 to our Constitution.

The decree entered by the Chancellor is reversed with directions that a substitute decree, not inconsistent with this opinion, be entered.

Reversed and remanded with directions.


author: Gut Amsler, Justice.

text:
    Brewer et al v. Hawkins
    5-3912
    408 S. W. 2d 492
    Opinion delivered November 21, 1966

      Bethel B. Larey and Bichará, S. Arnold, for appellants.

      Gordon & Gordon and Jack L. Lessenberry, for appellee.
   Gut Amsler, Justice.

This is a taxpayers’ suit against the Sheriff and Collector of Conway County that was originally filed in the Conway County Chancery Court. The defendant (appellee here) demurred and the Chancellor, sua sponte, transferred the case to the Circuit Court. The Circuit Judge denied a motion to transfer the cause back to equity, sustained the demurrer and dismissed the suit with prejudice. This appeal followed.

The petition in chancery set forth the duties of the collector with respect to the collection of various fines, costs, fees, commissions and other emoluments of his office and accounting therefor and then alleged, inter alia:

‘ ‘ That Plaintiffs are informed and believe that Defendant, Marlin Hawkins, beginning at least as early as 1955 and continuing at least until 1961, wrongfully appropriated, exacted, and converted to his own use, substantial sums of money collected and received as fines and costs, which sums should have been paid over into the County Treasury of Conway County as required by the laws of the State of Arkansas.
“That Plaintiffs are informed and believe that beginning at least as early as 1955 and continuing at least until 1961, Defendant, Marlin Hawkins, collected, received, wrongfully appropriated, exacted, and converted to his own use substantial sums of money as fees, costs, fines, salaries, emoluments, commissions, and perquisites of office in excess of Ms lawful yearly compensation, to-wit, five thousand ($5,000.00) Dollars per annum, which sums he has failed to pay into the County Treasury of Conway County as required by the Constitution and laws of the State of Arkansas.
“That the wrongful appropriations and exactions hereinabove alleged were carried out by means of a continuing combination, conspiracy, agreement, and concert of action by and among the Defendant Marlin Hawkins and others, consisting of the following scheme and device: Said Defendant would cause to be arrested certain persons and would charge them with one serious offense carrying a large fine; upon conviction, however, the case would be entered of record as though a number of small offenses, totaling in fines far less than the initial single charge, had been committed; thus, per-conviction fees would be multiplied, and a small fraction only of the large fine originally exacted would be paid to the County, the remainder being converted by said Defendant and his confederates to their own use. Plaintiffs have available to them documentary evidence of more than 25 such transactions, and verily believe that hundreds of others, as yet unknown, took place.
“That Plaintiffs are informed and believe that at diverse times beginning at least as early as 1955 and continuing at least until 1961, Defendant, Marlin Hawkins, with intent to deceive, did knowingly make or cause to be made numerous inaccurate, untrue, and false entries in certain public records, to-wit:
Transcripts and dockets of proceedings of Justice of the Peace Courts in Conway County, Arkansas,
which entries were calculated to, and did in fact, prevent disclosure of his wrongful appropriations and conversions above described. As a result of the inaccuracies, untruths, and falsifications in these public records, Plaintiffs were not able in the exercise of reasonable diligence to detect the wrongful appropriations, wrongful exactions, and conversions until 1964, when it was discovered that said public records contained inaccurate, untrue, and false entries.
“That Defendant, by his high office, has been placed in a fiduciary position to Plaintiffs and all those others similarly situated, was permitted access to, custody of, and dominion over the complained of transactions and records of these transactions; that these transactions were numerous, complicated, and involved, and peculiarly within the knowledge of Defendant ; and that Defendant accordingly has an affirmative duty to make a full fiduciary accounting. ’ ’

Prayer was for an accounting, judgment in favor of the county and related relief.

We have an abundance of cases of this sort approving equity as the proper forum, especially where an accounting is involved. State Use Greene County v. McCoy, 187 Ark. 827, 62 S. W. 2d 967; Fuller v. State, Use of Craighead County, 112 Ark. 91, 164 S. W. 770; McCoy v. State, Use of Greene County, 190 Ark. 297, 79 S. W. 2d 94. The learned Chancellor should not have transferred the case to the Circuit Court.

The Circuit Judge predicated his dismissal of the suit largely on the statute of limitations and we think he thereby fell into error.

In testing the sufficiency of a complaint that is assaulted by means of a demurrer we accept as true all allegations in the complaint that are properly pled. Also all inferences reasonably to be drawn therefrom. Perrin v. Price, 210 Ark. 535, 196 S. W. 2d 766; Watson v. Poindexter, 176 Ark. 1065, 5 S. W. 2d 299; Herndon v. Gregory, 190 Ark. 702, 81 S. W. 2d 849, 82 S. W. 2d 244; St. Paul-Mercury Indemnity Co. v. City of Hughes, 231 Ark. 530, 331 S. W. 2d 106.

The averment of concealment in plaintiffs’ petition in Chancery, when accepted as true, renders the pleading invulnerable to demurrer and presents a fact question on which the appellants are entitled to offer proof. If it can be shown that there was in fact concealment by appellee the statute of limitations would not begin to run until discovery of the condition complained of. State of Tennessee v. Barton, 210 Ark. 816, 198 S. W. 2d 512; Quattlebaum v. Busbea, 204 Ark. 96, 162 S. W. 2d 44; City National Bank v. Sternberg, 195 Ark. 503, 114 S. W. 2d 39.

Appellee makes reference to a number of suggested deficiencies in the complaint and the possible necessity for bringing in additional parties but these are all matters that may be brought to the attention of the trial court.

The case is reversed and remanded to the Circuit Court with directions that it be transferred back to the Chancery Court of Conway County for further consideration after the demurrer has been overruled.


author: Ghy Amsler, Justice.

text:
    Solomon Jerome Smith Jr. v. Ella Smith et al
    5-3982
    409 S. W. 2d 317
    Opinion delivered November 21, 1966
    [Rehearing denied January 9, 1967.]

      G. E. Snuggs, for appellant.

      L. Weems Trussell and Thomas D. Wynne Jr. and Frank W. Wynne, for appellee.
   Ghy Amsler, Justice.

This is another of numerous futile efforts by appellant to obtain relief which he alleges has been denied him by this court and by two trial courts on some five different occasions.

A summary of background facts will demonstrate the persistency and vainness of the endeavors in behalf of appellant’s position.

Henderson Smith died in October, 1942, leaving a widow, appellee Ella, (his second wife) and two children as his only heirs at law. At the time of his demise he owned two parcels of land consisting of 25 acres. His home was located on one tract. Appellant Solomon Jerome Smith, Jr., a grandson of Henderson Smith, succeeded to ownership of an undivided one-half interest in the estate upon the death of his father Solomon Smith, Sr.

On March 20, 1958, Ella Smith filed a partition suit in the Chancery Court of Dallas County, Arkansas, against the heirs at law of her deceased husband. Solomon Jerome Smith, Jr. and his guardian, Ira Lee O’Guinn, filed an answer and counter claimed against Ella Smith for waste allegedly committed by her. Affirmative relief was granted Solomon Jerome Smith, Jr. and his guardian (for waste committed by the widow) in a decree rendered on April 14, 1961.

The chancellor also decreed that the land was not susceptible of division in kind hence a commissioner was appointed to make public sale of all the land except two acres, which were set aside as Ella’s homestead. A ten-acre tract of wild and unimproved land was sold to appellee Edgar McCollum, and a thirteen-acre tract was sold to appellee Billy A. Puterbaugh. McCollum and Puterbaugh then became parties to the Chancery proceedings by virtue of their purchases at the commissioner’s sale.

Solomon Jerome Smith, Jr. and his guardian appealed to this court from the partition decree entered on April 14, 1961. Reversal of the decree was sought on the grounds that there had been no service of process upon him or his guardian and that there were other irregularities in the partition proceedings. He also contended that Ella Smith could not maintain a suit for partition of the lands in which appellant had an undivided interest.

We found no error in the proceedings and decree of the Dallas Chancery Court. Smith v. Smith, 235 Ark. 932, 362 S. W. 2d 719. Judgment on the mandate was entered in Dallas County and Solomon Jerome Smith, Jr. and his guardian, Ira Lee O’Guinn, accepted the benefits accruing to him under the decree of partition and accepted his part of the proceeds from the commissioner’s sale.

On February 28, 1964, the Arkansas Highway Commission filed suit in the Circuit Court of Dallas County, Arkansas, to acquire right-of-way for an intersection of Highways No. 79 and 167 and a controlled access bypass of Fordyce.

The two-acre homestead allotted to Ella Smith in the 1958 partition suit was condemned and Solomon Jerome Smith, Jr. and his guardian (because of his remainder interest) were made parties defendant. Solomon Jerome Smith, Jr. received his share of the proceeds deposited by the Arkansas Highway Commission for the homestead land and improvements located thereon. There was a court order determining the commuted value of dower and homestead rights of Ella Smith and the amounts to be paid to the widow and the remainder-men.

A part of the land which Billy A. Puterbaugh acquired under the commissioner’s deed from the aforementioned partition sale was also involved in a condemnation suit. Solomon Jerome Smith, Jr., by his guardian, Ira Lee O’Guinn, intervened in this suit for asserting claim to the funds deposited in the registry of the court for the taking of Puterbaugh’s land. By answer Smith alleged that he owned an interest in the Puterbaugh land because of the invalidity of the partition decree of April 14, 1961, by which Puterbaugh acquired title. The Circuit Court, on April 10, 1964, found that Solomon Jerome Smith, Jr. had no interest in the Puterbaugh land and that any claim by Smith and his guardian was without foundation.

Timely notice of appeal to the Supreme Court from the findings and judgment entered by the Circuit Court was filed, and an appeal bond was made. However, the appeal was never perfected.

On August 18, 1964, Solomon Jerome Smith, Jr., having reached the age of 21, filed a second intervention in the Circuit Court condemnation case. In a number of pleadings Smith claimed a half interest in the Puterbaugh land and the funds deposited by the Highway Commission for the partial taking. These pleadings again placed in issue the alleged invalidity of the decree of partition in Chancery Court under which Puterbaugh acquired title to the land involved.

On November 2, 1964, the Circuit Court found that Smith had no interest in the Puterbaugh tract; that his claim of title to this land had been fully adjudicated; that the judgment entered on April 10, 1964, had become final because no appeal had been perfected; that this judgment was a complete bar to the attempted intervention filed on August 20, 1964. Relief was again denied.

On December 1, 1964, Smith filed notice of appeal from the order of the Circuit Court of November 2, 1964. This appeal was never perfected and the Circuit Court judgment entered on November 2, 1964, became final. This was a third adjudication of the claim of title of Solomon Jerome Smith, Jr. to the Puterbaugh land.

The record in Smith v. Smith, supra, shows that no notice of appeal was ever filed or served on McCollum and Puterbaugh, (appellees here) who were purchasers at the partition sale ordered by the Chancery Court in 1961. The decree therefore became final as to them. Miller v. Henry, 105 Ark. 261, 150 S. W. 700.

On June 2, 1965, the instant case was filed (pursuant to the provisions of Ark. Stat. Ann. § 29-506 sub paragraph 8 [Repl. 1962] 'and § 29-508 [Repl. 1962]) in the Chancery Court of Dallas County against Ella Smith, Billy A. Puterbaugh, Edgar McCollum, and Arkansas State Highway Commission (no service was obtained on the Highway Commission) seeking a review and modification of the partition decree previously entered on April 14, 1961. The complaint is largely a review of the Smith family background and a step by step summary of the multitudinous pleadings and orders in the first case (1961). By and large the complaint embodies only allegations that were contained in pleadings filed by appellant’s present attorney in Smith v. Smith, supra, and the aforementioned litigation in the Circuit Court. About the only new information is that appellant has attained his majority, is in the military service and contends that his constitutional rights have been impinged upon.

Prayer was that the trial court review the decree of April 14, 1961; that such decree be modified and corrected in such manner that appellant will be accorded “due process of law,” “equal protection of the law,” and that he “have his property rights adjudicated in accordance with the mandates of the Constitution and Laws of the United States of America, and of the Constitution and Laws of the State of Arkansas. ’ ’

Appellee Puterbaugh filed a motion to dismiss and a counterclaim in which he alleged that Solomon Jerome Smith, Jr. had maliciously slandered the title to his (Puterbaugh’s) land by the numerous pleadings, interventions, notices of appeal, willful delay and dilatory tactics in failing to perfect appeals, and the filing of repetitious pleadings alleging matters known to have been previously adjudicated. Appellees, Ella Smith and Edgar McCollum, filed motions to dismiss bottomed on pleas of res judicata. Following a hearing the chancellor dismissed the complaint of appellant holding that all issues had been previously adjudicated and transfered the counter-claim of Puterbaugh to the Circuit Court. There is no cross appeal from the transfer order, hence we are requested to review only the trial court’s order dismissing appellant’s complaint.

In Ted Saum & Co. v. Swaffar, 237 Ark. 971, 377 S. W. 2d 606, we said:

“The true reason for holding an issue res judicata is not necessarily for the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controtroversy......Further, res judicata is applicable not only to an issue actually litigated, but also governs as to matters within the issue that might have been litigated. Thomas v. McCollum, 201 Ark. 320, 144 S. W. 2d 467; Rose v. Jacobs, 231 Ark. 286, 329 S. W. 2d 170.”

When the facts related above are considered in the light of the foregoing well established rule it becomes crystal clear that the learned chancellor properly dismissed appellant’s complaint and that it is our duty to affirm his holding, which is accordingly done.

McFaddin, J., not participating.


author: Hugh M. Bland, Justice.

text:
    J. H. Robinette et al v. Claude H. Brooks et al
    5-3951
    408 S. W. 2d 490
    Opinion delivered November 21, 1966

      Guy H. Jones, for appellant.

      Robert W. Henry, for appellee.
   Hugh M. Bland, Justice.

This is a suit to quiet title to 40 acres of land in Faulkner County, Arkansas. In 1953 appellees leased the 40-acre tract from Mrs. Minnie Meeks, constructed fencing around the land thereby enclosing it within their overall or perimeter fences. In 1956 Mrs. Meeks discovered that she did not own this particular tract but appellees continued in possession, pasturing the lands, built a road to and across it, cut posts off of it and otherwise used the land as their own.

In 1964 appellants obtained a quitclaim deed to the land from the widow of C. E. Gentry who had obtained a deed from one John Griffith purporting to convey to him an undivided one-half interest in the land. The only claim Griffith had was a tax deed from the State issued in January 1930 for forfeiture of the taxes in 1923. On January 20, 1930 Mr. Griffith executed and delivered a quitclaim deed to H. L. Henry and C. E. Gentry. Mr. Gentry died testate in 1952, devising his property to his widow, Edna M. Gentry. Mrs. Gentry then executed and delivered a quitclaim deed to appellant, John H. Robinette, on May 21, 1964. Appellants ’ predecessors in title, including John Griffith, were never in possession of the lands and did not pay the taxes.

The taxes upon these lands for 1945 to and including 1962 were paid by Robert O. Carmichael, originally a party to the suit until appellees obtained a quitclaim deed from Carmichael and his wife. Mr. Carmichael testified he paid these taxes by mistake. Appellee paid the taxes for 1963 and appellants paid them for 1964.

Four witnesses testified for appellees and clearly established that appellee purchased 410 acres in 1952 and all of these lands were enclosed with a continuous fence and since leasing the lands in 1953, has maintained Ms fences so as to enclose the subject property within his overall fences.

To rebut this testimony appellants produced one witness, John H. Robinette, who testified as to the fencing but added little, if any, to the testimony already adduced since he had not seen subject lands and had not been in the area from 1953 to 1963.

After trial, the court found that the appellees have had actual pedal, adverse possession of the 40 acres in question for the statutory period prior to institution of this suit on September 16, 1964; that the pasturing- of cattle for at least seven years prior to suit, when taken together with the cutting of posts, working a small road to reach said lands, the maintenance of substantial fences around the lands and all of the other lands occupied by appellees by lease or otherwise; that said lands were enclosed and appellees’ cattle were kept witMn the overall fence and enclosure. The court entered a decree quieting title to the lands in appellees.

For reversal, appellants contend (1) that appellees do not have a claim of adverse possession under color of title, (2) non-payment of taxes by appellees, (3) appellees did not occupy said lands for statutory period, (4) no notice to anyone that appellees claimed said lands and (5) that appellees never had any actual, open, notorious, continuous, hostile and exclusive possession of the land involved.

We see no merit in any of the contentions of appellants.

Both parties cite Varn’s Annotated Supplement to Jones, Arkansas Titles, § 1498, page 910, as a correct statement of the law of this state:

“In order that adverse possession may ripen into ownership, possession for seven years must have been actual, open, notorious, peaceable, continuous, hostile, and exclusive. It must be accompanied with an intent to hold adversely — in derogation of and not in conformity with the right of the true owner. ’ ’

The testimony of the witnesses clearly establishes that notoriety of possession, as defined in Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489 and Newman v. Newman, 205 Ark. 590, 169 S. W. 2d 667, was proven by a preponderance of the evidence.

On the question of notice, we have consistently held that notice of adverse possession may be actual or it may be implied by facts and circumstances such as pasturing stock, the existence of fences, the cultivation or improvement of land. Black v. Clary, 235 Ark. 1001, 363 S. W. 2d 528; Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900.

The main contention urged by appellants is that appellees did not construct a fence around all four sides of this particular 40-acre tract. This 40 acres is, however, within the perimeter of the overall fence around all of appellee’s lands. This contention is refuted in the ease of Burns v. Mims, 224 Ark. 776, 276 S. W. 2d 76, where we said:

“* * * Hostility of possession is to be judged by the views and intentions of the person occupying the property, not by those of the landowner whose title is being extinguished. Trapnall v. Burton, 24 Ark. 371, 395. It was enough for the appellee to erect a single fence encircling the entire tract; he was not required to subdivide his claim by the construction of cross fences conforming to the record ownership of the interior lots. The appellant was put on notice of the hostile claim by the fact that his access to his lots was obstructed from every direction.”

See, also, Kieffer v. Williams, 240 Ark. 514, 400 S.W. 2d 485 (1966).

The chancellor made the following findings of fact:

‘ ‘ The sole issue for decision in this case is whether plaintiffs have had actual pedal, adverse possession of the 40 acres in question for the statutory period prior to institution of this suit on September 16, 1964. It is held that the pasturing of cattle for at least 7 years prior to suit, when taken together with the cutting of posts, the road work, and the overall enclosure, is sufficient to constitute adverse possession of the lands in question. The evidence shows that substantial fences were maintained around plaintiffs ’ lands and all of the other lands, and even though gates were across the public road, this did not prevent the enclosure. The cattle were kept within the overall fence and this was not an open range type of situation... ”

Finding no error, the decree of the chancery court is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Madelyn Frazier v. James L. Sewell
    5-4034
    408 S. W. 2d 597
    Opinion delivered November 28, 1966

      Rowell, Price & Worsham, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Carleton Harris, Chief Justice.

On May 1, 1965, an automobile driven by James T. Frazier, Madelyn Frazier, his wife, being a passenger in the car, was struck by an automobile operated by James Sewell. The collision occurred on Highway 65, about five miles south of Conway. Subsequent thereto, the Fraziers, appellants herein, instituted suit against appellee Sewell, Frazier seeking property damages in the sum of $750.00, and $5,000.00 as punitive damages, and his wife seeking damages for personal injuries in the amount of $50,-000.00. Sewell answered, asserting that the collision was caused by the negligence and carelessness of Frazier; that Mrs. Frazier failed to exercise ordinary care for her own safety, and that negligence and carelessness on her part contributed to her alleged injuries. The case proceeded to trial, but Mr. Frazier took a non-suit prior to submission to the jury, leaving Mrs. Frazier’s cause of action still at issue. The jury returned a verdict for appellee, and from the judgment so entered, Madelyn Frazier brings this appeal. For reversal, appellant presents two points, first, that the court erred in refusing the comparative negligence instruction requested by both appellant and appellee, though instructing on ‘ ‘ contributory negligence,” and this was error. The second ground for reversal is that the verdict was contrary to the weight of the evidence.

Appellant requested an instruction numbered AMI 2102, which relates to comparative negligence. The court refused to give this instruction as offered, and appellant made a general objection. Thereupon, the court modified the instruction, and gave it to the jury. To the instruction, as modified, there was a general objection by appellee, but appellant made no objection whatsoever. Appellee asked for a similar instruction to AMI 2102 (defendant’s requested instruction No. AMI 2109), but it was refused. The court also gave an instruction on the burden of proof, as follows:

“As a defense to the claim of Madelyn Frazier, it is contended by J. L. Sewell that she was guilty of negligence which was a proximate cause of her damages. A party who asserts the defense of negligence on the part of a person claiming damages has the burden of proving this defense.”

Appellant made only a general objection to this instruction.

There is no merit in appellant’s contention. Let it first be said that, of course, appellant cannot complain of the court’s failure to give an instruction requested by appellee, nor was there any objection by appellant to the giving of the instruction requested by her, as modified by the court. At any rate, the request for appellant’s instruction AMI 2102 was subsequently withdrawn. The withdrawal of the requested instruction actually meant that appellant no longer wanted that instruction, and she was thereby placed in the same status as though the instruction had never been requested. We have repeatedly held that a party cannot complain of a trial court’s failure to give an instruction unless same is requested. Ragon v. Day, 228 Ark. 215, 306 S. W. 2d 687, and Clay v. Garrett, 228 Ark. 953, 311 S. W. 2d 522. As far as the instruction on the burden of proof is concerned (termed “contributory negligence” by appellant), appellant made a general objection, which would only be effective if the instruction was inherently erroneous. Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629. The instruction is obviously not inherently erroneous.

It is next urged that the verdict is against the weight of the evidence, but there is no point in setting out the evidence, since, though we should agree that this is true, there is no action that this court can take. We have held on divers occasions that the weight of the evidence and credibility of the witnesses are solely within the province of the jury. In Jonesboro Coca Cola Bottling Company v. Holt, 194 Ark. 992, 110 S. W. 2d 535, this court, quoting 4 C. J. 859, 860, said:

“ ‘The fact that the appellate court would have reached a different conclusion had the judges thereof sat on the jury, or that they are of the opinion that the verdict is against the preponderance of the evidence, will not warrant the setting aside of a verdict based on conflicting evidence.’ 4 C. J. 859, 860.”

Appellant relies upon Koonce v. Owens, 236 Ark, 379, 366 S. W. 2d 196, but there, the trial court set aside the judgment, finding the verdict to be against the weight of the evidence. On appeal, we simply held that the trial court did not abuse its discretion in ordering a new trial. In the instant case, appellant made no motion for a new trial in the court below.

Finding no reversible error, the judgment is affirmed.

       ln 88 C.J.S. § 305, Page 821, we find: “Instructions may and should be confined to- issues insisted on at the trial, and where issues are abandoned or expressly withdrawn by the parties, the court may omit to submit them to the jury.”


text:
    Mozelle Bingamin et al v. City of Eureka Springs et al
    5-4132
    408 S. W. 2d 607
    Opinion delivered November 28, 1966

      M. D. Anglin, for appellants.

      Hardy W. Croocton and James B. Coates, for appellees.
   Carleton Harris, Chief Justice.

This is an appeal in an election contest, in which, inter alia, the validity' of certain absentee ballots is questioned.

On June 7, 1966, a special election was held in the City of Eureka Springs, at which time three different questions were submitted to the voters, but two of those questions are not involved in this appeal. The question at issue relates to a proposed bond issue under Amendment 49 to the Constitution of the State of Arkansas. On the face of the returns, the bond issue was certified by the election commissioners as having been adopted by a vote of 363 for the issue and 359 against the issue. Within proper time, Mozelle Bingamin, and others as contestants, filed an action in the Circuit Court contesting the result of the election. Among other allegations (with which we are not here concerned), appellants challenged the votes of six persons who were residents of the Municipal Hospital in Eureka Springs, and who purportedly voted by absentee ballot. After hearing testimony, the court held that the six absentee votes were valid, found that the final vote was 363 for the bond issue and 359 against, and appellants’ complaint was dismissed. From the judgment so entered, comes this appeal.

The absentee ballots challenged were those of Mattie Rowland, Yerda Cox, Alice Aimes, Jessie Dukeminier, Joe T. Nelson, and Roscoe Fowlks. During the course of the trial the Circuit Court, with the lawyers and court reporter (apparently by agreement), went to the hospital and took the testimony of these voters.

Before considering this evidence, we deem it first proper to review the statutes relating to absentee voting. Ark. Stat. Ann. § 3-1125 (Repl. 1956) sets out the manner of making applications for absentee ballots, as follows:

“Applications for absentee ballots may be made in one of the following three [3] ways, m no other manner [emphasis supplied] and then only on the form set out in this Act [§ § 3-1123 — 3-1136].

(a) In person at the office of the County Clerk of the county of residence of the voter.

(b) By mail; provided that, applications by mail must be received in the office of the County Clerk of the county of residence of the voter not sooner than ninety (90) days, nor later than one (1) day before the election for which such application was made. When there are first and second primaries, one (1) application may be used to request ballots for both primaries if the request is made as provided on the application form. Provided, however, that no ballot shall be mailed to any applicant except in strict compliance with the provisions of Amendment 51 to the Arkansas Constitution.

(c) By delivery of the application form to the office of the County Clerk of the county of residence of the applicant not later than 1:30 p.m. on the day of the election. Delivery may be made only by the elector, or the husband, wife, son, daughter, sister, brother, father or mother of the applicant.” [Emphasis supplied.]

Section 3-1126 sets out the required application form, in which the prospective voter directs the clerk to either mail a ballot to him, or to ‘ ‘ send by (name of relative) an absentee ballot.”

Section 3-1130 provides the manner in which absentee ballots must be cast, and reads as follows:

“Absentee voting may be accomplished in one of three [3] following methods, and in no other manner [emphasis supplied] :

(a) On ballots east in the office of the County Clerk in the County of residence of the voter during regular business hours of any day not earlier than the fifteenth [15] day before election day, not later than 6:30 p.m. on election day.

(b) By ballot cast by mail which must be received in the office of the County Clerk of the county of residence of the voter not later than 6:30 p.m. on election day.

(c)By delivery of ballot to the office of the County Clerk of the county of residence of the voter not later than 6:30 p.m. on election day. Delivery may be made only by the husband, wife, son, daughter, sister, father or mother of the absentee voter.” [Emphasis supplied.]

Amendment 51, Section 13, Sub-section (d), the Voter Registration Amendment, provides:

“(d) Absentee voting shall be conducted in the same manner as now provided under the laws of the State; provided, that the Permanent Registrar shall determine that the signature on the application for absentee ballot is identical with the signature appearing on the voter’s Affidavit of Registration before mailing or passing out an absentee ballot. * * *”

With these provisions in mind, let ns examine the testimony. The evidence reveals that the application forms were filled out for the voters in question by B-uby Bailey, Deputy Clerk, and were apparently taken by Mrs. Maxine Weaver to the Eureka Springs Municipal Hospital, where the six absentee voters in question were staying. Though the deputy clerk stated that she received requests for these ballots by mail from these six persons, none of the voters testified that they mailed in such a request. Excerpts from the testimony of several voters are herewith quoted.

Prom the testimony of Mattie Rowland:

“Q. ' Did you vote by absentee ballot where somebody brought the ballot around to you and you voted!
A. Yes, I guess I did.
Q. Who brought the ballot in here and gave it to you! The affidavit!
A. Did you, Sister!
Q. Did you put in any request for it! To anybody to send you a ballot!
A. Well, I don’t know. Did I, Sister!
Q. Now, ivait a minute. Did you write any letter or have any of your relatives write a letter!
A. No.
Q. Did anybody come in here and ask you to vote in that election!
A. No.
Q. Did you know there was going to be an election before the ballot was brought in!
A. No, sir, I sure didn’t.
Q. Did you mark your own ballot?
A. I guess I did, didn’t I Sister?”
Prom the testimony of Alice Aimes:
“THE COURT: I used to know you down at the Basin Park. Now, did you vote in this bond election?
A. No, sir, I didn’t. I didn’t vote at all. They said they was coming for me to vote. I can’t go out, see. * * *
THE COURT: Did you mark a ballot, a piece of paper?
A. No.
THE COURT Was this the bond election?
A. Well, now, this was the election they had just a few days ago.
THE COURT: But now, in June, the bond election, do you remember?
A. Well, now I just don’t know whether I did, or not. I wouldn’t say. It’s just too long ago. I remember now when they had it but I guess I did.
THE COURT: You won’t say you did, or you didn’t?
A. No, I won’t.
THE COURT: Did you vote for the bond, or against it?
A. I voted for it if I voted at all.
THE COURT: You voted for it?
A. Uh-huh. If I voted at all.
THE COURT: But you wanted to vote and you asked for a ballot and did you ask for the ballot to be brought up?
A. No, they just brought it up to me and asked me if I wanted to vote and I said —. * * *
MR. ANGLIN: Q. Do you know who brought the ballot in here and gave it to you, Alice?
A. No, in fact, I believe it come through the mail.
Q. Did you apply for it through mail?
A. No, Mrs. — somebody came in and signed up for all the papers. I guess she did; I don’t know. ’ ’

From the testimony of Verda Cox:

THE COURT: Did you know about this bond election they had in the City of Eureka in June ?
A. Well, the bond election for what? They’ve had so many. * * *
THE COURT: You voted absentee?
A. Well, then I was able to stand on my own two feet and vote. •
THE COURT: Did you go down June 7th and vote?
A. I believe it was the last time that they brought me by the polling place.
THE COURT: You think you went to the polling place ?
A. Well, there was a little house down here on the side of'the street.
THE COURT: Who took you down?
A.- Well, I come up with a cab driver who was coming to the hospital and I stopped off to vote.”

Subsequently, the last two persons, after an extended and somewhat leading examination, finally stated that they voted absentee, though it is, we think apparent, from the quoted portions of their testimony, that these statements (that they voted absentee) can hardly be taken as completely reliable, and certainly cannot be considered substantial evidence.

Jessie Dukeminier, whose vote was likewise counted as valid, testified that she went to the polls and voted, and did not vote absentee, and the reasons for the court sustaining this vote are not apparent.

Joe Nelson, another patient in the nursing home, testified that someone at the hospital made the request for the applications; that both the applications and the ballots were brought to the hospital.

Mrs. Bailey testified that she “thought” that the applications were taken to the hospital, by Mrs. Weaver. Mrs. Weaver admitted going to the hospital, but did not say whether she took applications and ballots, or either,- she stated that she had no part in voting any of the persons whose votes are here in question, was not related to any of the voters, and she did not testify that she mailed the applications or ballots to the registrar. Mrs. Bailey’s testimony is very confusing. Reading it one way, it could be interpreted as stating that the absentee ballots were returned by United States Mail. Beading it another way, it could be interpreted to mean that the applications were received by United States Mail,' and actually, the evidence tends toward this interpretation. In fact, the testimony of both Mrs. Weaver and Mrs. Bailey is ambiguous, vague, and completely unsatisfactory.

Sister Mary Martina Bowles is the Administrator of the Eureka Springs Municipal Hospital. Belative to the manner in which the applications and ballots were received, Sister Bowles testified as follows:

“Q. Do you know who brought those affidavits up there to the hospital and left them there for them for absentee ballots?
A. Mrs. Maxine Weaver. # *
Q. Who took these ballots and affidavits and gave them to the patients?
A. I did. * * *
Q. Who asked you to do it?
A. Mrs. Maxine Weaver brought the applications' up and I took them to the patients and they signed them and I brought them back to her.
Q. Did you tell them what they were voting for?
A. Yes, I did.”

We think the quoted testimony makes clear that the. statutes setting forth the manner of absentee voting, were not complied with, and, in fact, the evidence, all taken together, lends itself to no logical interpretation, except that both the applications for absentee ballots, and the ballots, were handed to the voters and executed on the same occasion. This is in direct conflict with the requirements of Sub-section (d), Section 13, Amendment No. 51, heretofore mentioned, which provides that the permanent registrar (County Clerk) “shall determine that the signature on the application for absentee ballot is identical with the signature appearing on the voter’s Affidavit of Registration before mailing or passing out an absentee ballot.”

Suits in election contests frequently show irregularities, and Amendment 51, adopted comparatively recently by the people, contains provisions aimed at correcting this situation. It is necessary that these provisions of the amendment, and the statutes referred to, relating to the duties of voters in applying for, and casting, absentee ballots, be strictly complied with.

Here, not a single one of the six voters directly stated that he or she first executed an application to vote absentee. Conflicting statements were made by some of the witnesses relative to the manner in which the ballots were received. As previously pointed out, one stated positively that she voted personally at the polls; another first testified that she voted at the polls, but finally said that she voted absentee; another stated at the outset that she did not vote at all, then testified that she did not know whether she voted absentee or not, and finally, that she did. Another “guessed” that she voted, but she also testified that she did not know from whom she received the ballot, or whether she requested it; she did state that she did not know there was to be an election until the ballot was brought to her. It might be added that not a single one of the six testified either that he (or she) mailed an application, or requested that one he mailed for him — or that he mailed a ballot, or requested someone to mail it for him. Nor did anyone say that he requested a relative to return an application, or ballot, to the clerk.

We hold there is no substantial evidence that the mandatory provisions of our law, herein cited, were complied with.

Reversed.

      Other votes cast at the polling place were also challenged, but under our holding, there is no need to discuss the validity or invalidity of these ballots.

      The court held one vote invalid, which had been allowed by the election commission, but validated another, which had been disallowed by the election commission, leaving the same total.

      This sub-section, originally passed with the other sections in 1949, was amended by Act 417 of 1965.

      The word, “elector,” is somewhat confusing, and could be included by mistake; it also could have reference to the right of the voter to return his application to the clerk, and obtain a ballot at any time prior to election day. This word does not appear in § 3-1130, which deals with the manner of voting an absentee ballot.

       No criticism is intended of the hospital administrator for taking these ballots and applications around, since she evidently thought she was rendering a service to her patients, and was not familiar with election laws.

      Emphasis supplied.

      While the record does not reveal the exact project for which the bond issue election was held, it is clear that it was held under the provisions of Amendment 49, which authorizes, after an election, the issuance of bonds for the purpose of securing and developing industry within or near the Municipality holding the election. It is interesting to note that two of the voters made statements whch indicated that they thought they were voting for the nursing home.


author: Ed. F. McF addin, Justice.

text:
    Bernard Whetstone v. Atlas Drilling and Production Co. et al
    5-4001
    409 S. W. 2d 322
    Opinion delivered November 28, 1966
    [Rehearing denied January 9, 1967.]

      William Powell Thompson, for appellant.

      Harold L. Hall, for appellee.
   Ed. F. McF addin, Justice.

The big question in this case is whether a judgment was discharged or assigned. The decision on that question leads to two other questions to be discussed.

By its decree of February 3, 1966, the Chancery Court awarded appellant a judgment against R. Q. Couey for $3,000.00, but refused judgment against any of the other appellees herein; and also quashed an execution which appellant had obtained against some of the appellees. From said decree of February 3, 1966, there is this appeal. The appellant is Bernard Whetstone, Trustee, and Bernard Whetstone, Attorney. The appellees are: Atlas Drilling and Production Company, Jessie Wedgeworth, Lorene Wedgeworth, Bernard N. Nusko, R. Q. Couey, Charles Cammack, C. B. Carpenter, W. C. Dacus, Dave Hilliard, James W. Sedberry, Kay Matthews, Scott Medlin, and James M. Barker.

The facts, while largely undisputed, are quite complicated, and will be detailed chronologically:

1. By judgment entered March 30, 1965, the Chancery Court of Ouachita County awarded to Bernard Whetstone, Trustee, and Bernard Whetstone, Attorney (hereinafter called “Whetstone”), a joint and several judgment against Atlas Drilling and Production Company, Jessie Wedgeworth, Lorene Wedgeworth, Bernard N. Nusko, R. Q. Couey, Charles Cammack, and C. B. Carpenter, in the sum of $16,040.98, with interest and costs. These named persons against whom the said judgment was rendered are hereinafter referred to as “ judgment debtors.”

2. The judgment debtors gave notice of appeal and filed a supersedeas bond with the following named sureties, each being liable for the amount shown: W. C. Dacus for $3,000.00; Dave Hilliard for $3,000.00; Scott Medlin for $6,000.00; James W. Sedberry for $3,000.00; and Kay L. Matthews for $3,000.00.

3. Even though the intention was to prosecute an appeal to the Supreme Court from the judgment of March 30, 1965, nevertheless no such appeal was ever perfected. Rather, on October 7, 1965, James Barker, an attorney of Hamburg, Arkansas, had a conference with Whetstone about two matters: one was in regard to obtaining an assignment of the said judgment; and the other was in regard to purchasing the so-called “Moon Lease.” Whetstone refused to discuss the Moon Lease with Barker in any way unless and until Barker would first pay for and take an assignment of the judgment.

4. As a result of the said dealings, Whetstone, for $16,800.00, assigned to James M. Barker the aforementioned judgment by proper assignment dated October 7, 1965, and duly recorded in Ouachita County on October 13,1965. After the assignment of the judgment had been consummated and Barker had paid Whetstone $16,800.00 therefor, the parties then discussed the matter of Whetstone conveying to Barker for some consideration the so-called Moon Lease; and Whetstone and Barker consummated a deal whereby Whetstone deeded his interest in the Moon Lease to Barker for a consideration of $3,-000.00, which was to be paid from the first $3,000.00 that should be collected on the said judgment assigned to Barker by Whetstone. In other words, Barker assigned back to Whetstone the first $3,000.00 collected on the judgment. This assignment to Whetstone was duly recorded in Ouachita County on October 13, 1965.

5. The next step in the tangled affairs occurred in November 1965, when James M. Barker filed in the original ease of Whetstone v. Atlas Drilling Company et al a “Motion for summary judgment,” in which Barker sought summary judgment against all of the original judgment debtors as named in Paragraph numbered 1, supra, and also against the sureties on the supersedeas bond as named in Paragraph numbered 2, supra. Barker alleged that he was the owner and holder of the judgment and that the failure of the parties to perfect the appeal gave Barker the right to judgment against the sureties for the amount for which each was liable. Whetstone intervened against the motion for summary judgment and asserted his rights to the first $3,000.00 collected against the judgment debtors and/or the sureties on the supersedeas bond. His intervention was because of the assignment that Barker had made to him of the said first $3,000.00 collected.

6. The Chancery Court entered judgment for Barker on his Motion for summary judgment on November 5, 1965, and for Whetstone on his intervention on December 13, 1965. On December 13, 1965, Whetstone had execution issued to Pulaski County for $3,000.00 against only these named parties, to-wit: C. B. Carpenter, Dave Hilliard, Scott Medlin, W. C. Dacus, James W. Sedberry, and Kay Matthews.

7. On January 21, 1966, the said Pulaski Connty parties as just named filed in the original case in the Ouachita Chancery Court a “Motion to quash execution,” and later filed a “Motion to set aside judgment.” The allegations in these two motions were: (a) that the assignment to Barker fully satisfied the judgment and Whetstone could not thereafter acquire any rights in a satisfied judgment; (b) that motion for summary judgment against the sureties was without the notice required by Ark. Stat. Ann. § 29-107 (Repl. 1962); and (c) that the execution to Pulaski County was void as not being in compliance with Ark. Stat. Ann. § 30-108 (Repl. 1962).

8.On February 3, 1966, the Chancery Court of Ouachita County had a trial on the Motion to quash and the Motion to set aside judgment; and, after hearing the evidence offered, entered a decree dated February 11, 1966, finding and holding: (1) that the $16,800.00 paid Whetstone by Barker was a full, complete, and final satisfaction of the judgment, and that Whetstone could have no further rights therein; (2) that R. Q. Couey, individually, was indebted to Whetstone for $3,000.00 as consideration for the Whetstone deed to Barker of the Moon Lease, and judgment was rendered in favor of Whetstone and against Couey individually for said amount; and that the judgments of November 1965 and December 13, 1965 (as mentioned in Paragraph numbered 6, supra), were set aside.

So much for the chronological recitations. From the decree of February 3, 1966, Whetstone prosecutes this appeal, urging three points, which we now list, but will discuss in our own topic headings:

“I. The Court erred in holding that the assignment discharged the judgment.

“II. No notice was necessary to enter judgment against sureties.

“III. The Court erred in overlooking the fact that regardless of any notice, and regardless of any prior proceedings, that all parties had notice and all parties were present at the time of the hearing on February 3, 1966, and that there was no reason in law or equity why the court could not grant equitable relief to all concerned at that time.”

I. Was The Judgment For $16,040.98 Fully Discharged By The Assignment From Whetstone To Barherí This is the first and vital question to he decided; because if the assignment from Whetstone to Barker was a discharge of the judgment, then no further rights can flow therefrom. On this point the appellees claim that the assignment to Barker was in fact payment by Oouey and/or Nusko; and that payment by one judgment debt- or is a discharge of the judgment as to all judgment debtors. Cited in support of such claim is Biggs v. Davis, 184 Ark. 834, 43 S. W. 2d 724.

We find no merit in appellees’ claim; and we hold that the judgment was assigned to Barker just as .the assignment instrument stated. Certainly Whetstone did not intend or understand that the assignment to Barker was a discharge of the judgment, because Whetstone accepted back from Barker an assignment of the first $3,000.00 on the judgment. Barker intended to hold the assignment against the judgment debtors and the sureties, as is evidenced by his motion for summary judgment. He did not intend that the money paid Whetstone would be a discharge of the judgment In American Jurisprudence Vol. 30A, p. 866 et seq., “Judgments” § 1009, there is a splendid discussion of the holdings ■in various jurisdictions as to when an assignment maybe held to be a satisfaction of a judgment:

“In a considerable number of instances, one who pays a judgment takes an assignment thereof. By so doing, the general principles governing the effect of such payment are not materially modified. The effect of the assignment depends largely upon the same principles as those that govern the willingness of courts of equity to apply the doctrines of contribution and subrogation, namely, the existence of an equity and the intent of the parties. In the case of an assignment of a judgment, the mere making of the assignment discloses the intent that the payment should not operate as a discharge of the judgment. ’ ’

Certainly in this case the real intent and effect of the entire transaction clearly demonstrates that the assignment to Barker was an assignment and not a satisfaction of the judgment. In a court of equity we pierce the fiction, and so we hold that there was no satisfaction of the judgment, and Whetstone’s rights against the judgment debtors and the sureties on the supersedeas bond still exist to the extent of the $3,000.00 reassigned to him. Having thus answered the main question, we will consider the two other points which require decision.

II. The Summary Judgment. The only appellees who have filed a brief in this Court are C. B. Carpenter, one of the judgment debtors, and Kay Matthews, one of the sureties on the supersedeas bond; but, regardless of the absence of briefs, we consider the case on its merits as to all appellees because Rule 10 of our Court so provides.

Matthews claims that the Court orders of November and December 13, 1965, awarding Barker and Whetstone judgments against the sureties on the supersedeas bond (as detailed in Paragraph numbered 6, supra) were and are void because no notice was given to Matthews of the intention to apply for such judgments. We find no merit in this contention. The sureties on a supersedeas bond become in legal effect parties to the suit. In White v. Prigmore, 29 Ark. 208, Chief Justice English said:

“To the argument of counsel, that the sureties have no. day in court, it may be answered, that they have the same day in court that the appellant has, having, in legal effect, made themselves parties to the appeal, and agreed to abide and satisfy the judgment. ’ ’

In Rogers v. Brooks, 31 Ark. 194, Chief Justice English said:

“The sureties, having made themselves parties to the suit by entering into the appeal bond, are not entitled to notice before decree against them.”

To the same effect, see Chavis v. Golden, 226 Ark. 381, 290 S. W. 2d 637. So the summary judgment against the sureties was proper in this case.

III. The Execution To Pulaski Cou/nty. By the judgment of December 13, 1965, Whetstone was awarded a-separate judgment for $3,000.00 against Atlas Drilling and Production Company, Jessie Wedgeworth, Lorene Wedgeworth, Bernard N. Nusko, R. Q. Couey, Charles Cammack, C. B. Carpenter, Dave Hilliard, Scott Medlin, W. C. Dacus, James W. Sedberry, and Kay Matthews, jointly and severally; and on the same day (December 13, 1965) Whetstone had execution issued to the Sheriff of Pulaski County against only these named parties: C. B. Carpenter, Dave Hilliard, Scott Medlin, W. C. Dacus, James W. Sedberry, and Kay Matthews.

In its judgment of February 3, 1966, the Court quashed this execution, and the question here presented is the correctness of the Court’s quashing of the execution. That question is really rendered moot now because the execution of December 13, 1965, has, by lapse of time, become functus officio. See Page v. Griffin, 255 Ark. 1032, 287 S. W. 2d 453. Furthermore, the execution of December 13, 1965 should have been quashed because of the provisions of Ark. Stat. Ann. § 30-102 (Repl. 1962). That section provides: “No execution shall issue on any judgment or decree, unless ordered by the court, until after the expiration of ten days from the rendition thereof.” The judgment in favor of Whetstone for the $3,000.00 was rendered on December 13, 1965, and there was nothing in the judgment that authorized an immediate execution; so the present execution of December 13th was premature by at least ten days.

Many other nice questions might suggest themselves as to executions, but these need not be discussed as they may not arise in view of our holdings on Points I and II herein.

CONCLUSION

It follows that the decree of the Chancery Court of February 3, 1966, is reversed and the cause remanded to the Chancery Court with directions to set aside its decree of February 3, 1966, and reinstate its judgments of November and December 13, 1965, and authorize the issuance of an execution by Whetstone on the said judgment for $3,000.00. All costs are taxed against appellees.

       in the deed which Whetstone made to Barker the description of the Moon Lease is as follows: “The so-called Moon Lease covering the North Half of the Northeast Quarter, Section 32, Township 15 South, Range 17 West” in Ouachita County.

      This is made clear by Barker’s testimony: “Mr. Whetstone wouldn’t talk to me about the 7/16ths interest until we had disposed of the judgment ... he wouldn’t even talk to me about the 7/16ths interest in the Moon Lease until we got the judgment out of the way. . .”

      The assignment to Barker contained no qualifying words such as “attorney” or “trustee” etc. It was simply to James M. Barker.

       The judgment of February 3, 1966, recites: “IT IS, THEREFORE, BY THE COURT, CONSIDERED, ORDERED AND DECREED, that the judgment entered on March 30, 1965, has been paid in full to the plaintiff, Bernard Whetstone, Trustee. All writs of execution issued subsequent to October 7, 1965, are quashed, and the judgments entered on November 5, 1965, and on December 13, 1965, are set aside. Bernard Whetstone, Trustee, is granted judgment against R. Q. Couey in the amount of $3,000.00, together with all costs of this action.”

      Here is Barker’s testimony:
      “THE COURT: The Court would like to ask you a few questions. You bought the judgment from Mr. Whetstone. Did you ever recite what you paid for it?
      “A. I paid him exactly what it recited, $16,800.00.
      “Q. You then bought from him his right to Moon Lease?
      “A. Correct.
      “Q. And to pay for that, you assigned him the first Three Thousand Dollars collected under the judgment?
      “A. Yes, sir, to be collected. I have the assignment here. It says: ‘do hereby grant, bargain, sell, convey, set over and assign unto the said Bernard Whetstone, Trustee, and unto his heirs and assigns forever, all our rights of contribution or otherwise to the first $3,000.00 from Claude B. Carpenter and his bondsman or bondsmen in connection with that certain judgment dated February 10, 1965, in Case No. 10, 216 of the First Division of the Chancery Court of Ouachita County, Arkansas, styled “Bernard Whetstone, Trustee, etc., Plaintiff, v. Atlas Drilling and Production Company, Jessie Wedgeworth, Lorene Wedgeworth, B. N. Nusko, R. Q. Couey, Charles Cammack, and Claude B. Carpenter, Defendants, which judgment has heretofore this day been assigned to James M. Barker by said Bernard Whetstone, Trustee, and his wife, in consideration of the payment of $16,800.00.’ ” That was October 7, 1965.
      “Q. The question in the Court’s mind is whether these were two separate transactions or divided transactions?
      “A. It was two separate transactions. Mr. Whetstone wouldn’t talk to me about the 7/16ths interest until we had disposed of the judgment. I believe I am right in that. That was all consummated at one sitting but he wouldn’t even talk to me about the 7/16ths interest in the Moon Lease until we got the judgment out of the way and disposed of.
      “Q. You paid for the Moon Lease by assigning him a $3,000.00 interest in the judgment you had just bought. $3,000.00 contribution rights or otherwise?
      “A. Yes, sir. . . .”

      This rule reads in part:
      “When the appellee has failed to appear and file brief, when the case, is called for submission the court may proceed to hear argument for the appellant and give judgment according to the requirements of the case.”


author: George Eose Smith, Justice.

text:
    A. Benjamin White et ux v. Mrs. Harry Munro
    5-4041
    408 S. W. 2d 599
    Opinion delivered November 28, 1966

      Pope, Pratt, Shamburger, Buffalo & Ryan; By Donald 8. Ryan and D. Michael Huchabay, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   George Eose Smith, Justice.

On a rainy night in December of 1964 the plaintiff-appellants, A. Benjamin White and his wife, were traveling south on the Arch Street Pike, near Little Eock. As they drew abreast of Mac’s Market, a grocery store owned by the appellee, Mrs. Harry Munro, they collided with a car being driven by A. T. Massery, who was attempting to re-enter the highway after having been shopping at the market. The Whites- brought this tort action against Massery and Mrs. Munro. This appeal challenges the trial court’s action in directing a verdict for Mrs. Munro.

The charge that Mrs. Munro was negligent rests solely upon the location of her premises with respect to the paved highway. The pavement was twenty feet wide and lay in the center of a sixty-foot public easement. Mrs. Munro’s store building was set back from the pavement for a distance varying from 19 to 23 feet, so that it encroached upon the public easement by as much as one foot at one point. For many years the area between the store building and the highway had been paved with asphalt and had been used by the the market’s customers for ingress, parking, and egress. It is the appellants’ contention that Mrs. Munro was culpably negligent in maintaining a building that impinged upon the public easement by twelve inches and in maintaining a paved parking area that lay within the boundaries of the public easement. It is argued that these physical conditions were unreasonably hazardous to people traveling up and down the highway.

In rejecting the appellants’ contentions we need not go beyond the basic issue of simple causation. We lay aside the twelve-inch encroachment, which obviously had nothing whatever to do with this collision. All that remains is the assertion that the existence of a paved area next to the highway involved actionable negligence. This contention is unsound. There are, as we know, thousands upon thousands of commercial establishments — filling stations, grocery stores, drive-in restaurants, and the like — that have paved aprons adjoining city streets and public highways. On balance, such aprons doubtless promote traffic safety, in that they provide off-the-street parking and permit motorists to avoid the dangers incident to right-angle turns into and from the paved highway. If the mere existence of such aprons is a basis for a charge of negligence, then thousands of owners of property along our streets and highways are subject to potential liability for accidents that occur in front of their premises. We need cite only two of our decisions, which show, by their discussion of proximate cause in analogous situations, that there is no basis for a finding of liability upon the facts now before us. Chicago, R. I. & P. Ry. v. Davis, 239 Ark. 1059, 397 S. W. 2d 360 (1965); Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S. W. 2d 451 (1961).

Affirmed.


author: George Rose Smith, Justice.

text:
    Eddie McNeely v. Clem Mill & Gin Co. et al
    5-4007
    409 S. W. 2d 502
    Opinion delivered November 28, 1966
    [As amended on denial of petition for rehearing January 16, 1967.]

      Tom Gentry, for appellant.

      Riddick Riffel, for appellee.
   George Rose Smith, Justice.

This is a workmen’s compensation case. The principal question is whether an employee who suffers a scheduled injury which proves to be totally and permanently disabling is entitled only to the restricted compensation specified for the scheduled injury or to the greater benefits provided for total and permanent disability. The commission took the more liberal view, but its award was set aside by the circuit court. We agree with the commission.

The claimant, at the time of his injury in 1961, was a 50-year-old manual laborer, unable to read or write. His accident resulted in the total loss of the use of his right leg below the knee. That is a scheduled injury, for which he received compensation for the full statutory period of 125 weeks. Ark. Stat. Ann. § 81-1313 (c) (4) and (21) (Repl. 1960). When the present claim for additional benefits was heard the claimant could walk only with the aid of crutches and a leg brace. The commission found, upon proof that we consider to be substantial, that McNeely was totally disabled. Upon that finding the commission ordered that the payment of compensation be continued.

In our opinion the commission gave effect to the legislative intent. The statute defines disability as the incapacity to earn, in the same or any other employment, the wages which the employee was receiving at the time of his injury. Section 81-1302 (e). With respect to total disability the act provides: “Loss of both hands, or both arms, or both legs, or both eyes, or of any two thereof shall, in the absence of clear and convincing-proof to the contrary, constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts.” (Our italics.) Section 81-1313 (a). If the statute means what it says, the present case is one in which the question of permanent total disability is to be determined as an issue of fact.

We are convinced, as the appellant contends, that the benefits for scheduled injuries are meant to provide minimum compensation for those injuries rather than complete compensation when, as here, the workman is totally disabled. Indeed, it is demonstrably apparent that in many instances the benefits for scheduled injuries may have little or no relation to the claimant’s period of disability. For example, the award for the loss of hearing in one ear is compensation for 40 weeks, but that injury would hardly ever be disabling. Again, the award for the loss of one hand is compensation for 150 weeks, de.spite the fact that such an injury might be totally disabling to a musician, a surgeon, or a watchmaker, and not at all disabling to a lawyer, a stock broker, or an educator.

Elsewhere the cases are not in harmony. Larson discusses the authorities in Section 58.20 of his treatise on Workmen’s Compensation (1961). He points out that in the great majority of modern decisions the benefits for a scheduled injury are not held to be exclusive if the injury affects some other part of the body, resulting in total disability. Larson then goes on to criticize the distinction made by some courts in reaching a contrary result when the scheduled injury has no such side effects, even though it is totally disabling. We agree with his analysis of the problem now before us:

‘ ‘ The usual statute provides for both total disability and specific loss of a leg, without expressly saying that either shall be exclusive. It could therefore be argued that, since the act must be given a liberal construction, destruction of the more favorable remedy should not be read into the act by implication in a case where claimant is able to prove a case coming under either heading. Loss of a leg-may or may not cause total disability as defined in the preceding section. To refuse total disability benefits in such a case, when total disability is otherwise established to the satisfaction of the usual tests, has the effect of ruling out the inability-to-get-work element in a listed group of injuries which just happen to take the form of a neatly classifiable loss of a member. It has already been shown that the inability-to-get-work factor is an indispensable ingredient in the concept of total disability. If this is so, it is difficult to see why this factor is relevant in case of loss of a lung but not in case of loss of a leg. Logically, there is no reason to make the distinction turn on physical extension of the effects beyond the lost member.” Id. Cases that have adopted Larson’s view include Van Dorpel v. Haven-Busch Co., 350 Mich. 135, 85 N. W. 2d 97 (1957), overruling an earlier case to the contrary; Gonzales v. Gackle Drilling Co., 70 N. M. 131, 371 P. 2d 605 (1962); and Johnson v. Anderson, 188 Tenn. 194, 217 S. W. 2d 939 (1949).

The appellees complain of the fact that the commission, in finding- this claimant’s disability to be total, failed to find that it was also permanent. Instead the commission said that the duration of the disability is not determinable at this time. Inasmuch as there was substantial evidence that might have sustained a finding- of permanency — a fact issue upon which we express no opinion — we fail to* see how appellees are hurt by the commission’s deferment of this question until the exact extent of the disability might become clearer.

Reversed.

Cobb, J., disqualified.


author: Paul Ward, Justice.

text:
    Ark. State Hwy. Comm. v. James Henry Clay et ux
    5-4037
    408 S. W. 2d 600
    Opinion delivered November 28, 1966

      George 0. Green and Don Langston, for appellant.

      Robinson & Rogers and N. D. Edwards, for appellee.
   Paul Ward, Justice.

This is an eminent domain proceeding.

On May 25,1965 the Arkansas State Highway Commission (appellant) filed suit to condemn several lots and parts of lots owned by James Henry Clay and his wife (appellees) for use in construction of Interstate Highway No. 40. A jury verdict awarded appellees the sum of $22,500.

When appellant attempted to prosecute an appeal to this Court it learned that, due to a defect in the reporter’s recording machine, all of the testimony and proceedings had not been recorded and that a complete record could not be furnished. Thereupon appellant prepared and served on appellees its statement of evidence and proceedings in accordance with the provisions of Ark. Stat. Ann. § 27-2127.11 (Repl. 1962). Then appellees filed objections and amendments to appellant’s statement (in accord with the same statute) over the objections of appellant.

On June 9, 1966 the trial court approved the statements of both parties, and on the same day appellant 'filed a motion for a new trial on the ground that the failure to obtain a complete record was the result of the unavoidable situation above mentioned. The motion was denied, and this appeal follows.

One. We find no merit in appellant’s contention the trial court erred in refusing to grant a new trial. Appellant’s remedy was to prepare its “statement of the evidence or proceedings . . .” by the method provided in said section 27-2127.11. This section has previously been construed by tbis Court (against tbe contention of appellant) in Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481, and Tomlin v. Reynolds Mining Corp., 231 Ark. 393, 329 S. W. 2d 552.

Two. As previously mentioned, appellant prepared a statement and presented it to tbe trial court for approval pursuant to tbe statute above mentioned. A copy of tbis statement was served on appellees in due time. It appears, however, tbat appellee failed to serve its objections or proposed amendments within tbe time (ten days) required by the same statute. However, tbe trial court approved appellees’ statement. We think tbe court was in error, but we also think it was harmless error. It must be kept in mind (as was referred to in tbe Mowery case, supra) tbat tbe jury bad already reached its decision before it was learned tbat a complete transcript of tbe testimony and proceedings could not be obtained. They beard and considered all tbe testimony. Therefore tbe burden was on appellant to show error or lack of substantial evidence to support the verdict. As pointed out hereafter, appellant has not met tbat burden.

Three. We do not agree with the contention of appellant tbat tbe trial court should have declared a mistrial.

During tbe trial appellees’ witnesses made references to damages caused to lots outside of tbe taking. Each time such a reference was made appellant objected, and the trial court sustained the objection. On one occasion tbe trial court reprimanded appellees rather severely. At no time did tbe witnesses attempt to say to what extent appellee had been damaged. We are unable to see bow tbe jury was prejudiced in favor of appellees or against appellant. In this connection appellant calls particular attention to remarks made by appellees’ attorney in addressing tbe jury, to which objection was made by appellant. All tbe attorney said was: “. . .we are not permitted under tbe law ... to talk about tbis type of damage. ” . . . “ The court has instructed us that we could not consider those damages in arriving at our damages.” The trial court was not asked to give the jury any cautionary instruction, and we do not think it was an abuse of discretion for the court to refuse a new trial.

Four. Finally, appellant contends “there is no substantial evidence to support the verdict”. Again, we do not agree.

The record contains twenty three pages of testimony which the court reporter verified, and to which appellant makes no objection. Included therein is the testimony of several qualified witnesses each of whom valued the property damage at approximately $8,000 more than the amount fixed by the jury.

Affirmed.


text:
    Henry Deckard v. State of Arkansas
    5231
    408 S. W. 2d 604
    Opinion delivered November 28, 1966

      Trantham & Knauts, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee.
   Osro Cobb, Justice.

Appellant pleaded guilty to forgery and was sentenced to a term of six years in the State Penitentiary. On May 18, 1966, while so confined, appellant filed with the trial court his motion to vacate and set aside his penitentiary sentence. This motion for post-conviction relief was filed under the authority and provisions of our Criminal Procedure Rule No. 1, 239 Ark. 850a (1965).

Appellant alleged in his motion that he had been denied substantial constitutional rights during the criminal proceedings against him by the absence of counsel to represent him.

The trial court scrupulously observed the provisions of Criminal Procedure No. 1 by appointing an attorney to represent appellant at the hearing on the motion; by conducting a formal hearing of record permitting appellant and his witnesses to testify, and by reviewing the criminal docket entries and the judgment entered against appellant. Following this comprehensive review, the trial court made and entered detailed written findings of fact adverse to appellant’s contentions and denied appellant’s motion. The case now reaches us on appeal.

Appellent now insists that he was an indigent and that the court erred in not appointing an attorney to represent him prior to his plea of guilty.

When appellant was arrested, he employed a local attorney, E. L. Holloway, to obtain his release upon bond and paid him a fee of $25.00 for these services. A period of approximately 90 • days remained before the next criminal term of circuit court, and during that time appellant earned from $85.00 to $100.00 a week and testified that he had $140.00 in cash at the time he entered his plea of guilty on June 8, 1964. There was no evidence offered which tended to show that appellant was unable to employ an attorney and entitled to court appointed counsel as provided under § 43-1203, Ark. Stat. Ann. (Repl. 1964).

Appellant discussed with Attorney Holloway the matter of representing him at trial in the circuit court and was advised that the fee would be $250.00. Appellant testified that he was very pleased with the legal services of Mr. Holloway.

Appellant had been previously convicted of the same offense of forgery and knew that he would be tried at the ensuing term of court unless he entered a plea of guilty. He had an attorney ready, willing and able to represent him for a reasonable fee and he was financially able to take care of the fee, but neglected to secure such services. Mr. Holloway, when called as a witness for appellant, testified that he understood (without setting forth the basis for the understanding) that appellant intended to plead guilty anyway. Appellant admitted that he had discussed the merits of his case with Mr. Holloway.

About a week before the trial term of the Circuit Court, appellant appeared before the court in person and asked that his case be passed for a substantial time in order to give him a chance to employ counsel. We note here that appellant was asking for time to employ counsel and not for court appointment of counsel. When the court advised him that his case would not be tried for at least another week; that he still had time in which to engage counsel and prepare his defense and that there would be no postponement of the trial, appellant then, according to his testimony, amended his request to one for immediate appointment of counsel to represent him. This testimony does not coincide with the official records and documents prepared by the trial court. Those records reflect that appellant did ask to continue his case but that when the continuance was denied, appellant at a later date came in voluntarily and entered an unconditional plea of guilty to the charges. We quote from the criminal docket entry of January 8, 1964:

“Upon inquiry, court finds that defendant is not represented by counsel and further that he is not an indigent within the meaning of the law. Formal arraignment and plea of guilty entered to charge of forgery.”

The language of the judgment against appellant is significant, and we quote same:

“ Judgment. Now on this 8th day of June 1964 this cause coming on to be heard, the Plaintiff appearing by A. S. “Todd” Harrison, Prosecuting Attorney for the Second Judicial District of Arkansas, and the defendant appearing in person and after being questioned by the court and responding in an intelligent and understanding manner and stating in open court his full and complete understanding of all charges as filed herein and also the court determining from answers to questions propounded to the defendant that he is financially able to employ his own counsel and the defendant stating in open court that he did not desire to employ any counsel, whereupon the court formally arraigned the defendant and on arraignment he entered his plea of Guilty as charged. No reason being offered why sentence should not be imposed, the court proceeded to sentence this defendant.”

Appellant does not contend, even now, that he was not in fact guilty as charged.

This case presents no new question of criminal law. There is nothing in this record to indicate that the trial court failed to discharge its full duty to appellant at all stages of the criminal proceedings against appellant. Sentence was lawful. § 41-1803, Ark. Stat. Ann. (1964).

We have therefore concluded that none of appellant’s constitutional rights were breached or compromised in any manner. We do not deem it necessary to discuss the following cases which support our conclusion: Burks v. State, 241 Ark. 1, 405 S. W. 2d 935 (1966); Slaughter and Scott v. State, 240 Ark. 471, 400 S. W. 2d 267 (1966); Gideon v. Wainwright, 372 U. S. 335; Johnson v. Zerbst, 304 U. S. 458; Turner v. State, 224 Ark. 505, 275 S. W. 2d 24 (1955); Therman v. State, 205 Ark. 376, 168 S. W. 2d 833 (1943); U. S. v. Arlen, 252 F. 2d 491 (1958).

The action of the trial court in denying appellant’s motion to vacate sentence is affirmed.

Affirmed.