author: MiNor W. Millwee, Associate Justice.

text:
    Stacy & Rusher v. State.
    4884
    306 S. W. 2d 852
    Opinion delivered November 18, 1957.

      Gene Coffelt, Claude Duty and Jeff Duty, for appellant.

      Bruce Bennett, Atty. General, and Thorp Thomas, Asst. Atty. General, for appellee.
   MiNor W. Millwee, Associate Justice.

Tlie defendants, Alvin Stacy and Elmer Rusher, were jointly charged, tried and convicted of the crime of involuntary manslaughter in the killing of W. L. Miser on January 9. 1957. Punishment was fixed by the jury at three years in the penitentiary with a recommendation that the sentences he' suspended. The trial court suspended two years of Stacy’s sentence and one year of Rusher’s sentence and entered judgment accordingly. Both have appealed.

Defendants first challenge the sufficiency of the evidence to support the verdict and judgment. We briefly review it in the light most favorable to the State, as we must, in determining this issue. The killing of W. L. Miser arose out of a collision which occurred on Highway 12 about 2 1/2 miles east of Rogers, Arkansas, between a pick-up truck driven by Miser and a loaded log truck belonging to the defendant, Elmer Rusher, and being operated by the defendant, Alvin Stacy.

On the morning of January 9, 1957, Rusher drove to his sawmill near Rogers with G-ene Bond, an employee. While they were preparing for the day’s operations Alvin Stacy, another employee who lived near the mill, came and borrowed Rusher’s chain saw and truck to use in cutting and hauling some firewood for his own use. Stacy returned to the mill later in the morning. Rusher had a pint of liquor which he and Stacy proceeded to drink. Rusher then sent Stacy and Bond to a tract of timber to cut logs where they arrived about 1:00 p. m. Rusher followed later in his car. Young Bond considered Stacy too drunk to drive and admonished him about his fast driving on the way to the log woods. WTiile they were- cutting the logs Stacy was so intoxicated that he fell with the chain saw two or three times.

Rusher left the log woods about 2:00 p. m. for the Missouri state line where he purchased a half pint of liquor and several cans of beer. Upon his return to the log woods he gave Stacy the liquor and drank some of the beer himself. The three men then loaded the logs on the truck. Bond suggested that Rusher let him drive the log truck to the sawmill but Stacy was directed to do so. Rusher and Bond followed in Rusher’s car with Bond driving. As they followed close behind the truck on a dirt road to Highway 12 Bond warned Rusher that Stacy was driving “a little too fast” but Rusher replied that Stacy was a good driver and “would make it all right. ’ ’ After they reached Highway 12 Stacy proceeded to drive fast on curves and on the wrong side of the road at times with one of the logs protruding several feet from the left side of the truck. While driving in this manner about 5 p. m. with Rusher and Bond about two car lengths behind, the log truck met the pick-up truck driven by Miser who drove partly on the right shoulder of the road in an effort to avoid a collision. The protruding log struck and demolished the cab of the pickup, striking Miser in the face and killing him instantly. Neither Stacy nor the other two men stopped after the collision although Bond suggested they do so. Stacy was still intoxicated when he and Rusher were taken into custody that night.

The foregoing proof was clearly sufficient to. sustain the verdict against Stacy. But Rusher earnestly insists that a verdict should have been directed in his favor since he was neither in actual control of the log truck nor riding in it with Stacy at the time of the collision. He contends the owner of a vehicle being driven by another cannot be convicted as an accessory to manslaughter unless he is present in the vehicle at the time the offense is committed. In Fitzhugh v. State, 207 Ark. 117, 179 S. W. 2d 173, we approved this statement from 26 Am. Jur., Homicide, Sec. 59: “Manslaughter may result from the doing of an unlawful act or as the result of gross negligence in the performance of- an act other7 wise lawful, consequently, one who procures another to use a dangerous agency which causes death may be guilty as accessory before the fact.” Also in Lewis and Wren v. State, 220 Ark. 914, 251 S. W. 2d 490, we said.; “It is true that the authorities are divided on the question as to whether there can be an accessory before the fact to manslaughter, some courts holding that there cannot be accessories before the fact to voluntary manslaughter while there can be such accessories in cases of involuntary manslaughter. 40 C. J. S.,. Homicide § 9 b. We think the rule adopted in the Fitzhugh case is supported by reason and the weight of authority.”

In the last case cited we also approved the following statement by the Nevada Court in Ex parte Liotard, 47 Nev. 169, 217 P. 960, 30 A. L. R. 63, where the killing occurred while the defendant-owner was riding on the running board of the car being driven by his drunken co-defendant: “No one would contend that the owner.of a car would not be liable for injuries resulting from his operating it while intoxicated. How, then, can he escape the consequence when he sits by and permits another, who is intoxicated, to operate it?. . . . • One who is so careless of the rights of others as to use a dangerous instrumentality while incapacitated by drink, or who permits others to do so, as here shown, invites the consequences. He must pay the penalty.”

It is true that the owner was either riding in or upon the vehicle at the time of the offense in these cases. But we are unwilling to say this is an absolute prerequisite to his conviction as an accessory to the crime of involuntary manslaughter. Here the jury were warranted in finding that Stacy was acting under the direction and control of Rusher who was riding immediately behind the truck with full knowledge of, and acquiescence in, Stacy’s wanton negligence and intoxicated condition, and the tragic results likely to flow therefrom. In other situations where an owner engages with another in an activity in a reckless and wanton disregard for the safety of others, he has been held guilty of involuntary manslaughter, if the death of another is caused thereby, even though he is not actually present when the homicide occurs. See cases cited in State v. DiLorenzo, 138 Conn. 281, 83 A. 2d 479. We hold the evidence presented on behalf of the State sufficient to sustain the verdict against both defendants.

Defendants next say the court erred in admitting the testimony of David Creekmore and Howard Montgomery who testified they met a green Ford truck similar to Rusher’s with a loose log protruding therefrom near the scene of the collision shortly before it happened. The grounds of objection were that this testimony tended to impeach that of another witness for the State and did not properly identify the truck as the one driven by Stacy. While the witnesses could not identify the driver of the truck we think the testimony was competent to consider along with all the other circumstances in determining guilt or innocence; and the mere fact that it conflicted with that of some other State witness did not render it incompetent.

It was shown that defendant Stacy consented to the making of a drunkometer or intoximeter test of his breath about three hours after the collision. Defendants make several objections to the court’s admission of the results of this test which were not urged below and may not be raised for the first time on appeal. Such tests have met with general judicial approval in recent years upon the issue of intoxication subject to certain conditions such as the proper tracing and identification of the specimen, accuracy of administration and analysis, qualification of the witness and relevancy in point of time. Wharton’s Criminal Evidence Sec. 664; Underhill’s Criminal Evidence (Fifth Edition), Sec. 152; 159 A.. L. R. 210. There is an excellent comment on the subject in 6 Ark. Law Review 186.

The only specific objection urged at the trial was that the drunkometer test was made too long after the collision. We readily agree that the results of a test taken three hours after the collision would ordinarily be of little, if any, probative value as to the defendant’s state of intoxication when the collision occurred. But there was further proof to the effect that Stacy did no further drinking during the three-hour interval. In these circumstances we cannot say the test was so remote in time as to render the testimony inadmissible. Nor do we agree with the State’s contention that an erroneous admission of such evidence would not be prejudicial here because the fact of Stacy’s intoxication was established by other proof; at least unless such other proof is undisputed, and that is not the situation here.

Defendant Rusher made proper objections to the testimony of State Policeman Clinton to the effect that on the day following the collision Stacy told him, in Rusher’s absence, that he did not eat any lunch on the day of the accident and that he did not consume any intoxicants on that day after the wreck. The court held such testimony admissible against Rusher for all purposes except the question whether he was under the influence of liquor or not. This evidence was clearly competent as an admission against Stacy, who testified that he ate lunch on the day of the collision and took a drink of liquor in the afternoon thereafter. Of course the state of Stacy’s intoxication at the time of the killing was a vital issue in the case and had a direct bearing on the question of the guilt or innocence of both defendants. It is settled by our decisions that, where a criminal deed is done and the criminal enterprise is ended, the acts and declarations of one conspirator or joint actor in the crime cannot be used as evidence against a co-conspirator or co-actor. Counts v. State, 120 Ark. 462, 179 S. W. 662; Hammond v. State, 173 Ark. 674, 293 S. W. 714. While it might he said that no actual conspiracy was involved here, the defendants were charged and convicted as co-actors in the commission of the offense. Even if they were neither co-conspirators nor co-actors this testimony wonld be incompetent as mere hearsay against the defendant Rusher. As to him, the admission of the evidence constituted reversible error.

We find no prejudicial error in the other assignments of error presented. The judgment against Alvin Stacy is, therefore, affirmed. For the error indicated, the judgment against Elmer Rusher is reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Abbene v. Cohen.
    5-1375
    306 S. W. 2d 857
    Opinion delivered November 18, 1957.

      Coleman, Gantt & Ramsay, for appellant.

      Sam M. Levine, for appellee.
   MiNor W. Millwee, Associate Justice.

Appellant, Yince Abbene, brought this suit to restrain appellees, Jay Cohen and wife, from closing an alleged alley or passageway along the rear of certain business properties which front on Main Street in the City of Pine Bluff, Arkansas. The appellant Abbene’s store building is known as 617 Main Street. Intervener, David White, is the lessee of A. B. Cooper who owns a building located at 615 Main Street but declined to join in the suit. Ab-bene and White asserted that they and the public generally had used the pasageway openly, continuously and adversely for many years and that such usage had ripened into a prescriptive right or easement over a portion of appellees’ Lot 20 feet wide and 118.89 feet long. Appellees answered with a general denial and alleged that any use made of their property by others had been sporadic, under specific arrangements with appellees and purely permissive.

In a decree dismissing appellants’ complaint and intervention the chancellor found there was a lack of intent on their part to hold adversely against appellees and that the use made of the premises by appellants and the public generally was permissive. The issue here is whether such findings are against the preponderance of the evidence. '

It is well settled by our cases that the owner of one lot may acquire an easement over the land of another by the open, notorious and adverse use thereof under a claim of right for a period of seven years. Bond v. Stanton, 182 Ark. 289, 31 S. W. 2d 409. But it is equally clear that a mere use, even though continued for the statutory period, does not ripen into a prescriptive right unless the circumstances are such as to put the owner of the servient estate on notice that the way is being used adversely under a claim of right. Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768. Whether use of the passageway in question by appellants and the public was adverse or permissive is a question of fact; and the burden was upon appellants to show that such use was adverse to appellees and not under their permission. Brundidge v. O’Neal, 213 Ark. 213, 210 S. W. 2d 305.

Appellees’ lot is approximately 20 feet wide and in the shape of an inverted “L.” The vacant portion over which appellants claim an easement extends South from Sixth Avenne for 118.89 feet. From that point the lot extends at a right angle "West 160 feet to Main Street and a bnilding is located on this portion of the lot which appellees nse as a storage or warehouse for their appliance business located in the next block. Other business lots lying South of appellees’ lot fronting on Main Street also extend 160 feet but none of the buildings extended the full lot length until 1946 when the Chief Pontiac Company building adjacent to Abbene’s building on the South was extended East so as to eliminate the entrance to the passageway area from Seventh Avenue. The appellants and other business men in the block made no protest when this south entrance was closed.

Appellees acquired their lot in 1944 and they and their predecessors in title have for 12 or 15 years exacted a rental for the use of the vacant portion of their lot as a passageway from the owners of the Chief Pontiac Company and the Western Auto Store, which is located between the buildings of appellees and the appellants. Appellant Abbene’s building was constructed in 1919 by his father who operated a shoe repair shop in it until 1946 when appellant acquired the property and added a laundry and cleaning plant to the business. Ap-pellee, Jay Cohen, and Appellant Abbene have been close personal and business friends for many years.

Cohen testified that in 1946 he demanded rents from Abbene for use of the passageway but agreed to forego the rental charge because appellant was unable to make such payments and agreed to a limited use of the area. He also said he made a similar temporary agreement with Intervener White who later agreed to pay the rental but failed to do so. White admitted but Abbene denied that Cohen demanded the rentals, but both knew that other property owners in the area were paying for use of the passageway. Abbene also admitted that he never notified Cohen that he was claiming any right to use his land. A prospective purchaser of Abbene’s building testified that Abbene told him he had permission to go through, appellees’ property and that the purchaser could probably work out a similar arrangement.

Appellants and some of their employees testified that they and their customers had used the area in question in parking vehicles at the rear of their places of business for 12 or 15 years. There was also evidence of some use of the area for freight deliveries during this period but there was other proof that most such deliveries were made through the front entrances on Main Street. A partner in the transfer business stated that he had observed his trucks make freight deliveries through the passageway “at least a dozen times” since 1946. While some of the witnesses thought the area in question was an alley it was never platted or dedicated to the city as' such. At the conclusion of appellants ’ testimony they reduced their claim of an easement to “approximately 10 or 12 feet” instead of the entire 20-foot width of appellees’ lot.

In reaching the conclusion that such use as was made by the appellants and others of the passageway in question was permissive, and without the intent to hold adversely under a claim of right, the chancellor relied heavily on our decision in LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461. There we upheld the trial court’s conclusion that the use of a passageway by those claiming an easement by prescription was permissive and not adverse where the physical facts and nature of occupancy and use of the disputed area were strikingly similar to that shown here. While the evidence in the instant case on this issue is in sharp dispute, there are several factors which lend greater strength to the position of appellees than that of the owners of the subservient estate in the LeCroy case. These are the close friendship of the parties, the closing of the South entrance to the passageway without protest in 1946, and the demand and collection of rentals for use of the area from other owners for 12 or 15 years. So we conclude that the chancellor’s findings are not against the preponderance of the evidence, and the decree is affirmed.

Chief Justice CarletoN Harris, disqualified and not participating.


author: George Bose Smith, J.

text:
    Lamb v. Hibbard.
    5-1387
    306 S. W. 2d 859
    Opinion delivered November 18, 1957.

      Virgil D. Willis, for appellant.

      Garvin Fitton and Arnold M. Adams, for appellee.
   George Bose Smith, J.

On October 6, 1956, the ap-pellee, while driving on a highway north of Harrison, had a blowout on one of the tires of his car. Upon stopping, Hibbard found that the damaged tire had caught fire. In spite of Hibbard’s efforts to put out the blaze the flames spread to the gasoline tank, which exploded and threw burning gasoline upon the appellants’ land next to the highway. Fanned by a strong wind the fire burned across a pasture, killed some trees, and destroyed a barn containing furniture and farm equipment. The appellants, relying upon Ark. Stats. 1947, § 41-510, brought this action for double the amount of their loss. The trial court, sitting without a jury, found no negligence on Hibbard’s part and entered judgment in his favor.

There is substantial evidence to support the view that Hibbard had no reason to think the tire unsafe, that the fire was of accidental origin, and that the spread of the flames was not due to Hibbard’s negligence. The appellants contend, however, that the statute in question imposes absolute liability without regard to the presence or absence of negligence.

We do not interpret the statute. The section cited, if considered apart from its context, is doubtless open to the broad construction urged by the appellants, for it reads: “Persons, firms or corporations starting or being responsible for fires that occasion damage to any other person shall make satisfaction in double damage to the party injured. Damages are to be. recovered by civil action.” It is our duty, however, to read this-section along with the other provisions that accompanied it in the original act. Furthermore, we have held that this section, being penal, is to be strictly construed. Mo. Pac. R. Co. v. Lester, 219 Ark. 413, 242 S. W. 2d 714, 27 A. L. R. 2d 1182.

Section 41-510 was enacted as § 4 of Act 85 of 1935. Ark. Stats., §<§ 41-507 to 41-514. The act as a whole deals mainly with criminal offenses rather than with civil liability. Section 1 enumerates seven specific acts, each involving a fire hazard, that are declared to be misdemeanors. In three of these instances the conduct is made criminal only if certain precautions are not taken, which of course tends to rebut the suggestion of liability without fault. Section 2 lists three incendiary acts that are made felonies. Section 5 provides that a conviction under specified parts of the statute shall be prima facie evidence of responsibility in a civil action brought under § 4, upon which the appellants now rely,

Taking the statute as a whole we find no reason to think that the legislature meant to create a new basis for liability without fault or to permit the recovery of double damages for conduct falling outside the scope of the criminal provisions of the act. To the contrary, it seems clear that § 4 is merely ancillary to the criminal sanctions and is intended to provide a civil penalty as well. Since Hibbard’s actions did not violate tlie criminal provisions of Act 85 they do not expose him to a civil liability that was not recognized at common law.

Affirmed.


author: Sam RobiNsoN, Associate Justice.

text:
    Vale, Admr. v. Huff, Judge.
    5-1382
    306 S. W. 2d 861
    Opinion delivered November 18, 1957.

      Richard W. Hobbs and B. W. Thomas, for petitioner.

      A. L. Barber, Cooper B. Land, R. Julian Glover and Bigun Rasmussen, for respondent.
   Sam RobiNsoN, Associate Justice.

William Yale, administrator of the estate of William Yale, Jr., has petitioned this Court for a writ of prohibition directed to the respondent, Judge Huff, of the Garland Circuit Court. The controversy grows out of a personal injury action filed in the circuit court against General Motors Corporation and Chitwood Motor Company, a corporation. It is alleged that the plaintiffs were occupants of an automobile manufactured by General Motors Corporation and that the injuries were due to a defective condition of the steering assembly and defective brakes on the automobile in question. The defendants filed a motion asking that the plaintiffs be required to deliver to the clerk of the court all original parts of the automobile in their possession for examination and inspection by the defendants under orders of the court; and they asked that the defendants be permitted to make laboratory, metallurgical and physical inspections in order to determine whether a defect existed. The court granted the motion and made an order permitting the defendants to send the automobile parts to their Detroit laboratory to be examined. The plaintiffs in the circuit court then filed their petition for a writ of prohibition in this Court to prevent the defendants from carrying out the circuit court order.

Ark. Stats. § 28-356, provides:

“Upon motion of any party showing good cause therefor * * * the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination * * *. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.”

Our statute above mentioned permitting the inspection and examination of evidence is an adoption of Buie 34 of the Buies of Federal Procedure, and the courts have repeatedly held that an order for discovery under Buie 34 is interlocutory and not appealable, and a writ of prohibition will not lie. “An order for discovery under this Buie is interlocutory and not appealable, but is reviewable only on appeal from the final judgment. An appellate court will not issue a writ of prohibition against a trial judge who in the exercise of his discretion has granted discovery.” Barron and Holtzoff, Federal Practice & Procedure, Vol. 2, § 803. See also:

Apex Hosiery Co. v. Leader, 102 F. 2d 702.
Zalatuka v. Metropolitan Life Ins. Co., 108 F. 2d 405.
Fenton v. Walling, Admr., 139 F. 2d 608.
O’Malley v. Chrysler Corp., 160 F. 2d 35.
Pennsylvania R. Co. v. Kirkpatrick, 203 F. 2d 149.

In the last mentioned case the court said:

“(1) The petitioner argues that the district judge exceeded his jurisdiction and, therefore, a remedy of mandamus is appropriate to make him stay within it. The argument is transparently inaccurate. It was the function of the judge to decide whether, following the authorities above cited, ‘good cause’ had been shown. He decided that it had. This was the very kind of a question which it was his duty to decide and he decided it. To say that in doing so he exceeded his jurisdiction if he made a mistake would be to turn every judicial error into an action beyond the jurisdiction of the court. Even a mistaken ruling on evidence in the course of a trial would take the judge outside his jurisdiction and make him amenable to a mandamus writ. * # *”

Petitioner relies on our case of City National Bank v. Wofford, 189 Ark. 914, 75 S. W. 2d 666. In that case the trial court ordered certain documents to be produced by the defendant for examination by the plaintiff. In granting a writ of prohibition this Court said:

“The majority of the court is of the opinion that this is a proper case for the writ prayed, because the trial court has exceeded its authority and there is no other remedy which will afford defendants protection against the wrong.”

The Wofford case was decided many years prior to the adoption of our Discovery Act [Act 335 of 1953.]

In the Wofford case a writ of prohibition was granted because the court exceeded its authority, but in the case at bar it is clear that the trial court is acting within the provisions of the Discovery Act, which provides that the court may order the production of objects for examination and “may prescribe such terms and conditions as are just.”

The trial court has wide discretion in fixing the terms upon which the defendants may be permitted to make the examination. If there is any real danger of the parts being lost, a bond could be required, but this, of course, is within the discretion of the trial court; and the automobile parts can be photographed and marked so that there will not be any question about the identity of the items involved. Petitioner is apprehensive of difficulty that may be encountered in meeting the technical requirements of the rules of evidence in establishing the identity of the parts involved, if possession of the parts is turned over to the defendants for examination. Of course, defendants would be in no position to question the identity of the items returned to the petitioner as being those received by the defendants in the first instance.

The petition is denied.

MoPaddiN, J., concurs; Ward, J., dissents.


author: CarlbtoN Harris, Chief Justice.

text:
    Ward v. Universal C.I.T. Credit Corp.
    5-1383
    307 S. W. 2d 73
    Opinion delivered November 25, 1957.

      Ralph E. Wilson, for appellant.

      Wright, Harrison, Lindsey & Upton and Reid & Burge, for appellee.
   CarlbtoN Harris, Chief Justice.

Appellant, Ed Ward, filed this suit to set aside a conditional sales contract on the grounds of usury. Ward purchased a Dodge truck from the Louis George Motor Company, according to his allegations, for the sum of $2,580. He traded in two trucks for the new one, and contends he was allowed $900 for same, less a debt of $500 owed on the trucks to the Planters Bank, which was paid off by George. Ward signed a conditional sales contract for $2,831.35, which was assigned to appellee, Universal C.I.T. Credit Corporation. Appellant contends the interest amounted to $376.20, and that said amount was usurious, over and above 10 per cent per annum, to the extent of $143.79. Appellee contends that the parties traded for a “difference”, ($1,818 plus the $500 due the bank) rather than a specified amount, for the sale of the truck. The contract assigned to C.I.T. called for the payment of $2,831.35, for which George was paid $2,318. After making one payment, Ward filed the instant suit. Appellee filed its answer denying the charge of usury; counterclaimed by setting up that appellant was in default, and by reason of the acceleration clause, declared the entire balance of $2,739.30 due and payable; asked that an order be issued for the seizure of the truck. The affidavit for the order of seizure declared the truck to be of the value of $2,000. In order to retain possession of the truck, Ward furnished a bond, signed by Melvin and Louis Lapides, that Ward “shall perform the judgment of the court in this action.” After hearing the proof, the court held that the contract was not usurious, and granted judgment against both Ward and the sureties in the sum of $2,739.30 and costs. From such judgment, Ward brings this appeal. No notice of appeal was given by either of the sureties.

For reversal, appellant first contends that more than 10 per cent interest was charged under the contract, and same accordingly should be cancelled as usurious. Ward and George relate an entirely different version of the transaction. Ward simply contends that the purchase price of the Dodge truck was $2,580, less a down payment of $400, (trade-in of his trucks) plus insurance charge of $275.15, leaving a balance of $2,455.15 to he financed in 24 monthly payments. Subtracting this figure from the conditional sales contract of $2,831.35 leaves a finance charge of $376.20. Under this theory, the contract would be usurious. George testified that he and Ward (who was a part-time salesman for the George Motor Company) reached an agreement whereby Ward would trade in the trucks, and pay a balance of $1,818. $523.88 was still owed on the two trucks to the Planters Bank. Adding the $500 gives $2,318. George states this was the sole basis of the trade; no purchase price was mentioned; nor was any trade-in price agreed upon; they simply traded on the difference. After driving the truck for two months, Ward asked for a bill of sale in order to buy a state license. He was given a bill of sale for $3,218, though George testified this was no more the actual figure than was the $2,580. According to George, Ward asked that this figure be changed so he wouldn’t have to pay so much sales tax. “* * * Since he had been working for me, and it is a common practice for all dealers to cut the price down to save on the sales tax when they put a balloon price on both trade-in and sale price so they can finance the deal, and I cut the price down to what I figured the trade-ins would bring, and the difference I charged him, and that was to save on his sales tax, which he wanted, and we took up the other bill of sale and tore it up. * * *” Appellee’s theory, accordingly, is that its contract for $2,831.35 covered $2,318 paid the dealer (trade-in difference of $1,818 plus the $500 paid the bank), and insurance premiums paid by it in the amount of $275.15, thus leaving a carrying charge of $238.20. Let it he pointed out that the charge of usury does not involve the insurance items. Ward signed the "insurance election” contained in the contract, and does not contend that such insurance bought in his behalf was a charge to cover usury. Appellee admits that if $2,580 was the purchase price, the contract was usurious; on the other hand, appellant concedes that if the dealer’s version of the contract is correct, then the contract is not usurious.

The answer to the litigation therefore resolves itself into the simple question of which evidence the ( liancellor accepted. Both versions of the transaction cannot be correct. This court has held many times that it will not disturb the findings of the Chancellor unless they are against the preponderance of the evidence. England v. Scott, 205 Art. 47, 166 S. W. 2d 1014; Kelker v. Payton, 227 Ark. 369, 298 S. W. 2d 704. Appellant’s evidence, as to the transaction, consisted of his own testimony, and the bill of sale. Appellee’s evidence, as to the transaction, consisted of the testimony of George, Eva Langston, bookkeeper for George Motor Company, (whose testimony verified George’s statement that Ward asked that the sale price be reduced in order to save sales tax) and a copy of invoice showing the price to be $3,218. We are unable to say that the court’s findings were contrary to the weight of the evidence.

It is next contended that the judgment should not have been rendered against the sureties in the amount of $2,739.30, even though judgment for such amount be entered against Ward, for the reason that ap-pellee, in its petition for order of seizure, only alleged the value of the Dodge truck to be $2,000; it is insisted that the liability on the bond is limited to that extent, though it does provide that Ward * * shall perform the judgment of the court * * We dispose of this contention by pointing out that the sureties did not join in this appeal nor give any notice as required by statute. Section 27-2110, .1, Ark. Stats., reads as follows:

“Parties interested jointly, severally, or otherwise in a judgment or decree may join in an appeal therefrom; or, without summons and severance, any one or more of them may appeal separately, or any two or more of them may join in an appeal.”

Ward did separately appeal, but the sureties, who had the like right, failed to do so. The sureties were parties; they sought separate and additional relief from that sought by Ward, averring that their liability did not extend to the full amount of indebtedness claimed by appellee. This contention was presented to the trial court. The Messrs. Lapides, in signing supersedeas bond (to supersede the judgment against them), described themselves as “appellants”; yet no notice of appeal was ever filed. The filing of notice of appeal within the time prescribed by law is a jurisdictional prerequisite to the appeal. General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40. There is, accordingly, no appeal before us from the sureties to be passed upon.

The judgment of the Chancery Court is, in all respects, affirmed.

       The amount due the bank was actually $523.88, but appellant paid the $23.88 in cash.

       Payment scale, covering two year period, called for four payments at $90.58; one at $748.01; nineteen at $90.58.

       See footnote 1.

       George had sent C. I. T. a worksheet with the figure $3,218 and showing a trade-in of $1,400 as a boost of both prices in order to give Ward enough for a down payment.

       Act 555 of 1953.


author: J. Seaborn Holt, Associate Justice.

text:
    Curry v. Hanna.
    5-1385
    307 S. W. 2d 77
    Opinion delivered November 25, 1957.

      John F. Gibson and Robert B. Gibson, for appellant.

      S. Paid Johnson, Grumpier & O’Connor, and Wright, Harrison, Lindsey & Upton, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellants, Elmer Curry and Emma Jean Curry, on September 30, 1949, entered into an agreement with appellees to purchase the corporate stock (acquiring 30 shares from Curtis Bennett, 16 shares from A. D. Hanna and 582 shares from appellee W. H. Hanna) of three furniture stores for a consideration of $216,400.00, located in El Dorado, Smackover and Camden, Arkansas. After making a substantial down payment notes were executed by appellants for the balance of the purchase price requiring monthly payments of $2,750 on the principal. The stock was transferred to the purchasers (appellants) but was to be held in escrow by a trustee as securit}^ for the balance due on the purchase price. The Elmer Curry Furniture Company, Inc., was then formed and subsequent thereto the corporate name changed to Hanna Furniture Company, Inc.

On March 24, 1953, Hanna claimed a default on the notes, insolvency of Elmer Curry, and filed suit, in the Union Chancery Court asking for foreclosure and appointment of a receiver to protect the assets. .Following the bringing of this foreclosure suit, a settlement was consummated on March 31,1953, under the terms of which the Currys transferred to W. H. Hanna the 628 shares of stock (626 of which were pledged) and Curry’s debt to Hanna of some $92,300 was cancelled. Appellant, Elmer Curry, on July 27, 1953, on his own petition, in which he alleged that he was proceeding under Section 70 of the Bankruptcy Laws, 11-U.S.C.A. 110, was adjudicated a voluntary bankrupt, listing debts of $17,-074.10. Thereafter, September 10, 1953, the trustee, Johnson, for the bankrupt Curry, filed suit in the U.S. District Court against W. H. Hanna and Hanna Furniture Company, Inc., (the same defendants as these ap-pellees here) seeking to set aside the agreement and transfer of stock, pursuant to the agreement of March 31, 1953, and seeking to have the trustee take over all the property and assets of the Hanna Furniture Company, Inc., (being the same assets and property referred to in the present litigation.) In this federal court action it was also alleged that these appellants (Currys) had acted unwillingly, under duress and threats, etc., on the part of W. H. Hanna, his agents and attorneys (the same allegations in effect as in the present suit). Curry filed a motion to intervene in this federal court suit and appellees answered with a general denial. Appel-lees made an offer of settlement, in the federal court, to which appellants objected. The federal court ordered the parties to accept the offer of settlement, which in effect provided payment of the claims of the prior and unsecured creditors, fees and expenses, and statutory allowances.

On January 3, 1956, after the accepted order had been complied with, the federal court dismissed with, prejudice the suit of the trustee, Johnson, for the Estate of Elmer Doyle Curry Bankrupt vs. Hanna Furniture Co., Inc., and Elmer Curry Furniture Co., Inc., and W. H. Hanna. Thereafter on January 31, 1956, appellants (Currys) filed the present suit and in their complaint and an amendment thereto, alleged that the above agreement of March 31, 1953, was void and should he cancelled for the reason that the signatures thereto of the Currys’ were secured ‘‘under force, compulsion, threats and unconscionable advantage taken by W. H. Hanna, his agents and attorneys.”

On November 15, 1956, following a hearing, the Drew Chancery Court sustained appellees motion to dismiss appellants ’ complaint on the grounds of res adjudi-cata., and we think correctly so.

For reversal appellants say: ‘ ‘ The only question believed to be presented on this appeal is that of res adju-d.icata, as shown by the Chancery Court decree from which this appeal is taken. ’ ’ It appears clear to us that appellants in the present action are seeking to do the same thing which the trustee in bankruptcy sought to do in the federal court suit, that is, in each of these suits it was sought to set aside the agreement of March 31, 1953, and to set aside the transfer of stock provided in that agreement and procure for appellants all the corporate stock, assets and property. The relief sought in both suits was the same and the issues appear to be the same in each suit.

The doctrine of res adjudicata was stated in the case of Watson v. Suddoth, 218 Ark. 960, 239 S. W. 2d 602, in this language: “Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” See also Missouri Pacific RR Co., Thompson, Trustee v. McGuire, 205 Ark. 658, 169 S. W. 2d 872. “The doctrine of res adjudicata (or res judicata) in the strict sense of that time-honored Latin phrase had its origin in the principle that it is in the public interest that there should be an end of litigation and that no one should be twice sued for the same cause of action.” First Nat’l. Bank v. U.S.F. & G. Co., 207 S. C. 15, 35 S. E. 2d 47, 162 A. L. R. 1003, 1015.

While it is true that in the federal court suit Curry’s trustee, Johnson, appeared as plaintiff, while in the present suit Curry appears personally as plaintiff, he (Johnson) was clearly acting for and on behalf of the Currys, acting as their privy and asserting and claiming for them all of their legal rights. The text writer in 30 Am. Jur. 957, uses this language: “In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right. It has been declared that privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject matter of the litigation, and that the rule is to be construed strictly to mean parties claiming under the same title. Under this rule, privity denotes mutual or successive relationship to the same right of property, and there is privity within the meaning of the doctrine of res judicata where there is an identity of interest and privity in estate, so that a judgment is binding as to a subsequent grantee, transferee, or lienor of property. This is in harmony with •the view that a judgment is binding on privies because they are identified in interest, by their mutual or successive relationship to the same rights of property which were involved in the original litigation.” See also Missouri Pacific RR Co. Thompson, Trustee v. McGuire supra. The rule appears to be well established that a ‘ ‘ dismissal with prejudice ’ ’ is equivalent to a final judgment in so far as the application of the doctrine of res adjudicata is concerned. “A dismissal of a cause of action with prejudice is a final adjudication on the merits within the rule of res judicata, Seaboard Finance Co. et al v. Wright, Adm’x., 223 Ark. 351, 266 S. W. 2d 70.

Under the Bankruptcy Act above, Section 70 (a) (under which appellant Curry alleged in the federal court he was proceeding) it is provided: ‘ ‘ Title to Property. a. The Trustee of the estate of bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition in bankruptcy or of the original petition proposing an arrangement or plan under this Act, except insofar as it is to property Avhich is held to be exempt, to all . . . (6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property; . . .” In construing this section in the case of In re Toms, 101 F. 2d 617 the court said: “Under Section 70 a, 11 U.S.C.A. Section 110 (a), the trustee is vested with the title of the bankrupt to all of his possessions and choses in action at the date petition is filed, except that exempt to him under the laws of the State.” In other words, the trustee in bankruptcy stands in the shoes of the bankrupt and acquires whatever title the bankrupt had which title carries with it the right to possession. See 4 Collier on Bankruptcy, p. 943 el seq. It also appears to be a well established rule that any rights of action that the bankrupt had based on alleged fraud and duress passed to the trustee in bankruptcy. “Clause (6) of Section 70 (a) provides that the trustee is vested with title to all rights of action arising from £the unlawful taking or detention of or injury to’ the bankrupt’s property. Under this category the Courts have included: Actions for conversion; actions based on fraudulent misrepresentation and deceit through which the bankrupt incurred heavy losses; * * *” 4 Collier on Bankruptcy, p. 1167.

Since it appears, as indicated, that the Currys are seeking in the present suit the same relief against the defendants (appellees) which the trustee in bankruptcy, Johnson, sought in the federal court action, and on the same allegations in effect alleged in the federal suit, we conclude that the action of the federal court was res adjudícala to the present suit and that the decree of the Drew Chancery Court was correct and should be, and is, affirmed.


author: Ed. F. MoFaddiN, Associate Justice.

text:
    Faulkner v. Mowry.
    5-1386
    307 S. W. 2d 860
    Opinion delivered November 25, 1957.
    [Rehearing denied January 13, 1958.]

      J. B. Milham, for appellant.

      Claude A. Fuller, for appellee.
   Ed. F. MoFaddiN, Associate Justice.

This is an effort by a divorced woman to set aside the property settlement in the divorce decree but to retain the benefits of having the divorce.

On October 23, 1956 the Carroll Chancery Court, Western District, rendered a decree dissolving the bonds of matrimony between Ray T. Mowry (the present ap-pellee) and Katherine Mowry (the present appellant), and approving the property settlement contract between the parties. Mrs. Mowry married Mr. Faulkner a few days later; and then on December 5, 1956 filed the present effort to set aside the property settlement contract approved in the said decree of October 23, 1956. Mrs. Mowry .(Faulkner) claimed, inter alia, that the decree approving the property settlement contract was void because rendered in the wrong District of Carroll County; and that the property settlement contract was obtained from her by fraud, duress and over-reaching. The former husband, Ray Y. Mowry, denied all material allegations in the said motion to vacate. The Chancery Court heard the motion on evidence ore t-enus and denied Mrs. Mowry — Faulkner’s motion; and she prosecutes this appeal.

Ray and Katherine Mowry were married more than twenty-eight years ago and lived together as husband and wife until shortly before September 12, 1956. Mrs. Mowry (about twenty years younger than Mr. Mow-ry) became enamored of Mr. Faulkner and decided she wanted to divorce Mr. Mowry. On September 12, 1956 Mrs. Mowry retained Honorable F. 0. Butt as her attorney, and he filed for her a suit for divorce against Mr. Mowry on the ground of indignities, and sought certain property rights. Mr. Mowry was not willing for Mrs. Mowry to have the property she sought. They had several conversations away from the attorneys; and Mrs. Mowry was so anxious to get an immediate divorce that she was willing to surrender all property rights for $500.00 cash. When she told Mr. F. O. Butt of her decision, he withdrew from the case, but left the divorce suit pending in the Court so that his withdrawal would not be considered as prejudicing her case or delaying her eagerness for a divorce.

Mrs. Mowry signed the written “property settlement agreement” whereby for $500.00 she agreed to surrender all claims to property and execute deeds thereto. She did execute the deed in the office of Honorable C. A. Fuller, Mr. Mowry’s attorney. This was on the 22nd of October. Mr. Mowry filed answer and cross-complaint in the pending action, claiming that he was entitled to a divorce from Mrs. Mowry on the grounds of cruel and barbarous treatment and also indignities. As regards the property settlement, the cross-complaint alleged: “. . . that the plaintiff and defendant have entered into a property settlement, as per copy attached, marked Exhibit A . . .”

Mrs. Mowry understood that the divorce decree would be obtained by Mr. Mo-wry on October 22, 1956. Carroll County is divided into two districts — the Western District, with court at Eureka Springs; and the Eastern District, with court at Berryville. On October 22, 1956 Chancery Court was supposed to be in Eureka Springs, but as a matter of fact,, the Chancellor was holding Court at Berryville on that day, as well as on October 23rd. Accordingly, on October 23rd, Mr. Mow-ry and his attorney and witnesses went to Berryville and presented the case to the Chancellor, who there heard the evidence, signed the decree, and approved the property settlement. The decree was duly entered in the Western District of Carroll County at Eureka Springs on October 23,1956. Mrs. Mowry waited at Eureka Springs for the decree to be granted. As soon as it was filed and recorded in the Western District of Carroll County, Mr. Mowry delivered to her a copy of the decree. She then went with Mr. Mowry to Mr. Fuller’s office, where the $500.00 was delivered to her in full accordance with the property settlement approved by the Court. Mrs. Mowry thereafter married Mr. Faulkner, and then, as heretofore recited, she filed the present motion on December 5, 1956 to vacate the property settlement portion of the decree.

I. The Validity Of The Decree Rendered in Berry-ville. It is clear that Mrs. Mowry agreed that the case could be heard by the Chancellor in Berryville, and that the decree is valid under § 22-433 Ark. Stats., which says in part of the Chancellor: “By consent of parties, or their solicitors of record, he may try any cause and deliver opinions in connection with any litigation pending before his Court, and make and sign decrees in vacation. Such decrees, and all other orders and decrees which a Chancellor may make in vacation, shall be entered and recorded on the records of the court in which the cause, or matter, is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other eases.”

II. Mrs. Mowry-Faullmer’s Claim As to Fraud In The Property Settlement Agreement. We come then to the question of whether Mrs. Mowry was the victim of fraud, duress, or over-reaching, when she signed the property settlement agreement and deed, all of which were approved in the divorce decree. It would serve no useful purpose to detail her testimony. In the main, it is without corroboration. Certainly she did not prove fraud, duress, or overreaching. It is clear from her testimony and other evidence in the record that she was so anxious to get her freedom and marry Mr. Faulkner that she was willing to agree to any property settlement. She was sui juris and could agree to surrender such property rights as she desired. She was advised and warned by Honorable F. 0. Butt; but sbe persisted in ber desire for freedom so sbe could marry Mr. Faulkner. Sbe is not claiming that tbe decree rendered in tbe Eastern District of Carroll County is erroneous as regards tbe divorce: no, sbe wants tbe divorce to stand. How, then, can she be beard to repudiate the other portion of tbe decree relating to tbe property settlement? Tbe answer is that sbe cannot: sbe failed to prove fraud, duress, or over-reaching.

In Oberstein v. Oberstein, 217 Ark. 80, 228 S. W. 2d 615, we refused relief to a party who bad conspired to get a “quickie” divorce because such party accepted tbe benefits of tbe decree. Mrs. Mowry-Faulkner accepted tbe benefits of tbe decree in this case, because sbe accepted tbe $500.00 and then married Mr. Faulkner. Sbe proved no fraud, duress, or over-reaching; and sbe accepted tbe benefits she desired from the divorce decree.

We have examined the other contentions made by appellant and we find them to be without merit. Tbe Chancellor was correct in refusing Mrs. Mowry-Faulk-ner’s motion. Affirmed.

       This pleading was entitled: “Motion and complaint to modify and vacate that part of the decree rendered in the above styled cause that affects the title to the lands owned by the entirety by plaintiff and defendant.”

       The record before us contains the Chancellor’s written opinion which has been of benefit to this Court.

       The complaint was filed in the Western District of Carroll County, and as to residence and venue alleged: “Plaintiff states that she is a citizen and resident of the State of Arkansas, and of the above County and District, and continuously has so been for more than ten years next last past; and that her cause of divorce occurred in said State, and within the five years next last past.”

       Mr. Butt wrote Mrs. Mowry under date of October 3, 1956 a letter which is in the record and which reads in part: “Dear Mrs. Mowry: Since the conference in my office day before yesterday, I have been much troubled in determining what should be my further course in your divorce suit. When you hurriedly left I assumed it was for the moment, and you would return shortly, . . . but you did not . . . I know no way to reach you but by post. At that conference I was prompted then and there to retire from your case in view of your refusal to accept my counsel and caution about the terms of the contract there signed ... I am persuaded that after a reasonable time •— a week — a month — a year. — you will reach the same conclusion and wonder how it came about that your efforts of 28 years resulted in your becoming- practically a pauper. $500 is nothing for a woman of your age to start a new life on; before you realize it, it will be gone; and then the natural impulse is to search out someone to blame for your situation, and equally naturally the blame be placed on your lawyer for permitting you to pauperize yourself . . . From the day after filing your complaint, you have repeatedly detailed to me what ‘friends’ have advised you, always suggesting that I was contriving to delay your obtaining a divorce decree ... I am withdrawing as your counsel. I shall leave on file your original complaint. The case will stand for trial on.the 22nd just as before and every right you have will be preserved just as at present. Ample time exists to find another lawyer . . . For my. time and service, no fee is charged . . .”

       Act No. 74 of 1883 made the division of Carroll County into the two districts mentioned.


author: Minor W. Mill wee, Associate Justice.

text:
    Webber v. Gray.
    5-1380
    307 S. W. 2d 80
    Opinion delivered November 25, 1957.

      Robert W. Griffith, for appellant.

      Gentry & Gentry, for appellee.
   Minor W. Mill wee, Associate Justice.

On April 20, 1949, appellee filed suit against appellant alleging that for more than a year she had committed certain acts designed to humiliate, embarrass, worry, disturb and injure him in his social and business relations. Among such alleged acts were: Writing, mailing and otherwise .delivering numerous threatening, slanderous and vituperative letters and notes to appellee; making similar oral statements to his employer; repeatedly accosting appellee on the streets, at his place of business, residence, and in church, making false and embarrassing statements; and the continuation of such acts after ap-pellee, appellant’s father and police officers had repeatedly requested that she desist. Appellee further alleged he had no adequate remedy at law and prayed that appellant be enjoined from the- continuation of such acts. A temporary restraining order was issued when the suit was filed.

At a hearing held February 23, 1950, on appellee’s petition for a contempt citation against appellant the chancellor found she had persistently violated the restraining order for many month's. The court further found that, because of appellant’s “excitable and irrational” condition, final action on the contempt charge should be postponed pending a mental examination by authorities at the State Hospital. At similar hearings on April 12, 1950 and April 27, 1950, the court found that appellant had continued such violations but postponed final judgment upon her promise to desist, and pending her good behavior and further observation as to her mental condition.

At another hearing on the contempt citation on June 1, 1950, the court again found that appellant had failed to live up to her promises and had continued to ■commit the acts prohibitecl’in the1 restraining'order. Appellant was adjudged guilty of contempt and her punishment fixed at 30 days imprisonment in the county jail, said sentence to run from the date- of á commitment to he issued by the clerk]1’“when directed by this Court.”

On December 4, 1956, appellee filed a petition alleging further persistent' violations of the original restraining order and requested a new citation requiring appellant to show cause why a commitment should not issue as provided in the order of June 1, 1950; and asked that she be further enjoined from the institution and prosecution of any “suit at law, or otherwise” against appellee. Appellant answered with a general denial and alleged that the order of June 1, 1950, was invalid.

After a hearing on December 18, 1956, the court entered an order finding that appellant had willfully and persistently refused to obey previous orders of the court and had continued, particularly within the last six months, to commit the acts enjoined as well as new acts of molestation against appellee, his wife, mother' and employer. Appellant was again enjoined from commission of said acts and adjudged guilty of contempt with the punishment of six months in jail to be suspended upon condition that she post bond in the amount of $200.00 as security for her compliance with the court’s order. This appeal followed the posting of a supersedeas by appellant in the sum of $200.00.

Only the parties testified at the last hearing. They became acquainted in 1945 while both were working for a printing and lithographing company in the City of Little Rock where appellee is still employed. Appellant is empjpyed as office manager of a local lumber company ./^According to appellant they had many dates and engaged'' in innumerable sexual intimacies over an extended period while appellee testified they were together only a few times and engaged in sexual intercourse only once when she came to his apartment. Whatever their relationship, appellee decided to discontinue it while the appellant felt differently and began a course of conduct in which she sought to force her attentions upon him.

For several years appellant has written numerous letters and notes to appellee in an effort to force him to renew their association. These notes and letters, signed and unsigned, were delivered by mail and by the appellant leaving them in or upon appellee’s automobile, his residence and place of business. Similar letters have been written by appellant to appellee’s mother, wife, employer and the real estate company from which ap-pellee purchased his home and, in which, appellant states that appellee is the father of her unborn child and is soon to be faced with a paternity suit. Appellee estimated that he had received at least 200 such communications within a year prior to the last hearing.

On September 26, 1948, appellant caused a picture of herself and the announcement of their approaching marriage to be published in a local newspaper. On May 13, 1952, she made written application for a marriage license in their names. Appellee says both the announcement and application were made without his knowledge or consent. Almost daily appellant accosts appellee on the streets in an attempt to engage him in conversation. Since appellee’s marriage on June 30, 1956, appellant has followed appellee and his wife to town in her car nearly every work day and left a note or letter in or upon his car when he refused to talk to her. On numerous occasions she has parked her car within a few feet of appellee’s home for long periods. The telephone at appellee’s home rings frequently when the caller merely “hangs up” upon answer being made.

In her testimony appellant admitted doing most of the things charged by appellee, asserting it was all done because of her abiding love for him and his broken promise to marry her. She denied that the announcement and application for a marriage license were made without his consent or that she caused her name to be listed in the city directory as “Mrs. George W. Gray”. There was no corroboration of her testimony that she had four miscarriages as the result of the relationship between them, and she admitted that she had no letter or note written to her by appellee.

Appellant first contends the trial conrt had no jurisdiction to restrain her from committing any of the acts in question under our holding in Smith v. Hamm, 207 Ark. 507, 181 S. W. 2d 475. In that case the members of one family sought to restrain their next door neighbors from cursing, abusing, threatening to shoot and commit other acts of violence against them. In affirming the action of the chancellor in sustaining a demurrer to the complaint, we held that before a court of equity will enjoin either a public or private nuisance there must be some actual or threatened interference to property or rights of a pecuniary nature as distinguished from personal rights. In the opinion Judge Knox carefully pointed out that the acts there complained of constituted violations of the criminal statutes and the injured parties hence had an adequate remedy at law through the enforcement of such laws. The distinguishing feature between that case and this one is that the acts of the appellant here do not constitute crimes and appellee is without any remedy at law. Unless we are willing to recognize some relaxation of the doctrine that equity has no jurisdiction to protect personal rights where no property rights are involved, ap-pellee and his family must continue to endure the continued harassment and molestations of the appellant ad infinitum, or so long as she chooses.

Many leading authorities have frequently commented upon the unreasonableness of so arbitrary a doctrine that a court of equity will protect one in his rights of contract and property, but deny protection in his far more sacred and vital rights of a personal nature ; and there is a progressive tendency on the part of courts to remedy by injunction, injuries to personal rights. See Annotations in 14 A.L.R. 300 and 175 A.L.R. 441; 19 Am. Jur., Equity, Sec. 150; 28 Am. Jur., Injunctions, Sec. 71; Pound, “Equitable Relief Against Defamation and Injuries to Personality”; 29 Harvard L. Rev. 640; Long, “Equitable Jurisdiction to Protect Personal Rights,” 33 Yale L. J. 115; Leflar, “Equitable Prevention of Public Wrongs”, 14 Tex. L. Rev. 438; Walsb, “Equitable Protection of Personal Rights”, 7 N. Y. ÍJ. L. Rev. 578; Restatement of Torts, Yol. 4, Sec. 937.'

In the earlier Annotation in 14 A.L.R. it is said: “Although the courts have been reluctant to admit that equity had jurisdiction to enforce or protect merely personal rights, and have usually discovered at least a nominal property right on which to base the granting of equitable relief, there are a few cases in which the courts have had the courage openly to repudiate the doctrine that only property rights will he protected, and to assert the jurisdiction of a court of equity to protect personal rights also.”

In the later Annotation in 175 A.L.R. numerous cases are cited in support of the following statement at page-442: “In many of the more modern cases, the courts have either squarely held or have recognized as a principle that equity jurisdiction exists and will be exercised in appropriate instances for the protection of personal rights, and that the power of an equity court is not limited to situations in which a property right is involved. In some of such cases, the courts have remarked that the ‘old’ rule that equity will protect only property rights has been greatly relaxed, that such ‘rule’ is known chiefly by its breach rather than by its observance, and that law in action is breaking away from the property limitation which still receives sanction in law in books. It has also been observed that in reading decisions holding or stating that equity will protect only property rights, one is struck by the absence of any convincing reasons for such a sweeping generalization, that on principle it is difficult to find any sound reason for the enunciation of a broad principle that equity will not protect personal rights, and that the issue should not in logic or justice turn upon the sole proposition that a personal rather than a property right is involved. So to reason, it has been declared, would be to place property rights in a more favorable position than personal rights, a doctrine wholly at odds with the fundamental principles of democracy, and one which has been forcefully castigated as suitable only to a semi-savage society.”

There are several cases in which courts have exercised equity jurisdiction to restrain and enjoin repeated molestation, assaults, harassments and the like. Thus the Texas court concluded that equity would intervene to protect purely personal rights of a woman who for a period of several years was continually importuned, assaulted, harassed, threatened and molested by her former paramour in his efforts to force her to resume her illicit associations with him. Hawks v. Yancey, (Tex. Civ. App.), 265 S. W. 233. Injunctive relief has also been extended to prevent an intrusion of a third person into family affairs destructive of the consortium between the spouses. Henley v. Rockett, 243 Ala. 172, 8 So. 2d 852. Other cases recognizing the jurisdiction of equity to protect personal rights are: Ex parte Warfield, 40 Tex. Grim. Rep. 413, 50 S. W. 933, 76 Am. St. Rep. 724; Stark v. Hamilton, 149 Ga. 227, 99 S. E. 861, 5 A.L.R. 1041; Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 67 A. 97, 14 L.R.A. (N.S.) 304; Kenyon v. City of Chicopee, 320 Mass. 528, 70 N. E. 2d 241; Hunt v. Hudgins, (Tex. Civ. App.), 168 S. W. 2d 703; Foley v. Ham, 102 Kan. 66, 169 P. 183, L.R.A. 1918 C 204.

We find no fault with the following rule adopted by the Massachusetts court in the Kenyon case, supra: “We believe the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction. In general, these conditions are, that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; that the remedy at law is inadequate; and that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute.”

In our opinion appellee was entitled to a part of the relief granted by the trial court. He has no remedy at law against the almost incessant harassment which the record discloses he has been subjected to over a period of years. The acts of the appellant are not criminal and might be classed as trivial if they had been merely sporadic or of short duration. But appellee has the right to pursue his lawful daily occupation and family activities unhampered by the protracted molestations of the appellant as disclosed by the extraordinary circumstances presented here. This does not mean that she may not pursue any legal remedy she may have for breach of promise, or any other legal wrong which he might have committed against her by reason of their association. In this respect, and one other, the order of the trial court was too broad. The court was without power to restrain appellant from seeking redress in a court of law by filing a suit for damages. Whether she has a valid action of this kind is for the proper court to determine. The order was also too broad in prohibiting appellant from driving in the neighborhood of appellee’s home.

So much of the decree as enjoins appellant from driving in a normal manner near appellee’s home or filing any action for damages against him is, therefore, reversed. In all other respects the decree is affirmed. The costs of this appeal will be shared equally by the parties.


author: George Rose Smith, J.

text:
    Meador v. Warrington.
    5-1395
    307 S. W. 2d 75
    Opinion delivered November 25, 1957.

      Pat H. Mullis and Lloyd B. McCain, for appellant.

      Smith & Smith and Brockman & Brockman, for ap-pellee.
   George Rose Smith, J.

In this dispute over the office of commissioner of the Cypress Creek Drainage District the main issue is whether the office is appointive or elective. The appellee Warrington is the incumbent, having served as a member of the board of commissioners since 1916. He contends that the office, although originally elective, was changed to an appointive position by Act 227 of 1927, which made the general drainage district law applicable to districts created by special acts. Ark. Stats. 1947, § 21-568. On this premise Warrington chose not to qualify as a candidate for the office in the general election of November, 1956, and the appellant Meador was apparently elected to the position without opposition. Warrington refused to surrender the office and promptly filed this action for a declaratory judgment in the matter. The trial court decided the issues in Warrington’s favor, holding that the position is now appointive and that Warrington is “the duly appointed, qualified, and acting commissioner” of the district.

On the principal issue the circuit court correctly held that the 1927 act requires the office to be filled by appointment. This district was created by Act 110 of 1911, which provided an elective six-year term of office for the commissioners. But the 1927 statute brings all drainage districts under the general law, and that law requires the commissioners to be appointed by the circuit court when, as here, the district embraces land in more than one county. Ark. Stats., §§ 21-505 and 21-501. The appointment is for a term of indefinite duration, there being a provision empowering the court to remove a commissioner for incompetency or neglect of duty, after notice and a hearing. Ark. Stats., § 21-523.

We have held that the 1927 act was intended to provide a uniform system of drainage law. Berry v. Cousart Bayou Dr. Dist., 181 Ark. 974, 28 S. W. 2d 1060. In a case that touches closely upon this one it was said that a proviso in the 1927 act, to the effect that the act should not have the effect of displacing any commissioners then in office, meant only that the offices could not be filled by appointment until the expiration of the terms of office then in effect. Winton v. Bartlett, 181 Ark. 669, 27 S. W. 2d 100. This statement plainly implies that, conversely, the appointive provisions of the general law became effective after the expiration of the terms that were in existence in 1927. It follows that the elective term of office contemplated by the special act creating this district has been superseded by the appointive power granted under the general drainage law.

We thinlc, however, that the circuit court went too far in declaring in substance that Warrington holds the office as a de jure commissioner by appointment. It does not appear to have been realized by anyone connected with this district that the 1927 act changed the office of commissioner from an elective position to an appointive one. Warrington was re-elected after the effective date of the 1927 statute, and it was not until 1937 that he was appointed to the office by an order of the circuit court. It is not shown that Warrington complied with the general drainage law by taking within thirty days the detailed oath of office that the general law requires. After 1940 Warrington was again elected to six-year terms of office under the provisions of Act 125 of 1939, but the parties tacitly concede that, this act was invalid, being a local act applying only to the Cypress Creek Drainage District. Ark. Const., Amendment 14. Warrington did take the prescribed oath of office on January 2, 1951, but this action was apparently taken because he had been elected to a six-year term in 1950. In these circumstances the filing of an oath almost fourteen years after the appointment did not change his status to that of a de jure commissioner by appointment. See Stiewel v. Fencing Dist. No. 6, 71 Ark. 17, 70 S. W. 308, 71 S. W. 247, and Boyett v. Cowling, 78 Ark. 494, 94 S. W. 682.

In holding that Warrington is not a de jure officer by appointment we do not intimate that his official acts over a period of years are for that reason open to question. We need not say whether he is a de facto commissioner, for in any event, as pointed out in the Boyett case, supra, he is entitled to the office on the basis that he holds over from his last valid elected term until a successor is appointed and qualified. This is not a proceeding under the statute for Warrington’s removal, and we do not think it was the circuit court’s duty, in this type of proceeding, to declare the office vacant. As we have said, however, the record does not support the finding that Warrington is the duly appointed, qualified, and acting commissioner, for, although duly appointed, he failed to file the required oath in a time and manner amounting to a compliance with the statute.

With the indicated modification the judgment is affirmed.

Wabd, J., dissents in part.


author: Paul Ward, Associate Justice.

text:
    Jack Collier East Company v. Barton.
    5-1318
    307 S. W. 2d 863
    Opinion delivered November 25, 1957.
    [Rehearing denied January 13, 1958.]

      Penix & Penix, Douglas Bradley and Cooper Jaco-ivay, for appellant.

      Frank Sloan, Terry L. Shell, and Barrett, Wheat-ley, Smith & Deacon, for appellee.
   Paul Ward, Associate Justice.

The principal issue involved on this appeal concerns the proper construction and application of the last paragraph of Ark. Stats., § 51-605. The entire section is set out below with the portion referred to above in italics.

‘ ‘ The lien for the things aforesaid, or work, shall attach to the buildings, erections or other improvements, for which they were furnished or work done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erections, improvements or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; Provided, however, That i/n all cases ivhere said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds %vith which to make such erections, improvements or buildings, then said lien shall be- prior to the lien given by this act.”

The first line of the above Section refers to the lien for labor and material as set out in Ark. Stats., § 51-601 to 51-604 inclusive.

The material facts out of which grew the issues in this litigation are not in dispute and in so far as they are relative to this opinion, may be briefly stated.

Appellants, Guy A. Pardew, Sr. and his wife, Bonnie I. Pardew, owned a parcel of land adjoining the City of Jonesboro and, desiring to sell the same advantageously, divided the same into lots. The plan was to build dwellings on the individual lots and offer them, completed, to prospective purchasers, without the Par-dews having to put up any money. In furtherance of this plan the Pardews executed separate deeds to the individual lots to one J. C. Vaught of Little Bock who was d building contractor: Each of the deeds was a regular warranty deed and recited a consideration of one dollai\paid.

Vaught was unable to provide the financing, so he entered into a written contract with appellant, Jack Collier'East Co. Inc. (hereafter called “East”) to do so. That is, Vaught contracted with East to furnish the temporary finances necessary to pay for labor and materials until, as contemplated, a permanent loan could be secured (through the V. A., the F. H. A. or from some other source) for each individual purchaser. It was contemplated by all, apparently, that when such a permanent loan' was obtained and the house was sold, full payment would be made to East, for labor and materials, to Vaught for his profit, and to the Pardews for the pi’ice they ■ were to get for the lot. In order to make everyone as secure as possible and at the same time to make the plan workable, East was to have a first mortgage (executed by Vaught and wife) on the lot for the construction money, and the Pardews were given a note and mortgage (executed by Vaught and wife) for the price of the lot. In each instance Par-dews’ mortgage was filed after East’s mortgages was filed, and in some instances their mortgage contained the statement that, it was subject to East’s mortgage.

Several houses were built and sold under the above or a similar plan and there was no difficulty, but, in the case of the four houses here involved, Vaught went into bankruptcy before they were sold and before anyone was paid in full, except that the Pardews were paid for one lot. For convenience at the trial the four houses were referred to as Job No. 8, Job No. 10, Job No. 11, and Job No. 12, and we shall refer to them in the same way. It is admitted that in each instance East has now paid to Vaught the full amount of money shown in the mortgage.

When it became apparent that Vaught would not be able to pay all claims, appellee, Barton Lumber Company, filed suit'ágainst the Trustee for Vaught in bankruptcy,, the East Company, the Pardews, and all others-known to have furnished labor or materials in connection with said buildings, to recover $3,114.01 on Job No. ■8, $5,965.09 on Job No. 10, $4,333.01 on Job No. 11, and $3,885.25 on' Job No. 12. The prayer was for judgment in the above amounts, that the same be declared a lien against each parcel of real estate involved, and that it be declared prior to all other claims or liens unless other claims are found to be on a parity.

After a full and complete hearing the trial court gave judgments for the various claimants, found that appellee’s lien was superior to that of East and the Pardews, and that the lien of the latter was inferior to East’s lien. The houses were ordered sold by a receiver appointed by the court and the proceeds were applied in accordance with the priorities mentioned above. From the above decree East and the Pardews now prosecute this appeal.

For the reasons hereinafter set forth, we conclude that the decree of the trial court must be sustained. First, we find that the testimony sustains the trial court in the following material findings of facts: (a) The mortgages which Vaught gave to East were regular in form and contained no writing to indicate the money was being advanced to pay for labor and material in the construction of the houses; (b) The Barton Lumber Company had knowledge of the fact that Vaught was securing construction loans in some manner; (c) The Pardews conveyed the land to Vaught for the specific purpose of permitting Vaught to construct residences thereon, and; (d) All liens were filed in due time and in the form and manner required by law. It is not contended that the written contract between Vaught and East was placed of record.

East earnestly and ably contends that its mortgage, given for the purpose of securing money to construct the residences, constitutes a lien superior to the statutory lien given to the Barton Lumber Company for materials furnished, and that this is true even though the mortgage contained no language indicating the money was to be used as above indicated. This contention is not however insisted upon as to Job No. 8 for the reason that East concedes its mortgage was not filed for record until after work had been commenced. As to Jobs 11 and 12 it is conceded that East’s mortgage was filed before work was begun or materials furnished. The situation, in this respect, is not clear as to Job No. 10 but, due to the conclusions we reach hereafter, this point is immaterial, and we can treat East’s mortgage as having been filed first.

We can agree with East that, in those cases where its mortgage was filed before construction began, it would have been entitled to a lien on the building (in addition to the land) if the mortgage had shown the “purpose” for which the money was advanced or was to be advanced by it. This because of the plain language in the emphasized portion of § 51-605 copied above. Without this language it is conceded of course that it would have a first lien on the land itself.

The interesting and vital question, however, is: Does East lose his lien priority (on the dwelling) when no such “purpose” language appears in the mortgage itself?

Appellant, East, in answering the above question in the negative, relies heavily on our holding in Ashdown Hardware Company v. Hughes, 223 Ark. 541, 267 S. W. 2d 294, and Sebastian Building and Loan Ass’n v. Minten, 181 Ark. 700, 27 S. W. 2d 1011. We do not draw the same conclusion from these cases. The material facts in the Ashdown case differed materially from the facts here. There the mortgage did contain the “purpose” language in these words: “Mortgagors understand and agree that all advances made under this mortgage shall be used exclusively for building of cabins on this property and improving same ...” No such language appears in the East mortgage of course. The court also said: “It is fair to assume that had appellants inspected the mortgage record and the provisions of this mortgage, it is not likely that they would have furnished materials for the cabins without first making arrangements with appellee, Hughes, for payment”. The court then quoted from the Sebastian Building and Loan Ass’n case, supra, language, which we think confirms our view, to the effect that laborers and materialmen can learn the “purpose” for which money is advanced by examining the clerk’s record, and thereby protect themselves. Referring again to the Sebastian case, the court there clearly announced that the test of priority was the purpose for which the money was loaned but, in discussing Crawford & Moses’ Digest § 6909 (which is the same as Ark. Stats. § 51-605 copied above), the court also made this statement: ‘ ‘ The binding force of a mortgage results from the contract between the parties as expressed in the mortgage”. (emphasis supplied )

Appellant, East, attaches great significance to the fact that appellee had actual knowledge of the fact that it was advancing money (under his mortgage) for the purpose of erecting the dwellings, i. e., to pay for labor and materials, contending .that such actual notice takes the place of the language left out of the mortgage, and that it would be inequitable for us to hold otherwise. It is not clear from the record, as reflected by the Chancellor’s finding, just how much appellee knew about the arrangements between Vaught and East but assuming, for the purpose of this opinion, that Barton did know East was furnishing the construction money, still we cannot agree with this contention. If, as we have repeatedly held, an unrecorded mortgage or a recorded mortgage with no valid acknowledgment, constitutes no lien against a purchaser with actual notice, then it would seem illogical to hold here that appellee lost its lien priority because of knowledge it received outside the record. As we see it, East can only claim a prior lien here because of the particular kind of mortgage described in § 51-605 above, but it had no such mortgage of record. Practical considerations also sustain the view we have adopted, we think. It would place a great burden on materialmen and, in particular, laborers not to be able to rely on public records for protection. Otherwise they would have to rely on hear-say and oral agreements, and would have to make extensive investigations for which they are ill equipped. We have examined the authorities on which appellant, East, relies to show that actual notice is sufficient but fail to find in any merit in them as they pertain to a different situation.

Considerable argument is devoted to the proposition that, under the terms of the mortgage, East was obligated to make advances and that such advances were not optional, and authorities are cited to show that, in such cases, the mortgagee is held to have a first or prior lien. We think however, since we are here dealing with the construction of a statutory mortgage and lien, that such cases are not helpful one way or the other, except as presently pointed out. In the case of American Bank & Trust Company v. First National Bank of Paris, 184 Ark. 689, 43 S. W. 2d 248, the court, in dealing with future advances, had this to say: “One may execute a valid mortgage to secure a debt to be contracted in the future but, in order to do so, there must be an unequivocal agreement in the instrument itself that it is given for debts to be incurred in the future.” “The effect of our cases is that a mortgage to secure future advances ... is valid, but, if such purpose is intended to be accomplished, that fact must clearly appear from the instrument . . .” (Emphasis supplied) To the same effect is Patterson v. Ogles, 152 Ark. 395, 238 S. W. 598. It seems to us to follow that the same reason which requires infoi-mation relative to future advances to be set forth in a mortgage would require the “purpose” to be set forth in a construction mortgage.

From the above we conclude that appellant’s lien was subject to the lien of appellee.

We likewise agree with the Chancellor that Par-dews’ lien is subordinate to the lien of East. He found, and we agree, that the deeds from the Pardews to VauglP were made to enable Vaught to construct the improvements mentioned and that some of them specifically provided they should be subordinate and inferior to the mortgages given Jack Collier East Company, Inc.; That the Pardews waived the priority of their vendor’s equitable lien for the unpaid purchase price of said lands, having conveyed the lands to Vaught for the specific purpose of permitting Vaught to construct residences thereon in order' that Vaught might sell the property pursuant to the arrangement made, and; that others have acted to their detriment by reason of such acts and the Pardews cannot, therefore, be heard to complain whether or not the materialmen and mechanics had notice that the Pardews had not been paid.

We held in Buckeye Cotton Oil Company v. Westerfield, 186 Ark. 505, 54 S. W. 2d 295, that when the holder of a title retention note subsequently took a mortgage he thereby waived his retention of title because the two were inconsistent. Likewise, though perhaps to a less degree, there appears an inconsistency in Pardews5 claim of a vendor’s lien for the purchase price and also a mortgage for the. same debt. The former, they claim, is prior to East’s lien while the latter,, they admit, is subsequent to it.

Since, as we hold, Pardews’ lien is subject to East’s lien, it follows from what we have heretofore said, it is also subject to the lien of appellee.

Affirmed.

Justice Holt, dissents.

Justice McFaddiN, concurs.

Justice Millwee, not participating.