author: Darrell Hickman, Justice.

text:
    Christena HASEMAN v. UNION BANK OF MENA & Liston HASEMAN, Jr.
    79-319
    597 S.W. 2d 67
    Supreme Court of Arkansas
    Opinion delivered March 31, 1980
    Rehearing denied May 5, 1980

      James Howard Smith, for appellant.

      Shaw, Shaw & Tucker, by: Robert L. Shaw and Glen G. Langston; and J. David Maddox, for appellees.
   Darrell Hickman, Justice.

This is the second appeal of this case. In Haseman v. Union Bank, 262 Ark. 803, 562 S.W. 2d 45 (1978), we reversed and remanded this cause for a new trial. The trial judge in that case had directed a verdict for the appellee, Liston Haseman, Jr.; a verdict was returned in favor of the bank. The matter was retried and the case was submitted to the jury; the jury returned a verdict in favor of the appellee, Union Bank of Mena, but entered judgment for the appellant, Christena Haseman, against her son, Liston Haseman, Jr., for $6,500.00.

The matter in issue hinges upon a withdrawal of $12,-880.32 from a joint savings account. The account was in the name of Christena Haseman, her husband who is now deceased, and their son, Liston Haseman, Jr. It was a passbook account. The son was able to remove the money without presenting the passbook. Mrs. Haseman filed suit against the bank for wrongfully permitting the withdrawal in violation of the rules contained in the passbook and joined the son as a defendant to recover the money.

We set out the facts in the first Haseman case and essentially the same facts were presented to this jury.

On appeal, this time, Christena Haseman alleges four errors. First, the trial court erroneously instructed the jury that the bank could change the terms regarding the savings account without giving her actual notice of the change. Second, the court improperly instructed the jury that if they found the son was the owner of the property, then the money in the savings account was his. Almost all of the money was from the sale of timber on land in which Christena Haseman had a life estate and her son was the remainderman. Third, the appellant argues the court erroneously excluded a portion of a letter from the son’s attorney which contained a declaration against his interest. Finally, the appellant argues the court should have granted judgment notwithstanding the verdict.

After reviewing the record we find it contains no reversible error and affirm the judgment of the trial court.

The passbook which Mrs. Haseman held contained a provision that no money could be withdrawn unless the passbook was presented. The use of passbooks by banks is discretionary. Ark. Sat. Ann. § 67-519 (Repl. 1966). The passbook in question also contained the provision regarding a change in the rules. That provision reads:

Notice of any change or addition to Savings Department Rules and Regulations shall be conspicuously posted in the lobby of the bank and shall be binding on depositors after having remained so posted for five consecutive business days.

The bank offered evidence that before Liston Haseman, Jr. withdrew the money it changed its rule which required presentation of passbooks. Evidence was presented tc the jury that a notice was posted in the bank lobby according to the rule which we have quoted. The appellant argues that even if the notice was properly posted, actual notice was required.

We do not agree that the notice was deficient in this case. The question of notice was a matter agreed upon when the passbook was issued. The general rule is that a depositor by accepting a passbook is bound by the rules it contains. Jefferson County Bldg. & Loan Ass’n. v. Southern Bank & Trust Co., 225 Ala. 25, 142 So. 66 (1932). The depositor need not read or understand the terms to be bound by them. Polonsky v. Union Federal Sav. & Loan Ass’n., 334 Mass. 697, 138 N.E. 2d 115 (1956). See, generally, Annotation, 60 ALR 2d 708 (1958). There is, however, authority to the contrary. See Los Angeles Inv. Co. v. Home Sav. Bank, 180 Cal. 601, 182 P. 293 (1919).

We cannot agree with the appellant that the fact she did not receive actual notice and the money was withdrawn by her son made the bank liable as a matter of law for breach of contract. It was a question for the jury as to whether the bank complied with the contract and the jury found that the bank had, indeed, complied by posting the notice in the bank lobby. We find nothing unconscionable on the part of the bank in changing its rules as it did. After all, her son could not have withdrawn the money under any circumstances if his name had not been on the account. The question was, could the bank change its rule requiring the use of the passbook for a withdrawal without personal notice.

Nor can we say that the notice in this case failed to satisfy any requirement of due process of law. Due process does not always require actual notice. Londoner v. Denver, 210 U.S. 373, 28 S. Ct. 708, 52 L. Ed. 2d 903 (1908); Glidden v. Harrington, 189 U.S. 255, 23 S. Ct. 574, 47 L. Ed. 2d 798 (1903); Prather v. Martin, 257 Ark. 576, 519 S.W. 2d 72 (1975).

The second allegation of error concerns an instruction the court gave over the objections of the appellant regarding the son’s ownership of the land. That instruction reads:

If you find that Liston Haseman, Jr. was the owner of the property from which the timber was sold and that Christena Haseman had a life estate in the property, then you must find for the Defendant, Liston Haseman, Jr., and against the Plaintiff, Christena Haseman, regarding the ownership of the money in the account, unless you find that a contract existed between Liston Haseman, Jr., and Christena Haseman, establishing ownership of the account different from the ownership created by law on the account.

The appellant argues this instruction was wrong because the son was not the owner of the land but merely a remainderman and that a life tenant in this case, Christena Haseman, had rights to the timber. The appellant is correct in this respect. A life tenant does have some interest in the timber on the property. A life tenant may cut timber for firewood or to make repairs. Ussery v. Sweet, 137 Ark. 140, 208 S.W. 600 (1919). In the case of Rutherford v. Wilson, 95 Ark. 246, 129 S.W. 534 (1910), we upheld a jury verdict that found a life tenant entitled to about $100 she received from selling timber on about 25 acres of a 230 acre tract of land.

Even so, we cannot find that the appellant was prejudiced because the jury obviously ignored this portion of the instruction, finding by its verdict that Mrs. Haseman was entitled to $6,500.00, or about half of the money in question. If the erroneous part of the instruction had been followed by the jury she would have received nothing. We will not reverse a judgment where the error is harmless. McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W. 2d 409 (1978). It is somewhat a mystery why the attorney for the son would submit this instruction and the court would accept it in view of the language in the first Haseman case where we said unequivocally that the ownership of the money was a question of fact to be decided by the jury.

The third allegation of error is regarding the second page of a letter which the son’s attorney wrote before trial. The first page was submitted to the jury. It is argued that that portion of the letter which was withheld from the jury contained a statement which was a declaration against the interest of the son. That statement, which was excluded, reads:

If you feel as though you might be able to assist us in having the property reconveyed back to Liston, then some concessions might be made by Liston regarding the account which was closed. I would appreciate hearing from you at your earliest convenience regarding this matter.

The trial court excluded this portion of the letter finding it in the nature of an olfer to compromise, which, according to Ark. Stat. Ann. § 28-1001, Rule 408 (Repl. 1979), may not be admitted for the purpose of establishing liability or the validity of a claim. The rule regarding a declaration against interest may be found in Ark. Stat. Ann. § 28-1001, Rule 804(b)(3) (Repl. 1979). An admission against interest is governed by Ark. Stat. Ann. § 28-1001, Rule 801(d)(2) (Repl. 1979). We cannot say the portion of the letter excluded from the jury was a declaration against interest or an admission. We cannot say the trial court abused its discretion in finding that it was of such a nature that ought to be excluded.

Finally, the appellant argues that her motion for a judgment notwithstanding the verdict should have been granted. The test for determining if a judgment notwithstanding the verdict should be entered is the same as that for determining whether a verdict should be directed and that is whether there was substantial evidence to support the verdict. Williams v. Curtis, 256 Ark. 237, 506 S.W. 2d 563 (1974). A verdict should not be directed where the testimony is in conflict and the evidence should be evaluated in the light most favorable to the party opposing the motion. Williams v. Curtis, supra. See also, Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 485 S.W. 2d 192 (1972).

We find there was substantial evidence to support the verdict and cannot say the court abused its discretion in denying the motion after judgment was entered.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    I. E. MOORE, d/b/a PULPWOOD SUPPLIERS, INC. v. Donnie & Emma OWENS et ux
    80-34
    597 S.W. 2d 65
    Supreme Court of Arkansas
    Opinion delivered March 31, 1980
    Rehearing denied April 21, 1980

      Sanford L. Beshear, Jr., for appellant.

      Jones & Petty, for appellees.
   Darrell Hickman, Justice.

This suit began when a second mortgage holder filed a foreclosure action against property of Donnie and Emma Owens located in Grant County. I. E. Moore, the appellant, who does business as a corporation called Pulpwood Suppliers, Inc., was joined as a party in that suit because he held the first mortgage. Moore filed a cross-complaint against the Owenses asking that the note he held and the first mortgage be foreclosed. A default judgment was granted to Moore.

The Owenses asked that the default judgment be set aside because they were not properly served, and it was set aside. The Owenses then claimed that the note should be cancelled because it was usurious. The trial judge found the note to be usurious and from that decision Moore files this appeal.

Even simplified this case is difficult. Donnie Owens was in the business of hauling pulpwood and he sold it through a middleman, the appellant I.E. Moore. In addition to being a dealer, Moore helped finance Owens, extending him credit over a period of years. Apparently Moore maintained several accounts for Owens. In 1975, Moore paid a note Owens had with the Grant County Bank and in consideration of that, and other debts, the Owenses gave Moore their note for $34,-422.25 and a mortgage on their property. Moore assigned this note to the Grant County Bank as collateral for a loan he had with the bank. It was reassigned to Moore before this suit. According to the evidence Moore presented, Owens was indebted to Moore for about $64,000.00 which included the $34,000.00 note. Moore tried to present evidence to the chancellor regarding all the transactions he had with the Owenses. For example, sometimes Moore withheld money from checks he gave to Owens but only Moore’s copy of the check reflected that fact. Owens made several payments to the Grant County Bank which the bank credited to the $34,-000.00 note. One payment credited by the bank was for $7,-000.00, which was the proceeds from a forced sale of a crawler tractor.

The defense of usury raised by Owens was not that the note was usurious on its face but that Moore gave no credit for payments which had been made to the bank. That is, that Moore, by giving no credit, was overcharging him and the overcharge must be considered as interest causing the rate to exceed 10%.

Moore argued that he did not consider any payments made to the bank as credits toward Owens’ note but he considered them as credits toward the note Moore had with the bank, or credits toward the open account which he kept for Owens.

At first the chancellor indicated he would appoint a master to study all of Moore’s records and come up with some findings as to what actually happened. That is, how much money was' actually loaned or advanced to Owens over the years, how much was paid by Owens, and to what accounts or notes the credits were made or should have been made. However, the chancellor was finally persuaded that the issue before him was the note in question and he precluded further testimony regarding the other debts that Owens had with Moore.

According to the record, Moore paid the bank $18,-613.14 as a payoff of Owens’ note and reacquired that note and mortgage. He sued Owens for $41,650.19, the face amount of the note plus interest. Based on the fact that Moore did not give Owens credit for the payments which the bank did, the chancellor concluded the note was usurious and that Moore actually intended to make an illegal charge. Consequently, the debt was declared invalid because of usury.

Moore, on appeal, raises three issues. First, he argues that the chancellor incorrectly set aside the default judgment which he had obtained on the note. Second, he argues the court erroneously excluded testimony which was relevant to the issue of usury and failed to appoint a master as he indicated he would. Finally, he argues that the note was not usurious and there is no evidence to support the chancellor’s finding to that effect.

We find the chancellor was clearly in error in finding usury and reverse the decree and remand the cause for additional proceedings. Simply because Moore failed to give Owens credit the bank may have, would not constitute usury. The note was not usurious on its face and a party who pleads usury has the burden to prove it by clear and convincing evidence. Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009 (1951). To sustain a claim of usury it must be shown that there was an agreement on the part of the lender to receive and the borrower to give a greater rate of interest than 10%. Garst v. General Contract Purchase Corporation, 211 Ark. 526, 201 S.W. 2d 757 (1947). The unlawful act of usury will never be imputed to the parties and it will not be inferred when the opposite conclusion can be reasonably and fairly reached. Brittian v. McKim, 204 Ark. 647, 164 S.W. 2d 435 (1942).

If the transaction is not otherwise usurious, filing suit for too much money is not usury. Mid-State Homes, Inc. v. Knight, 237 Ark. 802, 376 S.W. 2d 556 (1964). See, also, Studdard v. Walter C. Hudson, Inc., 226 Ark. 903, 295 S.W. 2d 637 (1956).

It may or may not be that Moore actually made a mistake in failing to give Owens credit; or it may or may not be that Moore (by the way he kept his records), actually intended from the beginning to charge Owens an illegal rate of interest. The simple fact he did not give him credit cannot sustain a finding of usury.

Whether the chancellor on a retrial decides that a master is necessary to determine the facts in this case is a discretionary matter, as well as the question of who should bear the burden of the cost of a master. See, Rules of Civil Procedure, Rule 53. In any event, there are questions of fact to be resolved regarding the records of Moore; Moore should be given a fair opportunity to explain all his financial dealings with Owens. Only then can a finding of intent be properly made regarding the usury issue. If, indeed, Moore’s evidence reflects that he pursued a scheme to illegally charge Owens, then a finding of usury may be justified.

The appellant also argues that the chancellor improperly set aside a default judgment that he had obtained against Owens on the note in question.

We cannot say the chancellor was clearly wrong in this regard. Moore’s cross-complaint was attached to a summons and complaint issued in the name of Lewis Shirron and Hazel Shirron as plaintiffs against Donnie Owens and Emma Owens and Alton Socia and Mattie Socia. The summons simply read that Donnie Owens was commanded to answer the complaint, within twenty days, which had been filed against him by the Shirrons and upon his failure to answer such complaint, it would be confessed. There was no mention at all in the summons of a cross-complaint of Moore. The chancellor was not clearly wrong in deciding that this was not service as contemplated by Rules of Civil Procedure, Rule 4(a) and 5(a). We distinguish this case from that of Claibourne v. Smith Rice Mill Co., 181 Ark. 279, 25 S.W. 2d 1050 (1930), where the summons contained other information which could put the defendant on notice of a complaint.

Reversed and remanded.


author: Richard L. Mays, Justice.

text:
    Cecil Ray JEFFERS v. STATE of Arkansas
    CR 79-213
    595 S.W. 2d 687
    Supreme Court of Arkansas
    Opinion delivered March 31, 1980

      Thomas L. Cashion, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

A jury in Ashley County found appellant, Cecil Ray Jeffers, guilty of breaking and entering, theft of property and rape and sentenced him to fifty years imprisonment, five years each on the charges of breaking and entering and theft of property and forty years on the charge of rape. On appeal the principal question is whether there is sufficient evidence to sustain the jury verdicts.

The prosecutrix, Brenda Stevenson, testified that around midnight on August 16, 1978, the appellant entered her home through the utility room window, wearing a mask and carrying a knife, blindfolded her, tied her up and raped her. He later untied her, raped her again and then left, taking a 22 rifle from a gun rack in her livingroom. Although she never saw his face, she identified him at trial on the basis of his voice and general physical characteristics. Clothing which the prosecutrix described as being worn by appellant was found near her house, including a military cap with appellant’s name in it. Rope similar to that found in the prosecutrix’s home had been purchased by appellant approximately three days before the rape, and hair samples taken from the military cap and the prosecutrix’s bedroom were indistinguishable from hair samples taken from appellant. The appellant, himself, testified that he entered the prosecutrix’s home on the night in question with a friend to steal guns but denied that he raped her. We find sufficient evidence to support the jury verdicts.

In what appellant’s counsel generously refers to as his “argument,” but without any real discussion or a single citation of authority, the appellant further contends that his convictions should be overturned because no warrant was ever issued for either his arrest or the search of his premises, that his rights were never explained to him, and that his “hair” was taken from him without his permission. As to the issue of the sufficiency of the warrants, even if the appellant’s argument were persuasive, a hypothetical most difficult to contemplate, we could not reach this contention since we have held repeatedly that we will not examine matters raised for the first time on appeal. See, e.g., Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978). Appellant’s counsel mentioned the Miranda rights issue and the taking of the lock of appellant’s hair during his motion for a directed verdict. Even if this is considered sufficient to preserve the issues for appellate review, the contentions are meritless. The record shows that appellant signed a waiver of arraignment form which contained a statement, signed by appellant and his counsel, that appellant was aware of his rights and that his rights had been explained to him. Furthermore, the State made no attempt to offer into evidence any statement made by appellant. As to the taking of the lock of appellant’s hair, this court has previously held that this type of evidence is not of a testimonial or communicative nature; therefore, the taking of a lock of hair from a criminal defendant against his will is not violative of his Fifth Amendment right against self incrimination. Adams v. State, 263 Ark. 286, 485 S.W. 2d 746 (1972). We find no error.

Affirmed.


author: PER CURIAM

text:
    Bobby Joe MITCHELL v. STATE of Arkansas
    CR 79-183
    Supreme Court of Arkansas
    March 31, 1980
   PER CURIAM

The appellant’s motion for a rule on the Clerk is granted. Counsel for the appellant, James M. Barker, concedes in the motion that due to an error he made, the transcript was not accepted by our Clerk. This constitutes good cause, as we have defined it heretofore, and for that reason the motion is granted.

In accordance with our practice, a copy of this opinion is forwarded to the Committee on Professional Conduct.


author: George Rose Smith, Justice.

text:
    Robert Thomas Patrick CAREY v. STATE of Arkansas
    CR 79-21 & 79-174
    596 S.W. 2d 688
    Supreme Court of Arkansas
    Opinion delivered April 7, 1980

      Ken Cook, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Carey was convicted of aggravated robbery as a consequence of his armed robbery of a branch bank at West Memphis on February 22, 1977. The jury fixed his sentence at 30 years. He was granted a belated appeal from the judgment of conviction. His Rule 37 petition for postconviction relief was later denied on the record, without a hearing. His two appeals have been consolidated in this court. Three points for reversal are argued.

First, Carey contends that he is entitled to credit for pretrial jail time from February 22 to September 23, 1977 (213 days). This point was not raised below, but the State concedes that under the new Criminal Code the credit is proper. Ark. Stat. Ann. § 41-904 (Repl. 1977). In view of that concession we modify the judgment by awarding credit for the jail time.

Second, the Rule 37 petition asserted only that Carey had been confined after his arrest for 190 days without a preliminary hearing. That assertion may be true, but the point must be raised before trial and is not a basis for relief after conviction. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); Bolden v. State, 262 Ark. 718, 561 S.W. 2d 281 (1978); Harris v. State, 259 Ark. 187, 532 S.W. 2d 423 (1976). Hence no evidentiary hearing upon the Rule 37 petition was required, because the petition did not state facts constituting a ground for relief.

Third, some two months after the Rule 37 petition had been denied, Carey wrote a letter to the trial judge in which he complained about having been handcuffed and in jailhouse clothing during his trial. No details were given, nor does the record of the trial disclose any reference to these matters nor any objection on the part of the accused. It is nevertheless argued, on the basis of the letter only, that a new trial should be granted.

There are at least two answers to this argument. One, Rule 37.1 requires that motions for postconviction relief be verified and be filed with the court, a requirement of substantive importance to prevent perjury. Evans v. State, 242 Ark. 92, 411 S.W. 2d 860 (1967). We do not imply that trial judges may not properly act upon letters from prison inmates, but in the absence of any action by the trial judge we cannot order a new trial upon the basis of such an unverified communication. Two, the absence of any objection at the trial is fatal to the present attempt to raise a constitutional issue. Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).

Affirmed as modified, and remanded so that jail time may be credited.

Fogleman, C.J., not participating.


author: Darrell Hickman, Justice,

text:
    COOPER TIRE & RUBBER COMPANY v. NORTHWESTERN NATIONAL CASUALTY COMPANY et al
    80-36
    595 S.W. 2d 938
    Supreme Court of Arkansas
    Opinion delivered April 7, 1980

      Brown, Compton & Prewett, Ltd., by: William I. Prewett, for appellant.

      Shackleford, Shackleford & Phillips, P.A., for appellees.
   Darrell Hickman, Justice,

Jerry Ralph Dumas, an employee of Cooper Tire & Rubber Company, the appellant, was injured in an automobile accident. So were his wife and son. They sued one James L. Shutes and obtained a default judgment totaling $165,000.00 Shutes was uninsured.

Cooper had advanced the Dumases over $12,000.00 in medical payments as provided for in Cooper’s major medical plan for its employees. The Cooper benefit plan was for certain employees in addition to their salary.

Dumas had an automobile liability policy with Northwestern National Casualty Company which included up to $20,000.00 coverage for damages caused by an uninsured motorist. He paid a premium for this coverage.

This suit was an effort by Cooper to recover from Northwestern the $12,000.00 it had advanced to the Dumases. The chancellor, after referring to the existing law, and studying Cooper’s policy, denied Cooper’s claim. He also mentioned such action would be inequitable.

On appeal Cooper argues the chancellor was wrong in concluding it would be inequitable to allow Cooper to recover the medical expenses it had paid the Dumases.

Subrogation is a doctrine steeped in equity and generally governed by equitable principles. See Baker, Adm’r. v. Leigh, 238 Ark. 918, 385 S.W. 2d 790 (1965); Cooper v. Home Owners Loan Corp., 197 Ark. 839, 126 S.W. 112 (1939); Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, 158 S.W. 1052; and, 73 Am. Jur. 2d, Subrogation § 16.

However, in this case it is not necessary that we apply any equitable principles governing subrogation. We need go no further than certain language from Cooper’s plan and apply one principle of law to that language. That language is contained in the first reference to Subrogation in Cooper’s plan. It reads:

Subrogation—In the event an Employee, dependent of Employee, or surviving spouse or surviving dependent of deceased Employee is legally entitled to- recover cost of service or prescription drug from a third party; the Company, upon making payment to the Employee, should be reimbursed by the Employee when he receives payment on the claim, except when insuror is for an individual policy for which the Employee is paying premiums. [Emphasis added.]

The language we have emphasized applies to this case. Dumas had paid Northwestern for this uninsured coverage and strictly construing the language of the policy, we find it excludes any right to subrogate against an insured such as Northwestern.

Cooper’s argument that other language in the policy controls this case is not convincing. The language is located in the second reference to Subrogation in Cooper’s plan. It reads:

Subrogation—In the event an Employee or a dependent of an Employee including the surviving spouse or a surviving dependent of a deceased Employee is legally entitled to recover all or a portion of the cost of a service or prescription drug covered by this Plan from a third party, the Company will upon making payment under this Plan succeed to any rights of recovery the Employee or dependent may have or acquire (with respect to such service or prescription drug) against any person or organization except insurors of individual hospital, surgical, or medical policies issued to the Employee or dependent. [Emphasis added.]

Cooper points out the emphasized language is controlling; that Northwestern, being a liability insuror, is not excepted by this language.

A cardinal rule of insurance law is that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insuror. Ritter v. United States Fidelity & Guaranty Co., 573 F. 2d 539 (8th Cir. 1978); Courson v. Maryland Cas. Co., 475 F. 2d 1030 (8th Cir. 1973); and First Heritage Life Assurance Co. v. Butler, 248 Ark. 1164, 455 S.W. 2d 135 (1970). There is no doubt the language in Cooper’s plan is difficult to reconcile. However, when we consider the language in a light most favorable to the insured, we must conclude that Cooper cannot recover any money due the Dumases by Northwestern.

Affirmed.


author: John I. Purtle, Justice.

text:
    Barrett TOAN, Commissioner of Arkansas Social Services et al v. Richard Robert FALBO et ux
    79-321
    595 S.W. 2d 936
    Supreme Court of Arkansas
    Opinion delivered April 7, 1980

      Monroe L. Bethea, for appellant.

      Jon R, Sanford, for appellees.
   John I. Purtle, Justice.

Richard Robert Falbo and Linda Lou Falbo, appellees, applied to the Pope County Chancery Court for an injunction preventing appellants from interfering with their adoption proceedings which were filed simultaneously with the petition for injunction. Appellees were attempting to adopt a child who had been placed with them as foster parents by the Arkansas Social Services. The attorney for the appellants had been duly appointed temporary guardian for the infant with the power to consent to adoption. The trial court granted the injunction from which the appellants appeal. We hold that the injunction should not have been granted.

The infant was born on August 2, 1979, and the unmarried mother relinquished him to the Division of Social Services for the State of Arkansas. The attorney for the department was appointed temporary guardian. The natural mother did not withdraw consent.

The child was removed from the hospital and placed with the appellees as foster parents on August 8, 1979. Appellant notified appellees on October 5, 1979, that the infant would be removed from their home on October 8, 1979, and placed with the selected adoptive parents.

On October 8, appellees filed a petition for adoption of the child, and at the same time filed suit for the injunction in Pope County Chancery Court. A hearing was held on October 11, 1979, and the injunction was issued. The injunction granted temporary custody to the appellees and prevented the appellants from removing the child from appellees’ custody until further orders from the court.

We have recognized that equity has jurisdiction to enjoin or restrain officers of state agencies from acts which are ultra vires or beyond the scope of their authority. Harkey v. Matthews, 243 Ark. 775, 422 S.W. 2d 410 (1967). Arkansas State Game and Fish Commission v. Eubank, 256 Ark. 930, 512 S.W. 2d 540 (1974). We have also held an agency may be enjoined if it is about to do an act in bad faith, arbitrarily, capriciously, wantonly, or injuriously. Gray v. Ouachita Creek Watershed District, 234 Ark. 181, 351 S.W. 2d 142 (1961).

On the other hand, we have held a court of equity is without jurisdiction to issue an injunction preventing a board or commission from hearing a case where the board or commission had jurisdiction. Eclectic State Medical Board v. Beatty, 203 Ark. 294, 156 S.W. 2d 246 (1941). We held that proper procedure was for persons affected to seek court review of the commissioner’s ruling if the person felt the proceeding was arbitrary or otherwise illegal. The chancery court was held without jurisdiction to prohibit a coroner from performing his statutory duties of investigating a death under circumstances that indicated foul play. Potter v. Citty, 257 Ark. 276, 516 S.W. 2d 597 (1974). The chancery court was without jurisdiction to enjoin a landowner from interfering with the Game and Fish Commission surveying land for a proposed project. Robinson v. Arkansas Game & Fish Commission, 263 Ark. 462, 565 S.W 2d 433 (1978).

We concluded that chancery courts are without jurisdiction to enjoin actions of state boards and commissions from performing the duties delegated to them by proper statute or authority absent allegations or proof that such proposed actions are ultra vires, are beyond the scope of their authority, violate official duties, cause irreparable harm or damages, destroy rights or privacy of the citizens, are arbitrary or capricious, or if an adequate remedy at law is not available.

In the present case, there was no allegation or proof that any of the prohibited acts were about to be performed by the appellants. Additionally, Ark. Stat. Ann. § 57-625 (Repl. 1971) gives the duly appointed guardian the right of custody superior to that of foster parents. Therefore, it was error for the chancellor to issue the injunction.

The case is remanded to the trial court with directions to dissolve the injunction and dismiss the petition.


author: John A. Fogleman, Chief Justice.

text:
    JeToCo CORPORATION, David JEFFERY and Faye JEFFERY, Robert TODD and Ruth TODD, Bill COLE and Catherine COLE v. HAILEY SALES COMPANY
    80-17
    596 S.W. 2d 703
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      Jones & Segers, for appellants.

      Croxton & Boyer, for appellee.
   John A. Fogleman, Chief Justice.

This is a suit brought September 9, 1975, by appellee Hailey Sales Company against JeToCo Corporation, David Jeffery, Robert Todd and Ruth Todd, Bill Cole and Catherine Cole, to recover rentals allegedly due under a “Lease Agreement and Construction Contract” executed by the parties on October 2, 1972. After the issues had been made by various pleadings, the case finally went to trial and resulted in a judgment for appellee, from which this appeal is taken. The issues at the time of trial involved pleas of res judicata by appellants as a bar to appellee’s complaint (as amended) and by appellee as to appellants’ defenses and counterclaims on the basis of judgment entered on May 22, .1975, in an earlier action (No. 74-206 in the Circuit Court of Benton County) for recovery of rentals under the lease from September 1, 1973 up to the date of trial in April 1975. The Todds in a counterclaim sought to recover damages of $5,000 and punitive damages of $50,000 for abuse of process by issuance of an execution on a judgment in an earlier action while a supersedeas bond was in effect in that case.

The case was tried to a jury and a judgment was entered on December 21, 1978. The judgment recited the following findings of the court:

2. That the Appellee sued upon a Lease Agreement for rentals from May, 1975 through August, 1976, totaling $11,200.00. That the Appellants raised numerous defenses, including res judicata, breach of the Lease by the Appellee, rescission of the Lease, abandonment and acceptance of the abandonment and mitigation of damages.
3. That the Appellants counterclaimed in conversion and in abuse of process.
4. That Civil Action No. 74-206 litigated all matters up to April 22, 1975, and as such all matters before that time are res judicata. That the Appellants’ plea of res judicata to the Complaint was without merit, but that the Appellee’s plea of res judicata as that plea related to matters of defenses arising before April 22, 1975 was sustained.
5. That the jury returned the following verdicts:
“We, the jury, find for the Plaintiff, Hailey Sales Company, against the Defendants on its Complaint and fix its damages at $11,200.00.”
/s/ Elmer L. Wilson, Foreman
“We, the jury, find for the Plaintiff on Defendants’
Counterclaim for conversion.”
/s/ (By nine of the members of the jury)
“We, the jury, find for the Defendants, Robert Todd and Ruth Todd, on their Counterclaim for abuse of process and fix their damages at $405.00.”
/s/ Elmer L. Wilson, Foreman

The judgment from which this appeal was taken was rendered on these findings.

Appellants first contend that the court erred in ruling that appellee’s complaint was not barred by prior proceedings between these same parties on the same issues and in not directing a verdict for appellants on the appellee’s complaint. We find no error in this respect. The present suit sought recovery of rentals accruing after the previous trial. The parties are the same and the issues are basically the same as those involved in the earlier suit. Appellants had contended in that suit that the lease had been terminated because appellee had failed to construct improvements as required of it by the lease agreement as a condition precedent; that the appellee had accepted an abandonment of the premises by appellants and had taken possession of the premises. Appellants contend that the issue as to termination of the lease was resolved in their favor in the first trial. They arrive at this conclusion by reason of the fact that, even though appellee had sued for accrued rentals of $14,000 (at $700 per month), the judgment was for only $10,000 based upon a jury verdict in that amount. The jury had been instructed to find for appellee in the amount of $700 per month if it found that appellee had performed the agreement, and that appellants had failed to pay the rentals sued for, unless it found that the lease was surrendered by the appellants here and appellee here accepted such surrender.

Appellee had sued for rent for 20 months. Appellants say that the verdict for $10,000 represented rents for only 14-'/2 months, and that this meant that the jury found that the lease had been terminated some five months before the trial. Of course, the verdict would have represented 14-2/7 months if it was divided by the monthly rental rate. But appellants argue that the jury was given a binding instruction which required a verdict of $14,000, unless the lease had been terminated at some point before the case was submitted to the jury. When that judgment was before us on appeal, we did not consider the verdict by nine members of the jury to have had that effect. In our unpublished opinion in that case, rendered May 17, 1976, we said: “That the verdict was for $10,000 instead of for the full $14,000 that had accrued as rentals apparently resulted from a compromise in the jury room, which does not require a reversal.”

Appellee had a right to maintain a new action for the rents becoming due after the judgment in the earlier suit against appellants had been rendered, since that suit was for rents and not for damages for breach of the contract and it had not been terminated adversely to appellee. Ark. Stat. Ann. § 27-136 (Repl. 1979); Collins v. Paepcke-Leicht Lumber Co., 82 Ark. 1, 100 S.W. 86; Coley v. Westbrook, 208 Ark. 914, 188 S.W. 2d 141. Cf. Hemingway v. Grayling Lumber Co., 125 Ark. 400, 188 S.W. 1186. Even though appellee sued upon a different cause of action, i.e., for rents accruing after the former adjudication, the present action would, without question, be barred by the former judgment if, in the prior action, it was directly adjudicated or determined, or necessarily involved in the determination made, that appellants were not liable to appellee because the lease contract had been terminated or rescinded. National Surety Co. v. Coates, 83 Ark. 545, 104 S.W. 219; Meyer v. Eichenbaum, 202 Ark. 438, 150 S.W. 2d 958; Gates v. Mortgage Loan & Ins. Agency, Inc., 200 Ark. 276, 139 S.W. 2d 19. The term “necessarily involved” means that the determination in the former action could not have been made without determination of the question as to which res judicata is asserted. Knutson v. Ekren, 72 N.D. 118, 5 N.W. 2d 74 (1942).

It was essential to appellants’ plea of res judicata that it appear upon the face of the record, or that they show, that the particular matter or precise question, i.e., termination of the lease, was raised and determined favorably to them in the prior proceeding. Fisher v. Fisher, 237 Ark. 321, 372 S.W. 2d 612; Carrigan v. Carrigan, 218 Ark. 398, 236 S.W. 2d 579; Andrews v. Victor Metal Products Corp., 235 Ark. 568, 361 S.W. 2d 19; Swanson v. Johnson, 212 Ark. 340, 205 S.W. 2d 702; Fogel v. Butler, 96 Ark. 87, 131 S.W. 211. See also, Morgan v. Kendrick, 91 Ark. 394, 121 S.W. 278, 134 Am. St. Rep. 78 Res judicata means a thing or matter that has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction. Knutson v. Ekren, supra. Freely translated, it means “the matter has been decided,” Hastings v. Rose Courts, Inc., 237 Ark. 426, 373 S.W. 2d 583. See also, Hammond v. State, 244 Ark. 186, 424 S.W. 2d 861, cert. den. 393 U.S. 839 (1968). We have said that the true test of whether a particular point, question or right has been concluded by a former suit and judgment is whether such point, question or right was distinctly put in issue, or should have been put in issue, and was directly determined by such former suit and judgment. Pulaski County v. Hill, 97 Ark. 450, 134 S.W. 973.

We cannot say from the face of the record that the verdict was based upon a finding favorable to appellants on the question of termination of the lease, so it was permissible for appellants to make .the necessary showing by extrinsic evidence. When there is any uncertainty as to whether the precise question was raised and determined in the former suit and the record leaves the matter in doubt, extrinsic evidence showing the precise point involved and determined is admissible to remove the uncertainty. Carrigan v. Carrigan, supra.

Appellants were required to show that the verdict could not have been rendered without deciding the questions of termination and rescission. McCombs v. Wall, 66 Ark. 336, 50 S.W. 876. A prior judgment is not conclusive of any matter to be inferred from the judgment only by argument. Shall v. Biscoe, 18 Ark. 142. See also, Knutson v. Ekren, supra. Where the alleged estoppel is by jury verdict, defense of res judicata must rest upon more than mere speculation, and if a jury verdict could have been rendered without deciding the key issue of fact, and a reasonable doubt exists on the question, the court cannot say with the requisite certainty that the issue was decided by the verdict. Wolfson v. Northern State Management Co., 221 Minn. 474, 22 N.W. 2d 545 (1946); Knutson v. Ekren, supra. Cf. Andrews v. Victor Metal Products Corp., supra.

Since there is a dispute between the parties as to what was decided in the former case, the holding of this court on appeal in that case as to what had been determined in the trial court is conclusive, and what we said in the opinion and statement of facts in that case is significant. Missouri Pac. R.R. Co. v. Conway County Bridge Dist., 142 Ark. 1, 218 S.W. 189. See also, Bass v. Minich, 194 Ark. 589, 109 S.W. 2d 139, 134 Am. St. Rep. 78. Our treatment of the jury verdict in our opinion in the earlier case does not support appellants’ argument that the jury there decided that the lease had been terminated before the trial. Appellants made a similar argument on that appeal. The most that could be said is that the matter was left uncertain. At any rate, it would not be possible to say, without resort to speculation, that appellants have established that there had been a finding that the lease had been terminated in the jury verdict in the first case.

Appellants cannot rest upon the rule that res judicata covers those things that might have been litigated as well as those that were actually litigated. The North Dakota Supreme Court has put this matter in proper perspective. In speaking of this rule in Knutson v. Ekren, supra, that court said:

***Under such rule it is quite possible that a proposition may not have been presented by the pleadings yet be so necessarily involved therein, that the decision could not be made without determining the issue. On the other hand, an issue may be presented by the pleadings but may not have been necessarily involved in the determination of the action.***

The burden of establishing the defense of res judicata was upon appellants. Sulcer v. Northwestern National Ins. Co., 263 Ark. 583, 566 S.W. 2d 397; Hurst v. Hurst, 255 Ark. 936, 504 S.W. 2d 360; May v. Edwards, 258 Ark. 871, 529 S.W. 2d 647. They have not succeeded in establishing that the earlier jury verdict entitled them to a directed verdict on this defense. Furthermore, there was no error in the trial court’s ruling that this defense was without merit, even though the issue of termination was submitted to the jury by the instruction previously mentioned. In order to determine just what has been adjudicated, resort may be had to the evidence in the prior case as well as to instructions, the pleadings and the judgment. Patterson v. Anderson, 194 Va. 557, 74 S.E. 2d 195 (1953), cert. den. 345 U.S. 965, 73 S. Ct. 952, 97 L. Ed. 1384. Appellants have abstracted the record in the prior case, but they point out no evidence, and we can find none, that would indicate a termination of the lease 14-2/7 months after September 1, 1973. Actually, the alleged surrender of the leased premises took place in December, 1973. Appellants had ceased paying rent after August 1, 1973. The trial court properly held against appellants on their defense of res judicata.

Appellants next contend that the trial judge erred in not placing or reading the entire record of the earlier suit into the record, after he admitted it into evidence in this case. The record was admitted by stipulation of the parties. We find no error in this respect.

Appellants asked at the very beginning of the trial that the transcript of the record of the prior proceedings be brought before the jury. When the circuit judge said that he would take care of that at the proper time, appellants’ attorney acquiesced. The matter next arose when, at the conclusion of appellee’s evidence-in-chief, appellants moved for a directed verdict. At that time the trial judge ruled that the law of the case was that the issues concerning whether the lease had been rendered null and void or whether it had been abandoned for cause by appellants and the amount of rents due at the time of the previous trial was foreclosed by the judgment in the prior case as res judicata. The judge ruled that the question whether appellee did anything to accept an abandonment of the lease by appellants after the date of the judgment in the prior suit and the question of abuse of process were still in issue. Later, when asked if appellants had any surrebuttal, their attorney said that he was again requesting that the transcript be made available to the jury. The judge stated that, in view of his ruling as to res judicata, there was no necessity to read the entire transcript to the jury. The court permitted appellants to extract and submit to the jury those portions of the record pertinent to the cause of action for abuse of process.

We are somewhat perplexed in dealing with this question due to the fact that appellants do not seek reversal on the ground that the court erred in holding that the defenses asserted by them and mentioned in the trial court’s ruling on appellants’ motion for a directed verdict were res judicata. Consistent with his holding as to defenses which existed prior to the previous judgment, the trial judge refused to give instructions requested by appellants which would have submitted those issues which he had held to be res judicata. Appellants do not assert here that there was any error in the court’s refusal of those instructions.

If seems to us the court ruled correctly on the question of res judicata on these defenses. The judgment in the former case was conclusive of all questions within the issues and it extends to any ground for recovery or defense which might have been but was not presented. Ozan Lumber Co. v. Tidwell, 213 Ark. 751, 212 S.W.2d 349. But the mere fact that the record of the previous proceedings was not submitted to the jury would seem to be harmless error, at the most. In view of the fact that appellants are not now contending that this issue should have been submitted to the jury, appellants are in no position to claim prejudice.

Appellants also contend that they were entitled to recover on their counterclaim for reimbursement for certain signs on the real property which was the subject of the lease at the time appellee sold it. Appellants say that they were entitled to recover these damages as a matter of law, or at least, that the jury verdict is not supported by substantial evidence. Appellants, or Loeb’s, may be entitled to recover from someone for conversion of the signs, but we find substantial evidence to support the jury verdict. The signs allegedly converted were a standing sign, an attraction panel, three facia of varying sizes, one menu board and one animated sign. Appellants had leased the premises for the operation, under franchise, of a Loeb’s Tennessee Pit Bar-B-Q Inc. The signs were a part of the franchise package. Appellants paid Loeb’s for them as a part of the cost of the franchise. After the premises had been vacated, Bea Hailey, President of Hailey Sales Company, endeavored to get Dr. Jeffery, one of the appellants, to sublease the property, according to her testimony. She said that he had authority to do so. She also testified that she did not recall any conversation in which Dr. Jeffery had told her that, if the property were sold, appellants expected to be reimbursed for the signs, but said that Dr. Jeffery knew the property was being sold and that he should have reclaimed any personal property belonging to appellants. According to a letter exhibited to the jury, appellee’s attorney had advised the attorney for appellants that Hailey Sales Company would list the property for sale and, if successful in selling it, woudl release appellants from the lease. A letter from appellant’s attorney advising appellee’s attorney of the waiver of any right of JeToCo to first refusal upon sale of the property was also exhibited.

The property was sold to Leo Crane. Prior to the sale, Dr. Jeffery had removed other equipment, but not the signs. One was a free-standing sign along the highway. Other signs were erected across the north and south ends and the front of the building. Dr. Jeffery had testified in a deposition that removal of the signs would damage the building. Dr. Jeffery testified that appellants had sued Loeb’s, and that the value of the signs was probably, or may have been, a part of the claim asserted, which was settled by Loeb’s payment of $45,-000, part of which was for the signs. Appellee had rejected an offer to purchase the premises which would have included the signs as part of the property. The contract for the sale finally made contained no reference to the signs, although some of them may have constituted a part of the building on the premises.

Since we find no reversible error, the judgment is affirmed.


text:
    Johnny Ray MASSEY, Fay MASSEY, and Johnnie MASSEY v Mary C. MASSEY
    80-39
    596 S.W. 2d 701
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      Blair Arnold and John Norman Harkey, by: John Norman Harkey, for appellants.

      Highsmith, Gregg, Hart & Farris; by: Josephine L. Hart, for appellee.
   George Rose Smith, Justice.

The only disputed issue remaining in this divorce case is the custody of the couple’s two infant children. The chancellor awarded custody to the mother, Mary C. Massey, the appellee. The main argument for reversal is that the chancellor should have sustained a motion to strike the testimony of a social worker, Eleanor Mille, and that without Mrs. Mille’s testimony the award of custody to the mother is against the preponderance of the evidence. We hold that the chancellor did not abuse his discretion in ruling that the motion to strike, made after the close of Mrs. Mille’s direct examination, came too late.

Johnny and Mary Massey were married in 1973, but were separated at times before Johnny brought this suit for divorce and child custody in 1978. Johnny’s parents, the other appellants, filed an intervention seeking custody of the two children and visitation privileges. It may fairly be inferred from the record that the real antagonists in this custody dispute are the children’s mother on the one side and their paternal grandmother on the other.

The appellee called the social worker, Mrs. Mille, as a defense witness. Mrs. Mille was the Pulaski County Director for SCAN (Suspected Child Abuse and Neglect). She had a staff of about 17 persons. SCAN had extensively investigated the home of Mary Massey in early 1975, when Mary was living in Pulaski County and her husband was temporarily living with his parents in Stone County. Mrs. Mille testified almost at the outset that she had very little personal knowledge about the case. “Everything that I have is from records or from interviewing the interviewer who was working in the home with Mrs. [Mary] Massey.”

Even though Mrs. Mille’s testimony was obviously hearsay almost in its entirety, no objection was made during her extensive direct examination. At first Mrs. Mille’s testimony seemed to be unfavorable to the children’s mother. The witness detailed the complaints made to SCAN within a period of a few weeks by Mrs. Massey, Sr., by an anonymous caller, by the wife of Mary Massey’s first husband, and by a former baby-sitter who was living in Wyoming. It may be inferred that all these nearly contemporaneous complaints, largely directed to Mary Massey’s treatment of her two children by her first husband, were lodged at the instance of the appellants. The complaints charged that Mary Massey was an alcoholic and a habitual liar and that she abused her children by hitting, pinching, and kicking them, by pulling their hair, and by subjecting them to mental and verbal abuse. Mrs. Mille, after stating the complaints, proved to be a disinterested witness, but one strongly favorable to Mary Massey. She testified in substance that the complaints were exaggerated and that the extensive SCAN investigations disclosed nothing to lead Mrs. Mille to believe that Mary Massey was not a good mother or not capable of taking care of her children.

Mrs. Mille’s direct examination was completed at about the end of the second day of trial. The attorneys had agreed that the trial would be continued to another time. Counsel for the grandparents stated that his cross-examination of Mrs. Mille would take at least an hour or more. He also wanted to study the SCAN records, to which Mrs. Mille had referred during her testimony. Mrs. Mille had spent two days attending the trial in Stone County and indicated that it would be a hardship for her to come back again, but she agreed to do so.

When the trial was resumed several weeks later, counsel for the appellants asked Mrs. Mille only three perfunctory questions, to confirm her earlier statement that her testimony was not based on personal knowledge (except for one interview with the grandparents). The court denied the ensuing motion to strike, as being too late. Mrs. Mille was then excused without any further cross-examination whatever.

An objection to inadmissible testimony should be made promptly. We have said that inexcusable delay in making a motion to strike may be a ground for denial of the motion, adding that the trial judge is in a much better position than this court to judge whether such a motion is timely and that he should be held only to the exercise of a sound discretion. Ark. State Highway Commn. v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874 (1970).

Here we find no abuse of discretion. It was apparent almost from the very beginning of Mrs. Mille’s testimony that it was not based on personal knowledge, but no objection was made as she testified in great detail about investigations and reports made by her staff. Counsel for the appellants may very well have had some knowledge of the investigations, as their clients had initiated the complaints and as counsel expected the cross-examination to take more than an hour. Mrs. Mille was compelled by the delay to make a second useless trip to Stone County. The persons mentioned in the reports had been subpoenated, but could not be found. Even in this court counsel do not offer any explanation or defense of their delay in objecting to the testimony. We cannot say that the trial judge’s ruling was an abuse of discretion.

It is also argued that the SCAN written reports were not admissible as business records. The point is not really important, because the principal contents of the reports had already been set forth in Mrs. Mille’s testimony, as the appellants concede. Finally, we need not discuss the merits in detail, it being sufficient to say that if Mrs. Mille’s testimony is considered the chancellor’s award of custody to the mother is not clearly against the weight of the evidence.

Affirmed.


author: Frank Holt, Justice:

text:
    MARION COUNTY RURAL SCHOOL DISTRICT NO. 1 v. George F. POLK et al
    80-40
    596 S.W. 2d 700
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      Adams, Covington & Younes, by: Donald J. Adams, for appellant.

      Logan & Gresham, for appellees.
   Frank Holt, Justice:

The Lead Hill School District No. 4 of Boone County has included since 1929 some land situated in the adjoining Marion County Rural School District No. 1, the appellant. This action resulted when the Marion County Tax assessor changed the assessment of these lands from the appellees’ district to the appellant school district. The appellees, the Board of Directors of the Lead Hill School District and other interested parties, sought a determinations as to whether the land in question was properly a part of the Lead Hill School District. They also asked for a writ of mandamus ordering the Marion County assessor to assess the land in the Lead Hill School District. The court granted appellees’ motion for summary judgment. The appellant’s sole contention for reversal is that the court erred because Ark. Stat. Ann. § 80-426 (Repl. 1960) (Initiated Act 1 of 1948) limits school districts created by the act to territory within a single county.

§ 80-426 provides in pertinent part:
On June 1, 1949, there is hereby created in each county a new school district which shall be composed of the territory of all school districts administered in the county which had less than 350 enumerated on March 1, 1949, as reflected by the 1948 school enumeration.

A summary judgment is proper where there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Ark. Stat. Ann. Vol. 3A, Rules of Civ. Pro., Rule 56(c) (Repl. 1979). Here the verified motion for summary judgment, affidavit and exhibits reflect these uncontroverted facts: (1) the land in question was part of the Lead Hill School District on and prior to June 1, 1949; (2) the district had less than 350 (school children) enumerated on March 1, 1949, as reflected by the 1948 school enumeration; (3) the land was administered in the Boone County School District on and prior to June 1, 1949; and (4) the land was included within the Boone County School District by a 1949 order of the Boone County School Board pursuant to the terms of the recited School District Reorganization Act.

It appears the only issue presented is a matter of law; i.e., the interpretation of the statute. Appellant points out that the act provides “the territory . . . administered in the county ...” The thrust of its argument is that the words “in the county” are words of “limitation.” We have often held that the words of a statute must be given their plain and ordinary meaning. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W. 2d 154 (1977); and Call v. Wharton, 204 Ark. 544, 162 S.W. 2d 916 (1942). It is clear that the legislature, by choosing the phrase “administered in the county,” intended that school districts, as here, be composed of land or territory of a district adminstered rather than being restricted to an area located within the county. The court correctly granted summary judgment in favor of appellees.

Affirmed.


text:
    CANAL INSURANCE COMPANY v. FIRST NATIONAL BANK OF FORT SMITH, ARKANSAS et al
    79-288
    596 S.W. 2d 709
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      Hardin, Jesson & Dawson, and Jones, Gilbreath & Jones, for petitioner.

      Shaw & Ledbetter, for respondents.
   Darrell Hickman, Justice.

We granted review of this decision by the Court of Appeals because one question dealt with concerns the Commercial Code and its application.

That question was whether an instrument which purported to be a draft, containing the language, “Upon Acceptance . . . Payable Through the South Carolina National Bank, Greenville, South Carolina,” was a negotiable instrument. The Court of Appeals held that it was.

The other issue in the case concerned a hold-harmless agreement which International Harvester Credit Corporation signed with Canal Insurance Company. The Court of Appeals held that the hold-harmless agreement did not apply in this case and therefore denied Canal Insurance Company any relief.

Since we agree wholeheartedly with the decision of the Court of Appeals in all respects, it would serve no useful purpose to simply recite the facts and the law. We adopt the opinion of the Court of Appeals in this case as our own and as it is reported. Canal Insurance Co. v. First National Bank, 266 Ark. 1044, 596 S.W. 2d 710 (Ark. App. 1979).

In addition to reviewing the record in this case we submitted the briefs and the Court of Appeals’ decision to the American Bar Association Permanent Editorial Board for the Uniform Commercial Code asking for an advisory opinion on the question concerning the Commercial Code. This is a practice we sometimes utilize when questions involving the Commercial Code arise; this is so that our decision will be made with as much knowledge as possible regarding the import of such a decision. Uniformity in the application of the Code, which has been adopted by most states, is a much desired objective. The Advisory Board, in a letter to us, stated in part:

Upon consultation with members of the Board, it became apparent that the predominant view was that the opinion of the Court of Appeals was so clearly right that no submission on behalf of the Board was in order. We believe that the opinion of the Court of Appeals adequately discusses both the relevant statutory provisions and the applicable case law in Arkansas and in other jurisdictions.

The letter from the Board was submitted to all the parties and an opportunity was given to them to respond to the letter; oral arguments were heard in this case. After all considerations, we conclude the Court of Appeals was correct and, therefore, we affirm the decision of the Court of Appeals in all respects.

Affirmed.


author: Per Curiam. Darrell Hickman, Justice,

text:
    Billy WOODARD v. STATE of Arkansas
    CR 76-50
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980
   Per Curiam.

Trial court is vested with jurisdiction to entertain a motion by appellant for a transcript of voir dire examination.

Hickman, J., would deny the petition.

Darrell Hickman, Justice,

dissenting. Billy Woodard filed a petition with this Court asking for a copy of the transcript in his case alleging that the jury may have been improperly selected. I would deny his petition. First of all he has alleged no error. His request is pure and simple a fishing expedition and I do not believe the state ought to pay for a transcript in his case just to see if he can at this late date discover some error. I do not strongly object to the majority’s decision to reinvest the trial court with jurisdiction. However, it is my view that unless Woodard shows the trial court that he is indigent or that error exists, or a strong possibility that error exists, he should not be entitled to a transcript at the expense of the state. He may, of course, obtain the transcript on his own in any event.


text:
    STATE of Arkansas v. Ronnie LEWIS
    CR 79-222
    596 S.W. 2d 697
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      Steve Clark, Atty. Gen., by: Joe M. Rogers, Deputy Atty. Gen., for appellant.

      Rieves, Rieves & Shelton, by: Donald A. Forrest, for appellee.
   Darrell Hickman, Justice.

Ronnie Lewis was charged with manslaugher in the Crittenden County Circuit Court. He moved to dismiss the charge because the State did not bring him to trial within three terms of court as required by Rules of Crim. Proc., Rule 28.1(b). The trial court granted the motion.

The State appeals arguing the trial court was wrong in failing to find good cause existed for the delay.

At the outset the State concedes that three full terms of court had run before the motion to dismiss was filed. So we need not consider the usual problem of counting terms that arises in the Second Judicial Circuit. See Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972); State v. Knight, 259 Ark. 107, 533 S.W. 2d 488(1976); Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979), and Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980).

The landmark case on the question of a speedy trial, a right guaranteed by the United States Constitution, is Barker v. Wingo, 407 U.S. 514 (1972). Arkansas, cognizant of Wingo, has adopted rules regarding the timely prosecution of criminal defendants and those rules are Rules of Crim. Proc., Rules 27 through 30. One of the rules is that a defendant, who is not incarcerated, must be brought to trial before the end of the third term of court or he shall be discharged. Rule 28.1(b). However, in computing time there are excludable periods of delay that are not charged to the State.

One such period is a delay “ . . . resulting from congestion of the trial docket when the delay is attributable to exceptional circumstances.” Rules of Crim. Proc., Rule 28.3(b). Another is “Other periods of delay for good cause.” Rule 28.3(h).

The State argues that both of these circumstances existed in this case and the trial judge was wrong in failing to find they existed.

We review such a finding by a trial judge to see if the trial judge abused his discretion. If we cannot find such to be the case, we must affirm his judgment. Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970).

Lewis was scheduled for trial September 1, 1978, during a special setting of cases before the end of the September term of court which ended September 18, 1978. Lewis’ case was “bumped” off the docket. Three cases were set for trial that day and another criminal case was tried precluding the possibility of trying Lewis. The case was not rescheduled for trial until March, 1979. Before the trial date in March, Lewis filed a motion to dismiss based on Rule 28.1(b). The State filed affidavits showing the number of criminal cases filed, pending and terminated during the period of time in question The deputy prosecuting attorney testified about the congestion of the docket in Crittenden County and the difficulty in timely trying criminal cases. At the request of the prosecuting attorney, the trial judge made a docket entry September 1, 1979, which reads:

Sept. 1, 1978, case set for trial on this date; both State and defendant had witnesses present and ready for trial but not reached because of another trial.

The deputy prosecuting attorney also testified he thought he had an “oral understanding” with Lewis’ counsel that the case would not be set again until a deposition of a doctor had been taken.

Counsel for Lewis related that he had a different view of the oral understanding; that he understood the case would first be set for trial and then the deposition would be taken.

The defendant Lewis never moved for a continuance.

The State never moved for a continuance. The court never ordered the case continued finding that it was necessary because of a congested docket attributable to exceptional circumstances. The court granted the motion to dismiss and in its oral findings said:

I think this case pretty classically demonstrates the undesirability of mixing civil and criminal matters. It may not represent a conflict of interest per se, but it demonstrates the complications arising therefrom.
It is true that the criminal docket in Crittenden County has a rather chronic state of congestion as graphically demonstrated by the fact that this court has just finished three full days of pre-trial matters in which probably 60 to 75 guilty pleas or cases have been disposed of, maybe more, on the basis of negotiated pleas and guilty pleas, but the Legislature has provided that congestion is an excuse from Rule 28 only when it represents an unusual or exceptional circumstance, and the Supreme Court, in Harkness v. Harrison, which was decided on June 18, 1979, underlined that fact.
The Supreme Court also pointed out, and incidentally that opinion was delivered by Mr. Justice Hickman and concurred in by Chief Justice Harris, Justice George Rose Smith and Justice Byrd. Apparently, it was unanimous as to that division; and pointed out that while the Circuit Court in Crittenden County, or in the Second Judicial District, may be divided up into divisions for election purposes, that doesn’t alter the fact that there is only one Circuit Court in Crittenden County, and the Court pointed out that there was no finding that giving precedence to criminal cases was a practice followed by the civil division of the Crittenden County Circuit Court, which is a legal responsibility of the divisions, as well as the criminal division; that there was no finding that the congestion was greater than before or that relief was sought by asking for additional judges.
The Court pointed out that under the law its necessary to give precedence to criminal cases and unless there is a finding by the Circuit Judge during each civil division, that a particular case could not be tried, then that term of civil division must be counted for the purpose of determining compliance with Rule 28.
It is the feeling of this Court that under the plain ruling of Harkness v. Harrison that this case is barred under Rule 28 for not having had a speedy trial as required and must be dismissed pursuant to Rule 30, and the court finds that the case should be, and must be and hereby is dismissed.

Regarding the “oral understanding,” the trial judge said:

I still feel that under the Harkness case the Court has no choice but to take the action. I realize, Mr. Rogers, you’re saying that your understanding with the defense attorney that the case, in effect until the deposition could be taken that would really be treated as an excluded period for Rule 28 purposes. Of course, this court established a rule back in September ’77, when disagreements about what the — between lawyers, that lawyers agreed upon, that any oral agreement or any agreement between the lawyers about the trial of a case as to the terms of which the lawyers were in disagreement of what they had agreed upon, that that would be disregarded by the Court unless they are reduced to writing. I am going to deny the motion to reconsider.

It was the burden of the State to prove the delay was legally justified by Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970).

The court granted the motion finding no excludable periods. A motion to reconsider this judgment was also denied.

The State argues that the fact the case was set for trial September 1st is reason to exclude that whole term of court. There is no provision in any of the rules or any of our cases to exclude a term of court just because a case is set during that term. Even if the State were granted an additional two weeks of grace because the case was “bumped,” it would not be sufficient to justify the delay from September of 1978 until March of 1979.

Incidentally, the State asks us to overrule Harkness v. Harrison, supra and revert to the law of Gardner v. State and State v. Knight. Harkness v. Harrison, supra, in addition to dealing with terms of court in Crittenden County, also deals with the problem of whether judges who have been designated to try civil cases are responsible to try criminal cases. We held the relationship is the same. We have reconsidered our decision in Harkness and decline to overrule it.

We cannot say the trial court abused its discretion and affirm the order.

Affirmed.

Fogleman, C.J., not participating.


text:
    Bob GODWIN v. Emilie GODWIN
    79-322
    596 S.W. 2d 695
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      William M. Stocks, for appellant.

      Charles R. Garner, for appellee.
   John I. Purtle, Justice.

A hearing was held on July 10, 1979, wherein appellee was granted a divorce from appellant. Certain properties were disposed of by the court, and the appellant was ordered to post a performance bond in the sum of $4,000 before leaving the courtroom.

On appeal appellant contends (1) that the court was without authority to order him to post a performance bond before leaving the courtroom and (2) that the court erred in determining there were no property rights to be decided by the court. We agree with appellant that the bond should not have been required without notice and the right to a hearing. However, we affirm the chancellor on the matter of the property disposition.

The parties were married on November 28, 1977, and separated on December 25, 1978. Appellee filed for a divorce in January of 1979, and the appellant entered his appearance and waiver of service along with an answer and a counterclaim for divorce. At the trial he did not contest appellee’s grounds for divorce and did not advance his own allegations for a divorce.

Appellant was a resident of Fort Smith, but prior to the marriage he had accepted employment as a cattle broker in Newbern, Tennessee, and had thereafter spent very little time in Arkansas.

The uncontradicted testimony discloses appellant was given to drinking to excess, and he also gambled to a considerable extent. The only evidence relating to earnings of appellant was the testimony of appellee that she thought he made $70,000 a year, and appellant’s statement that he made somewhere from $1,000 to $4,000 per month.

During the marriage the parties purchased a couch, two chairs, a washer, a dryer, a refrigerator, and an automobile. There was no dispute over the household furnishings being marital property; however, there was a dispute whether the automobile was a gift to appellee. Both parties testified appellant had delivered the automobile to the appellee as a gift and had continued to make the payments on it up until the time of the trial. He also held the papers relating to ownership of the vehicle.

At the close of the testimony the chancellor called the parties’ attorneys into chambers and informed them she would require appellant to execute a $4,000 performance bond before he could leave the courtroom. There had been no prior notice of the bond requirement nor did appellee ask that appellant be required to post bond. During the recess, appellant called a friend who acted as surety on the bond, and the appellant was released.

The order and decree were entered on July 24, 1979, nunc pro tunc for July 10, 1979. The court found there was no property to be divided between the parties and ordered appellant to pay certain bills which were outstanding. Appellee was awarded the household furnishings. Appellant was ordered to pay $368.25 encumbrance on the washer, dryer and refrigerator and to furnish appellee with the pink slip, tax receipt, and license on the automobile. He was also required to continue payments of $168 per month on the debt for the automobile. Appellee was ordered to pay her own medical expenses which she had incurred subsequent to the separation.

On August 23, 1979, appellant filed a motion to modify the order and decree. In the motion he objected to the requirement of posting a bond before being released and to the disposition of the marital property and debts. A response was filed by appellee. However, the court took no formal action on the motion.

Appellant brings this appeal from the order relating to the bond requirement and division of the property.

We first consider the property question.

Although the decree was entered of record on July 24, 1979, it was granted effective as of July 10, 1979. House Bill Number 88 subsequently became Act 705 of the General Assembly for 1979. The emergency clause failed; and, the Act became effective 90 days after the General Assembly recessed on April 20, 1979. Act 705 is now the controlling law in relation to property division in divorce cases.

The chancellor was not bound by the provisions of Act 705 of 1979 because it was not in effect on the date the order and decree were made. We are unable to say the chancellor erred in the matter of the property rights because appellant stated he owned no property in Arkansas. He also admitted that the automobile was a gift to his wife, and it does not matter that he still owed for the balance of the purchase price. Appellee was required to pay about $3,000 in medical bills. We cannot say the court did not make an equitable distribution of the marital property rights.

Under the statute then in force, which was not challenged at the trial, the court did not make an award of any of appellant’s separate property to appellee even though she was granted the divorce. Therefore, there was nothing to be decided under Ark. Stat. Ann. § 34-1214 (Repl. 1962). Although the appellant testified he did purchase some items of property while the parties were married, he further testified he owned no property in Arkansas at the time of the hearing on the divorce. Thus, we are unable to say that the chancellor’s decree is not supported by substantial evidence in this matter.

We now consider the bond question.

It is not disputed that the appellant did not have prior notice that he might have to post a performance bond, nor was he permitted the right to a hearing on the posting of the bond. It is fundamental that a person cannot be deprived of life, liberty, or property, without due process of law. U.S. Const., amend. V and XIV; and the Ark. Const. of 1874, Art. II § 21.

Appellant could not have been held in contempt for failing to abide by the decree of the court which was only a few minutes old and had not in fact even been reduced to writing.

Imprisonment for disobedience of an order to pay a sum into the court, without finding the party was able to pay said sum, is imprisonment for debt in violation of the Constitution of Arkansas Art. II § 16. Leonard v. State, 170 Ark. 41, 278 S.W. 654 (1926). Before a party may be denied his rights, he must be given notice and an opportunity to be heard. Franklin v. State, 267 Ark. 311, 590 S.W. 2d 28 (1979).

Therefore, we hold that under the facts and circumstances of this case, the court lacked jurisdiction to require appellant to post the performance bond before leaving the courtroom. We do not imply that a performance bond may not be required under proper circumstances.

The case is remanded with directions to dissolve the performance bond and is affirmed as to all other matters.

Affirmed as modified.


text:
    James NOLEN et al v. Leon PRICKETT et al
    80-42
    596 S.W. 2d 693
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      Raymond R. Abramson, for appellants.

      Ray & Donovan and House, Holmes & Jewell, by: David M. Hargis, for appellees.
   John I. Purtle, Justice.

Appellants, James Nolen, J. L. Nichols and Wayne Franzen, d/b/a Clarendon Trucking Company, were sued in the Monroe County Circuit Court by International Harvester Credit Corporation for the balance of a purchase price on a tractor and trailer which had been wrecked. Appellants denied default in payment but admitted the vehicles had been totally destroyed.

Appellants filed a third party complaint against Leon Prickett & Company, Inc., Leon Prickett, Jr., and Carolina Casualty Insurance Company alleging the third party defendants owed the appellants the amount sued for by International Harvester, damages in an amount yet to be determined, and penalty and attorney fees. They alleged Prickett gave a verbal binder for physical loss insurance on the vehicles through Carolina Casualty Insurance Company.

Motions to quash the third party complaints were filed by the third party defendants. The motions were subsequently granted by the trial court. Appellants argue the trial court erred in granting the motions to quash. We agree with the action taken by the trial court.

Appellants were citizens and residents of Monroe County and were engaged in business in the same county. International Harvester Credit Corporation allowed the appellants to assume a loan balance on a tractor which had been originally purchased by Haleway, Inc. Thereafter, appellants purchased a utility trailer and executed security agreements for payment of the indebtedness. International Harvester Credit Corporation is a bona fide holder in due course of the security agreements. The suit by International Harvester Credit Corporation was for the unpaid balance against the units, together with interest, fees, costs, attorney fees, and all other proper relief.

Appellants then filed the third party complaints alleging that Prickett had issued a verbal binder to cover the vehicles for loss in the event of accident. The third party complaint further stated that Prickett had negligently failed or refused to carry out the agreement. Prickett and Prickett & Company, Inc. are residents of Pulaski County, Arkansas. Carolina Casualty Insurance Company is authorized to do business in Arkansas and has an agent for service listed in Pulaski County, Arkansas; they do not have an office in the state.

We are concerned here with the third party complaint as defined in Ark. Stat. Ann. § 27-1134.1 (Supp. 1977), which was superseded by 14 A.R.C.P., and states in part as follows:

At any time after commencement of an action a defending party, as third party plaintiff, may cause a summons and complaint to be served upon a person in a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him. ***

It was held in U.S. v. Joe Grasso & Sons, Inc., 380 F. 2d 749 (5th Cir. 196.7), that interpleader under Federal Rule 14 (which is the same as ours and § 27-1134.1, supra) requires that the liability of the third party must be dependent upon the outcome of the main claim. In the present case there simply is no dependency of one claim upon the other. Whether the original complaint fails or succeeds is of no consequence to the success or failure of the third party complaint. The final rule in Grasso was thát an interpleader would be permitted only in cases where the liability of the third party was to some extent derivative of the outcome of the original complaint.

In the present case, the first complaint by International Harvester was filed for the purpose of collecting the unpaid balance of the purchase price of the vehicles. The proof required in this case would involve whether or not the appellants had actually complied with the terms of their purchase agreement. The third party complaint involves either the tortious negligence of the third party defendants or the contractual liability to pay for the loss of the vehicles. The proof in this matter would go entirely to the value of the vehicles and whether or not ah agreement to insure existed.

As stated by very able counsel for appellant, the question here is whether or not the third party complaint is a part of a group or aggregate of operative facts giving ground for reason for judicial action. The only constant in the two cases is the tractor and trailer. However, these vehicles play entirely different roles in the litigation between the two sets of defendants.

As we view the two claims, they do not relate to the same set of operative facts. Regardless of the value of the tractor and trailer, the appellants still owe the balance. Assuming the third party defendants did insure the vehicles, their measure of liability would be the value of the units at the time of the loss. Any relationship between the two recoveries would be purely coincidental.

It may well turn out that the third party defendants owe the appellants considerably more than appellants owe the original plaintiff. On the other hand, it is possible they will owe less. In any event, two entirely separate sets of facts will be involved. Thus, it would appear that the third party defendants will never be liable to the appellants for all or part of the plaintiffs’ claim.

We think the decision of the trial court was one based upon jurisdiction rather than one based upon discretion. At the time of the ruling by the trial court (March 22, 1979), our Rule 14 was not in effect. Therefore, appellants’ reliance on B-W Acceptance Corp. v. Colvin, 252 Ark. 306, 478 S.W. 2d 755 (1972), as not being controlling is in error. The effective date of Rule 14 was July 1, 1979. See 264 Ark. 964 (1979). The only issue raised at the trial level by the third party defendants was that of improper venue. This is not a discretionary matter.

We think the appellees stated the correct rule from 3 Moore Federal Practice 14.04 as follows:

... A defendant cannot assert an entirely separate claim against a third party under Rule 14, even though it arises out of the same general set of facts as the main claim. ***

Therefore, we are of the opinion the trial court made the correct ruling in this case.

In view of the results reached, we do not reach the appellees’ argument that all of the third party plaintiffs are not properly before the court.

The case is affirmed and remanded with directions for the trial court to proceed without the third party defendants being included in this suit.

Affirmed.


author: John F. Stroud, Justice.

text:
    James Arthur AUSTIN v. STATE of Arkansas
    CR 80-38
    596 S.W. 2d 691
    Supreme Court of Arkansas
    Opinion delivered April 14, 1980

      John W. Achor, Public Defender, by: Jeff Rosenzweig, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

On February 16, 1979, Sharon Cox was driving an automobile owned by the parents of her companion, Leroy Reese, Jr. As Ms. Cox and Mr. Reese rounded a corner, they encountered appellant and his passenger, Pamela Williams, in another vehicle. Ms. Cox and Mr. Reese testified that appellant drew a gun and fired four shots at their vehicle, two of which struck Ms. Cox in the hand and finger. Appellant and Ms. Williams deny this, asserting that Mr. Reese fired the shots at their vehicle and inadvertently wounded Ms. Cox.

On the night of February 18, after Ms. Cox had returned home from the hospital, shots were fired through the front windows of her house. Ms. Cox testified that she heard a car pull up in front of her house and she peeped out the window. She said there was a street light by her house and she saw the appellant get out of a car and walk toward her house. She “ducked on the floor” just before the shots were fired through the windows. Mr. Reese was present in her home at that time, but he did not observe who had fired the shots. Appellant denies any knowledge of this incident.

Ms. Cox called the police and appellant was arrested and charged with second degree battery for the shooting of Ms. Cox and with aggravated assault for shooting at her home. On June 19, 1979, in a trial without a jury, appellant was found guilty of both offenses and was sentenced to three years imprisonment on each count, with the sentences to be served consecutively. Appellant brings this appeal from the judgment of the trial court, alleging that the evidence was insufficient to sustain the findings of guilty.

Appellant mainly relies on the fact that the trial was somewhat of a “swearing match” as being supportive of his contention that the evidence was insufficient to support the judgment of guilty. Although appellant points out that Ms. Cox admitted on the witness stand that she was a prostitute and Mr. Reese admitted he was a convicted felon, appellant’s witness, Pamela Williams, admitted that she worked as a prostitute for appellant. On appellate review, it is firmly established that we consider only that evidence which is most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Milburn v. State, 262 Ark. 267, 555 S.W. 2d 946 (1977); Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977). The victim of the attacks, Ms. Cox, testified that she was certain it was the appellant that shot her on February 16 and fired shots into her house on February 18. Her testimony was corroborated by Mr. Reese. Although appellant and Ms. Williams contradicted the testimony of the State’s witnesses, in a criminal case heard without a jury it is up to the trial court to determine the credibility of the witnesses and resolve any conflicts in their testimony. Horton v. State, 262 Ark. 211, 555 S.W. 2d 226 (1977); Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969). Appellant also is in error in his argument that a battery conviction requires the introduction of medical records to prove the injury. Accordingly, we cannot say that the trial court erred in finding appellant guilty, for the testimony of Ms. Cox and Mr. Reese is sufficiently substantial to support the findings of the court.

Affirmed.