author: Paul Ward, Associate Justice. Minor W. Millwee, J.,

text:
    Thornbrough, Comm. of Labor v. Williams, Chancellor.
    5-859
    284 S. W. 2d 681
    Opinion delivered December 12, 1955.

      Robert L. Tipton, for appellant.

      Bailey, WarrenS Bullion, for appellee.

      McMath, Leatherman S Woods, for intervenors.
   Paul Ward, Associate Justice.

This appeal raises the question of the constitutionality of Section 2 of Act 86 of 1937, said § 2 being Ark. Stats., § 81-312. This question comes to us in the manner and upon the facts and pleadings hereinafter set out.

The real parties in interest in this litigation are the Capitol Transit Company, an Arkansas Corporation owning the bus franchise in Greater Little Rock, and 158 of its former employees [members of Division 701 of the Amalgamated Union and intervenors] who left the employment because of a strike. On September 26, 1955 said employees, through their attorneys, filed individual claims before the Arkansas Department of Labor alleging that certain wages were due them from the said Transit Company. This petition was filed pursuant to said § 81-312 of the Ark. Stats, and attached thereto was a statement containing the names of each of the claimants showing the amount alleged to be due to each. The Commissioner of Labor, the appellant herein, set Monday October 10, 1955 at 10:00 A. M. for a hearing on said petition and gave notice thereof to the attorney for the Transit Company.

On October 7,1955 the Transit Company filed in the Second Division of the Chancery Court of Pulaski County a petition asking said court to restrain and enjoin the said Labor Commissioner from proceeding under Ark. Stats., § 81-312, to determine the claims of the said 158 former employees. On the same date the appellee herein, the Judge of the said Chancery Court, issued an order restraining appellant from proceeding further in determining the rights of said employees on their claims against the Transit Company.

Thereupon appellant filed in this court a petition for a Writ of Prohibition directed to appellee.

Petition treated as an appeal. Since both parties have orally expressed to this court the desire that we pass upon the constitutionality of the statute involved as above noted regardless of any procedural matters involved we have chosen to treat the petition for a Writ of Prohibition as an appeal from the order of the Chancery Court. We are also authorized to do this under the holdings in Boyd v. Dodge, Chancellor, 217 Ark. 919, 234 S. W. 2d 204. This procedure makes it unnecessary to consider the first argument in appellee’s brief that “Prohibition does not lie.”

Appellee’s contentions. Appellee’s over all contention is that the statute involved violates the Constitution of the State of Arkansas. In support of this contention appellee directs our attention to different provisions of the statute and to numerous reasons for that contention. It is urged that the statute violates Article 7, § 1 and Article 7, § 40 of the Arkansas Constitution; that the Legislature cannot delegate judicial power; that the statute denies the right of trial by jury; that the statute is vague, indefinite and inoperative, and; that the statute creates a presumption and provides for free legal services.

Before we discuss the above questions it is proper to point out the well established rule of construction of legislative acts to the effect that such acts are presumed to be constitutional. This rule which has been many times announced by this court is very well stated in Baratti v. Koser Gin Co., 206 Ark. 813, 177 S. W. 2d 750. From page 816 of the Arkansas Reports we quote: ‘ ‘ This court has always held that, before it may strike down an act of the Legislature on the ground of unconstitutionality, it must clearly appear that the act is at variance with the constitution, and that an act of the Legislature is presumed to be constitutional, and that any doubt on the question of constitutionality must be resolved in favor of the act.”

Article 7, § 1 of the constitution vests the judicial power of the State in the Supreme Court, the Circuit Court, the County and Probate Courts and in Justices of the Peace. Section 40 of the same article provides generally that the jurisdiction in matters of contract is vested in Justices of the Peace Courts where the amounts involved are limited. It is appellee’s contention that the statute under consideration is an attempt by the Legislature to invest an executive officer with judicial powers. It is true that appellant, the Labor Commissioner, is an executive officer functioning in the Arkansas Department of Labor. The vital question presented therefore is: Are the duties performed by the Labor Commissioner under Ark. Stats., § 81-312, the exercise of judicial functions in violation of the constitutional prohibitions above mentioned? If the answer to the above question is in the negative it must necessarily follow that the statute does not violate those portions of the constitution above mentioned and that it does not constitute a delegation of judicial powers.

After careful consideration we have concluded that Ark. Stats., § 81-312, is not an unconstitutional delegation of judicial power by the Legislature. This section of the statute reads:

“From and after the passage of this act [§§ 81-311-81-315], upon application of either employer or employee, the Commissioner of Labor, or any person authorized by the Commissioner, shall have authority to inquire into, hear, and decide disputes arising from wages earned, and shall allow or reject any deduction from such wages. Upon motion of either employer or employee, the amount found to be due may be paid in the presence of the commissioner or person designated by him, [and] after final hearing by the commissioner or person appointed by him, he shall file in the office of the Bureau of Labor and Statistics [Department of Labor] a copy of findings and facts and his award. The amount of the award of the Commissioner of Labor shall be presumed to be the amount of wages, if any, due and unpaid to the employee. If either employer or employee shall fail or refuse to accept the findings of the commissioner, then either shall have the right to proceed at law as now or hereinafter provided; or if the claim is meritorious, and if within the discretion of the Commissioner the claimant’s lack of financial ability entitles him to the services of the Bureau of Labor and Statistics [Department of Labor], the Commissioner of Labor in the name of the State of Arkansas for the use of such claimant may institute action in any court of competent jurisdiction, without paying costs or giving bond for costs, and shall be entitled to all remedies now or hereinafter available to litigants in the prosecution of actions, and their enforcement, if successful, without paying costs or giving bond for costs; provided that nothing herein shall be construed so as to relieve an unsuccessful defendant from paying costs.” [emphasis supplied]

Unlike appellee we cannot see in the above statute anything that deprives either an employee or an employer of his constitutional rights. In the first place the statute is not compulsory in that one of the parties must make an application to the Commissioner of Labor before that officer has any power to act. In the second place, once the Commissioner has made a finding, the losing party has a right to refuse to accept the Commissioner’s finding. After such refusal neither party is bound and each party has a right to pursue his remedy in a court of law or, as the statute says “they shall have the right to proceed at law as now or hereafter provided.” It appears to us that actually the statute simply provides a forum in which the employer and employee may settle their differences if they so desire. Under this interpretation of the act it has been urged that the act is meaningless and useless, but we do not think so. Through the many years that this statute has been in existence it is not unreasonable to suppose that many small claims have been adjusted to the satisfaction of all- concerned without having had to resort to the trouble and expense of court procedure which would otherwise have been necessary.

It is appellee’s contention, and we agree, that notwithstanding the fact the claimants here are members of a labor organization they are in fact suing on a contract of employment which they had with the Transit Company. It is then stated that a suit on a contract is a common law action in the nature of assumpsit and that they are therefore entitled under the constitution to a trial by jury, and that the statute in question denies them that right. This contention is fully answered by what we have heretofore said. As pointed out either side, the employee or the employer, has the right to resort to a regularly constituted judicial tribunal if it is so desired. In other words both parties have every right to a trial by jury under the provisions of the questioned statute that they had before the statute was enacted.

It is urged by appellee that the statute is unconstitutional because it is vague and indefinite. The main point stressed here is that the statute sets out no clear and definite provisions for the taking of an appeal. In this connection is quoted a portion of the statute stating in effect that if either party refuses to accept the finding of the Commissioner then he shall have “the right to proceed at law as now or hereafter provided.” We think appellee is in error in considering this language to purport to provide a method of appeal. As already pointed out, the statute contemplates no appeal but provides instead that in case either party does not agree with the finding of the Commissioner he has the right to institute an original action in a court of law.

It is again argued that the statute is unconstitutional because it provides that the Labor Commissioner may furnish free legal services if he finds that certain claimants are in need thereof. Article 2, § 18 of the Constitution is cited by appellee which provides that “the G-eneral Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the samé terms shall not equally belong to all citizens.” It is also contended that the statute is unconstitutional because of the language stating that “the award of the Commissioner of Labor shall be presumed to be the amount of wages, if any, due and unpaid to the employee.” The contention in this connection is that this language shows that the Commissioner does in fact make a judicial finding and that a finding by the' Commissioner in favor of an employee places a burden upon the employer which he must overcome in a later trial of the case.

We find it unnecessary to pass upon the validity of these last two contentions on the part of appellee for the reason that no such questions have arisen so far in this case. Since it is not necessary to pass on these questions we deem it expedient to wait until they may be properly raised in a trial court and properly presented and briefed in this court. Section 7 of said Act 86 contains a severance clause so that if any portion of the act is held unconstitutional it will not affect other provisions in the act if they constitute a reasonable and workable entity.

We find that a few other states, including California, Indiana, New Mexico, and New York, have statutes similar to the ones under consideration here, but we do not find the constitutionality of any of them has been challenged in any court. We have therefore been unable to find any legal precedent to guide us here, and none has been called to our attention by either party. In view of this, and giving effect to the presumption of constitutionality, we are unable to find anything in Ark. Stats., § 81-312, here challenged which justifies us in holding it unconstitutional.

We call attention to the fact that § 1 of Act 86 of 1937 [now Ark. Stats., § 81-311], limits the jurisdiction of the Labor Commissioner to amounts not exceeding $200.00, and also to the fact that a few of the claims presented to the Commissioner in this instance exceed that amount. It is obvious, we think, that the Commissioner has no jurisdiction over such excessive amounts and that they should be stricken if objected to by the Transit Company.

It follows from what we have said that the injunction order of the trial court was erroneously made and must be voided. To that end the cause is reversed.

Justice MoFaddin concurs.

Justice Millwee dissents.

Minor W. Millwee, J.,

dissenting. It is with considerable reluctance that I register my disagreement with the views of the majority in this case. Unquestionably the Legislature was prompted by high motives and a commendable desire to protect and advance the interests of a segment of society woefully in need of such, assistance in the enactment of Act 86 in 1937 when this country was emerging from one of its most disastrous depressions. Also, the present Commissioner of Labor has demonstrated a more conscientious and determined effort to effectively execute the duties and responsibilities of his position than is ordinarily employed. However, we are not concerned with the wisdom and expediency of the act in question, and the sole issue here is power of the Legislature to enact it. In my humble opinion Sec. 2 of Act 86 provides for an unconstitutional delegation of judicial power to an executive officer in violation of one of the fundamental principles upon which our republican form of government rests.

By the use of italics, the majority has done a clever job of minimizing the importance of that part of Section 2 which specifically authorizes the Commissioner, or any person designated by him, ‘ ‘ to inquire into, hear and decide [wage] disputes” and make an “award” based upon ‘ ‘ findings and facts ’ ’ made by him ‘ ‘ after final hearing. ’ ’ Now it must be conceded that the power to hear and determine whether you owe me $200, or nothing at all, for wages earned is strictly a judicial function in that it involves the authority to determine purely legal and contractual rights between private parties.

Article 4 of the Arkansas Constitution declares that all governmental powers are divided among the legislative, executive and judicial departments, and each department is specifically prohibited from exercising any power belonging to either of the others except as expressly permitted in the Constitution. By Article 7 of the Constitution, judicial power is vested in the courts and the jurisdiction to hear and determine simple private contractual rights between individuals is vested exclusively in the circuit and justice of the peace courts, depending on the amount in controversy.

There are numerous situations in which it is not only necessary but entirely proper, in order that government may function, that an executive officer should be vested with some judicial power. But it is only in those instances where such power is necessary to enable them to carry out their executive duties that this is true, unless such power is expressly granted in the Constitution. And this does not mean that an executive officer may usurp a purely judicial function which is exclusively vested by the people in the courts of this state. Nor does it lie within the power of the Legislature to change the nature of a simple judicial function by merely authorizing an executive officer to participate in its performance. Particularly should this be true where the executive agent clothed with such power is not required to be an attorney nor given the power to summon and swear witnesses or exercise other investigative power so essential to a proper performance of the judicial function.

While the precise issue presented here does not appear to have been decided, the New Hampshire Supreme Court in the famous case of Re Opinion of the Justices, 87 N. H. 492, 179 A. 344, 110 A. L. R. 819, held unconstitutional a very similar act which empowered an executive tribunal to hear and determine disputes arising out of motor vehicle accidents on the state’s highways. After citing state constitutional provisions similar to our own, the court said: “In the connection between the departments some overlapping is permissible, and there is a region of authority, alternative and concurrent, the boundaries of which are fixed by no final rule. As a rule which meets some situations, when an executive board has regulatory functions, it may hear and determine controversies which are incidental thereto, but if the duty is primarily to decide questions of legal right between private parties, the function belongs to the judiciary. Courts of justice, in their popular sense, may not be set up and established in the executive organization. They pertain exclusively to the branch of the judiciary.

“Under this rule the grant or reservation of judicial review of the decisions of an administrative board does not change the character of the decisions. If they are of judicial nature, because performed in the exercise of the strict judicial,function, an undertaking to give authority to the courts to review them and to correct the hoard’s errors of law does not validate the hoard’s authority. An administrative hoard may proclaim only administrative judgments. If they may be judicially reviewed, the right to have them reviewed does not transform them into judicial judgments, although the review and action therein is judicial. But a valid administrative judgment has the same force of obligation and finality as a judicial one. The view sometimes adopted that the right of appeal to the courts, either in wide or limited measure, saves action of an executive board from a valid charge of judicial invasion is not considered to be sound in principle. Authority to correct its errors does not alter the character of its undertaking. ‘ The nature of the final act determines the nature of the previous inquiry.’ Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 227, 29 S. Ct. 67, 70, 53 L. Ed. 150. . . .

“A public interest to set up in the executive department a court of justice does not warrant a violation of the constitutional order prohibiting it. However much the vesting of the control of private litigation in an administrative board may be thought to aid in the maintenance of some public policy, it is not permissible. It is as much forbidden as it is to require a court to take on executive functions. An administrative officer in the discharge of his duties may have occasion to interpret and apply a law in order to enforce it, but he can have no such occasion in order to determine the rights of prívate litigants, since he may not be constitutionally authorized to take jurisdiction in respect to them.

“The consent or willingness of the litigants to submit their disputes to the official or board is beside the point. The Constitution denying the power of the Legislature to confer jurisdiction, it may not be conferred by private authority . . .”

Under these fundamental principles so aptly stated by the New Hampshire court, it seems crystal clear that in any case where the power of an agency is one primarily to hear and determine a simple question of contractual rights between private parties, the function is purely judicial and expressly delegated by the people to the courts. This seems to be the consensus of the authorities generally. 42 Am. Jur., Public Administrative Law, Sec. 60; 73 C. J. S., Public Administrative Bodies and Procedure, Sec. 47. See also, 36 Harvard L. Rev. 422. While the restrictive construction placed on the act by the majority renders it practically useless, still'we are dealing with a basic issue of constitutional government, and if the Legislature may legally do what is done in Act 86, the encroachment on judicial power and the usurpation of authority by an executive bureaucracy might become both limitless and unbearable.

While injunctive relief ordinarily must await the exhaustion of the administrative remedy, such is not the case where the relief sought is against a statute that is unconstitutional and void on its face. 73 C. J. S., Public Administrative Bodies and Procedure, Sec. 45; Shellnutt v. Ark. State Game & Fish Comm., 222 Ark. 25, 258 S. W. 2d 570. That is the situation here, and Sec. 2 of Act 86 is fundamentally invalid. It necessarily follows that the chancellor correctly issued the restraining order.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Johnson v. State.
    4829
    284 S. W. 2d 627
    Opinion delivered December 12, 1955.

      Floyd Terral, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee.
   Sam Robinson, Associate Justice.

This is a petition for a writ of certiorari. The petitioner was charged with the offense of possession of an unlawful amount of intoxicating liquor in a dry county. The information filed by the prosecuting attorney is as follows: “I, A. James Linder, Prosecuting Attorney within and for the Tenth Judicial Circuit of the State of Arkansas, of which Ashley County is a part, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant Clarence Johnson of the crime of possession of unlawful amount of intoxicating liquor, 5th offense, committed as follows, to-wit: The said defendant on the 30 day of April, 1955, in Ashley County, Arkansas, did unlawfully possess over the legal amount of intoxicating liquor, which was his fifth offense against the peace and dignity of the State of Arkansas.” The information was filed on October 17, 1955, and three days later, on October 20, the defendant entered a plea of guilty and was sentenced by the court to serve five years in the penitentiary, two years of the sentence being suspended pending good behavior.

Ark. Stats., § 48-918, is as follows: ‘ ‘ From and after the passage and approval of this act it shall be unlawful for any person, firm or corporation to possess in any County or part thereof in this State in which it is unlawful to manufacture, sell, barter, loan or give away intoxicating liquors, more than one [1] gallon of spirituous, vinous or malt liquors. And that such liquor or liquors so found in the possession of any person shall be confiscated by an Order of the Court of a competent jurisdiction. The provisions of this act shall not apply to common carriers in transit through such county providing further that the provisions of this act shall not apply to licensed bonded dealers or individuals in transit, when said individuals are not residents of said dry County.” Ark. Stats., § 48-919, provides: "Any person, firm, or corporation violating the provisions of this act shall be guilty of a misdemeanor and shall be fined not less than fifty dollars [$50.00], nor more than five hundred dollars [$500.00].”

It will be seen that the unlawful possession of intoxicating liquor in a dry county is a misdemeanor, and even though it may be the fifth offense, it is still not a felony. Petitioner is not charged with the offense of possessing liquor for sale. The court exceeded its jurisdiction in sentencing the defendant to the penitentiary on his plea of guilty of a misdemeanor. Certiorari is the proper remedy. Reese v. Gannon, 73 Ark. 604, 84 S. W. 793; Ex Parte Goldsmith, 87 Ark. 519, 113 S. W. 799; Switzer v. Golden, 224 Ark. 543, 274 S. W. 2d 769.

Since the punishment assessed by the trial court is greater than that provided by law the judgment will be quashed and a judgment entered for the maximum penalty provided by statute for the offense with which the defendant is charged. Ark. Stats., § 43-2308. The maximum penalty which may be assessed on the charge of possessing more than the legal amount of intoxicating liquor in a dry county is a fine of $500.00. Apparently the petitioner has been sent to the State Penitentiary and he should be given credit on the fine for any time he has served in prison. The mandate shall be issued immediately.


author: Lee Seamster, Chief Justice.

text:
    Woolfolk v. Davis.
    5-763
    285 S. W. 2d 321
    Opinion delivered December 19, 1955.
    [Rehearing denied January 23, 1956.]

      Moncrief & Moncrief, for appellant.

      Botts S Botts, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal by the appellants, from a decree of the Arkansas Chancery Court, southern district. The decree was filed in the clerk’s office on February 16, 1955, and the appeal has been properly filed in this court.

The chancellor, in his decree, made the following awards: to the appellee, W. H. Davis, an 8/27th interest in all moneys derived from the sale of real property, and an 8/27th interest in the real property in litigation; to the other appellees, intervenors below, an 2/27th interest in all moneys derived from the sale of real property, and a 2/27th interest in the real property in litigation; to the appellants, the widow and the only heir of R. M. Davis, deceased, a 17/27th interest in the real property in litigation. The chancellor also directed that a master be appointed by the court to determine the proportionate amount of money owed to one another by these co-tenants as rents and profits, taxes, repairs and improvements on the property and that the cause be continued for the purpose of procuring a report of the master.

The appellants contend that Jane Davis Woolfolk, the only heir of R. M. Davis, deceased, is the owner in fee of all the property involved in the instant suit by virtue of the following reasons: by reason of a decree of the Arkansas Chancery Court, Southern district, dated September 24, 1945, in a case wherein Ham Davis was plaintiff and the parties to this suit were defendants, in which the court confirmed title to the property in appellant, Jane Woolfolk; that appellee’s suit is a collateral attack on the decree and that said decree is not void but is res judicata; that the appellees are barred by the seven year, the five year, and the two year statutes of limitation; that the court erred in overruling the claim of title by Jane Woolfolk, by reason of her deed from Alberta Davis, widow of T. J. Davis, Jr., deceased, and also by reason of her deeds from Myrtle McKenzie, the commissioner of State lands and the sewer improvement district of the City of DeWitt, Arkansas; that the court erred in holding appellant liable for rents and profits and in awarding any of the property to appellees.

The facts in this case show that T. J. Davis, Sr. was the owner of the property involved in this action at the time of his death, on March 8, 1911. Davis died intestate leaving surviving him his widow, Jennie Davis, and his five children, Ham A. Davis, W. H. Davis, T. J. Davis, Jr., R. M. Davis and Myrtle Davis McKenzie, who were all of age and his sole heirs at law. There was no administration on the estate of T. J. Davis, Sr., and the family made a division of this property among themselves. W. H. Davis, Ham Davis and Myrtle Davis McKenzie were each deeded separate tracts of property as their respective shares in the estate, and on February 5, 1913, the said W. H. Davis, Ham Davis and Myrtle Davis McKenzie joined in a deed conveying the property involved in this litigation, and other property, to Jennie Davis, T. J. Davis, Jr., and R. M. Davis, in consideration for certain property which they all held as tenants in common. This deed recited the relationship of the parties and contained a warranty clause to warrant and defend the title to the land conveyed to the grantees ‘ ‘ against the claims of all persons whomsoever claiming the same by, through, or under us, but none other.”

On September 1, 1914, T. J. Davis, Jr. and R. M. Davis conveyed by deed to Jennie Davis, their two-thirds interest in said lands and on September 15, 1915, Jennie Davis, secured a decree of the proper court in which the absolute fee simple title to said lands was confirmed in her. On January 3, 1918, Jennie Davis conveyed by deed, to T. J. Davis, Jr. and R. M. Davis, a two-thirds interest in said lands. At this point, Jennie Davis, T. J. Davis, Jr. and R. M. Davis, each owned an undivided one-third interest in said lands as tenants in common. They occupied, controlled and used said lands together, until December 7,1932, when Jennie Davis died intestate, leaving surviving her the five children, hereinabove named, as her sole heirs. No administration was had on her estate. Thereafter, T. J. Davis, Jr. and it. M. Davis used said lands until July 6, 1935, when T. J. Davis Jr. died intestate. There was no administration of his estate and he left surviving him his widow, Alberta Davis. He left no descendants and his only heirs were his sister and three brothers, who are hereinabove named. The family had a settlement as to the property and the heirs all joined in a deed, conveying to the widow, Alberta Davis, certain common property (not here involved) as her dower interest in her husband’s estate. Alberta Davis executed a deed conveying the land here involved to Jane Davis Woolfolk, one of the appellants herein and the daughter of it. M. Davis, deceased.

R. M. Davis continued to live on the old home place with his wife, daughter and brother, Ham Davis, who was unmarried. R. M. Davis continued to control the property, collected rents and made improvements thereon. On February 11, 1938, R. M. Davis made a deal with his sister Myrtle McKenzie (nee Myrtle Davis) whereby, he conveyed to her common property or the proceeds from the common property in return for her interest in the estate of Jennie Davis and T. J. Davis, Jr., both deceased. R. M. Davis had the deed made to his daugh • ter, Jane Davis Woolfolk, one of the appellants herein. Jane Davis Woolfolk does not claim to have paid Myrtle McKenzie any consideration for this deed.

R. M. Davis continued to manage said property until January 25, 1942, when he died intestate. There was no administration of his estate. His widow, Helen Davis, has continued to collect rents, make repairs and pay taxes on the property, since her husband’s death. She carried on this business through a bank account in the name of “R. M. Davis, agent.” Both she and her daughter now contend that she was acting as agent for her daughter, Jane Woolfolk, and that Jane permitted her to use such of the money as she needed. In January, 1944, Ham Davis, while still living in the family house with the appellants, filed a suit against the appellants and W. H. Davis and Myrtle McKenzie, in which he sought an accounting and a partition of the real estate herein involved.

On November 3, 1944, Myrtle McKenzie died intestate and no administration was had on her estate. She left as her only heirs, the appellees, Jean Black, Pattie Martin, Tom McKenzie, Danna Jean Pond and Paula Irene Campany, who were the intervenors in the trial of this cause. Ham Davis died intestate on April 6, 1945, while his suit for an accounting and partition of the property was still pending in the court below. The cause was never properly revived against the heirs of Myrtle McKenzie and the cause was never properly revived by the heirs of Ham Davis. Jane Woolfolk filed an answer in the Ham Davis suit and claimed the fee simple title to all the land in question, by reason of the tax deeds and other deeds, as well as being the sole and only heir of R. M. Davis, deceased. Her answer was set up as a defense to the Ham Davis complaint and she prayed that he take nothing by reason thereof. Her answer was not made a cross-complaint and no notice was served on any of the other defendants in that suit, that she was claiming the title to the property by way of her answer.

An attempt was made to revive the action on the Ham Davis suit, on May 21, 1945, by the plaintiff’s attorney calling the court’s attention to the plaintiff’s death. All of the heirs of Ham Davis were named as defendants in the Ham Davis complaint. None of his heirs, except Jane Woolfolk, ever appeared in court to have the cause revived or to take any other steps in the case. None of the others had any notice of the proceedings, as required by law. On September 24, 1945, the plaintiff’s complaint in the Ham Davis suit was dismissed and a decree was issued éonfirming the title to the land in appellant, Jane Woolfolk.

During his lifetime, R. M. Davis had sold several tracts of this land and in each case the appellee, W. H. Davis, joined in the deeds to convey this property to purchasers. In the Spring of 1947, a Mr. Graves started improving a town lot in DeWitt, which was a part of the land in litigation. W. H. Davis made an inquiry into the matter and discovered that Jane Woolf oik had sold the lot to Graves on August 3, 1946. Upon confronting Jane Woolf oik with this matter, he was told that the property was hers and she could dispose of it as she pleased. Mr. Davis contends that this was the first knowledge he had that she was claiming title to the property. On May 13, 1950, the appellee, W. H. Davis, filed the instant suit against the appellants, setting up his claim to the property and asking for an accounting and partition of the lands in question. Appellants filed an answer, claiming title to the property. On July 3, 1952, the appellee, heirs of Myrtle McKenzie, filed an intervention in the action, claiming an interest in the property, as heirs of Ham Davis.

The appellants’ contention that the judgment in the Ham Davis suit, rendered September 24, 1945, is res judicata, cannot be sustained. It is unnecessary to determine whether the attack by appellees on this judgment, is a direct or collateral attack. The judgment is void on the face of the record. It is a well settled principle that the record in a case embraces the successive judicial steps which have been taken and are necessary to show the jurisdiction of the court in the case. The necessary records for this purpose are the pleadings and exhibits thereto; the process or summons with proof of service thereof, and the record made by the court, such as intermediate orders and the final judgment.

The record here shows that there is a total lack of service upon any of the appellees; no pleadings either by complaint or cross-complaint to authorize the judgment. A judgment rendered without notice to the parties affected is void under our statute, Ark. Stats., 1947, § 29-107.

The appellees herein are barred from claiming any interest in the property as heirs of Ham Davis. At the time of his death, Ham Davis had pending a suit against the appellants and appellees for the purpose of having his rights determined in the land here involved, and to have such rights enforced by the court. The appellants were in possession of the land and the suit of Ham Davis was to determine his interest in the property as against appellants. When Ham Davis died the suit abated, subject to the right of his heirs to have the action revived within one year from the next session of court after his death. They failed to have the cause revived within the time and manner provided by Ark. Stats., 1947, § 27-1012 to 27-1017.

The failure of the appellees to revive the action is a complete bar to any claim the appellees might have as heirs of Ham Davis in the property herein involved. See Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833; Keffer v. Stuart, Admr., 127 Ark. 498, 193 S. W. 83. The trial court erred in awarding to appellees that interest in the land which they would have taken as heirs of Ham Davis, had it not been for the pendency of the Ham Davis suit. The only interest claimed by the intervenors, as heirs of Myrtle McKenzie, deceased, was such interest as they might have as heirs of Ham Davis. Their intervention should have been dismissed by the court. This result also reduces the interest claimed by appellee, W. H. Davis. His interest would be reduced by 2/27th, which would leave his remaining interest as a 2/9th interest in the property here involved.

The trial court was correct in its findings and decree, except as to the heirs of Ham Davis. Appellee, W. H. Davis, insists that he received his first notice of Jane Woolfolk’s claim to be absolute owner of the lands involved, in April of 1947. However, the appellants contend that W. H. Davis is bound by the public record of the answer filed in 1944, in the Ham Davis suit. The instant suit was filed in 1950 and is within seven years of the date the answer was filed. During the lifetime of R. M. Davis, the appellee, W. H. Davis, frequently talked to R. M. Davis about the affairs of the common property. When a sale was made of any of the property, W. H. Davis joined with R. M. Davis and others in conveying such property. Thus, R. M. Davis recognized the interest that W. H. Davis held in the common property.

Possession of property, by one tenant in common is prima facie the possession of all tenants in common. The sole enjoyment of rents and profits by one tenant does not necessarily amount to a disseizin as to the other tenants in common. For possession by one tenant to be adverse to his co-tenants, the knowledge of such adverse claim must be brought home to the co-tenants, either directly or by such acts that notice may be presumed. R. M. Davis had the greater interest in this property and he had managed and operated it since the death of his mother in 1932. He had also managed it since the death of his brother, T. J. Davis, Jr., in 1935. -There was never any disagreement between R. M. Davis and appellee, W. H. Davis. In fact there was no disagreement between said appellee and appellants, until sometime in April of 1947. Adverse possession is no defense in this case. Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690; Singer v. Karon, 99 Ark. 446, 138 S. W. 958; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809.

The appellant, Jane Woolfolk, claims title to the land by reason of certain deeds made to her by the State Land Commissioner and the City Improvement District of DeWitt. The purchases from these tax sales were made by R. M. Davis, at a time when he was one of the co-tenants and was in possession of the property. He was managing the property and collecting the rents and profits. It was his duty to pay the taxes out of these rents and profits. His daughter, Jane, was living with him in the home as a member of his household. The purchase of the tax title, under the proof adduced in this case, amounted only to the payment of the taxes and no title passed to the grantee. Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579; Inman v. Quirey, 128 Ark. 605, 194 S. W. 858; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809; Zachery v. Warmack, 213 Ark. 808, 212 S. W. 2d 706.

The deed from Alberta Davis to appellee, Jane Woolfolk, does not strengthen Jane Woolfolk’s title. The heirs of T. J. Davis, Jr., inelnding the appellee, W. H. Davis, by agreement with Alberta Davis, conveyed to her certain of the common property as her dower. The heirs of T. J. Davis, Jr. took title to the remaining land by descent. The deed from Myrtle McKenzie to Jane Woolfolk, which was made at the request of R. M. Davis, was for the benefit of all the owners of the property. Common property was given Myrtle for her interest in the estate and the transfer of her interest was for the good of all the owners.

The appellants contend that appellee, W. H. Davis, by his deed to his mother and two brothers after his fathers death, conveyed the whole and with a warranty of title and that his after acquired title by inheritance inures to the appellants. It will be noted that the warranty in the deed was a special warranty and the grantors agreed to defend the title only against all claims by, through or under the grantors, and none others. It will also be noted the conveyance was to the grantees and their heirs. Appellee, W. H. Davis, was one of the five heirs of Jennie Davis and one of four heirs of T. J. Davis, Jr. The interest that appellee acquired after the conveyance, was as heir to the grantees or their heirs. There was nothing in the conveyance by which appellee waived his future right of inheritance from the grantees.

The deed in question was made to partition the estate of the- deceased husband and father. No one contests the fact that the grantees failed in any way to get the complete title to the property, at the time the deed was made to them. There is no claim that the grantors did not have a legal estate in said lands. It is perfectly clear that all the parties to the deed knew the interest owned by the other, and knew that by said deed, the grantees would become the owners in fee simple of the lands. There was no outstanding title to be acquired by the grantors that would inure to the grantees.

The decree of the trial court is affirmed, except as to the interest in the property claimed by appellees, as heirs of Ham Davis. The intervention of the intervenors is dismissed and appellee, W. H. Davis is declared the owner of a 2/9th interest in the property. The appellant, Jane Davis Woolf oik, is declared the owner of a 7/9th interest in the property, subject to the rights of her mother, Helen Davis, who is the widow of R. M. Davis. The case is affirmed in part and is reversed and remanded in part, as herein set out with instruction to proceed according to law and not inconsistent with this opinion. The costs are ordered paid as follows: by appellants 60% of the cost; by appellee W. H. Davis 20% of the cost; by appellees, the heirs of Myrtle McKenzie 20% of the cost.


author: J. Seaborn Holt, Associate Justice.

text:
    Metropolitan Life Ins. Co. v. Kendall.
    5-804
    284 S. W. 2d 863
    Opinion delivered December 19, 1955.

      Daily & Woods, for appellant.

      Wiley W. Bean, for - appellee.
   J. Seaborn Holt, Associate Justice.

Blakley A. Kendall, the son of appellees, made application to appellant, Metropolitan Life Insurance Company, in Missouri, April 14, 1953, for life insurance in the amount of $5,000. On May 20, 1953 the policy was issued to him in Missouri on his payment of premium of $94.75. Thereafter, December 31, 1953, Blakley A. Kendall died of malignant tumor of the liver. Appellees, his named beneficiaries, filed the present suit to recover on the policy. Appellant denied liability and specifically pleaded as a defense that the insured in his signed application, which was a part of the insurance contract, knowingly made false answers to material questions propounded to him and thereby induced appellant to issue the policy; when in fact, Blakley A. Kendall was not insurable when the policy was delivered to him. On a trial, a jury having been waived by agreement, the court found in favor of appellees for the face of the policy, $5,000, and entered judgment accordingly. This appeal followed.

“The broad, uncontroverted rule is that the lex loci will govern as to all matters going to the basis of the right of action itself, while the lex fori controls all that is connected merely with the remedy. . . . It is well settled in this State that, when a party comes into court to enforce his remedy upon a contract, that remedy will be enforced in accordance with the laws of this State regulating the remedy and not according to the remedy of the State where the contract was made.” St. Louis-San Francisco Railway Co. v. Cox, 171 Ark. 103, 283 S. W. 31.

For reversal appellant relied on but one point, that: “The trial court erred in excluding from evidence the appellant’s offered depositions of Drs. Eber Simpson, J. B. Guccione, Louis F. Stephens, Charles Sparks and Clarence A. Bishop and Messrs. Eugene F. Nolan and D. W. Orr, as being privileged communications,” or, as stated by appellees: “Were the depositions of the attending physicians and surgeons, and the records of the hospitals, competent evidence at the trial in the lower court? Or, did appellees waive the privileged communications when they executed two authorizations, giving appellant the right to secure the medical history of appellees’ deceased son?”

The application, which became part of the insurance contract, contained this provision: “The foregoing statements and answers are true and complete. It is agreed that: 1. The Statements and answers in Part A and Part B of the application for this insurance shall form the basis of° the contract of insurance, if one be issued. ... I have read the foregoing answers before signing. They have been correctly written, as given by me, and are true and complete. There are no exceptions to any such answers other than as stated herein.” The insurance policy contained this provision: “The Company shall incur no liability under this application until a policy has been delivered and the full first premium specified in the policy has actually been paid to and accepted by the Company during the lifetime and continued insurability of the applicant . .

For the purpose of establishing the state of health and physical fitness of the assured, Blakley A. Kendall, from the date the policy was issued to his death, some seven (7) months later, appellant sought to put in evidence the deposition testimony of a number of physicians who had treated the assured in hospitals in Missouri and Arkansas during this period, and who had derived the information sought to be introduced by reason of having attended assured as indicated. On objection of appellees to the introduction of this testimony, on the ground that it was privileged and incompetent, the court denied its introduction, under the provisions of § 28-607, Ark. Stats. 1947. Appellant stoutly contends here that appellees waived the privilege accorded them by executing certain authorizations in their proof of loss in establishing their claim. It appears that on December 31, 1953 appellees signed the “Claimant’s Statement” contained in appellant’s printed form of “Proof of Death.” They jointly executed printed authorization as follows:

“To any physician or, To the superintendent of, and To the Superintendent of any other institution where the deceased person named below has been treated within three years.

“I am claiming the proceeds of policy number 199 802 411A issued by the Metropolitan Life Insurance Company, on the life of Blakley Kendall (deceased), and I request you to permit bearer, who is authorized by me, to make or obtain a copy in whole or in part or an abstract of any records you may have concerning the above named decedent.

“I authorize bearer, on my behalf, to submit such copy or abstract directly to the Metropolitan Life Insurance Company as part of the proofs of said claim.

/s/ Amos C. Kendall father

/s/ Lou B. Kendall mother”

Thereafter on February 1, 1954, appellees executed the following instrument:

“Request for and Consent to Release of Information from Claimant’s Records To: Veterans Administration Address..........

Blakley A. Kendall

(Name of Veteran)

“The Undersigned hereby requests and authorizes the Veterans Administration to release to Metropolitan Life Ins. Co. c/o Mr. J. A. George, or bearer, Address 1 Madison Ave., New York 10, N. Y., information from the claims file or clinical records of the above-named veteran relating to the item or items specified below, for each of which the dates or approximate dates of the periods to be covered are stated:

Item 1 — Information regarding dates of treatment and examination and advice — Complaint and brief history — Findings — Diagnosis — Autopsy findings for period from Nov. 21, 1946, to Dec. 23, 1953k A:

Item 2 — Information regarding date and basis for any award for period from Nov. 21, 1946, to Dec. 23, 1953. This information is to he used for the following purposes: To facilitate consideration of policy claim —policy number 19802411Á.

/s/ Amos C. Kendall)

) Parents

/s/ Lou B. Kendall )”

(Signature of Claimant)

Hartman, Arkansas

Date: February 1, 1954

VA Form 10-3288

Mar. 1948

Tbe insurance policy involved here contains no provision waiving the privilege as to the testimony of attending physicians, nor does it require the presentation of any such information as a part of the “Proof of Death.” These authorizations clearly were furnished, at appellant’s request, as part of proof of loss, in order to obtain a settlement of their claim for the insurance; “as part of the proof of said claim” in one, and “to facilitate consideration of policy claim” in the other. In similar circumstances the governing rule has been clearly announced by this court in Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, where we said: “According to the weight of authority, where a policy of insurance does not itself contain a provision for waiver of the privilege, the introduction in evidence of certificate of death given by a physician of the insured does not waive the provisions of the statute against physicians testifying concerning information received in the course of professional employment. . . . But whatever may be the state of the law on that question as established by the authorities, even if the rule be otherwise than as above stated, it can not be extended to cover a case like this, where the affidavit or certificate of the physician is not furnished pursuant to the requirements of the policy, but merely as a voluntary act in an effort to secure a settlement. ’ ’ This holding was reaffirmed in Aetna Life Ins. Co. v. McAdoo, 106 F. 2d 618, (an Arkansas case, Sept. 12, 1939) by the Eighth Circuit Court of Appeals. In that case the claimant, beneficiary, executed the following authorization: “I hereby authorize and direct you, and each of you and/or any physician or surgeon in your employ or associated with you in any way, to give the Aetna Life Insurance Company, at any time requested, any and all information they may desire and which may have been acquired by you, or any of you, and/or such physician or surgeon or associate, in attending my father Alonzo D. McAdoo in a professional capacity, and I hereby waive, as to the Aetna Life Insurance Company all provisions of law prohibiting any physician or surgeon who has attended Alonzo D. Mc-Adoo from disclosing any information thereby acquired.” The court said: “The controversy is as to whether this waiver was a limited one for the purposes of adjustment and settlement of the claim or was general and covered use of that information in a suit involving the policy. It would seem that this matter is ruled against the company by Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. N. S. 493.” 106 F. 2d 618.

Accordingly the judgment must be and is affirmed.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Thompson v. Phillips.
    5-805
    284 S. W. 2d 842
    Opinion delivered December 19, 1955.

      Tom Gentry and Johm K. Shamburger, for appellant.

      E. M. Arnold, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This appeal presents a question concerning election of remedies. The Trial Court was of the view that the appellant — by certain allegations in the original complaint — -had elected to release the appellee. Accordingly the appellant’s complaint was dismissed; and this appeal ensued.

On June 8, 1953 appellant (Thompson) filed the present action against L. A. Phillips individually and also against North Webster Parish Lease and Oil Company, Inc., an Arkansas corporation, hereinafter referred to merely as “Corporation.” The original complaint alleged that L. A. Phillips was president of the corporation, and that the plaintiff had done certain work for which he was entitled to judgment for $5,807.50. The complaint stated:

“There was an agreement between the plaintiff, Cline Thompson and the said defendants that he would furnish his equipment and labor in performing the necessary work and that he would be paid therefor. . . .

“Plaintiff further states that at the time this contract was entered into, he was informed that the said North Webster Parish Lease and Oil Company, Incorporated had no money in its treasury, but the defendant, L. A. Phillips, who was President of said Corporation, personally guaranteed that the said Cline Thompson would be paid according to the terms of the contract above described. . . .

‘ ‘ That said defendant corporation and L. A. Phillips are justly indebted to the plaintiff Cline Thompson, in the amount of $5,807.50 for work performed under the terms of said contract. That demand has been made therefor and defendants have failed and refused to pay same. ’ . .

“Wherefore, Plaintiff Cline Thompson prays judgment against the said North Webster Parish Lease and Oil Company, Incorporated and L. A. Phillips, jointly and severally, in the sum of Five Thousand Eight Hundred Seven and 50/100 Dollars ($5,807.50), . . . . and for all other legal relief. . . .”

On September 14, 1953, in response to defendant’s motion to make more definite and certain, Thompson filed an amended and substituted complaint, which contained these allegations:

“That plaintiff Cline Thompson states that on or about the 12th day of December, 1952, he was approached by J. T. McKinzey and L. A. Phillips, officials of the North Webster Parish Lease and Oil Company to clear some land and construct a road in Webster Parish, Louisiana, in order that the North Webster Parish Lease and Oil Company might drill an oil well upon said property. Said work was to be performed upon the L. L. Clements and the Joe Clements land in said Parish in Louisiana. It developed at this time that the North Webster Parish Lease and Oil Company had no funds with which to pay for the work to be performed by Thompson. In order to induce Thompson to perform this work, the said L. A. Phillips orally agreed with Thompson that he would personally pay him for doing this work. Upon Phillips’ oral contract with Thompson to pay for the work performed, Thompson began the work soon thereafter and worked upon the project until about the middle of March, 1953, when he was told to keep his equipment on a standby basis. ...

“That said defendant L. A. Phillips is justly indebted to the plaintiff Cline Thompson, in the amount of $5,807.50 under the terms of said contract. That demand has been made therefor and defendant has failed and refused to pay same.”

In another pleading filed September 14, 1954, there were also these statements made by Thompson:

“That the contracts heretofore set forth in plaintiffs’ original complaint and entered into between the plaintiffs and defendants were oral contracts. . . . That the agreement of L. A. Phillips was part of the consideration for plaintiffs’ undertaking.”

Still later (on February 17, 1955) in response to defendant’s further insistence Thompson stated:

“That the plaintiff, Cline Thompson, states that some few days prior to the 12th day of December, 1952, he discussed with a Mr. J. S. Turner the possibility of the plaintiff being employed to clear some land and construct a road in Webster Parish, Louisiana, in order that the North Webster Parish Lease and Oil Company might drill an oil well upon said property. It developed that the North Webster Parish Lease & Oil Company had no money to pay for the work to be performed, and the plaintiff called the said L. A. Phillips in Little Rock, Arkansas, by long distance telephone from Minden, Louisiana, to discuss this work with him. In this long distance telephone conversation, which took place on or about the 12th day of December, 1952, the defendant, in order to get the land cleared and the road under construction, promised the plaintiff that if he would do the work that he, L. A. Phillips, would personally pay him for such work. That upon Phillips’ oral contract with Thompson to pay for the work performed, Thompson began the work soon thereafter, and worked upon such project until on or about the 15th day of March, 1953, when Thompson was then instructed by Phillips to keep his equipment on a standby basis.”

Based on all of the foregoing allegations in Thompson’s pleadings, the defendant, L. A. Phillips, on February 18, 1955, filed this “Motion to Dismiss”:

“That this action was originally filed on June 8, 1953, by plaintiff against North Webster Parish Lease and Oil Company, Inc., and against this defendant, L. A. Phillips; that in said original Complaint so filed Cline Thompson alleged ‘that on or about the 15th day of December, 1952, be entered into a contract with the said defendant, North Webster Parish Lease and Oil Co., Inc., to build a road and clear land in Webster Parish, Louisiana, in order that said defendant corporation might drill an oil well upon said property.’ Plaintiff also alleged in said Complaint that the said L. A. Phillips ‘ guaranteed that the said Cline Thompson would be paid according to the terms of the contract above described.’ In response to a motion filed by defendants North Webster Parish Lease and Oil Company, Inc., and L. A. Phillips, plaintiff filed a reply herein on or about September 10, 1953, in which he stated that the ‘contracts’ heretofore set forth in plaintiff’s original Complaint and entered into between the plaintiffs and defendants were oral contracts. Plaintiff has now elected to rely on an Amendment to an Amended and Substituted Complaint in which he alleges that he made a contract over long distance telephone with the defendant, L. A. Phillips, under which the said L. A. Phillips became primarily liable on the same obligation he originally alleged to have been incurred by defendant North Webster Parish Lease and Oil Company, Inc., and which he at that time alleged defendant L. A. Phillips orally guaranteed; that the allegations and theory of the Amended and Substituted Complaint with Amendment thereto are wholly inconsistent with the allegations in the original complaint; that plaintiff is now seeking a recovery from a defendant which recovery so sought is wholly inconsistent with that originally alleged in this suit; that the present allegations seek to hold the defendant L. A. Phillips primarily liable although the allegations in the original Complaint and Response to Motion to Make More Definite and Certain stated that the aforesaid Corporation was primarily liable; that the plaintiff is bound by his election of remedies as originally sought and is estopped to seek recovery against the defendant, L. A. Phillips, under an allegation that he is primarily liable for the debt sued on after first electing to sue the corporation as being primarily liable and defendant Phillips as being liable under a guaranty agreement.”

We have given the pleadings in considerable detail so that the full picture will be visible. The Trial Court sustained Phillips’ Motion to Dismiss, and Thompson has appealed from the final order of dismissal of his claim against Phillips. The question is whether Thompson— by his pleadings in this case — definitely and finally elected at any stage of these pleadings to pursue the corporation alone as primarily liable and Phillips as only a guarantor. Appellee claims: (a) that in the original complaint Thompson sought to hold the corporation liable as original debtor and Phillips liable on an oral guaranty; (b) that the guaranty was within the Statute of Frauds and therefore unenforceable; and (c) that because of the allegations in the original complaint, Thompson cannot now be heard to say that Phillips is liable on an enforceable original promise. Thompson contends: (a) that the allegations in the original complaint showed a clear attempt to recover from both the Corporation and Phillips; (b) that the use of the word “guaranteed” in the original complaint is clarified in all subsequent pleadings; and (c) that there has been no allegation by Thompson to the effect that he was seeking recovery only from the Corporation on an original promise.

With the issue posed, we search for the applicable law. In 28 C. J. S. 1057 this definition is given:

“Election of remedies is the adoption of one of two or more coexisting remedies, with the effect of precluding a resort to the others.”

And in discussing the necessity of election this is stated in 28 C. J. S. 1061 et seq.:

“Between Coexisting but Inconsistent Remedies. Generally, a party having two or more remedies which regardless of their form or class are based on inconsistent theories must elect between them; . . .

“Between Concurrent and Consistent Remedies. The pursuit of one remedy will exclude the pursuit of another only where the remedies are inconsistent; where remedies are concurrent and consistent, whether against the same person or different persons, a party may pursue one or all of such remedies until satisfaction is had, and similarly, no election is required between remedies for distinct causes of action arising out of separate and distinct facts.”

In 18 Am. Jur. 129, in defining “Election of Remedies,” the text says:

“Election is simply what the term imports — a choice shown by an overt act between two or more inconsistent rights, either of which may be asserted at the will of the chooser alone. An election of remedies may be defined as the choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts. . . .”

And in stating the essentials to constitute election it is said in 18 Am. Jur. 133:

“Stated briefly, the essential conditions or elements of election of remedies are: (1) The existence of two or more remedies; (2) the inconsistency between such remedies; and (3) a choice of one of them. If any one of these elements is absent, the result of preclusion does not follow. ’ ’

Our case of Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107, presents a classic example of election of remedies: there a litigant had sued at law for damages for breach of a contract to convey real estate; and such action was held to be an election of remedies so as to preclude a later suit for specific performance based on the same real estate contract. The case of Home Life Ins. Co. v. Arnold, 196 Ark. 1046, 120 S. W. 2d 1012, likewise involved an election of remedies. There the beneficiary of the policy had sued the reinsurance company (Central States Life Ins. Co.) upon the contract of reinsurance. We held that the beneficiary had thereby elected to affirm the reinsurance contract and could not later be heard to sue the original insurance company and allege that the reinsurance contract was void.

The case at bar is not governed by the foregoing cases, but is governed by the rule stated in Wood & Henderson v. Claiborne, 82 Ark. 514, 102 S. W. 219, 118 Am. St. Rep. 89, which is itself one of our leading cases on election of remedies. In Wood v. Claiborne a minor had been injured and a recovery had been made by his father as next friend. The attorneys who were successful in making the recovery paid the minor’s money to the father of the minor, since there was no guardian. When Claiborne, the minor, reached maturity he sued his father and recovered judgment but was unable to obtain satisfaction. Thereupon Claiborne sued the attorneys for wrongfully paying his money to his father. The attorneys pleaded ‘ election of remedies, ’ ’ contending that the suit against the father precluded the subsequent suit against the attorneys. This Court, speaking through Judge Riddick, held that there had been no election of remedies so as to prevent the action against the attorneys for wrongfully paying the money.

In the case at bar the pleadings reflect that throughout the entire negotiations leading up to the original contract it was recognized by the parties that the Corporation was without funds and that Thompson did the work after Phillips had agreed to pay for it. Under the case of Foster-Grayson v. Talley, 190 Ark. 37, 76 S. W. 2d 950, the allegations here were sufficient to make Phillips’ promise an original undertaking, and when Thompson filed his first complaint he asked judgment against Phillips. He used the word “guaranteed” instead of “agreed” in his original complaint filed June 8, 1953; but he entirely clarified his position when in the Amended and Substituted Complaint, filed September 14, 1953, he said that Phillips agreed that he “would personally pay” Thompson. In the prayer to the original complaint and at every step in the pleadings, Thompson showed his intention to hold Phillips liable for the debt. He never elected to look solely to the Corporation, and the Trial Court was in error in holding that Thompson had elected to release Phillips.

The judgment dismissing Thompson’s complaint against Phillips is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

       The performance was in Louisiana; and Louisiana has a Statute of Frauds, involving the answering for debts, defaults and miscarriages of another, somewhat similar to the Arkansas Statute, § 38-101.

       The distinction between an original promise and a promise to answer for the debts of the other is well illustrated and discussed in our case of Foster-Grayson Lbr. Co. v. Talley, 190 Ark. 37, 76 S. W. 2d 950.

       One of the most enlightening discussions is that contained in the note in 116 A. L. R. 601 entitled “Doctrine of election of remedies as applicable where remedies are pursued against different persons.” This Annotation in A. L. R. has caused the publishers of American Jurisprudence to add in the Pocket Supplements to the title on “Election of Remedies” a section numbered 27.1 concerning “Election against different persons.”


author: Minor W. Millwee, Associate Justice.

text:
    Turner v. Meek, Excr.
    5-806
    284 S. W. 2d 848
    Opinion delivered December 19, 1955.

      Bedwell & Bed well, for appellant.

      Thomas Harper and G. Byron Dobbs, for appellee.
   Minor W. Millwee, Associate Justice.

The issue here is whether a tort action against an estate is barred by our statute of nonclaim.

According to an agreed stipulation of facts, J. W. Meek died testate May 13, 1952, and defendant, Jim D. Meek, was appointed executor of his estate. On May 27, 1952, a notice to creditors was duly published calling upon all persons to present claims against the estate within six months, and the time for filing such claims expired November 27, 1952. On June 12, 1952, plaintiffs, A. J. and Sallye Turner, filed the instant action in circuit court against the defendant executor seeking damages for injuries allegedly sustained by Mrs. Turner, a nurse, by reason of a willful assault upon her by J. W. Meek while she was nursing him on May 8, 1952. Plaintiffs took a nonsuit on October 20, 1952, and on January 20, 1953, refiled their complaint which was subsequently amended to assert an action based solely on the alleged negligence of decedent. In the course of the administration of the estate, the probate court entered aii order on December 19, 1952, allowing a partial fee to defendant’s attorneys for certain services, including services rendered in connection with the present action.

Defendant pleaded the nonclaim statute as a bar to the instant action in his answer and a motion to dismiss, which was overruled on October 1, 1953. The case proceeded to trial and resulted in a judgment for plaintiffs on October 13, 1954. This judgment was set aside and a new trial ordered upon defendant’s motion on November 10, 1954, and there was no appeal from such order. Defendant renewed his motion to dismiss which was submitted to the trial court upon the foregoing facts and the additional stipulation that neither plaintiff filed a claim with either the executor or the probate court; and that neither of the plaintiffs, nor anyone acting for them, ever filed with the probate court a copy of any complaint filed herein or any statement signed by plaintiffs, or their attorneys, setting forth the nature of the action, the claim or demand therein involved, the parties to the action and the court in which the action is pending. Upon this stipulation of facts, the circuit judge held the instant action barred by our nonclaim statute and plaintiffs have appealed.

A determination of the validity of the trial court’s action involves a consideration of certain sections of the Probate Code [Act 140 of 1949] which made some significant changes in our nonclaim statute. Section 110 of Act 140 appears as Ark. Stats., § 62-2601, and provides that, with certain exceptions which are not pertinent here, all claims against a decedent’s estate are barred unless verified and presented to the personal representative or filed with the probate court within six months after the date of the first publication of notice to creditors.

Section 111 of Act 140 appears now as Ark. Stats., § 62-2602, and reads: “The provisions of Section 110 [§ 62-2601] shall not preclude the commencement or continuance of separate actions against the personal representative as such for the debts and other liabilities of the decedent, if commenced or revived within the periods stated in Section 110 [§ 62-2601]. Any action pending against any person at the time of his death, which survives against the personal representative, shall be considered a claim duly filed against the estate from the time such action is revived, and any action commenced against a personal representative as such after the death of the decedent shall be considered a claim duly filed against the estate from the time such action is commenced; provided that, within the time required by Section 110 62-2601] for filing claims against the estate, the plaintiff in such action files with the Probate Court in ivhich the estate is being administered a copy of the petition for revivor or of the complaint, or a statement signed by the plaintiff or his attorney setting forth a description of the nature of the action, the claim or demand therein involved, the parties to the action, and the court in which the action is pending. Nothing in this Section shall impair the individual liability of the personal representative for his own acts and contracts in the administration of the estate.” (Italics supplied.)

Present counsel for plaintiffs, who did not represent them prior to January, 1954, concede there was no compliance with § 62-2601, supra, but earnestly contend there was a substantial compliance with § 62-2602 because defendant and his attorneys had knowledge of the pendency of plaintiffs’ action by reason of the service of summons on defendant and tbe order of the probate court of December 19, 1952, allowing a partial fee to defendant’s attorneys for services, which included services rendered in connection with the instant action. In rejecting this contention the trial court stated:

‘ ‘ The Legislature, in enacting the remedy under Section 62-2602, seems to have had in mind that where an estate is sued some notice thereof in writing should be filed with the probate court having jurisdiction over the estate.. A copy of the complaint may be filed, or, in lieu thereof, a signed statement giving all of the details ordinarily found in a complaint, may be filed. In the face of such language it is believed that if actual notice, such as the personal representative always has by service upon him of summons, were intended to suffice under this statute, that the Legislature would have so said if they wished the courts to so hold. ’ ’

We concur in the circuit judge’s interpretation of the statute. Section 62-2602, supra, amended § 99 of Pope’s Digest which provided that all actions commenced against a personal representative after death of the testator or intestate should be considered legally exhibited claims against the estate from the time of service of process on said personal representative. The amended statute clearly placed the additional duty on the plaintiffs, and not upon the executor, to file either a copy of the complaint or a statement of the nature of the action, etc., with the probate court prior to November 27, 1952, and this was not done. In making proper determinations and orders relative to claims, family allowance, dower, etc., at the termination of the six-months period on November 27, 1952, the probate court was entitled to rely upon the statute, which was not complied with by the mere service of process on defendant in this action. As to the contention that the allowance of a fee to defendant’s attorneys by the probate court on December 19, 1952, amounted to a substantial compliance with the statute, it is noted that the six-months period had already expired, and there was no action pending in the circuit court, at that time.

Plaintiffs’ second and final point is that § 62-2602 is inapplicable for the reason that the claim asserted by them is contingent in nature under Ark. Stats., § 62-2610 (c), which provides: “Contingent claims not presented within the time prescribed by Section 110 (62-2601), or subsection b hereof, shall be barred as against the estate, but within the time now or hereafter permitted by law for bringing actions thereon, may be enforced against distributees of the estate to the extent of the assets of the estate or the proceeds thereof, remaining in the hands of such distributees.” Plaintiffs argue that their claim remains contingent so long as it is undetermined judicially, and that they, therefore, have a right to proceed against the distributees of the estate under this provision of the statute.

We cannot agree that the claim involved here is ‘ contingent ’ ’ within the meaning of the statute. In those jurisdictions where the question has arisen, the courts have uniformly held that liability upon an unliquidated claim for damages arising out of a tort is not a ‘ ‘ contingent claim” within the meaning of statutes relating to contingent claims against an estate. In passing on this issue in Pierce v. Johnson, 136 Ohio St. 95, 23 N. E. 2d 993, 125 A. L. R. 867, the court said: “In 21 American Jurisprudence, 582, Section 356, it is stated: ‘According to the ordinary acceptance of the term, a contingent claim is one where the liability depends upon some future event which may or may not happen, and which, therefore, makes it wholly uncertain whether there ever will be a liability.’ See also 11 Ruling Case Law, 205, Section 229.

“A liability on an unliquidated claim for damages arising out of a tort does not depend for its creation upon the occurrence of some uncertain event in the future. On the contrary, such claim is, as of necessity it must be, based on the theory that the event, the tort, giving rise to liability, has already occurred, and that a cause of action has already accrued and is in existence. A claim thus grounded cannot be said to be contingent. ’ ’

Other decisions to the same effect are: Rehn v. Bingaman, 151 Neb. 196, 36 N. W. 2d 856; Mueller v. Shackett, 156 Neb. 881, 58 N. W. 2d 344; Hicks v. Wilbur, 38 R. I. 268, 94 A. 872; Des Moines Transportation Co. v. Harring, 238 Iowa 395, 27 N. W. 2d 210; Helliker v. Bram, (Mo.) 277 S. W. 2d 556. The distinguishing feature of a contingent claim is that the cause of action has not accrued. Any cause of action available to plaintiffs as a result of the alleged tort on May 8, 1952, accrued at that time, and any claim grounded thereon is unliquidated, but not contingent, within the meaning of the statute.

The trial court properly sustained the motion to dismiss, and the judgment is affirmed.


author: George Rose Smith, J.

text:
    Culp v. Scurlock, Commr. of Revenues.
    5-793
    284 S. W. 2d 851
    Opinion delivered December 19, 1955.

      French dk Gamp, for appellant.

      O. T. Ward and Herrn Northcutt, for appellee.
   George Rose Smith, J.

This is an action by the appellants for a writ of mandamus to compel the Commissioner of Revenues to issue permits authorizing the appellants to sell cigarettes at retail without payment of an Arkansas excise tax thereon. The appellants have places of business located either within three hundred feet of the Arkansas-Missouri state line or within a city adjacent to that line. Missouri does not now collect a tax upon the sale of cigarettes. The appellants, in claiming an exemption from the Arkansas tax, rely upon the last sentence in the following section of Act 249 of 1951, Ark. Stats. 1947, § 84-2304:

“There is hereby levied the following excises or privilege tax, to-wit: on all cigarettes a tax of three dollars ($3.00) per thousand cigarettes is hereby imposed. Provided, whenever there are two adjoining cities of a population of five thousand or more separated by a state line, the tax on cigarettes sold in such adjoining Arkansas city shall be at the rate imposed by law on cigarettes sold in such adjoining city without Arkansas, but not to exceed three dollars ($3.00) per thousand cigarettes. Provided, further, that the tax on cigarettes sold in Arkansas within three hundred (300) feet of a state line, or in any city in Arkansas which adjoins a state line, shall be at the rate imposed by law on cigarettes sold in the adjoining state, but not to exceed three dollars ($3.00) per thousand cigarettes.”

Before examining the statute we mention a preliminary matter. It is suggested by the appellee’s pleadings and brief that the issuance of a writ of mandamus would not terminate the dispute, since the form of retail permit used by the revenue department merely authorizes the holder to sell cigarettes, without reference to the matter of taxation. Even so, the complaint may equally well be treated as one for a declaratory judgment — a remedy peculiarly appropriate to controversies between private citizens and public officials about tbe meaning of statutes. Ark. Stats., § 34-2502; Quinones v. Landron, (CCA 1) 99 F. 2d 618; Alabama State Milk Control Bd. v. Graham, 250 Ala. 49, 33 So. 2d 11; Railroad Com’n v. Houston Nat. Gas Corp., (Tex. Civ. App.) 186 S. W. 2d 117. This complaint states all the facts necessary to a petition for a declaratory judgment, and it is the statement of facts rather than the prayer for relief that makes up the cause of action. Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633. Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits. See Ark. Stats., § 34-2505.

The appellee’s argument against what seems to be the plain meaning of the exemption clause in question is twofold. First, it is insisted that since the statute provides that the Arkansas tax ‘ shall be at the rate imposed by law” in the adjoining state, the legislature meant to condition the proviso upon the existence of at least some tax rate in the adjoining state. Hence it is argued that although a lower rate applies along the border of neighboring states that impose a cigarette tax, such as Oklahoma and Texas, it does not apply when the sister state has no tax at all, as in the case of Missouri.

The history of this section of the law conclusively refutes the appellee’s contention. By Act 152 of 1929 the legislature imposed a tax upon the sale of cigarettes and directed by § 29 thereof that the first revenue arising from the tax should be paid into the Common School Fund. Section 30 of that act contained this significant language:

“Wherever there are two adjoining cities of a population of five thousand or more separated by a State line, the tax on tobacco products sold in such adjoining Arkansas city shall be at the same rate imposed by law on tobacco products sold in such adjoining city without Arkansas. Provided, however, that in the event there is no tax imposed by law upon tobacco products sold in such adjoining city without Arkansas, then the schools in such adjoining city in Arkansas shall not be entitled to participate in the revenue derived from this Act. ’ ’

It will be observed that the 1929 statute contained the very language now relied upon by the appellee: ‘1 the tax shall be at the same rate imposed by law” across the state line. Yet the legislature obviously meant for these words to include the situation in which there was no tax imposed on the other side of the line; for in the next sentence it was provided that in such a situation the local Arkansas schools would not be entitled to participate in the revenue from the tax. To adopt the appellee’s construction of the exempting clause would involve the unjust condition, under the 1929 law, of the Arkansas citizens being required to pay the tax when there was no tax imposed by the adjoining state and yet being denied any share in the revenues simply because the sister state did not impose a tax. It goes without saying that no such inequitable result was intended by the legislature.

The language of the 1929 law was again used in Act 416 of 1941, with the same direction that the local schools should not participate in the revenue when there was no tax imposed across the line. By Act 109 of 1947 the legislature directed that the revenues from this tax be paid into the General Revenue Fund instead of the Common School Fund. Inasmuch as there was no longer any need for the special provision depriving the local schools of a share in the benefits of the tax, that clause of the prior law was not re-enacted.

Thus it is plain enough that in 1929 and again in 1941 the General Assembly meant for the exemption to apply to the situation now before us, in which no tax is imposed by the adjoining state. There is no reason to think that the legislature had a different intention when it repeated the identical language in Act 249 of 1951.

Second, the appellee’s brief is primarily devoted to the practical argument that if retail outlets in Arkansas are permitted to sell unstamped cigarettes it will be next to impossible to enforce the law against the importation of untaxed cigarettes, since the legal unstamped packages and the contraband ones will be indistinguishable. A complete answer to these fears is to be found in the statute itself, which enables the Commissioner of Revenues to anticipate the suggested pondition. The statute authorizes the Commissioner to “prescribe the kind of stamps to be used in the administration of this act.” Ark. Stats., § 84-2314. It also permits him “to make such rules and regulations as he deems requisite and advisable for the administration of this act.” Section 84-2325. There is thus ample authority for the Commissioner to prescribe an identifying stamp for cigarettes lawfully exempt from the tax.

Reversed, a declaratory judgment to be entered here.

McFaddin, J., dissents.


text:
    Carrier v. Beck, County Judge.
    5-807
    285 S. W. 2d 326
    Opinion delivered December 19, 1955.
    [Rehearing denied January 23, 1956.]

      Marvin Brooks Norfleet, for appellant.

      Hale é Fogleman, for appellee.
   George Rose Smith, J.

On May 23,1955, the county court of Crittenden County, without notice or a hearing, entered an order purporting to remove the appellant from office as a commissioner of Road Improvement District No. 7, the court finding that its action was “to the best interests of the district. ’ ’ The appellant promptly filed a petition in the circuit court for a writ of certiorari to quash the county court order as being void. The circuit court sustained a demurrer to the appellant’s petition upon the ground that no cause of action was stated, and the action was dismissed. The sole question is whether the county court, as an incident to its power to appoint the commissioners of the district, has the power to remove them for causes other than those specified in the governing statute.

This district was created by Act 55 of the 1919 Road Acts. Sections 5 and 8 of the statute invested the county court with power to appoint the original commissioners and to fill any vacancies that might occur. There is no fixed term of office for the commissioners, and the only provision for their removal is this sentence in § 8: “ The said County Court may remove any commissioner for neglect of duty, incompetency or malfeasance in office, but only after a public trial on written notice served as a summons.” The demurrer admits that the statutory procedure for the removal of a commissioner was not followed by the county court. The appellee insists, however, that the power of removal is a necessary incident to the power of appointment and may be exercised, without notice, for any reason other than the grounds specified by the statute.

This argument must be rejected upon the controlling authority of Taylor v. Wallace, 143 Ark. 67, 219 S. W. 314, and Payne v. Malone, 164 Ark. 323, 261 S. W. 632. The Taylor case arose under the general road law, which authorized the county court to appoint road district commissioners and to fill vacancies. There was, however, no express power in the county court to remove a commissioner. In holding that the power of removal did not exist we said: “The power conferred upon the county court to appoint three road commissioners at the time of making the order establishing the road district, pursuant to the terms of the act, is a special, and not a general, power. No such power exists in the county court except by enactment of the General Assembly. The general power of supervision by the county court over roads, conferred by the Constitution, invests said court with no such power or authority. The delegation of the power being special, the extent thereof is limited to the express grant.”

Even more directly in point is the Payne case, supra, which, like this one, arose under a special act creating a road improvement district and conferring authority on the county court to appoint the commissioners and to fill vacancies. The act was silent on the subject of removing the commissioners. A taxpayers’ action was instituted in the county court to remove the commissioners for misconduct in office. In adhering to the rule announced in the Taylor case the court said: ‘ ‘ The decision in that case is conclusive of the question that the county court has no right to remove commissioners unless the statute confers that power.” It follows that in the case at bar the county court’s power of removal must be exercised in conformity to the statute.

The decisions earnestly urged by the appellee, such as Shurtleff v. United States, 189 U. S. 311, 23 S. Ct. 535, 47 L. Ed. 828, are not in conflict with our own decisions. The Shurtleff case, for example, involved a general power to appoint a subordinate for whose conduct the appointing authority was responsible. In such a situation, as is more fully explained in Myers v. United States, 272 U. S. 52, 47 S. Ct. 21, 71 L. Ed. 160, and Humphrey’s Executor v. United States, 295 U. S. 602, 55 S. Ct. 869, 79 L. Ed. 1611, the power to remove an incompetent employee is essential if the appointing officer is to be held responsible for the proper discharge of the duties imposed by law upon his department. Consequently, as the court said in the Shurtleff case, ‘ ‘ The right of removal would exist if the statute had not contained a word upon the subject.” But the present case presents a fundamentally different situation. The county court is not responsible for the conduct of road improvement district commissioners. It is reasonable to suppose that the General Assembly vested tbe power of appointment in the county court to avoid the inconvenience that would attend the exercise of that power by the various landowners in the district. In these circumstances the court’s power of appointment is special, as the Taylor case held, and does not carry the power of removal as a logical incident thereto.

Reversed, the demurrer to be overruled.


author: Paul Ward, Associate Justice.

text:
    Burks v. Cook.
    5-799
    284 S. W. 2d 855
    Opinion delivered December 19, 1955.

      Willis V. Lewis, for appellant.

      Goclcrill, Limericlc ■& Laser and Abner McGehee, for appellee.
   Paul Ward, Associate Justice.

The question for decision in this case is: When are the organizers of a purported corporation individually liable for debts contracted in the name of such corporation? No oral testimony was taken in the trial court, and this case is presented to us on the pleadings, stipulations and the record.

On August 26, 1953, Articles of Incorporation of “National Truck Leasing System, Inc.” were filed in the office of the Secretary of State. These articles show the organizers of said corporation to be: Paul J. Burks, Frank E. Jarvis, William L. Keesee and Willis Y. Lewis. Stock Certificate No. 4 shows that 6 shares of the purported corporation were issued to Willis Y. Lewis on August 26, 1953. Certificate No. 5, of the same date, shows 6 shares issued to Paul J. Burks, and it is stipulated that these were the same shares that were executed to Lewis by Certificate No. 4. The record shows that on September 16, 1953, there was filed with the Secretary of State an “Amendment to Articles of Incorporation of National Truck Leasing System, Inc., changing name to: Motor Truck Rentals System, Inc.”

Beginning on October 29, 1953, and ending on December 12, 1953, the appellees, a partnership, sold and charged to the Motor Truck Rentals System, Inc., articles of merchandise in the total amount of $623.65 which had not been paid for.

On June 14, 1954, appellees filed this suit against appellants [the original incorporators named above] to recover judgment for the articles above mentioned. It was alleged that the articles of incorporation and the amendment thereof had never been filed in the office of the Pulaski County Clerk as required by Ark. Stats., § 64-103; that the Motor Truck Rentals System, Inc., is a de facto corporation, and; that the stockholders or original organizers were individually liable as partners.

On June 18, 1954, the aforementioned Articles of Incorporation and the Amendment were filed in the office of the Pulaski County Clerk.

On April 22, 1955, the above factual situation was submitted to the trial judge, sitting as a jury, and he rendered a joint and several judgment against all appellants.

The judgment of the trial court must be affirmed in part on the authority of Gazette Publishing Company v. Brady, 204 Ark. 396, 162 S. W. 2d 494, and Whitaker v. Mitchell Manufacturing Co., 219 Ark. 779, 244 S. W. 2d 965.

Appellants frankly admit that the holdings in the above mentioned eases are contrary to their contention here. However, in a forceful brief they present an array of authorities in an effort to convince this court that the Gazette case, supra, [upon which the decision in the Whitaker case largely rests] should be overruled. In response to this contention on the part of appellants it is sufficient to say that this same argument was forcibly urged in the Whitaker case, supra, and there rejected. In the latter case the contention here urged by appellants was specifically called to the court’s attention in a concurring opinion. Many of the authorities cited by appellants to sustain their contention were mentioned and discussed in the Whitaker case, supra. We can therefore see no good reason for discussing these cases again or for overruling the holding in the Gazette and Whitaker cases.

It is earnestly contended that the judgment of the trial court should be reversed insofar as it held appellant, Willis V. Lewis, liable. Lewis was one of the original organizers of the National Truck Leasing System, Inc., the name of which was later changed to Motor Truck Rentals System, Inc. In the Gazette case, supra, this court approved a statement made in the case of Garnett v. Richardson, 35 Ark. 144, that “in order to exempt the organizers of a corporation from personal liability for the debts of the concern, the articles of incorporation must be filed, in both the office of the Secretary of State and the office of the County Clerk.” It is undisputed that in the present case neither the articles of incorporation nor the amendment had been, at the time suit was instituted, filed in the office of the County Clerk of Pulaski County. Thus it would seem from the above that Lewis must be held liable in this instance. However, we do not think that, under the facts and circumstances of this case, the above conclusion correctly follows.

We have present in this case a fact situation which was not present in the Garnett and Gazette cases, supra, in that here credit was extended after Lewis ceased to be a member of the purported corporation. This fact question not being present in the cited cases we can feel sure that no special consideration was given to it. The Gar-nett opinion is short and certainly no consideration was given to the point under question in that case. The gist of the opinion in that case is found in the last sentence which reads as follow's: ‘ ‘ For purchases made by them before then they were personally liable as partners.” From this it appears that the court was considering a case wdiere the original incorporators made the purchases for which they were held liable. In this case Lewis had of course withdrawn from the purported corporation some twTo months before the purchases were made.

In this instance Lewis and the other original incorporators are placed in the role of partners by operation of law since they did not file articles of incorporation in the office of the County Clerk. Considering them as partners we have concluded that Lewis is not liable on the debt herein sued upon under the decisions of this court pertaining to a partnership. In the case of Rector v. Robins, 74 Ark. 437, 86 S. W. 667, a creditor sought to hold liable Robins, a member of a partnership, who withdrew from the partnership before the debt was contracted. This court there approved an instruction which stated that Robins would be liable if the creditor “extended the credit for the claim sued on in the faith of his belief that Robins was such a partner. ’ ’ The court again indicated on Page 443 of the Ai’kansas Reports that before Rector could hold Robins liable he must have extended credit upon the faith of Robins’ partnership in the firm.

It cannot be said in the case under consideration that appellees extended credit to the Motor Truck Rentals System, Inc., because of their reliance on Lewis ’ financial responsibility. No evidence was taken in this case and therefore there is no showing that appellees extended credit because of Lewis.

In the case of Raywinkle v. The Southern Coal Co., 117 Ark. 283, 174 S. W. 524, appellee sought to hold Ray-winkle liable as a partner for a debt contracted after he had withdrawn from the partnership. In holding that Baywinkle was not liable this court, among other things, said:

“The plaintiff [appellee] during this time had no dealings whatever with the firm and cannot be said to have contracted with the firm on the credit of Baywinkle. Baywinkle’s name never appeared in the firm and it was not shown that the firm in conducting its business ever used his name. Under these circumstances we do not think he was responsible for the debt of the plaintiff and the court erred in directing a verdict for the plaintiff.”

This same question was considered in the case of Anglin v. Marr Canning Co., 152 Ark. 1, 237 S. W. 440. There Anglin sought to recover against two partners who had withdrawn from the appellee partnership. This court in discussing the various instructions given by the trial court recognized that before appellant could recover he must have extended credit upon the faith he had in the financial responsibility of the former partners, or that the former partners’ conduct had been such as to mislead appellant into believing they were still members of the partnership firm. It cannot, of course, be said in the case under consideration that Lewis’ conduct in any way misled appellees, since no evidence was introduced. Neither did the “partnership” bear the name of Lewis.

Based upon the above observations it is our conclusion that the trial court erred in holding Lewis liable and the judgment is hereby reversed to that extent, but it is affirmed as to the other appellants.

Affirmed in part and reversed in part.