author: Carretón Harris, Chief Justice.

text:
    Callaway v. Perdue.
    5-3374
    385 S. W. 2d 4
    Opinion delivered November 23, 1964.
    [Rehearing denied January 11, 1965.]

      William E. Drew, for appellant.

      Switzer & Griffin, for appellee.
   Carretón Harris, Chief Justice.

In September, 1944, P. L. Callaway and his wife, Irene, conveyed 320 acres of land to their grandson, Logan Lee Perdue, age one and one-half years. In April, 1955, Mrs. Callaway was appointed guardian of the person and estate of the minor. In February, 1963, Mrs. Callaway died.

In April, .1963, Logan Lee Perdue, then twenty years of age, whose disabilities as a minor had been previously removed, instituted suit against his grandfather and H. A. Etheridge, alleging that these individuals had, in 1953, cut and removed timber growing on the lands (which had been deeded to him by his grandparents) of the value of $5,376.00, "and did convert and dispose of same to their own use. * * * ” Callaway filed a general denial, and Etheridge answered, admitting purchasing and removing timber from the lands in question, but asserting that he contracted with Callaway for such purchase and removal. The case proceeded «to trial, but at the conclusion of the presentation of the evidence, appellee took a non-suit as to defendant Etheridge. The jury returned a verdict against Callaway in the amount of $13,382.40, representing treble damages for the value of the timber taken. From the judgment so entered by the court, comes this appeal. Appellant sets out seven points for reversal, which we proceed to discuss.

It is first asserted that the action against appellant is “barred by the Statute of Frauds.” We do not see that the Statute of Frauds has any application in this case whatsoever. Appellee’s case is predicated upon the fact that Etheridge purchased the timber from Callaway, and had same cut and removed; that Callaway had no right to sell the timber, and wrongfully disposed of it. There was no written contract, but the Statute of Frauds, if applicable at all, could only relate to the transaction between Callaway and Etheridge, and certainly has nothing to do with the rights of the true owner of the property. According to Perdue’s allegations, Callaway and Etheridge, respectively, wrongfully sold, and purchased, appellee’s timber, and converted the proceeds to their own use.

It is next asserted that the proof is insufficient to support the verdict. It is true that the evidence is rather meager. The principal testimony connecting Callaway with the transaction is that of defendant Etheridge who testified that Callaway told him (Etheridge) that .he wanted to sell some timber on his land, and Etheridge was to stop by the Callaway home and advise Mrs. Callaway whether he was interested in purchasing same. Etheridge, who was engaged in buying and selling timber for Bradley Lumber Company, left word with Mrs. Callaway that he would be glad to handle it. According to Etheridge, Mrs. Callaway told him to go ahead and cut the timber. The witness stated that all of his negotiations were carried on with the wife, and after cutting the timber, he paid Mrs. Callaway. Subsequently, however, he met Mr. Callaway, and the latter told him that he had made a $20.00 mistake in the amount paid Mrs. Callaway, and Etheridge thereupon paid appellant an additional $20.00. Logan Lee Perdue, appellee, testified that his grandfather told him that he had cut the timber, and Homer Perdue, father of appellee, likewise testified that Callaway had told him ten or twelve years back that “he had cut and sold Logan Lee’s timber.” The witness stated that he went to the land belonging to his son, and observed that the timber has been cut; that no money was turned over to Mm. Accordingly, the only evidence that appellant participated in the trespass and conversion was the statements of Etheridge that he had been approached by Callaway relative to the sale, and had paid $20.00 extra to appellant; the statement of appellee that his grandfather had told him that he (the grandfather) had sold the timber, and third, the evidence of Homer Perdue, father of appellee, that P. L. Callaway had made the same statement to him.

The aforementioned evidence, though scanty, was, we think, sufficient to take the case to the jury.

Appellant contends that, even if there is sufficient evidence to present a jury question, the amount determined by the jury is excessive because treble damages were awarded. This argument is based on the contention that the pertinent statutory provision (Ark. Stat. Ann. § 37-204 [1947]) requires that actions for penalty be commenced within two years. The entire section reads as follows:

“Actions for recovery of statutory penalty — Two years. — All actions on penal statutes, where the penalty, or any part thereof, goes to the State, or any county or person suing for the same, shall be commenced within two [2] years after the offense shall have been committed, or the cause of action shall have accrued.”

Section 37-226 is relied upon by appellee as tolling Section 37-204 under the facts of this case, and permitting his recovery of treble damages. That section reads as follows:

“If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed. ’ ’

We think this last statute is controlling. In the early case of Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S. W. 952, this court construed Section 4826 "of S.andels and Hill Digest, that section being absolutely identical to Section 37-204, heretofore quoted, and held contrary to appellant’s contention.

For the fourth point for reversal, it is argued that the trial court erred in not allowing a continuance because of the illness of the appellant, and in refusing to allow certain interrogatories, propounded to him, together with answers, to be read to the jury. We find no merit in this contention, and actually the point may be peremptorily disposed of because of the fact that the record does not reflect that any motion for a continuance was made at the time of trial. However, inasmuch as this case is going to be reversed on a subsequent point, the question may well arise again as to whether the interrogatories can properly be used, particularly in view of the fact that appellant has apparently died since the judgment was rendered. Although no Order of Revivor appears in the record, appellant evidently is now deceased, since the transcript reveals a motion by “Don F. Calla-way, Executor, of the Estate of P. L. Callaway, Deceased,” through his attorney, for an extension of time in which to file this appeal.

On October 21, 1963, appellee served notice on appellant for the taking of the discovery deposition of Callaway on November 15, 1963. Counsel then filed his motion, seeking to prohibit appellee from taking this deposition, setting out that Callaway was a patient in the Lake Village Infirmary, and previously had been confined to his bed at his home for more than eight mouths. An affidavit was executed by Dr. Alan G. Talbot, enumerating the ailments of Callaway, and further stating:

“* * * It is further the opinion of this attending physician that to subject the patient to interrogation by reason of his illnesses as heretofore set out, will he detrimental to the patient in aggravating his physical condition. That such interrogation would not only aggravate his physical condition but would probably create such a state of tension that he may suffer serious relapses and actual danger to his life.”

The record does not reflect what action, if any, was taken by the court. The trial of the case was held on November 20, 1963, but as previously stated, no request for continuance appears in the transcript. However, prior to the notice of the taking of depositions, appellee had, on August 5, 1963, propounded to appellant certain interrogatories, and these were answered on August 16, 1963. At the trial, counsel for Callaway offered into evidence the interrogatories and answers thereto, contending that he was entitled to do so, and stating:

“ * * * It is a matter of public knowledge that the Defendant, P. L. Callaway, has been confined in bed for more than eight months and is currently confined in the Lake Village Infirmary suffering from maladies, as shown by the affidavit of the doctor, duly filed herein, and that he is physically unable to even sit, much less come to this courtroom.”

The assertion that the interrogatories and answers were admissible is based on Ark. Stat. Ann. § 28-355 (Repl. 1962) which first makes provision for the service of written interrogatories upon any party by an adverse party, and then reads as follows:

“Interrogatories may relate to any matters which can be inquired into under Section 1 (b) [§ 28-348, subsec. (b)], and the answers may be used to the same extent as provided in Section 1 (d) [§ 28-348, subsec. (d)] for the use of the deposition of a party. ’ ’

It will be noted that the quoted provision refers back to Section 28-348, Subsection (d), which reads as follows:

"At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: * * *
"(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: 1, that the witness is dead; or 2, that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or 3, that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; * * *”

Careful research reveals that counsel is in error in his contention, and he is not entitled to use these interrogatories. Section 28-348 (d) is an exact copy of Rule 26 (d), Federal Rules of Civil Procedure, and the quoted portion of Section 28-355 is identical with the corresponding portion of Rule 33. Federal cases do not sustain appellant’s position, and the answers to interrogatories are generally held inadmissible, if offered on behalf of the party making answer, as ‘ ‘ self-serving declarations. ’ ’ In Haskell Plumbing and Heating Company v. Weeks, et al. 237 F. 2d 263, the Circuit Court of Appeals for the Ninth Circuit stated:

"It seems clear that the trial court was in error in permitting these answers, which were self-serving, to be introduced on behalf of the plaintiffs and that this error was compounded by refusal to permit the plaintiffs to be cross-examined upon the question of the amount of their losses. It is true that Rule 26 (d) permits the use of depositions or portions thereof, but only £so far as admissible under the rules of evidence.’ The rules of evideuce would permit answers such as these to he used against the party giving them, hut because they are self-serving they should not have been admitted on behalf of these plaintiffs.”

See also Bailey v. New England Mutual Life Ins. Co. of Boston, Mass., 1 FRD 494; United States v. Smith, 95 F. Supp. 622; Stottlemire v. Cawood, 213 F. Supp. 879; Coca Cola Co. v. Dixi-Cola Laboratories, 30 F. Supp. 275. One of the principal reasons for not allowing the use of the interrogatories on behalf of the answering party is the fact that there is no opportunity for cross-examination. In reviewing various cases, one exception to the.non-admissibility of interrogatories is noted, vis, where the adverse party offers part of the answers to the interrogatories, the person making answer is entitled to read any other answer which tends to explain or correct the answers offered by the adverse party. No cases involving the death of a party who had previously answered interrogatories have been found, but Moore, in Volume 4, (2d Ed.) Federal Practice, Page 2343, gives a hypothetical case which seems to cover the point at issue. The illustration given, with the names of the parties here inserted in parenthesis, is as follows:

“Suppose that in response to P’s (Perdue’s) interrogatories D (P. L. Callaway) served answers, then died and his personal representative, X (Don Callaway, Administrator of the Estate, hereinafter called Don) was substituted. To the extent that D’s (P. L. Callaway’s) answers contained admissible evidence, such as admissions, P (Perdue) could use them either under Rule 26 (d) (2) or (d) (3). ButX (Don), despite Rule 26 (d) (3), should not be able to use material in the answers favorable to X’s (Don’s) case or defense, since D’s (P. L. Callaway’s) answers, although under oath, were not subject to cross-examination by P (Perdue), and hence are not admissible in evidence against P (Perdue).”

It is asserted that the trial court erred in excluding from the evidence letters of guardianship issued to Irene Gordon Callaway (wife of P. L. Callaway) as guardian of the person and estate of appellee. We find no merit in this contention. In the first place, the timber was cut in 1953, and the letters of guardianship (which although not admitted into evidence, are in the record) were issued in April, 1955, and it is difficult to understand from the argument the purpose appellant had in mind in tendering the exhibit for introduction. Of course, the letters do not show whether the money received from the timber sale was placed in the guardianship account, and no effort was made to introduce any annual accountings that might have been filed by the guardian. At any rate, under the proof in the present record, we are unable to determine the pertinency of the proffered exhibit.

Appellant contends that a mistrial should have been declared by the court. The suit was originally commenced against both Callaway and Etheridge, and Etheridge had employed one Ellis Coulter to cut the timber on the 320 acres here involved. Coulter, while testifying concerning his employment, made certain statements which were admissible as to Etheridge, by virtue of the fact that Etheridge was a defendant. However, at the conclusion of all the evidence, appellee took a non-suit as to this defendant, and appellant asserts that this action was prejudicial to him. The motion for a mistrial was alternative motion, the first motion being a request for a directed verdict. Though some testimony by Coulter (quoting Etheridge as to the amount that defendant had paid Callaway for the timber) was hearsay evidence as to Callaway, counsel did not ask the court to apprise the jury that the testimony of Coulter was not admissible against Callaway, nor was there any request for an instruction to this effect. We find no error under this point.

Also, while on the stand, Coulter stated that he had noted in a memorandum hook the.number of feet of timber which had been cut, and the price he received per thousand. The witness testified that the notations referred to were placed in a book at the time of the cutting, hut the book that he referred to while testifying was not the 1953 book.

“I had a memorandum book, which I carried in my pickup and in some way they rolled it around and dropped it and there was oil from the saw and different things and some of it got on this book, I transferred this stuff onto this 1956 book.”

The introduction of this last book was objected to by appellant, and the court stated:

“I want this witness to find his record book; however, if he can’t find the book this was transferred from, I will allow it to be used in evidence.”

Coulter subsequently testified that he could not find the original record book, but' the second book does not appear in the .transcript. At any rate, appellant does not designate the introduction of the exhibit as one of his points of error, and we do not pass on it.

Finally, it is contended- that certain instructions were erroneous, and we agree that the giving of Instruction No. 4 constituted reversible error. The jury was instructed:

“If you find the issues in favor of Logan Lee Per-due, you will award him such sum as you find will be equal to 3 times the value (at the stump) of the timber so damaged, broken, destroyed or carried away.”

The court had previously quoted the statute on single damages (Ark. Stat. Ann. \ 50-107 [1947]), but it will be noted that the questioned instruction positively directs the jury to grant treble damages if they find for appellee. It is our opinion that, under the proof in this case, a jury question was presented as to whether appellant was liable for single or treble damages.

It is true that our statute relative to treble damages (the pertinent parts of which have already been quoted in Footnote 3) does not actually use any words which require the trespasser to hold an evil intent or act in bad faith before being liable for the penalty. Yet, our eases make clear that a necessary element to justify treble damages is intent of wrongdoing, though such intent may be inferred from the carelessness, recklessness, or negligence of the offending party. In Laser v. Jones, 116 Ark. 206, this court had occasion to interpret Section 7976 of Kirby’s Digest, which reads identically with Section 50-105 of the present statute. There, in an opinion by the late beloved Justice Prank Gr. Smith, this court said:

“It is, therefore, proper to consider the use which may be, and is, made of the tree, and if the tree adds to the value of the land, while its destruction detracts from its value, then this difference in value is the measure of the recovery, even against one who, without malice, destroys it. But, if the tree was maliciously destroyed, the damages recoverable are treble this value.”

In Fogel v. Butler, 96 Ark. 87, it was said:

“It will be observed that the instruction as given by the court told the jury that if they found that the defendant cut the timber without-authority and knowingly, the jury should allow three times the value of the timber. Now, it is manifest that the court meant, and that the jury understood, that, before treble damages should be given, the jury must find not only that the defendants had no authority to cut the timber, but that they knew they had no such authority.”

In Floyd v. Richmond, 211 Ark. 177, 199 S. W. 2d 754, we stated:

“Appellant next contends ‘that there was nothing-in the record whatever to warrant the submission to jury of the question of punitive damages, and that in so doing the learned trial court gravely prejudiced this appellant and committed reversible error.’ We think this contention untenable for the reason that, as has been indicated, there was evidence from which the jury might have found that there was an element of willfulness in appellant’s action in severing the trees and this warranted instructions on this issue.”

See also Case v. Hunt, 217 Ark. 929, 234 S. W. 2d 197, where we said:

“Our statutes do not impose double or treble damages upon one who cuts timber from the land of another unless he does so wilfully and intentionally.”

Also see Freeze v. Hinkle, 229 Ark. 714, 317 S. W. 2d 817.

It is apparent from these citations that treble damages are only invoked where one cuts timber with the intention of depriving the true owner of the value thereof. We do not think that one acting in good faith is liable for treble damages.

The circumstances in the instant case appear to be most unusual, and a study of the testimony leaves several questions unanswered. It will be recalled that the particular property in question was deeded to appellee by the grandfather (who is the defendant in this case), and the grandmother (who subsequently was appointed guardian). There is no explanation as to why the grandmother, rather than the child’s father or mother, was appointed guardian, nor can the answer be found in the record as to why the grandparents deeded the property to the one and one-half year old grandchild. But unless they were endeavoring to defraud creditors (of which there is not the slightest indication in the record), their motive would appear to have been a good one, based on the love and affection for this child.

The record reveals the following testimony of Logan Lee Perdue, appellee herein, during his examination by counsel:

“Q. Now will you state to this Jury when you first can recall owning this property, the deed of which has been entered in the record, which was just when you were a very small child. Do you remember when you first recall owning this property?
A. The first time that I can recall was during high school, when I was in the 10th and 11th grades.
Q. Did you ever have an opportunity to speak with the Defendant, Mr. Callaway, concerning this property?
A. Yes, I did.
Q. Will you state to the Jury what your conversation with Mr. Callaway consisted of?
A. I recall that during high school, when I started to make my decision to attend college, I went to see my grandparents and he told me that ‘ I cut your timber and I have enough money for you to attend college and a little left over.’ * * *
Q. Where were you?
A. We were in the bedroom at his home.
Q. What grade were you in then?
A. I do not recall exactly — 10th or 11th grade.
Q. Ho ay old Avould you have been then?
A. I Avould say 15 or 16.
Q. Sir, since that time have you finished high school?
A. Yes.
Q. Have you gone to college?
A. Yes.
Q. When did you,go to college?
A. I went to college in 1960.
Q. Where did you go?
A. I went to Ouachita.
Q. How long did you go to Ouachita?
A. I went to Ouachita a year.”

Subsequently, Perdue testified that he attended Ouachita for two semesters, but-only finished one; that he received money from his grandfather during both semesters, and that in the spring semester of 1962, he attended Southern State; that he also received money from his grandfather at that time, and that the grandfather offered to send money during the summer semester, but that he did not take it. He also testified that his grandmother sent him money about once a month. Appellee testified that this money did not come from the timber sale, but rather, was derived from bonds which had been purchased by his parents, but were in the possession of his grandfather. When asked how he knew where the money came from, he replied, “I do not know definitely, but merely what my mother and father have told me.” He testified that these bonds were in his name, and that of the grandfather. There is no explanation of why bonds, purchased by the parents, were in possession of the grandfather, and bearing the grandfather’s name. The father, Homer Perdue, stated that he and his wife, had bought some “very small” bonds, and had given them to the boy, leaving them in Callaway’s safe deposit box. He also stated that he and Callaway had purchased $1,000.00 in bonds for the boy “from some profits from a cattle deal. * * *”

We think the circumstances set out made a jury question of whether Callaway had acted wrongfully. Why did the grandparents deed the property to the hoy if they intended to reap any personal benefits from the lands or timber? Certainly, if the grandfather had intended to commit a wrongful act, he would not have told his grandson that he had sold the timber, and that there should be enough for college with “a little left over.” Apparently the grandson “fell out” with his grandfather since he testified that he tore up a check that had been given to him by the latter.

Under the instruction in question, the jury was given no opportunity to find that Callaway acted in good faith, and we think that this was reversible error. The finding that this instruction was erroneous means also that Instruction No. 2 will have to be reworded.

Reversed and remanded.

       The order removing disabilities does not appear in the record, but Perdue testified that this had been done, and no question was raised by appellant in the trial court.

       The record does not reflect the reason for the failure of Homer Perdue to take some action on behalf of his son at the time of learning that the timber had been cut and removed.

       Ark. Stat. Ann. § 50-105 (1947) provides, “If any person shall cut down, injure, destroy or carry away any tree placed or growing for use or shade, or any timber, rails or wood, standing, being or growing on the land of another person, * * * in which he has no interest or right, standing or being on any land not his own, * * * every person so trespassing shall pay the party injured treble the value * * * with costs.”

       While the cause was likely revived in the name of the executor, no order appearing, we have continued to refer to P. L. Callaway as “appellant.”

       Our emphasis.


source: Caselaw Access Project

author: Ed. F. MoFaddin, Associate Justice.

license: Public Domain

text:
    Bailey v. Stewart.
    5-3377
    385 S. W. 2d 20
    Opinion delivered November 23, 1964.
    [Rehearing denied January 11, 1965.]

      Williams S Gardner, for appellant.

      Jeff Mobley and William R. Bullock, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This is tbe second time this case has been to this Court.' The opinion in the first appeal (Bailey v. Stewart, 236 Ark. 80, 364 S. W. 2d 662) identifies the parties and issues, and contains this paragraph which gives the factual background:

“The accident happened on a November afternoon near a drive-in cafe in Dardanelle, where Stewart was standing outside a window provided for take-out purchases. Cossey, driving a car owned by Don Duvall, and Bailey, driving his two-ton truck, were approaching the vicinity of the cafe from opposite directions. Cossey attempted to turn left, across Bailey’s traffic lane, to enter the cafe parking area. Cossey testified that he signaled his intention to turn, with his arm and with his signal light, and that he thought he could turn safely in front of the truck, which was still some distance away. In this thought Cossey proved to be mistaken. Bailey’s truck, after laying down 42 feet of skid marks, struck the righthand side of Cossey’s car, which had almost completely left the street, and knocked it with great force against a parked truck. The latter vehicle rolled forward and pinned Stewart to the wall of the cafe, causing serious and painful injuries to both his legs.”

Stewart had sued Bailey after settling with Cossey, the alleged joint tortfeasor; and on the first trial the verdict rendered for Stewart left it uncertain as to whether the jury intended Stewart to receive $9,000.00 from Bailey or only $1,000.00. In keeping with our opinion on the first appeal, when Mr. Stewart did not elect to accept $1,000.00, the cause was remanded for a new trial; and on the new trial (from which comes this appeal) the case was submitted to the jury on interrogatories. We now copy the said interrogatories and the answers made by the jury to each:

“INTERROGATORY NO. ,1. Do you find, from a preponderance of the evidence in the case, that the defendants, JohnM- Bailey, was guilty of negligence in the operation of his truck and that such negligence, if any, was the proximate cause of plaintiff’s injuries?
“ANSWER: YES.
“INTERROGATORY NO. 2. Do you find, from a preponderance of the evidence in the case, that the third-party defendant, Jimmy F. Cossey, was guilty of negligence in the operation of his car and that such negligence, if any, was a proximate cause of plaintiff’s injuries?
“ANSWER: YES.
“INTERROGATORY NO. 3. If your answers to Interrogatories 1 and 2 are ‘YES’, then answer this question: Using 100% to represent the total negligence involved in the accident, what percentage of negligence do you find attributable to each of the following parties ?
“John M. Bailey?
“ANSWER: 50%.
“Jimmy F. Cossey?
“ANSWER: 50%.
“INTERROGATORY NO. 4.
“1. Do you find from a preponderance of the evidence that the Plaintiff, John L. Stewart, is entitled to recover damages in this action from the defendants, John M. Bailey and Jimmy F. Cossey?
“ANSWER: YE'S.
“2. If your answer to the above question is ‘YES’ then answer this question: What do you find from the evidence, if any, to be the actual damages sustained by the plaintiff, John L. Stewart, if any?
“ANSWER: $24,000.00.
“3. The jury will reduce the total amount of actual damages awarded, if any, by $9,000.00, heretofore paid plaintiff, John L. Stewart, by third-party defendants, Jimmy F. Cossey and Don D. Duvall, as follows: Total amount of actual damages as shown above:
“ANSWER: $24,000.00.
“Less amount heretofore paid plaintiff, John L. Stewart, by third-party defendants . . . $9,000.00.
“Total damages due plaintiff, John L. Stewart:
“ANSWER: $15,000.00.”

Based on the above answers the Circuit Court rendered judgment for Stewart and against Bailey for $12,000.00; and Bailey appeals, urging three points:

“1. The verdict of the jury is inconsistent and so confusing that it is impossible to determine the amount of its award.
“2. The verdict of the jury was excessive and unsupported by the evidence.
“3. There is no substantial evidence to support the' jury’s verdict and it should now be reversed and dismissed.”

We consider the points in the order listed.

I. In his first assignment appellant claims that there is an inconsistency in the jury verdict and points to part 3 of Interrogatory No. 4 as demonstrating the inconsistency. We’find no merit in this assignment. When the Trial Court submitted the said part 3 of Interrogatory No. 4 to the jury, the Court had typewritten into the interrogatory: ‘Less amount heretofore paid plaintiff, John L. Stewart, by third-party defendants . . . $9,000.00.’ So the jury wrote ‘$24,000.00’ on the first line, and ‘$15,000.00’ on the third line. Thus, the jury clearly indicated that Stewart was damaged a total of $24,000.00 and had received $9,000.00 from the third-party defendants and would still be entitled to receive a-balance of $15,000.00 except for the settlement with the third-party defendants. The Trial Court, in framing this interrogatory, was taking every precaution to avoid the uncertainty which caused the reversal on the first appeal. But when the Trial Court entered judgment on the interrogatories, the Court properly entered judgment against Bailey for only $12,000.00. This was true because:. (a) Stewart was damaged a total of $24,000.00; and (b) Stewart’s release to Cossey had provided that its effect should be to reduce the damages recoverable against any other person to the extent of Cossey’s pro rata share of the responsibility, thereby relieving Cossey of any liability for contribution in accordance with Ark. Stat. Ann. § 34-1005 (ftepl. 1962), which was actually cited in the release. Hence when Cossey was found to have been 50% negligent the effect of the release was to reduce Stewart’s recoverable damages against Bailey by 50% of the total, leaving a liability of only $12,000.00. The interrogatories and answers were clear; and the Court rendered the correct judgment on the interrogatories.

II. In his second assignment the appellant argues .that the verdict of the jury was excessive and unsup■ported by evidence. We find no merit in this assignment. Mr. Stewart was 36 years of age at the time of his injuries, He was confined to a hospital for eleven days and to his home for six weeks. During much of the time he was completely helpless. His medical expenses to date of trial were $928.95; he lost earnings in the amount of $1,520.00; and he suffered pain. He is still unable to do full work and is partially disabled for life. One of the doctors testified that at the time of the present trial Mr. Stewart was still limping, that he had a slight tilting of the back and pelvis to the right, an apparent shortening of the right leg, and changes in the joints of the lower lumbar and lumbo sacral joint of the back, which were the result of traumatic arthritis. The doctor testified that these changes would probably increase with the years; that traumatic arthritis has a tendency to progress and is crippling and disabling; and that Mr. Stewart now has a disability of about 25% to his left lower extremities. Also the doctor testified that there was a disk condition resulting from the injury which would make Mr. Stewart prone to herniation. We cannot say that the verdict was excessive in the light of the evidence offered.

III. In his third point appellant insists that there is no substantial evidence to support the jury’s verdict and that the cause should be reversed and dismissed. Prom what we have already stated it is apparent that there is sufficient evidence to support the amount of the verdict, so this assignment goes to the question of whether there is any evidence to show that Mr. Bailey was guilty of negligence. This point was fully covered on the first appeal and the appellant is precluded by the law of the case from again urging this point. In the opinion on the first appeal, we said:

“We think it plain that the issue of Bailey’s negligence involved a question of fact for the jury. Bailey testified that Cossey did not give a signal of any kind. The jury could have found, however, that the signal was actually given and that consequently Bailey was guilty of negligence in failing to observe it and thereby avoid the collision.”

On the present trial the evidence as regards negligence was practically the same as the evidence offered on the first trial; and on the first appeal we held that the question of negligence was for the jury. Under the rule of “law of the case” the appellant is precluded from rearguing the point decided on the first appeal. In Ford Motor Co. v. Fish, 233 Ark. 634, 346 S. W. 2d 469, we said:

“In Hallum v. Blackford,, 202 Ark. 544, 151 S. W. 2d 82, it was insisted that the Court should have directed a verdict. But we pointed out that we had denied that contention on the first appeal and that the plaintiff’s evidence on the second trial was the same as on the first trial; and we said: ‘Under the rule many times announced by this Court, the decision on the former appeal becomes the law of the case on this appeal unless we can say that the testimony on this second appeal is substantially different from that on the first appeal. "We think it unnecessary to attempt to set out or abstract the testimony presented in this record. Suffice it to say, that after carefully reviewing it and comparing it with the-testimony on the first trial, we find no substantial or material difference.’ In Missouri Pacific R. R. Co. v. Foreman,, 196 Ark. 636, 119 S. W. 2d 747, Mr. Justice Donham cited sources of cases on the rule of ‘law of the case’, and concluded with this language: ‘We hold that, since the question as to whether or not the evidence was sufficient to go to the jury in the instant case was settled by this court on the former appeal, there was no error committed by the lower court in submitting the ease to the jury on the second trial.’ ”

Finding no error, the judgment is in all things affirmed.


author: George Rose Smith, J .

text:
    Keck v. Gentry.
    5-3383
    384 S. W. 2d 242
    Opinion delivered November 23, 1964.

      W. Q. Hall, for appellant.

      Dickson, Putman, Millwee S Davis, for appellee.
   George Rose Smith, J .

This is a suit by the appellants, Lester Keck and Ray Bolinger, (a) to obtain a judgment upon a $5,000 promissory note executed by Joseph A. Gentry and (h) to .set aside an assertedly fraudulent conveyance by which Gentry conveyed 680 acres of land to his wife, who is also a defendant. At the close of the plaintiffs’ proof the chancellor sustained a demurrer to the evidence and dismissed the complaint as far as the second count was concerned. The court directed that the case be transferred to law for trial of the cause of action upon the promissory note.

Oil demurrer to the evidence we view the proof in the light most favorable to the plaintiffs. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. It is enough to say that the testimony, when so considered, shows that Gentry is indebted to the plaintiffs upon the note and that, while so indebted, he conveyed the land to his wife for a recited consideration of one dollar.

Although the complaint alleges that the purpose of the conveyance was to defraud the plaintiffs and to prevent the collection of the note, it is not specifically alleged that the conveyance rendered G-entry insolvent. For this reason the chancellor sustained -an objection to the plaintiffs’ offer to prove that Gentry had admitted being “broke.” In sustaining the demurrer to the evidence the chancellor held that a prima facie ease for setting aside a fraudulent conveyance cannot be made without an allegation and proof of the debtor’s insolvency.

We think the court fell into error. We have often held that when a person who is in debt makes a voluntary conveyance to a near relative, such as his wife, the transfer is presumed to be fraudulent, and if the debtor’s condition proceeds to the point of insolvency the presumption becomes conclusive. Brady v. Irby, 101 Ark. 573, 142 S. W. 1124, Ann. Cas. 1913E, 1054; Dereuisseaux v. Bell, 238 Ark. 60, 378 S. W. 2d 208. These plaintiffs proved that Gentry owed a substantial sum of money and that he conveyed 680 acres to his wife. That proof was sufficient to make a prima facie case, shifting to the defendants the burden of going, forward with the evidence. To require the plaintiffs also to prove either thát G-entry received no consideration for the deed or that the transfer left him without sufficient assets to pay the promissory note would be an unsound rule, not only because it would compel the plaintiffs-to shoulder the difficult burden of proving the negative but also because the missing information lies peculiarly and exclusively within the knowledge of the defendants. It is mainfestly fair that they be required to develop this aspect of the controversy.

In this court the appellées have not even argued the merits of the appeal. They merely insist that the order dismissing- the seceond count in the complaint is not appealable. We cannot agree with this contention. The order is a final disposition of the creditors’ effort to set aside the conveyance. Had the plaintiffs acquiesced in the order by going to trial in the circuit court upon the other count in the complaint their right to attack the conveyance later on would have been foreclosed by the doctrine of res judicata.

The decree is reversed and the cause is remanded for further proceedings.


author: G-eorge Rose Smith, J.

text:
    Baber v. Hicks.
    5-3386
    384 S. W. 2d 267
    Opinion delivered November 23, 1964.
    [Rehearing denied December 21, 1964.]

      James H. Pilkington, for appellant.

      W. 8. Atkins, for appellee.
   G-eorge Rose Smith, J.

For at least eighteen years the appellants, the W. T. Babers, and Annie Lurane Christian were close friends. From time to time during those years Mrs. Christian lived in the Babers’ home at Ozan and later at Hope. This case concerns a conveyance that Mrs. Christian made to the Babers on August 8, 1962. By this deed Mrs. Christian conveyed 187 acres of land to the Babers in consideration for their promise to take her into their home and support her for the rest of her life. In the deed Mrs. Christian reserved a life estate in the land, which had produced an income of about $800 a year.

After the execution of the deed in August the parties lived together in harmony until Mrs. Christian accepted an invitation to visit relatives in Tennessee and Virginia at Christmas. That visit eventually proved to he so extended that Mrs. Christian never returned permanently to Arkansas. In May, 1963, Mrs. Christian’s niece, the appellee Myrna Hicks, obtained an appointment in Virginia as Mrs. Christian’s guardian, admittedly with a view to bringing this suit to set aside the deed for undue influence and mental incapacity.

After an extended trial the chancellor directed that the deed be canceled.. In reviewing the record de novo we are concerned only with an issue of fact. In our opinion the decree is against the weight of the evidence, which we summarize in sufficient detail to explain our decision. The issues of undue influence and mental weakness blend together, as they usually do in cases of this kind; so we will not attempt to discuss them separately.

Mrs. Christian was 79 years old when she executed the deed. Her husband had died in 1937. Her only child, a son, died in 1945. After her son’s death Mrs. Christian lived in the Babers ’ home for about two years, and their friendship continued thereafter.

During her widowhood Mrs.’ Christian was self-supporting. In addition to looking after the property that she and her husband had owned she worked as the bookkeeper for a cotton gin .company and served efficiently as the city treasurer of Ozan. Her employment in both capacities lasted until a few months before she executed the deed to the Babers. For a year or more before that time Mrs. Christian had occupied her own home in Ozan.

A month or so before the execution of the deed Mrs. Christian returned to the Babers’ home in Hope, apparently because of ill health attributable to the growth of a goiter. The goiter was removed on July 19. Upon leaving the hospital Mrs. Christian resumed her residence with the Babers and remained with them until she went to visit her relatives at Christmas.

The deed was executed oil August 8. It was prepared by Mrs. Christian’s own attorney, O. A. Graves, whose high character is not questioned by the appellee. The contract for life-time support does not appear to have been a short-sighted arrangement from Mrs. Christian’s point of view. The land was worth only about $22,000. Under the terms of the deed Mrs. Christian not only obtained the assurance of a permanent home with friends of long standing; she also reserved to herself the income from the land for the rest of her life. The chancellor, in his written opinion, gave some emphasis to the thought that under the contract Mrs.- Christian would be required to pay her own-medical expenses, but we can find no provision to this effect in the deed or elsewhere in the proof.

On the issue of mental incapacity the appellee offered much testimony to show that from about 1961 Mrs. Christian had been very nervous and had suffered a marked loss of weight. It does not appear, however, that these infirmities seriously affected her ability to manage her own affairs. Between the execution of the deed in August and her departure from Hope in December Mrs. Christian continued to drive her own car and to look after her own affairs. She renewed leases with two tenants for the coming year, took care of the insurance upon her car, and negotiated the sale of her home in Ozan. It is especially significant that although Mrs. Hicks, the appellee, insists that her aunt was incompetent in August of 1962, Mrs. Hicks herself renewed Mrs. Christian’s Arkansas driver’s license in the following February and completed the sale of the Ozan house under a power of attorney executed by Mrs. Christian in March. If Mrs. Christian was incompetent to enter into a contract with the Babers in August it is difficult to believe that- she was competent to give Mrs. Hicks a power of attorney seven months later.

The medical evidence is pretty well balanced. Two physicians who had examined Mrs. Christian for the purpose of testifying in the case were of the opinion that she was not of sufficient mental capacity to execute the deed. Her own doctor, however, who had treated her both before and after the deed was signed, expressed the opposite opinion. It is also shown that Mrs. Christian was confined to the State Hospital for two short periods after her husband was killed in 1937, but the proof does not establish any permanent impairment of her mind. In fact, she testified at the trial in much detail, .with no indication of incoherence. W'e are not impressed by her statement that Mrs. Baber persuaded her, to enter into the contract for support by representing that she alone could keep Mrs. Christian from being confined again to the State Hospital. This rather improbable suggestion is really the appellee’s principal basis for arguing that there was an exertion of undue influence.

Upon the record as a whole we are persuaded that Mrs. Christian’s dissatisfaction with her contract is the result not of its invalidity in the first instance but of a change of mind, on her part after she left the Babers’ home. In setting aside the chancellor’s decree we recognize, of course, that Mrs. Christian is still entitled to make her home with the appellants in accordance with the terms of the agreement.

Reversed.

McFaddin, J., not participating.


author: Paxil Ward, Associate Justice.

text:
    Cowling v. City of Foreman.
    5-3463
    384 S. W. 2d 251
    Opinion delivered November 23, 1964.

      Johnson S Johnson, for appellant.

      Byron Goodson, Rose, Meek, House, Barron, Nash & Williamson .by: George E. Campbell, for appellee.
   Paxil Ward, Associate Justice.

This litigation stems from the proposed construction of a new sewer system (and repairs to the existing water system) for Foreman — -a city of the second class with a population of about 1,000 people.

The City Council of Foreman applied for and obtained grants-in-aid from the United States in the total amounts of $108,993.00. It was contemplated that these grants would be supplemented by funds to be raised by issuing sewer revenue bonds pursuant to the terms of Act 132 of 1933. So, on May 18, 1964 the city council passed two ordinances. Ordinance No. 71 provided for the construction of a modern sewer system and for improvements to the existing water system. Ordinance No. 70 fixed rates to be charged for said services.

Upon a petition being filed by certain citizens the city council, on June 15, 1964,' ordered a referendum on both ordinances, and fixed June 23, 1964 as the date of the election. On June 16 the election commissioners issued election notices which were promptly and properly posted by the sheriff, and a notice was published June 18 in The Foreman Sun, a weekly newspaper- published in the City of Foreman. Ordinance No. 70 was approved by a vote of 158 to 154, and No. 71 was approved by a vote of 174 to 150.

After the election certain residents, property owners and qualified electors filed two identical suits against the mayor and recorder of Foreman and also the county election commissioners. One suit was filed in the circuit court, but has been dismissed. In this suit, filed in chancery court, it was alleged that “notice .. . was not published for the time in the manner and form required by law”; that if proper notice had been given there would have been a much larger vote cast; and, that consequently many qualified electors had been deprived of their rights to vote. The prayer was that the said election be set aside, and that the certificate of the election commissioners certifying the results be cancelled and set aside. Later the complaint was amended to allege: many people who would have voted against the ordinances did not know of the election date and therefore did not vote; that many electors who owned real estate in Foreman which was being subjected to a tax lien would have voted against the ordinances hut had no chance to do so; and, that “numerous irregular ballots” should not have been counted, particularly in boxes 1-2-3.

To the above complaint and amended complaint the city and election commission filed a general denial. The matter was submitted to the chancellor upon the pleadings, exhibits, stipulations and testimony. The trial court refused the relief prayed for, and this appeal follows. Appellants here seek a reversal on three separate grounds which we will now discuss.

One. We find no reversible error in the refusal of the trial court to grant a continuance. The suit was filed July 4, 1964 and the decree was rendered on July 31, 1964. Appellants complain that they should have been given time to take the depositions of eleven of their witnesses who did not appear to testify although a subpoena was issued for each of them. It is well settled that the matter of a continuance in á case of this nature rests in the sound discretion of the trial court. McMorella v. Greer, 211 Ark. 417, 200 S. W. 2d 974. It is also the well settled rule that the party seeking a continuance must, among other things, show due diligence. In applying the above rules to this case it is deemed sufficient to make only a brief reference to the facts. One witness was in Virginia and it was not shown that she was interested in the result of the litigation; In the ease of two absent witnesses no effort was made to send them an absentee ballot; The court found that two witnesses knew of the election and presumably could have voted. As to two witnesses the court counted their votes against the ordinances; Two witnesses lived and worked in Minnesota, and another lived and worked in Odessa, Texas, and the court was not convinced they were qualified to vote in the City of Foreman. Under the above state of the record we are unwilling to say the trial court abused its sound discretion.

Two. Likewise, we are unwilling to say, under the facts of this case, that the election was invalidated (as urged by appellants) because appellees failed to comply with Ark. Stat. Ann. § 3-804 (Bepl. 1956) which reads:

“Proclamation of place holding election. — It shall be the duty of the sheriff of each county, at least twenty [20] days before each general election, and ten [10] days before the holding of each special election, to give public notice, by proclamation, throughout the county, of the time and several places of holding such elections in this county, and the officers to be elected at such time. ’ ’

For several reasons we are not convinced (though we here make no holding either way) that the above section of the statute is applicable in this case. The statute mentioned was originally Section 8 of an Act approved January 23, 1875. This act contained 102 sections and it is designated a “general election law” relating to “all elective state, county and township officers whose term of office is fixed by the constitution at two years.” A consideration of the entire act indicates that Section 8 (3-804) was to apply when it became necessary to fill a vacancy occurring in one of the offices above mentioned. It is unreasonable to think Section 8 (passed in 1875) was intended to apply to a city ordinance referred to the people under an amendment passed 45 years later. If any doubt exists as to the applicability of § 3-804 to this case it is erased by Act 218 of 1963 which deals specifically with the referral of a city ordinance, and which states that “the procedure shall be that as required by Amendment 7 to the Constitution of the State of Arkansas.” Appellants have not pointed out, nor are we aware of, any language in said amendment (or in any legislative enactment based thereon) which requires any specified number of days notice of an election on the referral of a city ordinance.

However, irrespective of what we have heretofore said, we think the trial court was justified in refusing to cancel and nullify the election, under the facts disclosed by the record. It is not disputed that there was a thorough job of publicizing the election for at least eight days. Posters were circulated and posted, and a notice was carried in the town paper the week before the election was held. The evidence is undisputed that a record number of votes were cast in this particular election. In a town the size of Foreman (1,000 population) it is difficult to believe many (if any) people did not know of the election and of the issues involved. We think the language used in the case of Hildreth v. Taylor, 117 Ark. 465, 470, 175 S. W. 40, 41 is decisive of the issues here. This Court, in considering the sufficiency of the notice of an election at which an amendment to the constitution was adopted, said:

“The authorities on this subject are not entirely harmonious. This court is, however, committed to the rule, which is in accord with the great weight of authority, that, so far as concerns elections of officers, the failure to perform any duty such as giving notice does not deprive the electors of the right to choose public officials. In Wheat v. Smith, 50 Ark. 266, 7 S. W. 161 Chief Justice Cockrill, speaking for the court, said: ‘The right to hold the election in such cases comes from the statute, and the notice required to be given thereof is only a reminder to the people of what the law has otherwise provided. An omission to publish the statutory notice of the election does not, in such cases, affect its validity.’ ”

The Court then went on to explain that the rule applied not only to election of “officers” but to other elections.

Also, it is pointed out that appellants knew the election was called for June 23 and that only eight days notice would or could be given, yet no attempt was made to stop the election or postpone the election date. Since appellants waited until the election was held and the result announced, they are faced here with the rule well established by this Court which is concisely stated in McKenzie v. City of DeWitt, 196 Ark. 1115, 1118, 121 S. W. 2d 71, 73.

“In fact, it has been held that all the provisions of election laws are mandatory if enforcement be sought prior to the holding of the election, but, after the election, the rule is different, and those provisions will ordinarily be held as directory only in support of the result. Of course, there may be some special provision of the statute in which it may be declared that some act is essential to the validity, or that some omission might make void an election, but the general rule must be that after the election shall have been held, general provisions must yield in order to support the result of the election. It was so held in Jones v. State, 153 Ind. 440, 55 N. E. 229. That holding has been cited with approval by this court, and, so far as we have been able to discover the doctrine has been uniformly adhered to. Wallace v. Kansas City So. Ry. Co., 169 Ark. 905, 279 S. W. 1.”

See also the recent case of Davis v. Waller, County Judge, 238 Ark. 300, 379 S. W. 2d 283.

Based oil the record as a whole we are nnable to say the weight of the evidence shows the result of the election would have been any different if it had been advertised a few days longer. Therefore we must affirm the trial court on this point. See: Hildreth v. Taylor, supra.

Three. We-find no merit in appellants’ contention the trial court erred in refusing to allow them to recount the ballots in certain boxes. They totally failed to follow the statutory procedure to secure such relief. See: Ark. Stat. Ann. § 3-1012 (Repl. 1956) and Wooten v. Fielder, 194 Ark. 72, 105 S. W. 2d 547.

It is therefore our conclusion that the decree of the trial court should be, and it is hereby, affirmed. Appellees, having perfected this appeal under the provisions of Ark. Stat. Ann. § 27-2128 (Repl. 1962), are entitled to their costs including the cost of the record.

Affirmed.


author:
      Sam Robinson, Associate Justice. Harris, C. J. and Ward, J.,
     Carleton Harris, Chief Justice

text:
    Barkis v. Bell.
    5-3365
    384 S. W. 2d 269
    Opinion delivered November 23, 1964.
    [Rehearing denied December 21, 1964.]

      Wootton, Land & Matthews, for appellant.

      Richard W. Hobbs, for appellee.
   Sam Robinson, Associate Justice.

On the 22nd day of April, 1963, appellee herein, Linda Bell, filed suit in the Garland Circuit Court asking for jugment in the sum of $60,000 for personal injuries alleged to have been suffered by her in an automobile accident due to the negligence of appellant herein, Bruce Barkis. Within the statutory time, Barkis filed a motion for additional time to answer. The motion was granted. Before the allotted time expired, Barkis filed a second motion for additional time; again the motion was granted. The time to answer, as extended, expired June 10, 1963. On that day Barkis filed Answers to Interrogatories which had been filed with the Complaint. Two days later, on June 12, the attorney for the plaintiff called the attention of Barkis’ attorney to the fact that the record did not show an answer had been filed. The attorney for Barkis immediately, on June 12, filed an answer. It was a general denial.

About six months later, on January 29, 1964, the plaintiff, Linda Bell, filed a motion to strike the answer on the ground that it had not been filed within the time allowed by law. In response to the motion to strike, one of the attorneys for defendant — appellant—filed an affidavit in which he stated: “On June 10, 1963, in the afternoon, I went to the office of the Circuit Clerk in the Garland County Court House and took with me several files, among these being the file in this case. In the file at that time were originals and a number of copies of both the Interrogatories and the Answer. I went to the office of the Circuit Clerk in the Garland County Court House and at that time delivered to one of the deputy clerks the original of the Answers to the Interrogatories and also the Answer to the plaintiff’s Complaint. These pleadings were taken by the deputy clerk. ’ ’

In reply, appellee filed an affidvavit of a deputy in the Circuit Clerk’s office in which she stated: “At approximately 4:20 p.m., very close to our closing time, on June 10, 1963, Mr. Richard H. Wootton appeared at the office of the Circuit and Chancery Clerk and he handed me certain Answers to Plaintiff’s Interrogatories in this case to be filed. Answers to the Interrogatories was the only thing he handed to me and asked to be filed. He did not hand me any Answer or pleading with respect to this case at that time.”

The trial court granted the motion to strike the answer, and rendered judgment for the plaintiff subject to the right of defendant to contest the amount of damages.

In Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439, and Pyle v. Amsler, 227 Ark. 785, 301 S. W. 2d 441, ive held it Avas mandatory that the Circuit Court render judgment for the plaintiff Avhere an ansAver was not filed in the time prescribed by statute. Subsequently there became effective Act 53 of 1957, Ark. Stats. Ann. § 29-401 (Repl. 1962), which provides: “Judgment by default shall be rendered by the Court in any case Avhere an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, . . . that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon shoAving of excusable neglect, unavoidable casualty or other just cause.”

In Fitzwater v. Harris, 231 Ark. 173, 328 S. W. 2d 501, and Easley v. Inglis, 233 Ark. 589, 346 S. W. 2d 206, we construed the foregoing statute as giving the court authority to set aside a default judgment for any one of three reasons: (1) excusable neglect, (2) unavoidable casualty, (3) other just cause. Although, no doubt, an answer in the ease at bar was not filed on June 10, surely the failure of counsel for defendant to file it at that time, in the circumstances shown, is covered by one of the causes for setting aside a judgment enumerated in the foregoing statute.

In addition to counsel’s testimony that he took the answer to the court along with the Answers to the Interrogatories to file in the case and thought he had filed it, he is corroborated by the circumstances. In the .first place, it is not likely that counsel Avould have made the trip to the court house to file the Answers to the Interrogatories Avithout taking the AnsAver to the Complaint along to file it. It was very short — a general denial. Furthermore, when counsel for the defendant was informed two days after the Answer was due that it had not been filed in court, he found copies of it in his file, but the original was not there. Evidently it Avas lost, and in filing the Answers to the Interrogatories counsel was under the impression that he had also filed the answer to the complaint. In these circumstances we believe that it would be within the letter and spirit of Ark. Stats. Ann. § 29-401 (Repl. 1962) to set aside the default judgment.

Reversed.

Harris, C. J. and Ward, J.,

(dissenting). It is not entirely clear on Avhat ground the majority opinion is based. It is indefinite in that it reverses the trial court for one of three reasons Avithout specifying any particular reason. Nevertheless, for reasons hereafter set out, I am unable to agree Avith the result reached by the majority.

1. The decision of the trial court was based on appellee’s motion to strike appellant’s answer which (as conceded by the majority) was filed two days late. That is the order from which appellant prosecutes this appeal. Appellant did not at any time ask the trial court to set aside the default judgment. That being true, the issue cannot be considered on this appeal according to the uniform decisions of this Court every time the question has been raised. A few citations should suffice. In White v. Moffett, 108 Ark. 490, 497, 158 S. W. 505, we said: “The case can not be tried here on an issue not raised below.” Bank of Pangburn v. Tate, 147 Ark. 292, 296, 227 S. W. 389: “Parties can not treat an issue as joined by the pleadings, and, after trying it out, raise the question for the first time on appeal ...” Holloway v. McArthur, 224 Ark. 461, 463, 274 S. W. 2d 474: “It is sufficient to say that waiver Avas not an issue in the trial court and may not be raised for the first time here.” Fine v. City of Van Buren, 237 Ark. 29, 34, 371 S. W. 2d 132: “We are without authority to grant relief which was not sought in the court below.”

2. Similarly, the majority has completely ignored another firm rule of this Court. Set out below are the exact points copied from appellant’s brief:

I.
“The Court’s Order striking appellant’s Answer and granting a default judgment was improper because appellant, within the time prescribed by Statute and by Court Order, entered his appearance and filed pleadings in the cause.
II.
“The appellant’s Answer ivas actually filed within the time authorized by the Court.”

Rule 9 (c) of the Procedural Rules* of this Court provides, in material parts, as follows: “. . . appellant shall list . . . the points relied upon for a reversal of the judgment or decree.” In appellant’s brief it is not even argued that the trial court erred in refusing to set aside, the default judgment. To the contrary, appellant’s only argument is that his answer was filed in time — an argument which the majority specifically reject — and rightly so. In Campbell v. Beaver Bayou Drainage Dist., 215 Ark. 187, 189, 219 S. W. 2d 934, we said: “Under our well-established holdings, in a civil case all assignments not argued in the briefs are considered to be waived ...” In Connell v. Bobinson, 217 Ark. 1, 4, 228 S. W. 2d 475, we find: “... on this appeal we consider only the alleged errors argued in the brief.” Also, in Cloud Oak Flooring Company v. J. A. Riggs Tractor Co., 223 Ark. 447, 448, 266 S. W. 2d 284, we said: “The appellant argues only two questions in its brief. These are the only points properly presented here.” What I cannot understand is: why the above rule should not apply in this case.

For any one and all the above reasons, I would affirm the judgment of the trial court.

Carleton Harris, Chief Justice

(dissenting). I feel that the majority should make clear the ground on which the Circuit Judge is being reversed. To me. the circumstances, related in the majority opinion, do not constitute unavoidable casualty or excusable neglect. If counsel for appellant had been struck by an automobile, suffered a heart attack, or had been prevented from reaching the courthouse by other comparable circumstances, an unavoidable casualty would have occurred. In Interstate Fire Ins. Co. v. Tolbert, 233 Ark. 249, 343 S. W. 2d 784, a dissent points out an example of what might constitute excusable neglect. Under the theory adopted by the majority in the present case, the attorney evidently lost the answer to the complaint on the way to the courthouse, and this, in my view, does not come within the meaning of the term “excusable neglect.” There was nothing to prevent the attorney from handing the answers to interrogatories and answer to the complaint to the clerk separately, for the purpose of making sure that both had been filed; in fact, I daresay that a large number of attorneys follow this practice when filing divers pleadings. Not only that, but there is no requirement that an attorney wait until the last day to file his answer. The court had given an additional fifteen days for the filing of this pleading, and, as mentioned by the majority, the answer was only a general denial, which, of course, would require but a few minutes to prepare. I do not know just what the term ‘‘ other just cause ’ ’ includes — nor do the majority enlighten me.

The statutes in question (pertinent portions of which are quoted in the majority opinion) permits the trial court to exercise its discretion in determining whether to set aside any default judgment upon a showing “of excusable neglect, unavoidable casualty, or other just cause.”- By reversing the trial court, the majority is holding that the Circuit Court abused its discretion, and further is holding, in effect, that there is no substantial evidence to support the finding of the trial court. To me, it is incomprehensible that, under the circumstances herein, this court can say either that the Circuit Court abused its discretion, or that there was no substantial evidence to support the ruling. Actually, it appears that the majority here has substituted its judgment for that of the G-arland Circuit Court.

May I also add that past precedent is being ignored —and new precedent, I fear, established. Perhaps I should first make plain that I have no reason to think that the attorney here, a member of an honorable and distinguished firm, has prevaricated as to the facts — to testimony without any reservation whatsoever. It may. the contrary, I feel sure that he has not, and I accept his be puzzling, therefore, that I am so concerned with the decision of the majority. The answer is expressed fully in an opinion written by the late beloved Justice Frank Gr. Smith in the case of Byler v. State, 210 Ark. 790, 197 S. W. 2d 748. There, that wise and able jurist said:

“It may be asked therefore, what difference it makes that this relationship existed between the presiding judge and the sheriff? The answer is, ‘Twill be recorded for a precedent and many an error by the same example will rush into the state. It cannot be.’ ”

I am simply addressing myself to the subject of “precedent.”

Under our system of jurisprudence, the trial court has long held the prerogative of passing on the credibility of the witnesses that appear before it. Here, the majority has accepted completely, at face value, the testimony of the attorney, and though I am confident that the trial court’s decision was based entirely on its understanding of the law involved, rather than on a factual basis, i.e., it did not question the accuracy of the testimony presented by the attorney, it should be remembered that this will not be the only case on this subject that will ever come before this court. In fact, the point at issue will likely arise many times in the future. I think that our Circuit Courts should feel free, unhampered and unfettered by any appellate court decision, to pass on the credibility of witnesses — even though such witnesses be attorneys.

For the reasons herein given, I respectfully dissent.


author: Jim Johnson, Associate Justice.

text:
    Palmer v. Palmer.
    5-3317
    384 S. W. 2d 256
    Opinion delivered November 23, 1964.

      Thomas <3 Finch, for appellant.

      Joe P. Melton, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a divorce and custody decree. Appellee Quenton Palmer filed suit for divorce in Lonoke Chancery Court on May 9, 1963, against appellant Dorothy Palmer, alleging indignities and praying permanent custody of the parties’ eight year old daughter. Appellant answered, denying appellee’s allegations and counterclaimed for divorce, alleging indignities, adultery and drunkenness, and that appellee obtained custody of their daughter by removing the child without appellant’s knowledge or consent, and asked, inter alia, for custody and child support. The case was tried September 27, 1963, and the court decreed a divorce. Custody of the child was awarded appellee with the right of visitation to appellant, and appellee was ordered to pay appellant $75.00 and “the following personal property — 1 blanket — 1 cedar chest — 1 table lamp and all of her clothes. Pay her attorney $75.00 as his fee.” Prom the decree comes this appeal.

For reversal appellant contends, first, that the trial court “erred in awarding what amounted to 100% of the property to appellee.” Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides:

“In every final judgment of divorce from the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; ...” The testimony regarding property was conflicting, appellee testifying that he “didn’t know what she [appellant] did with her money” earned during the marriage, and appellant testifying that she helped pay bills and contributed her wages to payment of household expenses and purchases of appellee’s car, furniture and appliances: It was undisputed that appellant owned as her separate property the personalty awarded her by the court. This court said on an identical point in White v. White, 228 Ark. 732, 310 S. W. 2d 216:
“At any rate, considering the fact that the witnesses were before the court, where the chancellor had the opportunity to observe their demeanor and attitude from the witness stand, we are unable to say that the court’s holding was against the preponderance of the testimony, and without so finding, Mrs. White cannot prevail.”

Appellant next urges that the trial court erred in allowing Regina Palmer, age eight, to testify. Ark. Stat. Ann. § 28-601 (Repl. 1962) states:

“All persons except those enumerated herein shall be competent to testify in a civil action. The following persons shall be incompetent to testify:
“First: Infants under the age of ten [10] years, and over that age if incapable of understanding the obligation of an oath.”

After appellant’s objection to the child’s testimony, the court permitted appellee to question the child, who was not put under oath. The court was clearly in error in permitting a child under ten to testify in a civil suit. St. Louis I. M. & S. R. Co. v. Waren, 65 Ark. 619, 48 S. W. 222; Beal-Doyle Drygoods Co. v. Carr, 85 Ark. 479, 108 S. W. 1053; Lamden v. St. Louis S. W. Ry. Co., 115 Ark. 238, 170 S. W. 1001; Missouri Pacific R. Co. v. Kellar, 168 Ark. 626, 271 S. W. 7. On appeal, however, chancery cases are tried de novo on the record before us and all incompetent testimony is excluded. Rutherford v. Casey, 190 Ark. 79, 77 S. W. 2d 58. Recounting the indelicate testimony would add no merit to this opinion. Suffice it to say that there was more than sufficient competent testimony on which the chancellor could find that appellee was entitled to a divorce and, further, on which the court could — and did- — -grant appellee custody of the minor child of the parties.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Griffin v. Moon.
    5-3347
    384 S. W. 2d 243
    Opinion delivered November 23, 1964.

      Smith, Sanderson, Stroud & McClerkin, for appellant.

      Lowe, Moore & Webber, for appellee.
   Frank Holt, Associate Justice.

This case requires the interpretation of a will. The appellees instituted an action against the appellants seeking specific performance of their written agreement to purchase certain realty. The appellants’ refusal to purchase was based upon their assertion that appellees did not have a merchantable title because of the ambiguous terms in a will devising the property to the appellees. The chancellor decreed specific performance of appellants’ contract to purchase the lands. On appeal appellants’ sole contention is that the trial court erred in finding that appellees’ title to the land in question is marketable.

The. appellants argue that the correctness of the decision of the chancellor depends upon the construction of a portion of the will which reads as follows:

“I give all the residue of my estate comprising a farm of twenty-four (24) acres and one lot, where I now reside, in Miller County, State of Arkansas, after fulfilling the foregoing legacies, to my wife, with the remainder thereof on her decease or marriage, to my said children and their children, respectively, share and share alike. ’ ’

The testator was survived only by his widow, Maggie J. Moon, and his four sons, Ivor, Erbert, Loy and Fred Moon. These parties and the wives of the four sons are the appellees. The testator’s widow is living and has never remarried. , Each of his sons now has children, however, his sons had no children when the testator died. The appellants reject the title as unmarketable upon the contention that the remainder interest does not finally vest in the testator’s children until the death or remarriage of the life'tenant, the testator’s widow. Further, that the testator’s grandchildren, born and unborn, eventually would be entitled to an interest as remainder-men. We do not agree with the appellants and find no merit in either contention.

The real issue to be determined is whether the testator’s four sons, the appellees, took a vested or contingent remainder upon the death of their father. If they took a vested remainder, then they can join with their mother, the life tenant, and convey a merchantable title; if they took only a contingent remainder, then they cannot. Greer v. Parker, 209 Ark. 553, 191 S. W. 2d 584. We are of the view that the questioned provisions of the will created a vested remainder in the testator’s sons upon his death.

In the early case of Booe v. Vinson, 104 Ark. 439, 149 S. W. 524, we said:

“It is also a well established principle that the law favors the vesting of estates, and, in the absence of a contrary intention of the testator appearing from the will, the estate will vest at the time of his death,- and, if a will is susceptible of a dual construction, by one of which the estate becomes vested and by the other it remains contingent, the construction which vests the estate will be adopted.”

In McKinney v. Dillard & Coffin Co., 170 Ark. 1181, 283 S. W. 16, the devise involved principles applicable to the case at bar. In that case the father devised realty to his daughter for her natural life and at her death the lands were devised to her children in equal portions and if at the time of her death ‘ any of her children be dead, leaving children, then such child or children is to have the same, interest in said lands that said parent would have had, if alive.” In that case we held that the remainder vested in the daughter’s children as soon as born and before the death of the daughter. Further, that such vested interest, upon partition of. the lands by the consent of the life tenant and vested remaindermen, was subject to a valid and enforceable mortgage. See, also, Jenkins v. Packington Realty Co., 167 Ark. 602, 268 S. W. 620, and Black v. Bailey, 142 Ark. 201, 218 S. W. 210.

In tbe very recent case of Gibson v. Lowry, 235 Ark. 234, 357 S. W. 2d 531, we held that where a will gave a life estate to the testator’s mother and stepfather and provided that at their death the farm should vest absolutely in the testator’s brother, a vested remainder and not a contingent remainder was created in the brother. There we said that the interest vested ‘ ‘ at the same instant and by the same grant as the life estate” and that although “the enjoyment of the possession of this interest was postponed until the termination of the life estate, still this right, * * * was presently fixed, and was in no wise dependent upon the happening of any event. McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387.”

Thus, in the case at bar, appellants ’ contention that under the terms of the will the remainder is not vested in the testator’s four sons until the death or remarriage of the life tenant is without merit. We hold that the testator’s four sons now have a vested remainder and it is not subject to the happening of any future event. Their remainder interest vested at the same time that the life estate vested. See, also, Landers v. People’s Building & Loan Assn., 190 Ark. 1072, 81 S. W. 2d 917, and Steele v. Robinson, 221 Ark. 58, 251 S. W. 2d 1001.

It is well settled that where both the life tenant and vested remaindermen join in a deed the entire estate in fee is passed to the grantee. Therefore, it follows that in the case at bar a deed by the appellees conveys a merchantable title.

The decree of the chancellor ordering specific performance of the contract is affirmed.