author: Darrell Hickman, Justice.

text:
    THURSTON NATIONAL INSURANCE COMPANY v. Darrell K. HAYS and Joann HAYS
    76-211
    544 S.W. 2d 853
    Opinion delivered January 10, 1977 (Division II)
    Putman, Davis & Bassett, for appellant.

      Creekmore & Harriman, for appellees.
   Darrell Hickman, Justice.

On April 15, 1975 the Appellees signed an Offer and Acceptance Agreement to purchase two houses for a total of $20,000.00. The Offer was accepted on the same date. The Appellees made a down payment of $150.00, and the balance was to be paid in cash. The Agreement was silent as to the date the property was to be transferred. The Offer and Acceptance Agreement contained a clause that the risk of loss until the closing date was assumed by the seller. On April 23rd the Appellees purchased from the Appellant fire and extended insurance coverage on each house in the amount of $11,000.00. On April 30th one of the houses burned to the ground. The Appellant declined to pay the claim.

The sole issue submitted to the Court, by stipulation, was whether or not the Appellees had an “insurable interest” in the property at the time of the fire. The lower court held that the Appellees did have an insurable interest and awarded judgment in the sum of $10,950.00, plus 12% statutory penalty and $4,000.00 attorney’s fee.

The Appellant contends that the Appellee did not have an insurable interest at the time of the loss and that the $4,-000.00 attorney’s fee was excessive and should be reduced.

An insurable interest has been defined in Arkansas by the Legislature in Ark. Stat. Ann. § 66-3205 (2) (Repl. 1966).

“Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety of [or] preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.

It is undisputed that the Appellees paid $150.00 towards the purchase price of the property. Also, the Appellees had, on its face, a legal, enforceable contract.

The record contains no evidence that the Appellees made a material misrepresentation to the Appellant insurance company.

In the case of Briscoe v. National Union Fire Insurance Com pany, 248 Ark. 220, 451 S.W. 2d 205 (1970), the Court ruled on a similar problem and held that the insurance company was not liable. However, in the Briscoe case, there was a finding that the claimant suffered no actual loss of cash or property.

The Arkansas Statutes clearly state that an insurable interest means any actual, lawful, and substantial economic interest in the property.

In the absence of misrepresentation or fraud, and based on the facts that are recited, the Appellees clearly had an insurable interest.

The attorney’s fee is approximately one third of the amount of the judgment and is found to be reasonable. No additional fee will be allowed on appeal.

Affirmed.

We agree: Harris, C.J., and Fogleman and Roy, JJ.


source: Caselaw Access Project

author: George Roce Smith, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Roy Lee DIXON v. STATE of Arkansas
    CR 76-164
    545 S.W. 2d 606
    Opinion delivered January 10, 1977 (In Banc)

      Kenneth C. Coffelt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Roce Smith, Justice.

At a bifurcated trial the jury first found the appellant, Roy Lee Dixon, guilty of possession of heroin with intent to deliver, as charged. The jury then found Dixon to be a habitual criminal, with three previous felony convictions, and imposed a 40-year sentence. The principal question is whether there is sufficient evidence to support the finding that Dixon intended to deliver the heroin that was found in his possession.

The witness Andol testified that after having pleaded guilty to a drug charge he volunteered to assist undercover officers in making a purchase of heroin from Roy Lee White (not the same person as the appellant, Roy Lee Dixon), who was apparently known to Andol as a seller of drugs. Andol supplied White’s telephone number to an officer, who dialed the number with Andol listening in on an extension. When a woman answered, Andol asked to speak to Roy Lee White. Over a defense objection that no foundation had been laid, Andol testified that Roy Lee White came to the phone. Andol arranged for White to bring two $20 bags of heroin to Andol’s motel room at a certain time later in the day.

Andol waited in the motel room, with two officers concealed in the bathroom and a third one stationed outside. White arrived in his car, accompanied by Dixon, whom Andol had never seen before. White and Dixon entered Andol’s room together. White handed two foil packets to Andol, assuring him that it was good “skag,” a slang term for heroin. The two officers then stepped from the bathroom, identified themselves, and placed White and Dixon under arrest.

White submitted, but Dixon ran out the door. The third officer subdued him and brought him back into the room. The officers searched Dixon, finding in his pocket a small match-box containing six tinfoil packets. White asserted that the two packets which he had delivered contained brown sugar, a claim that was verified by chemical analysis.Dixon’s six packets, however, were found to contain 561 milligrams of a substance that was 5.5% pure heroin. The chemist considered that to be an average percentage for (illegal) heroin.

Upon the issue of intent to deliver we must at the outset lay aside the rebuttable presumption that arises from the possession of more than 100 milligrams of heroin. Ark. Stat. Ann. § 82-2617 (d) (Supp. 1975). The statute refers merely to 100 milligrams of “heroin.” Does that mean pure heroin, of which Dixon possessed only 30.855 milligrams, or an adulteration, of which Dixon possessed 561 milligrams?

We must conclude from the statute as a whole that the reference is to pure heroin. In several instances the statute refers to any material, compound, mixture, or preparation that contains “any quantity” of specified prohibited substances (or uses similar language). Four such instances in the statute are § 82-2605 (d), § 82-2609 (b), § 82-2609 (c) (1), and § 82-2611 (b). On the other hand, the rebuttable presumption of an intent to deliver heroin arises only from the possession of more than 100 milligrams of “heroin.” Inasmuch as the draftsmen of this Uniform Act took pains to prohibit traffic in many specified drugs in an adulterated form, we must infer that the omission of similar language with reference to heroin was deliberately selected to exclude such adulterations.

Absent the statutory presumption, we find no basis except speculation for a conclusion that Dixon possessed the small packets of adulterated heroin with the requisite intent to deliver. The telephone call was to White, who arrived with the stipulated two packets of some substance (actually brown sugar) that had been ordered. If the State were contending that Dixon was an accomplice, under the circumstances, in the delivery of the brown sugar, its contention might be supported by our holding in Hartman v. State, 258 Ark. 1018, 530 S.W. 2d 366 (1975). But that is not what the State argues. Instead, it is contended that Dixon, although he uttered not one word from the time he entered the motel room until he was apprehended after his flight, brought six packets of heroin to the motel with the intention of selling two of them to Andol. It may be that such a transaction would eventually have been proposed if the purchasers had somehow discovered that they were being offered brown sugar and had demanded genuine skag. But the officers foreclosed that speculative possibility by emerging from concealment and making the arrests. We are compelled to rule that the proof is insufficient to show that Dixon possessed the heroin with the required intent to deliver.

The appellant next contends that the search of Dixon’s person was illegal, because he was not advised of his “constitutional rights.” Apparently the reference is to a Miranda warning, which the officers asserted they gave before the search. That warning, however, has to do with the right of a suspected person to remain silent. It is not essential to a search. Here the search was proper as an incident to what we hold to have been a lawful arrest, in view of Dixon’s having arrived with White and having fled when the officers appeared. See Graves v. State, 256 Ark. 117, 505 S.W. 2d 748 (1974).

The appellant also states as points for reversal, without any citation of authority and actually without any real argument, that proof of the telephone conversation was not admissible and that the sentence is excessive. In effect the court is asked to research the law and to hold in favor of the appellant if the result of our labor so demands. We must decline that invitation. We adopt the position taken by the Supreme Court of Oklahoma in its own syllabus in Irwin v. Irwin, 416 Pac. 2d 853 (1966): “Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken.”

We come, lastly, to the disposition of the case. The proof does not support the jury’s finding of possession with intent to deliver, but it does support the lesser included offense of mere possession. In this situation we may, depending upon the facts, “reduce the punishment 'to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally.” Clark v. State, 246 Ark. 876, 440 S.W. 2d 205 (1969). We pointed out in Bailey v. State, 206 Ark. 121, 173 S.W. 2d 1010 (1943), that our decision may echo the verdict, as by imposing the minimum punishment for the lesser offense when the jury has imposed the minimum for the greater. In the case at bar the jury found three previous convictions and fixed the penalty at 40 years, or two thirds of the difference between the minimum of 30 and the maximum of 45 years. The range of punishment for a fourth offender, as the jury found Dixon to be, is not less than the maximum for the offense and not more than 1 Vi times that maximum. Ark. Stat. Ann. § 43-2328 (Supp. 1975). The maximum punishment for the mere possession of heroin, a Schedule I drug under the Uniform Act, is 5 years. Section 82-2617 (c). The range of punishment for a fourth offender is therefore 5 to 7 Vi years. We accept the jury’s choice of two thirds of the difference, or 6 years and 8 months.

Accordingly, in harmony with . Bailey v. State, supra, the judgment will be so modified and affirmed, unless the Attorney General elects within 17 days to have the cause remanded for a new trial.

Fogleman, J., dissents. Hickman,J., would remand lora new trial.

John A. Fogleman, Justice,

dissenting. I would affirm the judgment in this case. I agree that there was no statutory presumption of intent to deliver heroin in this case. But the circumstances here are certainly sufficient to afford a basis for a finding that Dixon’s possession was with the intent to deliver. Andol, a drug user, who was held on a felony charge relating to drugs, had the telephone number of White and gave it to a police officer, as that of a dealer in heroin. Andol talked to White and placed an order for “skag” and asked him to deliver it to Room 115 at Days Inn Motel. Andol said that “skag” was a “street term” for heroin. Two black men, one answering a description given the police officers by Andol, pulled into the motel parking lot. Both White and Dixon, both of whom were black, immediately thereafter appeared at the door to the motel room. Although White handed over two packets which actually contained brown cake powder, or brown sugar, after responding affirmatively to Andol’s inquiry whether he had the “junk,” it was Dixon who actually had in his possession what Andol had ordered, who appeared with White in response to that order, and who made a break for the door and had to be subdued in effecting his arrest. The fact that Dixon possessed six packets instead of only two ordered by Andol certainly is not inconsistent with an intent to deliver. A dealer in any commodity hardly ever confines his inventory to the amount required to fill a single order.

If Dixon had no intent to deliver heroin, why did he accompany White to the motel carrying the substance Andol ordered? And why did he leave the vehicle in which the two pulled into the parking lot and accompany White to the room designated for delivery? And why did he run when the police officer appeared? The jury could reasonably\have'drawn the' inferenceuhat'the answer to these questions was that Dixon intended, if all went well, to make the delivery to Andol pursuant to the order placed. The fact that Andol knew White but did not know Dixon is also a circumstance to be considered.

It must be remembered that Dixon is not charged with making a sale or a delivery. He is charged with possession of the drug with intent to deliver.


author: Carleton Harris, Chief Justice.

text:
    STATE of Arkansas v. James R. (a/k/a Sam) BLACK
    CR 76-152
    545 S.W. 2d 617
    Opinion delivered January 17, 1977 (In Banc)

      Jim Guy Tucker, Atty. Gen., by. Jackson Jones, Asst. Atty. Gen., for appellant.

      Harold A. Hall, Public Defender, by: Milton R. Simpson JrDep. Public Defender, for appellee.
   Carleton Harris, Chief Justice.

This is a case of first impression in this state. Sam Black, appellee herein, was incarcerated in the “drunk tank” of the Little Rock city jail with another prisoner, and on February 12, 1976, Officer Gentry, who was employed at the jail, observed Black engaging in oral sex with the other prisoner. The two prisoners were the only ones occupying the “tank” at the time. Black was charged with violation of Ark. Crim. Code § 41-1811 (1976), Public Sexual Indecency, the information charging that the deviate sexual activity mentioned was committed “in a public place or in public view in the Little Rock Police Department Detention Center.” The state filed a motion asking the court to rule on whether the Little Rock city jail is a public place under the statute for the purposes of sexual crimes, before jeopardy attaches, in order that the state might' preserve its right of appeal. On hearing, the court held that the jail was not a public place within the meaning of the statute and dismissed the case. From such order, the state brings this appeal.

Pertinent portions of the statute at issue provide as follows:

(1) A person commits public sexual indecency if he engages in any of the following acts in a public place or public view:
(a) an act of sexual intercourse; or
(b) an act of deviate sexual activity; or
(c) an act of sexual contact.”

Officer Gentry testified that the “drunk tank” is one of the “forward cells,” i.e., near the front of the jail area, and that it is open on the east side. The officer stated that it is directly across the hall from another similar cell which is open on the west side; that the latter cell was being occupied by 10 or 11 people.

The witness said there were two jailers and a supervisor employed at the jail at the time, and that these employees customarily walk up and down the halls. He further stated that prisoners are brought into the jail on an average of about one every two hours and that all customarily will pass by the “drunk cell.” Further, Gentry testified that tours of the jail are conducted for the public from time to time, though these tours are in charge of some official at the jail.

It is argued by appellee that the jail is licensed to only a very few members of the public at one time, and there are no “occasional observers in the city jail that could witness an offense.”

Ark. Crim. Code § 41-1801 (6) (1976) defines “public place” as “a publicly or privately owned place to which the public or substantial numbers of people have access.”

Of course, visitation to a jail by members of the public must necessarily be restricted and subject to supervision by an officer; otherwise, weapons could be brought to prisoners, or, for that matter, some outsider could commit harm to a prisoner.

The case of Bishoff v. The State of Texas, 531 S. W. 2d 346 (Tex. Crim. App. 1976), bears great similarity to the instant case, even to the statute involved. Bishoff was convicted of sodomy, the act occurring in the “drunk tank” of the city jail. The offense was observed by a police officer as he opened the door to the “tank.” Subsequent to the commission of the act, a new criminal code went into effect and Bishoff elected to receive punishment under the new code. The court stated:

“He was convicted of the old Code offense of sodomy, and his election for punishment under the new Penal Code only made it necessary for the trial judge to determine from the proof which of the applicable sections of the new Code to apply. Both Secs. 21.06 (homosexual conduct) and 21.07 (public lewdness) replaced 'the old sodomy statute. Since the proof showed that the act of deviate sexual intercourse look place in a public place, (our emphasis), the court did not err in assessing punishment as a Class A misdemeanor under the provisions of said Sec. 21.07.”

Summarizing, what is a public place? Primarily, the circumstances must be considered. While the fact situation was different, the language of the Maryland Court of Appeals in the indecent exposure case of Messina v. State, 212 Md. 602, 130 A. 2d 578, we think, succinctly answers the question asked. There, the court said:

“An exposure is ‘public,’ or in a ‘public place,’ if it occurs under such circumstances that it could be seen by a number of persons, if they were present and happened to look.”

It is not uncommon for groups of persons to tour a jail, and, according to the evidence in the present case, persons constituting such groups would have no difficulty in seeing acts committed in the “drunk tank;” in other words, if such a tour had been in progress at the time Black committed the act herein set out, he could easily have been observed. Of course, families and friends frequently visit inmates and, as also reflected by the evidence, persons coming into the jail customarily pass the “drunk tank.” As already mentioned, Black and his companion were in plain view of the inmates across from the cell.

It follows from what has been said that the court erred in holding that the offense did not occur in a public place. The judgment is accordingly reversed and the case remanded for further proceedings not inconsistent with this opinion.

Hickman, J., not participating.

      According to Gentry, these people told him that they observed the act between Black and the other prisoner, but, of course, this was hearsay evidence and properly objected to.

      Though involving a police station house, rather than a jail, the observation of the court in the case of People v. Fine, 135 NYS 2d 515, is rather pertinent:
      “As the term suggests a ‘public place’ is a place open to the general public and available for use by the general public without limitation except such as may be required in the interest of safety and good order.”

      V.T.C.A. Penal Code, Sec. 21.07, sets forth the offense of “Public Lewdness” as follows:
      “(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act:
      “(1) an act of sexual intercourse;
      “(2) an act of deviate sexual intercourse;
      “(3) an act of sexual conduct;
      “(4) an act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.”


author: George Rose Smith, Justice.

text:
    James LITVINKO v. Richard E. DOWNING and John E. ROUSSOS
    76-225
    545 S.W. 2d 616
    Opinion delivered January 17, 1977 (Division I)

      Ben J. Harrison, for appellant.

      Glover, Sanders & Parker son, by: J. E. Sanders, for appellees.
   George Rose Smith, Justice.

The question here is whether James Litvinko is entitled to retain the proceeds of two $5,000 certificates of deposit which belonged to his wife, payable on her death to her two adult sons, and which Litvinko, under a power of attorney, cashed during her terminal illness. The chancellor held that the money belongs to the two sons. Our statement of the case is greatly simplified by Litvinko’s candid concession, through counsel, that he violated his fiduciary duty in the transaction.

Mrs. Litvinko had been successful as a business woman before she married Litvinko in about 1963. In February of 1974 they executed similar wills, each leaving his property to the other. About two months later Mrs. Litvinko used her own money to purchase the two certificates of deposit, each being payable on her death to one of her sons.

In May of 1975 Mrs. Litvinko was found to be terminally ill. When she became unable to write her name she executed a general power of attorney in favor of her husband. It authorized him, as her agent, to manage her property, receive money on her behalf, deposit it to her account, and draw checks upon her account — all as might be necessary and expedient. On the same day that the power of attorney was executed Litvinko took the two certificates from the couple’s safety deposit box and cashed them, incurring a $371 prepayment penalty to the issuing bank. Litvinko deposited the money in his own bank account. Mrs. Litvinko died less than two months later. There were other funds available to pay the expenses of her last illness and funeral. This suit was brought by the two sons, for an accounting.

The appellant concedes, and there can be no doubt, that he violated his fiduciary duty, as an agent, in cashing the certificates and depositing the money in his own bank account. In Cardozo’s often quoted words: “A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. ” Meinhard v. Salmon. 249 N.Y. 458, 164 N.E. 545, 62 A.L.R. 1 (1928). Litvinko’s conduct fell far short of that standard.

It is argued, however, that Litvinko could, under the authority of the power of attorney, have cashed the certificates and deposited the proceeds to his wife’s account. Upon her death he would have received the money as the beneficiary of her will. Hence, it is argued, the breach of duty makes no practical difference in the end.

What that argument disregards is the basic premise that an agent’s fiduciary duty requires him to avoid any possible conflict of interest, by acting solely in the best interest of his principal. Had Litvinko cashed the certificates and put the money into his wife’s account in a good faith effort to shield her from hardship or suffering, a different question might be presented. That is not what happened. To the contrary, Litvinko hastened to the bank, cashed the certificates, and tried to make the proceeds his own. His motive was evidently to thwart his wife’s wish that her sons have the certificates. What the chancellor found to have been done in bad faith cannot be condoned upon the supposition that a different course of conduct, pursued in good faith, might have led to the same final result.

Affirmed.

We agree. Harris, C.J., and Byrd and Hoi.t, JJ.


author: John A. Fogleman, Justice.

text:
    Alvin HAZEN et al v. The CITY OF BOONEVILLE, Arkansas et al
    76-44
    545 S.W. 2d 614
    Opinion delivered January 17, 1977 (Division I)

      Wayland. A. Parker, for appellants.

      C. Richard Lippard, for appellees.
   John A. Fogleman, Justice.

Appellants commenced this action by filing their petition in the chancery court on June 25, 1974, as citizens, residents, taxpayers and property owners situated in the Annex to Street Improvement District No. 1 of the City of Booneville. They contended there and here that both the order creating the annex and the assessment of benefits in the annexed territory were void. Appellants state three points for reversal, but all are argued together in appellants’ brief. In it, appellants contend that the failure of the city council to act upon the petition for the annexation within two years allotted by Ark. Stat. Ann. § 20-108 made the council’s ordinance annexing the territory described in the petition and the assessments of benefits thereunder null and void. That section provides that a petition for the creation of a municipal improvement district shall become void unless it has been acted upon within two years from the date of its filing.

The fallacy in appellants’ approach lies in their assumption that § 20-108 applies to petitions for annexation. We find nothing in the language of the statute providing for annexation of territory to a municipal improvement district [Act 280 of 1919, appearing as Ark. Stat. Ann. § 20-134 (Repl. 1968)] indicative of a legislative intent that Ark. Stat. Ann. § 20-108 (§ 3 of Act 64 of 1929 as amended) have any application to an annexation proceeding. Nor do we find anything in Act 64 of 1929 on which to base a finding of such legislative intent.

Appellants also argue that the court erred in granting appellees’ oral motion to dismiss that portion of the complaint alleging the invalidity of the assessment of benefits. The basis of this argument is that the court, in effect, granted a summary judgment, without following the procedures required by Ark. Stat. Ann. §§ 29-205, 29-203 and 29-202 (Repl. 1962). This issue was waived because it was not raised by an objection on this ground in the trial court. We cannot consider it for the first time on appeal. Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403. To the contrary, appellants, insisting that § 20-108 governed, then offered to prove that the record showing that the petitions were filed in 1969 was incorrect and that the petitions were actually filed some two years earlier. Appellants also asked to be allowed to prove all the other allegations of their complaint. The trial court not only heard evidence on one issue, i.e., whether Street Improvement District No. 1 of the City of Booneville was in existence when the additional territory was annexed to it, but it also advised appellants’ counsel that he might make an offer of proof on other issues.

No argument is made in appellants’ brief that the chancellor erred in holding that Street Improvement District No. 1 was “a live, viable street improvement” and that the face of the record disclosed that the attack made by appellants was barred by the applicable statute of limitations, Ark. Stat. Ann. § 20-134 (Repl. 1968). No authority to support appellants’ position on these points is cited. Failure to argue a point constitutes a waiver. See Brockwell v. State, 260 Ark. 807, 545 S.W. 2d 60 (1976). We will not consider assignments of error presented in a brief unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977). We cannot say that it is apparent that these points are well taken. This court accepts as correct the decisions of a trial court which the appealing parties do not show to be wrong. Clemson v. Rebsamen, 205 Ark. 123, 168 S.W. 2d 195.

There is one other matter that we feel compelled to mention because it is recurring too frequently. We note that appellants’ statement of the case consists of ten pages, in spite of the admonitions in Rule 9 (b) that such statements should ordinarily not exceed two pages in length. The statement in this case goes far beyond the requirements of the rule in that it gives a complete history of the entire litigation, recites allegations in pleadings and even contains a verbatim recitation of the dialogue pertaining to, and including, appellants’ offer of proof. Striking the brief would be too severe a sanction in this case. We take this opportunity to call the attention of the bar to the two-page ideal espoused by our rule. We believe that such lengthy statements result from a misconception of their purpose. For a complete statement of that purpose, we refer the bar to an article by Mr. Justice George Rose Smith, appearing in Vol. 15, Arkansas Law Review at p. 357. Adherence to the precepts there expounded will be of material assistance to this court.

7’he decree is affirmed.

We agree. Harris, C.J., and George Rose Smith and Byrd, JJ.


text:
    James M. CAVETTE v. FORD MOTOR CREDIT COMPANY
    76-208
    545 S.W. 2d 612
    Opinion delivered January 17, 1977 (Division II)

      Mike J. Etoch, Jr., for appellant.

      Griffin Smith and W. R. Nixon, Jr., for appellee.
   John A. Fogleman, Justice.

This appeal is from a judgment quashing service of process for improper venue. Appellant Cavette brought suit against appellee Ford Motor Credit Company in the Circuit Court of Phillips County alleging conversion of a 1975 Ford truck, in which appellee had a security interest, by taking it in the nighttime.

Summons was issued, directing the Sheriff of Pulaski County to serve it on appellee by serving The Corporation Company at 620 West Third Street in Little Rock. The return of the Sheriff of Pulaski County recites that it was served by delivering a copy to Jan Zanoff, assistant secretary to The Corporation Company, statutory agent for the service of process. After this summons had been served as directed, appellee filed a motion to quash the service upon the ground that Phillips County was not the proper venue for the action against appellee, a foreign corporation with its only place of business in Pulaski County. The circuit court granted the motion, finding that Ford Motor Credit Company was a foreign corporation, domiciled in Michigan, with its principal place of business at Dearborn, Michigan, but duly licensed to do business in the State of Arkansas; that service was had on appellee’s designated agent for service in Pulaski County; and that appellant had alleged that he was indebted to appellee for the purchase price of the truck.

Both of appellant’s points for reversal rest upon the premise that venue in Phillips County is proper under Ark. Stat. Ann. § 27-608 (Repl. 1962), and for the purposes of this opinion we will assume that there was property of, or debts owing to, Ford Motor Credit Corporation, in Phillips County. Even so, there seems to be no question about the status of Ford Motor Credit Company as a foreign corporation authorized to do business in Arkansas.

We can agree with appellant that, for garnishment purposes, the situs of his debt to appellee could be taken to be in Phillips County under the holding in St. Louis Southwestern Ry. Co. v. Vanderberg, 91 Ark. 252, 120 S.W. 993, cited by appellee. But this fact does not control the venue under our statutes except where service on the defendant is constructive. See Jacks v. Central Coal & Coke Co., 156 Ark. 211, 245 S.W. 483, where this section was invoked by a foreign corporation as fixing the venue in a personal injury action. Appellant argues that Ark. Stat. Ann. § 27-605 (Repl. 1962) fixing venue for a domestic corporation in the county in which it is situated or has its principal office or place of business or in which its chief officer resides is complimented by § 27-608 as to foreign corporations. But this would decidedly differentiate between foreign and domestic corporations as to venue of identical causes of action. Such a differentiation in an Arkansas statute has been held to unconstitutionally discriminate against, and deny equal protection of the laws to, foreign corporations. Power Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S. Ct. 678, 71 L. Ed. 1165 (1927), reversing 169 Ark. 748, 276 S.W. 599. We have continually and repeatedly recognized the impact of Power in our venue statutes. See Chapman & Dewey Lumber Co. v. Bryan, 183 Ark. 119, 35 S.W. 2d 80; Anheuser-Busch v. Manion, 193 Ark. 405, 100 S.W. 2d 672; Crutchfield v. McLain, 230 Ark. 147, 321 S.W. 2d 217; B-W Acceptance Corp v. Colvin, 252 Ark. 306, 478 S.W. 2d 758. In the last case cited we stated the full impact of Power, saying:

*** Consequently, venue cannot constitutionally be laid against such a foreign corporation in any county where the venue would not be proper in a suit against a domestic corporation or a resident individual.

Apparently, we have not otherwise specifically considered § 27-608 in the light of Power, probably because of the Jacks decision and because of Millsap v. Williams, 236 Ark. 416, 366 S.W. 2d 705, where we held it applicable to a corporation not authorized to do business in Arkansas, but did not decide whether, in view of Ark. Stat. Ann. § 27-347 (Repl. 1962), it controlled venue when the foreign corporation has a place of business or office in this state where service of summons may be had. Appellant argues, however, that no other venue statute applies to foreign corporations in actions in personam and that, in spite of Power, the state may make a reasonable classification, even in venue statutes, to adjust its laws to fit particular situations, so long as the classification is not arbitrary, relying upon Kelso v. Bush, 191 Ark. 1044, 89 S.W. 2d 594. But Kelso involved an individual non-resident defendant who had no place of business or domicile at which to fix local venue or by which her status might be compared with that of a domestic corporation or natural person and we found the difference between her situation and that of the foreign corporation in Power to be substantial and controlling. The same rationale might well be applied to a foreign corporation not authorized to do business in Arkansas. But we see no indication that the rule of Power relating to foreign corporations doing business within the state by her permission and having a place of business and a resident agent on whom process may be served does not govern here. According to Power the situation of a corporation authorized to do business in the state is not distinguishable from that of a domestic corporation or individual insofar as venue of transitory actions is concerned.

Furthermore, we do not agree with appellant that there is no venue statute as to actions against a corporation such as appellee in the absence of § 27-608. We have held that venue statutes such as Ark. Stat. Ann. §§ 27-613, 614, 615 are applicable to corporations, both foreign and domestic. Harger v. Oklahoma Gas & Electric Co., 195 Ark. 107, 111 S.W. 2d 485, cert. den. 304 U.S. 569, 58 S. Ct. 1038, 82 L. Ed. 1534; International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W. 2d 504; Mack Trucks of Arkansas, Inc. v. Jet Asphalt & Rock Co., 246 Ark. 101, 437 S.W. 2d 459. However desirable it might seem to construe § 27-608 as appellant would have us do, we must construe it in a manner that would not render it unconstitutional, if reasonably possible to do so. Arkansas Department of Labor v. American Employment Agency, 257 Ark. 509, 517 S.W. 2d 949; Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 719; Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634. To construe the act as appellant does would render it unconstitutional under Power. We must therefore adhere to the position that this statutory provision does not fix venue where a foreign corporation is authorized to do business in Arkansas.

The judgment is affirmed.

We agree. Harris, C.J., Roy and Hickman, JJ.

      Dictum in this case which indicates that a foreign corporation might have been sued in a county in which it had property or there were debts owing to it should be disregarded, insofar as it may be taken to indicate that venue may be laid under it in an action in personam against such a corporation which has been authorized to do business in Arkansas. There is also dictum in Pacific Insurance Company of New York v. Droddy, 240 Ark. 535, 400 S.W. 2d 673 which should not be considered as authority for venue in actions such as this.


text:
    William R. GROOMS v. STATE of Arkansas
    CR 76-185
    545 S.W. 2d 610
    Opinion delivered January 17, 1977 (Division II)

      Robert R. White and W. R. Riddell, for appellant.

      Jim Guy Tucker, Atty. Gen., by: B.J. McCoy, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

William R. Grooms was charged with burglary and grand larceny in Johnson County on December 23, 1974. The bench warrant was issued that date and served on Grooms in Tulsa, Oklahoma on April 23, 1975. He was released on bail May the first. In July, 1975 he was released to the State of Florida to serve the remainder of a prison sentence. On January the 14th, 1976, shortly before he was to be released from the Florida prison, a detainer was placed on him by the State of Arkansas. He immediately filed a pro se motion to dismiss stating there was no preliminary hearing and that he was denied a speedy trial. On March 11, 1976, his counsel filed a motion to dismiss for denial of a speedy trial. Grooms did not at any time file a request for speedy trial. The court overruled these motions, proceeded to trial and Grooms was found guilty of burglary and grand larceny.

The court’s order overruling the motions is the subject of this appeal.

The first allegation of error is that Grooms was denied a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. The law regarding a speedy trial is set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The four factors in the Wingo case to be considered in determining whether or not an individual receives a speedy trial are “length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant.”

In the recent case of Curan v. State, 260 Ark. 461, 541 S.W. 2d 923 (1976), this court examined in depth the right of a defendant to a speedy trial and the principles set forth in the Curan.case will be applied to this case. There is no evidence that Grooms ever requested a speedy trial or filed a motion of any kind until after a detainer was placed on him in January of 1976.

Furthermore, the Interstate Agreement on Detainers, Ark. Stat. Ann. § 43-3201 (Supp. 1975), to which Florida is a party, requires that a defendant take certain steps to obtain his release or trial. There is no evidence in the record that Grooms prior to January, 1976 ever took any steps to obtain a trial or have the charges dismissed. There is no evidence that he was prejudiced by the delay in any way.

The other error cited-is that Arkansas law requires an accused to be tried within three terms of court. According to Rules of Crim. Proc., Rule 28 (1976), a defendant shall be brought to trial before the end of three full terms of court from the time he is charged, excluding certain periods of delay, as set forth in Rule 28. Rule 28.3 (e) provides that “the period of delay resulting from the absence or unavailability of the defendant” shall be excluded in computing time. In this case, if Grooms was absent or unavailable before his arrest in April, his trial would have been within three terms of court. If the time begins to run from the date charges were filed in December, 1974, he would not have been tried within three full terms of court and, therefore, the charges should have been dismissed.

The sheriff testified that he did not know the whereabouts of Grooms and requested a fugitive warrant from the FBI. The warrant was served in Tulsa, Oklahoma. 'The appellant in his testimony did not really controvert the fact that his whereabouts or availability was unknown to the authorities. Therefore, it is clear that the time in this case runs from the time Grooms was arrested in April.

Affirmed.

We agree. Harris, C.J., and Fooi.kman and Roy, JJ.


text:
    Allen Bruce WOODS v. STATE of Arkansas
    CR 76-165
    545 S.W. 2d 912
    Opinion delivered January 24, 1977 (Division I)
    [Rehearing denied February 28, 1977.]

      Paul Petty, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, charged as a habitual criminal with the offense of armed robbery (committed in a supermarket), was found guilty and sentenced to 25 years’ confinement, plus 7 years for having used a firearm. Four points for reversal are argued.

First, it is contended that Woods was denied his constitutional right to a speedy trial. He was arrested in California on May 27, 1975, and given a preliminary hearing in Arkansas on June 5. The information was filed on July 5, with a public defender being appointed to represent Woods. On November 4 the defendant’s present attorney appeared for him, as retained counsel, and filed a motion for a continuance. The motion asked for additional time for preparation of the case and asserted that the State would not be prejudiced, because the defendant was then confined in the state penitentiary. The motion was granted, and there is no claim of any further delay on the part of the prosecution.

We find no denial of a speedy trial. Woods was tried within the two terms of court formerly allowed by statute, Ark. Stat. Ann. § 43-1708 (Repl. 1964), and within the time now allowed by Rule 28.1 of the Rules of Criminal Procedure (1976). There is no indication that the motion for dismissal was supported by any testimony or that it was even presented to the trial court. The motion itself recited that the defendant, was already in the penitentiary rather than in jail awaiting trial. No prejudice is shown to have resulted from the delay; so the argument is without merit. See Givens v. State, 243 Ark. 16, 418 S.W. 2d 629 (1967), cert. den. 390 U.S. 956 (1968), where the facts supporting the motion were decidedly more favorable to the accused than they are here.

Secondly, the court first submitted to the jury the simple question of guilt or innocence, as the statute requires in habitual criminal cases. Ark. Stat. Ann. § 43-2330.1 (Supp. 1975). Counsel objected, on the ground that the jury would know from the absence of any reference in the verdict form to the punishment that proof of one or more prior convictions would be forthcoming. There was no suggestion, however, as to what alternative action the court should take. The present procedure was adopted by the legislature in 1967, after the issue had been raised in this court in Miller v. State, 239 Ark. 936, 394 S.W. 2d 601 (1965). Following the enactment of the statute we rejected substantially the same argument as that now presented. Henson v. State, 248 Ark. 992, 455 S.W. 2d 101 (1970). That case is controlling here.

Thirdly, after the jury had returned a verdict of guilty, deputy circuit clerks were called as witnesses to read judgments showing six prior felony convictions. Defense counsel objected to the reading of this provision in the first judgment: “It is the further order of the Court that defendant serve one-third of said sentence before becoming eligible for parole.” It is argued that the provision in question had the effect of telling the jury that the defendant might be paroled before the expiration of any sentence imposed by the jury — information that should have been withheld from the jury under our holding in Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971).

In Andrews we did not even intimate that the barest reference to the possibility of parole would be reversible error. Our holding was that the court should not attempt to explain to the jury the law governing the parole system. We adhere to that, view, but no such explanation was attempted here. The challenged clause in the judgment certainly did not tell the jurors anything unknown to them, since it is hardly possible that even one person, much less twelve, old enough to serve on a jury would not know that Arkansas has a parole system. Moreover, the statute provides that the duly certified record of a former conviction “shall be prima facie evidence . . . and may be used in evidence.” Ark. Stat. Ann. § 43-2330 (Repl. 1964). No issue of a constitutional right is involved. Consequently, if the law that makes the record admissible ought to be changed, that argument should be addressed to the legislature, not to the courts.

The remaining point for reversal was not the subject of an objection in the trial court, doubtless because it was without merit.

Affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.


text:
    C. D. COTNER v. INTERNATIONAL HARVESTER Company
    76-232
    545 S.W. 2d 627
    Opinion delivered January 24, 1977 (Division II)

      Jones & Petty, for appellant.

      Bridges, Young, Matthews & Davis, for appellee.
   John A. Fogleman, Justice.

Appellant Cotner sued International Harvester Company seeking to recover damages, alleging breach of warranties of merchantability and of fitness for a particular purpose on the sale of two new large 1972 model International Transtar trucks. He appeals from a judgment based upon a directed verdict in favor of appellee International Harvester Company. Appellant asserts five points for reversal. Since we feel that we must affirm the judgment upon one of these points, even assuming that appellant is correct on all the others, we will discuss that point only. It is:

THERE WAS SUFFICIENT EVIDENCE OF NOTICE GIVEN BY PLAINTIFF, WITHIN A REASONABLE TIME TO DEFENDANT OF THE BREACH OF WARRANTIES TO CONSTITUTE A JURY QUESTION ON THE ISSUE OF NOTICE.

Since we disagree with appellant and agree with the circuit judge on this point, even when we view the evidence in the light most favorable to appellant, appellant had no cause of action against appellee.

A buyer is required to notify the seller of any breach within a reasonable time after the buyer discovers it or he is barred from any remedy. Ark. Stat. Ann. § 85-2-607 (3) (a) (Add. 1961). The trucks were purchased in February, 1972 and delivered in July, 1972. Appellant testified that they ran well and served his purposes until after they had been driven a minimum of 120,000 miles. The first trouble in August, 1973, arose from a problem with air filters. The basis of appellant’s claim, insofar as this appeal is concerned, however, was alleged defects in the flywheel housing and transmissions. The first problem of any significance with the truck, which appellant designates as No. 5, occurred in Ft. Worth on October 29, 1973, when the flywheel housing broke. Repairs were made at appellee’s company store there. It was again repaired in Amarillo, Texas, at the International Harvester store on May 25, 1974. On September 4, 1974, repairs were made in Amarillo at Quality Truck Repair (whiclv does not appear to have had any connection with appellee). This truck was taken into the shop at Razorback International, an independent dealer, in April, 1975. It had then recorded at least 243,000 miles of travel.

The first problem with the other truck, No. 4, arose when the flywheel housing broke in June, 1974 and repairs were made by an independent International Harvester dealer. The next necessity for repair occurred in January, 1975. This was done at R & D Truckers in Pine Bluff. Repairs for piston and crankshaft trouble (problems that were not related to the flywheel or transmission) were done by Razorback International in October, 1974, and again in April, 1975, when it had traveled approximately 240,000 miles. At least a part of this work was done under the warranty.

During the time Cotner was having these problems with the trucks, he admitted that he did not write International Harvester or telephone International Harvester headquarters. He only talked with Mr. King, a salesman, who had sold him the trucks, about replacing them, some time in the give Cotner a better deal. Cotner also talked to the mechanics dependent dealership was established, thinking they would give Cotner a better deal. Cotner also talked to the mechanics at the International store in Pine Bluff about the cause of his flywheel housing problem. He said they didn’t know what was causing it.

Appellant argues that notification was sufficient to meet the statutory requirement because the repairs on truck No. 5 were made in October, 1973 and May, 1974, at International Harvester stores in Ft. Worth and Amarillo, Texas; because he had talked to the salesman for International Harvester in Pine Bluff about trading the trucks because they weren’t doing the job for which he had purchased them; and because he had talked to the mechanics in Pine Bluff about the flywheel housing and transmission problem. He says that since there was a statement on the Owner’s Service Policy that emergency warranty service could be obtained from the nearest International Harvester dealer and that there were more than 3,-000 authorized International truck service centers through 50 states, appellee had notice of the specific problem and undertook its repair. Considered either collectively or individually, we find no substantial evidence of notification in these facts.

It is true that the requirements of notification are not stringent. Notice need only be sufficient to inform the seller that the transaction is claimed to involve a breach and thus to open the way for negotiation of a normal settlement. It must, however, be sufficient to let the seller know that the transaction is still troublesome and must be watched. Comment 4, § 85-2-607. The purpose of the requirement is to enable the seller to minimize damages in some way, such as correcting the defect and to give some immunity from stale claims. L. A. Green Seed Co. of Arkansas v. Williams, 246 Ark. 463, 438 S.W. 2d 717. Ordinarily, the sufficiency of notice is a question of fact for the jury based upon the circumstances. L. A. Green Seed Co. v. Williams, supra.

The intent of the provision, however, is that the seller be informed that the buyer proposes to look to him for damages for breach. Comment 4, Ark. Stat. Ann. § 85-2-607; Anderson, Uniform Commercial Code (2d Ed.) 207, § 2-607.4; Dailey v. Holiday Distributing Corp., 260 Iowa 859, 151 N.W. 2d 477 (1967), The notice must be more than a complaint. It must, either directly or inferentially, inform the seller that the buyer demands damages upon an asserted claim of breach of warranty. Dailey v. Holiday Distributing Corp., supra. In spite of the fact that the question of reasonableness of notice, as to time, form and substance is usually a question of fact, where all the evidence is such that it can lead reasonable minds to only one conclusion as to the sufficiency of notice, the question presented is one of law to be resolved by the court. Dailey v. Holiday Distributing Corp., supra. Where a manufacturer or seller is never advised of a claimed breach of implied warranty or that the buyer is looking to it for compensation or reimbursement, there is not a notification sufficient to hold the manufacturer or seller liable. Dailey v. Holiday Distributing Corp., supra; Lynx, Incorporated v. Ordnance Products, Inc., 273 Md. 1, 327 A. 2d 502 (1974).

In this case, all indications from the skimpily abstracted evidence are that Cotner paid all repair bills relating to the defects of which he now claims, except for the last occasion, when the repairs were done by Razorback International, an independent dealer, which was not even in existence when the sale was made or when most of the problems with these defects were encountered. Conversation with a salesman which appellant himself characterizes as relating to “trading the trucks in” could not be taken to constitute notice, even if we could say that the salesman was a person to whom effective notification could be given. Cotner’s asking mechanics employed by appellee how he could stop the trouble could not constitute notification to the seller. To say the least, in no instance did Cotner ever indicate that he looked to appellee to remedy the situation or to pay any damages. Boeing Airplane Co. v. O’Malley, 329 F. 2d 585 (8th Cir., 1964); Overland Bond & Investment Corp. v. Howard, 9 Ill. App. 3d 348, 292 N.E. 2d 168; and Morris Plan Leasing Co. v. Bingham Feed & Grain Co., 259 Ia. 404, 143 N.W. 2d 404, relied on by appellants, are readily distinguishable on the facts.

The judgment is affirmed.

We agree. Byrd, Roy and Hickman, JJ.

      This truck had previously undergone considerable repairs due to damages suffered in a wreck in June, 1973.

      This truck had also undergone repairs for damages suffered in wrecks in June and September, 1973.


author: Conley Byrd, Justice.

text:
    G. W. HERROD et al v. The CITY OF NORTH LITTLE ROCK
    76-191
    545 S.W. 2d 620
    Opinion delivered January 24, 1977 (Division I)

      Matthews, Purtle, Osterloh & Weber, by: John I. Purtle, for appellant.

      Sam Hilburn, City Atty., for appellee and cross-appellant.
   Conley Byrd, Justice.

The City of North Little Rock, by Ordinance #4453, sought to annex seven separate tracts of lands lying in Pulaski County which it denominated Tracts A, B, C, D, E, F and G. The Election Commission submitted the matter to a vote at the 1974 General Election on the sole issue of “For Annexation” or “Against Annexation” so that it was a take all or leave all proposition. Appellants contested the annexation with respect to Tracts A, B, C and F. After a stipulation was entered into admitting that all of the remonstrants either reside in or are property owners in Tracts A, B and C and that Tracts A, B and C did include farmlands, appellants moved for a summary judgment. The trial court granted a summary judgment voiding the annexation as to Tracts A, B and C but entered a summary judgment in favor of the City on Tract F on the theory that appellants had no standing to complain about the annexation of Tract F. Appellants appeal as to Tract F contending that if part of the annexation is ruled invalid the balance cannot stand the attack because the courts have no power to reduce the area to that which might qualify for annexation. The City has cross-appealed contending that Acts 309 and 904 of 1975 are procedural in nature and should be applied to the pending litigation.

The contention on the cross-appeal arises because Acts of Arkansas 1971, No. 298 prohibited the annexation by a city of land used only for the purpose of agriculture or horticulture. See Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W. 2d 633 (1974). Following the Saunders opinion and the annexation attempt here, but before this litigation was tried to the lower court, Acts 309 and 904 of 1975 became effective. Those acts provide that “. . . contiguous lands shall not be annexed when they either: (1) have a fair market value at the time of the adoption of the ordinance of lands used only for agriculture or horticulture purposes and the highest and best use of said lands is for agricultural or horticultural purposes; ...” In contending that the 1975 Acts should be given a retroactive effect, the City argues that “. . . Acts 309 and 904 of 1975 are procedural in nature and not substantive; i.e., that they change the manner in which vested interests are to be protected but that they do not violate these interests per se.” The premise of the City’s argument is erroneous. Under the system of government established for cities the annexation of continguous lands is a privilege extended to the cities and controlled by the General Assembly. An enlargement of the privilege is a substantive matter not affecting one’s procedural rights before a judicial tribunal. It follows that we find no merit to the cross-appeal.

The trial court in entering judgment in favor of the City as to Tract “F” (on the theory that appellants had no standing to contest the annexation) apparently was misled by some language of this Court in City of Crossett v. Anthony, 250 Ark. 660, 466 S.W. 2d 481 (1971). However in that case the City of Crossett submitted separately to the voters in both the city and the proposed annexed areas the question of “For” or “Against” annexation. In the case before us the voters of both the City and the several proposed annexed areas were not given that opportunity as required by Ark. Stat. Ann. § 19-307 (Supp. 1975). Under the system here used the votes for one of the proposed areas or the votes in one of the proposed areas may have prevented a fair presentation of the contention of persons in another proposed area who may have had a more appealing cause for not being annexed. The rule that this Court has followed in such situations in the past is set forth in City of Little Rock v. Findley, 224 Ark. 305, 272 S.W. 2d 823 (1954), in this language: “Moreover, a petition like this one is properly rejected if only a part of the contemplated addition fails to meet the requirements for inclusion within the municipality; the impropriety need not extend to the whole of the territory sought. Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891, 16 S.W. 291, 11 LRA 778.” It therefore follows that we must agree with appellant that the trial court erred in entering judgment in favor of the City as to Tract “F”.

This disposition makes it unnecessary to reach other contentions raised by the parties.

Reversed and remanded.

We agree: Harris, C.J., and George Rose Smith and Holt, JJ.


text:
    Jimmie Lee JONES v. The CIRCUIT COURT of BENTON COUNTY, Arkansas and SOUTHERN EQUIPMENT & TRACTOR CO., Inc. of Little Rock
    76-204
    545 S.W. 2d 621
    Opinion delivered January 24, 1977 (Division I)

      Godo & Dossey, for petitioner.

      William J. Wynne, of Crumpler, O’Connor & Wynne, and Jerry G. James, for respondents.
   Conley Byrd, Justice.

This petition for writ of prohibition arises out of an action filed by Southern Equipment & Tractor Co., Inc. of Little Rock against Petitioner Jimmie Lee Jones following the repossession and sale of two pieces of heavy earth moving equipment. On November 25, 1975, a jury found that Southern Equipment was not entitled to its claimed deficiency in the amount of $26,241.26. Immediately following the jury’s verdict, Southern Equipment orally moved for judgment notwithstanding the verdict which the court requested be filed in writing with brief pursuant to court rules. Southern Equipment filed its motion and brief on December 8, 1975. Responding and reply briefs were then filed with the last brief being filed on January 6, 1976. That term of court expired on the third Monday in March, 1976. However, on April 21, 1976, the trial court notified the attorneys that the motion for judgment N.O.V. was being denied but that he was treating the motion as a motion for new trial and was granting a new trial because he was of the opinion that the verdict of the jury was contrary to the evidence. Petitioner by written motion immediately objected to the jurisdiction of the court after term time to grant a new trial upon a nonverified motion. That motion and Southern Equipment’s response were submitted to the trial court and in denying the Petitioner’s objection to the granting of the new trial, the trial court wrote the parties as follows:

“I have considered your Petition for Writ of Error Coram Nobis, and find that it should be denied for the following reasons:
On November 25, 1975, this cause was tried by a jury, and a verdict rendered. On that day, the attorney for the Plaintiff orally moved for a Judgment N.O.V. and I directed him to prepare and file a written motion with brief, which he subsequently did on December 8, 1975. This was well within the 30-day period set by the statute referred to in both briefs.
Due to the press of business of the Court, including a number of items assigned to the Court by the Arkansas Supreme Court in other parts of the state, it was impossible for the Court to conclude this matter until on April 21, 1976, the Court’s order was entered treating the Motion as a motion for new trial and granting it. The term in which the case was tried was the September 1975 term of this court, and that term had expired on the day before the third Monday in March, 1976.
Your Petition raises the question of whether the expiration of the term, in and of itself, divested this Court of jurisdiction to enter an order granting a motion for new trial. The Court finds that such jurisdiction remained, and that the order was proper under the circumstances.”

To avoid the fact that a trial court’s discretionary jurisdiction to grant a new trial generally lapses with the term of court, Reasor-Hill Corporation v. Golden, Judge, 220 Ark. 100, 247 S.W. 2d 9 (1952), Southern Equipment relies upon Ark. Stat. Ann. § 27-2106.4 (Supp. 1975), which provides:

“. . . It shall be the duty of the party filing any motion provided for in the preceding section to present the same to the trial court within thirty [30] days from the date of filing and if the matter cannot be heard by the trial court within thirty [30] days, or for any good cause either party shall not be ready for final hearing within thirty [30] days, the moving party shall, within said period of thirty [30] days, request the trial court to set a definite date certain for hearing of such motion. Unless the motion shall have been presented to the trial, court and taken under advisement within thirty [30] days from the date of its filing, or the trial court shall have set a date certain thereafter for hearing on the motion, it shall be deemed, for purposes of this act [§§ 27-2106.3 —27-2106.6], that the motion has been finally disposed of at the expiration of thirty [30] days from its filing, and time for filing of notice of appeal shall commence to run at the expiration of thirty [30] days from the filing of such motion. If the said motion shall have been presented to the trial court and taken under advisement, or the trial court shall have fixed a date certain for hearing thereof within thirty [30] days from its filing, said motion shall not be deemed to have been disposed of until the trial court shall enter its order granting or denying the motion. The expiration or lapse of a term of court or commencement of a subsequent term shall not affect the power of the court to take any action herein provided, or the time for filing notice of appeal. ” (Emphasis supplied). [Acts 1963, No. 123, § 2 p. 345.]

Assuming that the motion for judgment N.O.V. could be treated by the trial court as a motion for new trial, we are unable to find any evidence in the record either written or oral that the motion was either presented to the trial court or that the matter was taken under advisement by the trial court within the time required by Ark. Stat. Ann. § 27-2106.4 supra. Because the statute places the duty of presenting the motion to the trial court upon the moving party and because we recognized in St. Louis S.W. Ry. Co. v. Farrell, 241 Ark. 707, 409 S.W. 2d 341 (1966), that situations such as has occurred here might arise, we there stated:

“On May 25, still within thirty days after the filing of the motion, the appellant’s attorney took the precaution of asking Judge Light to send him a letter stating that he had taken the matter under advisement. This request was wise; for, to avoid the uncertainties of oral testimony, it is evidently desirable that a docket entry, order, or other written, dated record be made at this point. On May 27 Judge Light wrote counsel that he had taken the motion under advisement.”

Since the record does not show that the motion was presented to the trial court and taken under advisement within the time required by Ark. Stat. Ann. § 27-2106.4, supra, it follows that the trial court’s jurisdiction to grant the motion for new trial expired with the lapse of the term of court.

Furthermore, we agree with petitioner that the trial court was without jurisdiction to treat the motion for judgment notwithstanding the verdict as a motion for new trial after the lapse of the term of court. The rule with respect to amendment of pleadings after the running of the statute of limitations was set forth in Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951), in this language:

“Our cases hold that where there is an amendment to a complaint stating a new cause of action or bringing in new part'es interested in the controversy, the statute of limitations runs to the date of the amendment and operates as a bar when the statutory period of limitation has already expired. In other words, if the plaintiff amends his complaint after commencement of the suit bv introducing a new cause of action, the statute continues to run until the filing of the amendment which does not relate back to the commencement of the suit. Wood v. Wood, 59 Ark. 441, 27 S.W. 641, 28 L.R.A. 157; Buck v. Davis, 64 Ark. 345, 42 S.W. 534; Love v. Couch, 181 Ark. 994, 28 S.W. 2d 1067. If, however, the amendment to the complaint does not set forth a new cause of action, but is merely an expansion or amplification of the cause of action already stated, then the amendment relates back and takes effect as of the date of the commencement of the original action. Little Rock Traction & Electric Co. v. Miller, 80 Ark. 245, 96 S.W. 993; Western Coal & Mining Co. v. Corkville, 96 Ark. 387, 131 S.W. 963.”

The motion for judgment notwithstanding the verdict definitely stated that it was a motion for judgment in favor of Southern Equipment. Consequently, Southern Equipment could not after the lapse of the term file an amendment to the motion requesting a new trial because it would be impossible to say that such a motion was an amplification of the motion for judgment N.O.V. Since the running of the term would have prevented such an amendment by Southern Equipment, we can think of no reason to permit the trial court, after the lapse of the term, to do the same thing for any discretion which the trial court may have had at the time of trial would also have lapsed with the expiration of the term of court.

Writ granted.

We agree: Harris, C.J., and George Rose Smith and Holt, JJ.


author: ElsijaneT. Roy, Justice.

text:
    Betty FOSTER et al v. Nelma Jean SCHMIEDESKAMP, Administratrix, et al
    76-214
    545 S.W. 2d 624
    Opinion delivered January 24, 1977 (Division II)

      Rose, Nash, Williamson, Carroll, Clay & Giroir, P.A., for appellants.

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellees.
   ElsijaneT. Roy, Justice.

G. D. Schmiedeskamp died intestate on October 24, 1971, survived by his widow, Nelma Jean Schmiedeskamp (appointed administratrix of his estate), two daughters by a previous marriage, Betty Foster and Judith Reed, both adults, and two daughters by his second marriage, Patricia and Cynthia Schmiedeskamp, both minors.

„ On February 14, 1974, appellants Betty Foster and Judith Reed filed their petition to remove the administratrix, alleging concealment of assets of the decedent and breach of fiduciary duty in the administration of the estate. The petition asked for removal of Mrs. Schmiedeskamp as administratrix and that her accounts be surcharged for any amounts improperly diverted from the estate.

The probate judge heard the petition and,entered an order on April 8, 1976, removing the administratrix and requiring repayment of a $2,000 stud fee owed the estate but denying other claims for relief. Only the other claims are involved in this appeal.

Appellants first contended the court erred in holding that certain bearer bonds in a safe deposit box were held as an estate by the entirety and passed to Nelma Jean Schmiedeskamp individually on the death of her husband.

It is undisputed the deceased and Nelma Jean Schmiedeskamp had an active joint trading account with Raney Securities through which were purchased various municipal bonds in excess of $89,000; that thereafter the bonds were placed in a safe deposit box at Pulaski Heights Bank. The box was leased jointly to the deceased and Nelma Jean Schmiedeskamp. Both parties had a key to the box and full and complete access at all times.

Prior to her husband’s death, Nelma Jean Schmiedeskamp and her husband worked together and “shared everything together.” She testified:

... I was active in every business . . . from the time that we were married. . . . participated in every business that we had.

As to Discount Carpet Center she testified concerning her duties as follows:

l kept all of the books, I made all of the statements, I sold a little, run all of the errands, just everything that there is to do in a carpet store.

She also testified she was not paid any salary for these duties. After testifying that the safe deposit box was in both names she stated she had a key to the box and removed the bonds, not listing them as part of the contents of the box because she thought they were hers and were not part of the taxable estate. However, after conferring with her attorney she filed an amended estate tax return listing the bonds on that return.

Appellants argue inter alia that since there is no explicit writing establishing a tenancy by the entirety, the presumption is against creation of such an estate. However, under Arkansas law where property is conveyed to or purchased by a husband and wife in their joint names with nothing else appearing the property is deemed to be held as an estate by the entirety with the right of survivorship. See Black v. Black, 199 Ark. 609, 135 S.W. 2d 837 (1940). The words “husband and wife” or “tenants by the entirety” are not necessary to creation of the estate, Curtis v. Patrick, 237 Ark. 124, 371 S.W. 2d 622 (1963). We upheld the application of this principle in regard to deposits of money in Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W. 57 (1922).

The fact that these bonds were placed in a safe deposit box does not defeat the estate created in them initially. At no time were these bonds ever put out of the control of Mrs. Schmiedeskamp, but to the contrary she could have removed them at any time. Here the totality of the circumstances indicates that the bonds in the safe deposit box were held as an estate by the entirety. There is no evidence that Mr. Sehmiedeskamp asserted individual ownership of the bonds or attempted in any way to have his wife divested of her right of survivorship. See U.S. v. 339.77 Acres of Land, 240 F. Supp. 545 (W.D. Ark. 1965).

Appellants make various allegations concerning improper conduct of the administratrix in removing the bonds from the box, but the chancellor heard the testimony, saw the witnesses and determined the issues in favor of appellees, and we cannot say his determination is against the preponderance of the evidence.

Mr. Sehmiedeskamp owned a retail business known as Discount Carpet Center and certain race horses, in liquidating the assets of the estate, Mrs. Sehmiedeskamp, as administratrix, sold the carpet business as well as these horses.

The eleven horses were appraised by Sam Gray who operated a horse farm. Thereafter repeated unsuccessful attempts were made to sell these horses, with appellants taking part in the efforts to sell them as well as appellees. Eventually a sale was made to the highest bidder. Gray, for $20,-000. A short time later Mrs. Sehmiedeskamp repurchased one-half interest in five of these horses under an agreement with Gray that he would continue to train and care for them at his farm for the purpose of entering them in the horse races, and Gray profited approximately $1,000 on Mrs. Sehmiedeskamp’s repurchase. She testified that her girls liked horses so much that she changed her mind and wanted to have some interest in them.

The Discount Carpet Center was purchased by Mrs. Sehmiedeskamp for $95,000 and a short time later resold to her brother-in-law, Ralph Erwin. Since Erwin had no previous experience in this type of business he hired Mrs. Sehmiedeskamp under a ten-year contract whereby she agreed to work in the store four days a week for $9,000 per year. A little over a year later Erwin found Mrs. Sehmiedeskamp’s services unsatisfactory, and he terminated the employment contract through a settlement agreement of $10,000.

Appellants contend these actions evidenced a breach of fiduciary duty by the administratrix, but we cannot agree that repurchasing an interest in the horses indicated bad faith. Neither does the employment contract appear to be merely a device for Mrs. Schmiedeskamp to get money for herself from the sale of the business. It would seem to be a good business practice for Erwin to employ Mrs. Schmiedeskamp to work at the Discount Center because of her experience there, and the fact that the contract later was not satisfactory was only a factor for the court’s determination. The sale of the horses and that of the business both were approved by the court prior to December 31, 1971, and this action was not brought until February 24, 1974. The sales were not only approved by the court but no objections were made to the sales until this action was filed. Furthermore, appellants offered no testimony that the sum paid in either sale was inadequate or unreasonable.

The burden is on the party who alleges fraud to prove to the satisfaction of the court that the questioned transaction involved bad faith. Bush v. Bourland, 206 Ark. 275, 174 S.W. 2d 936 (1943), and Hopson v Buford, 225 Ark. 482, 283 S.W. 2d 337 (1955). Further, where sales are made with the approval of the probate court, as here, to collaterally attack such orders the fraud must be shown to be extrinsic fraud and not intrinsic fraud. Cassady v. Norris, 118 Ark. 449, 177 S.W. 10 (1915); Lambie v. W. T. Rawleigh Co., 178 Ark. 1019, 14 S.W. 2d 245 (1929). In the case at bar we cannot say the trial court’s determination that appellants did not satisfy the required burden of proof on the fraud issue is against the preponderance of the evidence.

After the death of Mr. Schmiedeskamp, Mrs. Schmiedeskamp filed joint state and federal income tax returns in their names for the tax year 1971. Later she received substantial income tax refunds on these returns which she retained as the surviving spouse instead of reporting them as an asset of the estate. Appellants contend the income tax refunds are property of the estate of the deceased. Ark. Stat. Ann. § 62-2131 (Repl. 1971) states:

The survivor of spouses with respect to whom a joint federal income tax return has been filed shall, upon the death of the other, be entitled to receive any refund of the tax due from the Internal Revenue Service in his own right upon making proof of the death of the other. (Italics supplied.)

In construing the statute we believe it contemplates the situation where an income tax return is filed while both husband and wife are still living and thereafter one of them dies. In such situation the refund rightfully should go to the surviving spouse upon proof of the death of the other. We do not have such a situation presented here since the 1971 return was filed by Mrs. Schmiedeskamp in 1972 after the death of Mr. Schmiedeskamp on October 24, 1971. Although the trial court held Mrs. Schmiedeskamp was entitled to retain the refunds individually the court was not mandated to so find by the terms of the statute. Since the record does not contain sufficient information concerning the proportion of income attributable to each on the 1971 joint return we cannot determine whether the trial court reached the right conclusion on this matter. Therefore, we remand to the trial court on this issue, and affirm on all others.

Affirmed in part, remanded in part.

We agree. Harris, C.J., and Fogleman and Hickman, J.J-

      The account was carried as follows: “Client: Gilbert D. and Nelma Jean Schmiedeskamp.”


text:
    Debbie L. HATCHER v. STATE of Arkansas
    CR 76-194
    545 S.W. 2d 632
    Opinion delivered January 24, 1977 (Division II)

      Jeff Duly, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This case involves the review of a finding by a juvenile court that a minor, Debbie L. Hatcher, was a delinquent and the judgment that she be committed to the Arkansas State Training School. The charge at the hearing was that she had committed attempted battery by trying to poison another girl.

At the proceedings before the juvenile court on the poisoning charge, records of a previous charge of shoplifting and a finding of guilt were considered by the juvenile court in finding that the minor should be committed to the training school.

The judgment was appealed and the circuit court found, dc novo, that the minor was guilty of attempted battery, beyond a reasonable doubt, and should be committed to the training school. In the disposition of the case, the court considered the records and evidence regarding the shoplifting f'harge over the objection of counsel. The objection was the minor did not have counsel nor was the right to counsel waived at the hearing on the shoplifting charge. It is not disputed that the minor did not have counsel at the hearing on shoplifting. The circuit court made a written finding that the minor was afforded her constitutional rights, in the hearing on the shoplifting charge, and specifically waived the right to counsel.

The record regarding the hearing on the shoplifting charge consists of a petition, a printed form-order and a voluntary supervision agreement. The printed form-order recites that the minor and the parents were advised of their right to counsel. There is no mention in the form of waiver of the right to counsel. During the circuit court hearing, the probation officer testified that the juvenile court referee had read the minor and her parent their rights, according to the rights form, after the minor failed to acknowledge them. The record is silent beyond these facts.

The law requires that a juvenile, charged with an offense which would subject the child to a finding of delinquency and a loss of liberty by incarceration in a penal institution, must be afforded the same rights to counsel that an adult has in a criminal proceeding under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Re Gault, 387 U.S. 1 (1966).

In the Gault case the court stated:

. . . the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.
They had a right expressly to be advised that they might retain counsel and to be confronted with the need for specific consideration of whether they did or did not choose to waive the right.

The court went on to say that acknowledgement of the right to have counsel was not a waiver.

In this case there is no evidence that the child or the parent waived the right to counsel, or were told they must waive that right, and, therefore, it was error for the juvenile court and the circuit court to consider any records or evidence regarding the previous charge. Therefore, the decision must be set aside and the case remanded.

The other allegation of error is the evidence is insufficient to adjudge this minor delinquent. There is sufficient evidence to support the findings of the juvenile court and the circuit court that Debbie L. Hatcher was guilty beyond a reasonable doubt of the act of attempted battery.

This case is remanded to the circuit court with instructions that the matter be further remanded to the county court for proceedings not inconsistent with this opinion.

Reversed and remanded.

We agree. Harris, C.J., and Fogleman and Roy, JJ.


author: PER CURIAM

text:
    C & M CONSTRUCTION COMPANY, Inc. v. SIMMONS FIRST NATIONAL BANK of Pine Bluff
    76-406
    545 S.W. 2d 631
    January 24, 1977

      John M. Fincher, for appellant.

      John G. Lile, Larry C. Wallace and Michael G. Thompson, for appellee.
   PER CURIAM

Appellee’s motion to dismiss the appeal is denied. The motion is based upon non-compliance with Ark. Stat. Ann. § 27-2127.1 (Supp. 1975) and Rule 26 A, Rules of the Supreme Court, 3 A Ark. Stat. Ann. (Supp. 1975, p. 135) in that: notice of application for extension of time for filing the record in this case was not given to appellee’s attorney; the order granting the extension did not recite that a reporter’s transcript of the evidence had been ordered; and the order did not recite that the extension was related to the inclusion in the record of evidence stenographically reported.

The failure of an appellant to take further steps to secure the review of a judgment or decree, after having given notice of appeal does not affect the validity of the appeal, but is ground for such action as this court may take, which may include dismissal of the appeal. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). In this case we do not deem it appropriate to dismiss the appeal.

It is clear from the affidavit of the court reporter filed with appellant’s response that the extension was based upon her inability to complete the transcript due to her heavy workload and that appellant’s application for extension was made upon her request. In this respect the situation is unlike that in Perry v. Perry, 257 Ark. 237, 515 S.W. 2d 640. Although it is not seriously contended that appellee’s attorney was served with notice of the application, it is clear that appellee’s attorney inquired of the clerk of the trial court some time after the expiration of 90 days after the notice of appeal was filed and learned that the motion had been filed and the extension granted. Yet appellee took no action in the matter until more than 150 days had elapsed after the date of filing of the notice of appeal, when notice was given to appellant’s attorney that appellee would move to dismiss. We cannot agree that appellee’s showing of prejudice is sufficient basis for dismissal of the appeal in view of the fact that if it had been greatly prejudiced it could have availed itself of the procedure set out in Norfleet v. Norfleet, 223 Ark. 751, 268 S.W. 2d 387.

Hickman, J., not participating.


text:
    Osba T. SHERRELL et al v. A. A. BYRAM
    76-409
    545 S.W. 2d 603
    January 24, 1977

      Ponder & Lingo and Murphy & Blair, for appellants.

      John C. Gregg, for appellee.
   PER CURIAM

The Clerk’s refusal to file this appeal raises the issue of how to calculate the seven months limitation in Ark. Stat. Ann. § 27-2127.1 (Supp. 1975) for docketing appeals when a motion for new trial has been properly filed and acted upon pursuant to Ark. Stat. Ann. § 27-2106.3, § 27-2106.4 and § 27-2106.5. The record shows that the trial court announced its decision on February 24, 1976 and entered a decree thereon on April 6, 1976. The petitioner here, however, filed a motion for new trial on the basis of newly discovered evidence on March 31, 1976, and on April 29, 1976 the trial court by order set the hearing for May 21, 1976. Following the taking of additional evidence on May 21st, the trial court formally denied the motion for new trial on June 2, 1976. On that same day petitioners filed their notice of appeal from the decree of April 6, 1976 and the order denying the motion for new trial. Thereafter, the trial court properly granted an additional extension of time for the preparation of the transcript. When the record was presented to the Supreme Court Clerk for filing, the Clerk refused to file the record because more than seven months had elapsed from the time the original decree was entered on April 6, 1976.

As pointed out in St. Louis Southwestern Ry. Co. v. Farrell, 241 Ark. 707, 409 S.W. 2d 341 (1966), the provisions of Ark. Stat. Ann. § 27-2106.3 through § 27-2106.6 (Supp. 1975), were enacted to remedy an awkward situation created by Act 555 of 1953 with reference to motions for new trial. While that case only involved the time for filing of the notice of appeal it also demonstrates the awkward situation that would be created by calculating the seven months from the date of the entry of the original decree as the Clerk has done here — i.e. a trial court by holding a motion for new trial under advisement for more than seven months could thwart an appeal on any matter except that involved in the motion before the court notwithstanding the fact that the complaining party’s time for giving notice of appeal had not expired. When we consider the practical effect of giving a party ten days from the denial of a motion for new trial in which to file a notice of appeal, we must conclude that the seven months limitation in Ark. Stat. Ann. § 27-2127.1 (Supp. 1975), must be calculated from the date of an order denying a properly filed and presented motion for new trial pursuant to Ark. Stat. Ann. § 27-2106.3 through § 27-2106.5 (Supp. 1975).

It follows that the petition for Rule on Clerk to file the record in this case must be granted.


text:
    John H. HUGHES v. STATE of Arkansas
    CR 76-72
    540 S.W. 2d 592
    Opinion delivered September 20, 1976

      Don Langston, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Charged with first-degree murder in the shooting of Jason Crutchfield, the appellant was found guilty of second-degree murder and received the maximum sentence, 21 years. His principal argument for reversal is that the court should have submitted the issue of self-defense to the jury.

The court was right in refusing to submit that issue. We find no substantial evidence from which the jury could have found that Hughes acted in self-defense. According to the State’s eyewitnesses, the homicide occurred in a pool hall, during the daytime. Hughes was the aggressor, accusing Crutchfield of being “one of them smart ones.” Crutchfield was unarmed and was making no hostile demonstration that might have caused Hughes to be fearful for his own life. According to the proof, Hughes held a pistol some two or three inches from Crutchfield’s chest and shot with little or no provocation.

Hughes elected not to testify. His theory of self-defense rests principally upon his own out-of-court statements, which were introduced by the State as part of its case in chief. Immediately after the homicide Hughes fled from the state and was eventually apprehended in Alaska. The State showed that in the course of his flight Hughes admitted to witnesses that he had shot Crutchfield, but he further stated that he was only trying to scare him and that he thought Crutchfield had a gun. There is, however, nothing whatever in the testimony to warrant the jury in finding that Hughes had any reason to believe that Crutchfield, even if he had been armed, had any intention of inflicting bodily harm upon Hughes. There is also testimony that some sort of argument took place between the two men. Needless to say, one who engages in an argument with another person is not entitled to kill his adversary merely because he thinks him to have a gun. Yet here the proof stops at that point and consequently falls short of presenting a submissible issue of self-defense.

The appellant is correct, however, in asking that he be given credit for pretrial jail time. The State admits that when a defendant receives the maximum sentence, as here, he is entitled to credit for pretrial jail time that was attributable solely to his inability to make bail, owing to indigency. Smith v. State, 256 Ark. 425, 508 S.W. 2d 54 (1974). That is the situation here with regard to the appellant’s pretrial confinement in Arkansas from September 28, 1975, until January 30, 1976. Credit must be given for that period. On the other hand, from August 1 until September 28 Hughes was confined in Alaska, as a fugitive from justice awaiting transportation back to Arkansas. That delay was obviously attributable not to his inability to make bond but to his having fled from Arkansas to Alaska. Consequently no credit should be given for those 58 days.

The judgment, as so modified, is affirmed.

We agree: Harris, C.J., and Fogleman and Jones, JJ.


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    Harold R. OTWELL et al v. R. L. BOLEN et al
    76-200
    545 S.W. 2d 634
    Opinion delivered January 31, 1977
    (Division I)

      John T. Lavey, for appellants.

      William /. Prewett and Bill J. Davis, for appellees.
   George Rose Smith, Justice.

This suit for an accounting was brought by the appellants as taxpayers and patrons of Junction City School District No. 75. The defendants are the members of the district’s board of directors and its superintendent of schools. After the case had been pending for more than a year it was set for a hearing on the merits on February 19, 1976. On that day the plaintiffs were not prepared to offer any evidence. Instead, they asked the court to set another hearing at some time in the future, to allow the plaintiffs “to get reasonable discovery” and to have an opportunity to establish whether the legislative audit reports of the district’s records were adequate and proper. The chancellor denied that request for further time and dismissed the complaint with prejudice. This appeal is from that decree.

The chancellor was right. The complaint was filed in January, 1975. It alleged serious wrongdoing on the part of the directors and superintendent, who were charged with converting school money and property to their own use and with fraudulently concealing those transactions from the public. The complaint, as later amended, also alleged that among the “many thousands of items” purchased by the district the plaintiffs had no way of giving detailed and specific information as to each instance of wrongdoing. An accounting of all transactions since 1968 was sought.

From the outset the defendants denied any wrongdoing. Defense counsel obtained copies of the legislative audits of the district for the years ending on June 30, 1973 and 1974, and offered to submit them for examination. It does not appear that any such examination was ever requested or made. Later on the court directed that the audits for earlier years be made available, but again there is no indication that the opportunity was availed of. On November 26, 1975, the court directed that the taking of all discovery depositions be completed by January 23; but no depositions were ever taken by counsel for the plaintiffs, nor were any interrogatories propounded.

The appellants’ argument seems to be twofold. First, it is contended that the appellees, being fiduciaries, should be required to make a detailed accounting for the six or seven years in question. The difficulty, however, is that the plaintiffs have offered no evidence whatever either of any wrongdoing on the part of the defendants or of any failure by them to keep the district’s records as required by law. In this respect the case differs materially from Brewer v. Hawkins, 248 Ark. 1325, 455 S.W. 2d 864 (1970), relied upon by the appellants, where the plaintiffs adduced the testimony of many witnesses. There a prima facie case was made, requiring the defendant to go forward with the evidence. Here there is no basis for the appellants’ demand that the appellees incur what would necessarily be a very substantial expense in order to make a detailed accounting, with no irregularity having been proved.

Alternatively, the appellants ask in their brief that they “be given time to scrutinize those legislative audits and take discovery pertaining to them, and, once appellants have completed that discovery, the trial court should then order a hearing to determine the issue of whether appellees have established their affirmative defense that they have fully accounted. At that hearing, if appellants establish that appellees have not fully accounted [our italics], appellants will have established their right to an accounting.” In other words, the appellants, having made no showing that a cause of action exists, seek an indefinite extension of time to explore the possibility that they really have a basis for complaint. It is fair to point out that such an investigation should have been made before a complaint charging misconduct in office was filed and that during the pendency of this suit in the trial court the plaintiffs had more than a year “to scrutinize those legislative audits and take discovery pertaining to them.” We can find no reason to say that the chancellor was wrong in bringing this case to an end. (It has not been argued by the appellants that the dismissal should have been without prejudice.)

Affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting.

This is a taxpayers’ lawsuit that was dismissed with prejudice by the lower court. The majority of this court has affirmed that dismissal with prejudice.

The lawsuit was originally filed in January of 1975, alleging serious misuse of public funds by the superintendent and board members of the Junction City School District No. 75. In the main, the majority base their decision on the fact that the case had been pending for over a year and the appellants were unable to produce any evidence of wrongdoing. The case did not actually go to trial. The court set a date in January of 1976, by which time all discovery would have to be completed by the parties. The appellants objected, stating that they needed more time to study the audit reports of the school district and to take the depositions of the parties^ The lower court did not grant this request and, when the matter came up for trial in February, the case was dismissed with prejudice.

I cannot agree with the lower court, or the majority, that the appellants were less than diligent in pursuing their lawsuit.

It was eight months before the preliminary motions and pleadings were resolved and the appellees filed a general denial and wanted this matter set down for trial. Also, during this period of time the lower court judge was absent for one month. In other words, there are arguments that can be made on both sides as to whether or not it was proper to dismiss this case with prejudice. However, the disposition of this case, with prejudice, means that no taxpayer in this school district can ever challenge any expenditures of public money by the superintendent or the school board for the period of time in question, which is about eight years. This means that the defendants have not been exonerated by trial, nor have the appellants had their day in court. Therefore, it is my conclusion that the order of the lower court in dismissing the case with prejudice, and the action of the majority of this court in affirming that decision, is too harsh.

I would affirm the lower court on dismissing the case but without prejudice.


text:
    Charles Edward WILSON, Jr. v. STATE of Arkansas
    CR 76-169
    545 S.W. 2d 636
    Opinion delivered January 31, 1977
    (Division II)

      Robert E. Irwin, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was found guilty of sale and possession for sale of marijuana. The only point for reversal in this case is the assertion that the court erred in excluding as hearsay appellant’s testimony concerning an alleged conversation between Jerry Hood, a confidential police informer, and appellant. This testimony of appellant was offered as evidence of entrapment. It was stricken when it was shown that the police officer, a narcotics investigator, with whom Hood had called on appellant in an effort to buy drugs, and on whose testimony appellant was found guilty, was probably not close enough to Hood and the appellant at the time of the alleged sale to hear the conversation. Jerry Hood did not testify at the trial.

The state does not really defend this erroneous application of the hearsay rule, but attempts to justify the affirmance on the grounds that no proffer of the testimony was offered, that the testimony was hearsay because appellant was seeking to prove the truth of the matter stated and that, before appellant could testify, he must have first shown that Hood was unavailable to testify. We cannot agree with these ingenious arguments.

Appellant’s defense was, in principal part, entrapment, but we know of no rule of law, and the state has cited no authority, which prevents one accused of this sort of crime from relating any statements of any persons participating in any attempt to purchase controlled substances from the accused when the statements are used as a basis of showing accused’s intent to sell or deliver such a substance in his possession. All such conversations are material and relevant to a principal issue in the case. This is because the defendant’s motive and state of mind are relevant to the question of intent. Whiting v. U.S., 296 F. 2d 512 (1 Cir., 1961); U.S. v. Hayes, 477 F. 2d 868 (10 Cir., 1973). We note that similar evidence has been received in other cases, without objection. See, e.g., Peters v. State, 248 Ark. 134, 450 S.W. 2d 276; Washington v. State, 248 Ark. 318, 451 S.W. 2d 449.

Official solicitation, importunity, persuasion, deceitful representation and inducement constitute the very foundation of the defense of entrapment. Peters v. State, supra. We are readily aware of the fact that, in many cases, the only evidence available to establish the defense of entrapment is the defendant’s own testimony. See Bailey & Rathblatt, Handling Narcotic and Drug Cases, § 263 p. 212. That Hood was assisting the police officer in the matter is conceded. The defendant’s testimony about any conversation relevant to the transaction which the state’s evidence tended to prove which would tend to show why he did what he did, was admissible.

The argument as to proffer is not well taken, because the testimony as to the conversation had been thoroughly covered before the court granted the state’s motion to strike it, after cross-examination revealed that the police officer probably did not hear the conversation.

Whenever a conversation constitutes a part of, or is introductory to, a transaction which is material and relevant to the principal issue, it is not hearsay. Rollins v. State, 125 Ark. 217, 188 S.W. 560; Hinkle v. Lassiter, 142 Ark. 223, 218 S.W. 825; Cox v. State, 160 Ark. 283, 254 S.W. 542. The question here was whether the statements were made, not whether they were true. When that is the case, the evidence is not hearsay, if otherwise relevant. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320.

For error in striking the testimony of Wilson about Hood’s statements, the judgment is reversed and the cause remanded.

We agree. Harris, C.J., and Roy and Hickman, JJ.