author:
Cuy Ams-ler, Justice.
      Carleton Harris, Chief Justice,

text:
    St. Louis S. W. Ry. Co. v. Harrist & Endsley
    5-4025
    406 S. W. 2d 694
    Opinion delivered October 10, 1966

      Coleman, Gantt, Ramsay «fe Cox, for appellant.

      Robmson «fe Robinson, and W. F. Denman, Jr., for appellee.
   Cuy Ams-ler, Justice.

Appellees’ motion to dismiss the appeal in this cause presents a question of such a novel nature as to prompt a written opinion rather than a “per curiam” order. The procedure followed was approved by ns in Norfleet v. Norfleet, 233 Ark. 751, 268 S. W. 2d 387.

Late during the evening of February 3, 1966, following a trial of two days duration, the jury returned verdicts for plaintiffs (appellees here) against -Gr. E. Chambers (appellant Eailway’s engineer) in the total sum of $24,300. Following its report the jury was excused and shortly thereafter it was discovered that no verdicts were returned against the defendant-Eailroad Company. The trial judge had the bailiff call the jurors (some of whom had left for their homes) back for further instructions on and consideration of their verdicts. In due time new findings against the Railroad and its engineer were returned. These facts are pertinent to an understanding of subsequent pleadings that were filed by the parties.

On February 11, 1966, plaintiffs filed their motion for judgment notwithstanding the verdict. On February 21st the defendants filed a similar motion and a motion for a new trial the prayer of which contained this wording:

“WHEREFORE, defendants pray that the Court grant a new trial for the reasons stated above, ancl in the event this motion is overruled, defendants appeal to the Supreme Court of Arkansas from the verdict and judgment entered herein. ” [emphasis supplied]

On April 2, 1966, the trial judge, having taken the motions under advisement, addressed a letter to Joe T. Rhodes, Circuit Clerk of Lafayette County, which read:

“Re: In the Lafayette Circuit Court
Margaret Janiece Endsley Harrist et al v. No. 2358
St. Louis Southwestern Railway Company and G. R. Chambers
“Dear Joe:
“I would appreciate your filing the enclosed Order and judgment. Thank you.
Yours very truly,
Harry Crumpler
Circuit Judge
1 ‘ enclosures
cc: Coleman, Gantt, Ramsay and Cox
Robinson and Robinson
Mr. William F. Denman
Mr. Nick Patton”

Copies of the above letter were mailed to and admittedly received by all interested attorneys. However, there is some disagreement regarding the enclosures. Appellants contend that they received only an undated “non-titled” document, which contained the style of the case and the judge’s signature, but no copy of the judgment was enclosed. This we deem unimportant because the letter was sufficient to put all parties on notice of the filing of judgment with the clerk.

In the “non-titled” instrument the trial judge lists each of the motions mentioned above and his rulings thereon. The penult sentence of the judge’s conclusions reads:

“Judgment is hereby awarded for the plaintiff and against the defendants, Gr. R. Chambers and St. Louis Southwestern Railway Company.”

The judge’s communication apparently reached the circuit clerk on April 4th because on that day he (the clerk) filed the above described order and findings, also a judgment in regular form, dated April 2, 1966, which was signed by the judge. This judgment made no reference to the defendants’ motion for a new trial, but did refer to and grant plaintiffs’ motion for judgment notwithstanding the verdict.

On May 18, 1966, appellants filed their objection to the above mentioned judgment, entered April 4, 1966, and prayed that it be set aside because they had no prior notice of its entry; were given no opportunity to approve or object to its form; had no opportunity to file a supersedeas bond for stopping the running of interest; or to have the clerk mail notice of appeal “which had previously been given on 2/21/66” — referring to the wording contained in the prayer for a new trial.

On May 18, 1966, the trial court (acting on a motion filed the same day) entered an order giving defendants seven months from April 4, 1966, to lodge their appeal in the Supreme Court. This order was objected to by plaintiffs (objections filed May 27, 1966) on the grounds that: no formal request was filed for the extension of time; no notice was given plaintiffs of the request for the extension of time; no hearing held; and defendants had never given cmy proper notice of appeal. (Emphasis ours)

On the 31st day of May, 1966, the trial judge ruled on the issues presented by defendants’ motion and the objections of plaintiffs thereto. He refused to set the original judgment aside; overruled plaintiffs’ objection to his order of May 18th; and concluded that the statutes governing giving of notice of appeal had been “substantially complied” with by defendants’ statement of intent to appeal contained in their motion for a new trial filed February 21, 1966.

On June 2, 1966, appellees (plaintiffs below) gave notice of their intention to request a dismissal of the appeal. A partial transcript was filed on June 3, 1966, and this was supplemented on August 23, 1966. Oral arguments were heard and the issue has been thoroughly briefed.

Considering the foregoing facts we are called upon to determine if a prayer for or statement of intention to appeal as set forth in the concluding paragraph of defendants’ motion for a new trial meets the requirements of sections 2 and 3 of Act 555 of the General Assembly of 1953. [Now Ark. Stat. Ann. §§ 27-2106.1 and 2106.2 (Eepl. 1962).] If the exact point has been passed on by this or any state or federal court, the decision has not been called to our attention.

The statute, supra, provides in part that:

.■ “any party to the action may appeal from a judgment or decree, by filing with the court in which .'the case is tried a notice of appeal within thirty ■ 1 (30) days from the entry of the judgment or decree ■ .'(appealed from. Any other party to the action may cross appeal from a judgment or decree by filing with the court in which the case is tried a notice of cross appeal within ten (10) clays after the notice of appeal is served on such party.” [emphasis supplied]

and further that:

“Notice of appeal and of cross appeal shall specify the parties taking the appeal or cross appeal, and shall designate the judgment, decree, or part thereof appealed from. Notification of the filing of the notice of appeal and cross appeal shall be given by the clerk of the court in which the cause is pending by mailing copies thereof to all the parties to the suit other than the party or parties taking the appeal or cross appeal, but his failure so to do shall not affect the validity of the appeal or cross appeal. ’ ’

We have held that the filing of notice of appeal within 30 days from entry of judgment or decree is a jurisdictional prerequisite to the perfection of an appeal. The filing of'notice of cross appeal is likewise jurisdictional. General Box Company v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40; White v. Avery, 226 Ark. 951, 295 S. W. 2d 365.

In Cranna v. Long, 225 Ark. 153, 279 S. W. 2d 828, after quoting the 30 day statute we said:

“The filing of the judgment with the clerk is the decisive date under the above quoted statute. * * *”

Appellants say in effect that plaintiffs (appellees) knew all along that they (defendants) intended to appeal. Plaintiffs probably did speculate that there would be appellate action when the case was finally concluded and probably thought that the appeal would be perfected in accordance with established procedure. The fallacy inherent in appellants’ contention is clearly pointed up by a comparison with what we wrote in Commercial Credit Corp. v. Tarver, 224 Ark. 667, 278 S. W. 2d 822.

Tarver brought suit (in Union County Chancery Court) to cancel a conditional sales contract on the ground of usury. At the conclusion of trial, on September 21, 1954, the chancellor announced his decision and directed that a precedent be prepared and “let this precedent show, at the wind-up, that the defendant excepts to the judgment, order and ruling and decree of the court and prays an appeal to the Supreme Court, which is granted.” It was stipulated by the parties that counsel for appellant (Commercial Credit Corp.) then “orally notified the court and the appellee, Billy D. Tarver, and his attorney that this cause would be promptly appealed to the Supreme Court.” Commercial Credit was given 180 days to perfect its appeal. A precedent was agreed on by counsel within a few days and the attorney for Commercial Credit assured opposing counsel that the appeal would be prosecuted as expeditiously as possible.

On November 15th the court clerk wrote the attorney for Commercial Credit that the record had not been prepared because no notice of appeal had been filed. Notice (at the request of the clerk) was filed on November 17th. Contention was that there was substantial compliance with statutory requirements regarding notice of appeal. We said:

“In principle this case is controlled by the opinion delivered July 5, 1954, in General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40. There the decree recited that a cross-appeal was prayed and granted, and it was contended that this recital satisfied the requirement that a notice of appeal be filed. We rejected that contention, holding that no sufficient notice of appeal had been given. The only perceptible difference between that case and this one is that here the appellant, at the conclusion of the trial, orally announced that an appeal would be taken. It is quite apparent, however, that the legislature did not intend to subject this vital jurisdictional matter to the uncertainties of oral proof. The appeal is taken by ‘filing’ with, the court in which the case is tried a notice of appeal.”

The Commercial Credit case clearly demonstrates that neither defendants’ intent nor plaintiffs’ information (or speculation) regarding the appeal has any controlling influence on the disposition of appellees ’ motion to dismiss. The written notice governs.

Appellants rely on Wilhelm v. McLaughlin, 228 Ark. 582, 309 S. W. 2d 203, to sustain their contention that notice of appeal may be given before the entry of judgment. A cursory comparison of the facts in the Wilhelm case with the one at bar reveals numerous disparities.

When the taking of testimony was concluded at the Wilhelm trial the chancellor “fired from the hip,” as we say, and detailed, somewhat at length, his findings on the facts and conclusions of law. In short the trial judge decided the case “on the spot.” In a few days the decree was filed with the clerk but during the interval the losing party filed notice of appeal and we held that under the circumstances of that ease the notice was good. This language appears:

“We know that, despite reasonable precautions on the part of counsel, instances do arise in which the precedent for judgment is signed without notice to the losing party or his attorney, or in which an unforseen delay intervenes between the signing of the precedent and its filing in the clerk’s office, or in which the clerk fails to make a record of the date on which the signed precedent was received. In any of these situations counsel might, in good faith, lodge the notice of appeal before the judgment was actually entered.”

We then quoted, with approval, this declaration by the Supreme Court of the State of Washington:

‘ ‘ The statutes governing appeals should be liberally construed, to the end that parties may have a review by this court of the rulings of the superior courts when they so desire. The appeal statute thus construed will require us to give force to a notice of appeal given after the court had announced its decision, although it was before the signing and entering of the formal judgment. . .”

"We find nothing in the Wilhelm opinion that would, in any degree, support appellants’ contention in the instant case.

A couple of simple illustrations and queries may aid in demonstrating the untenableness of appellants position. Bear in mind that after verdict there were 3 motions filed, viz: plaintiffs’ motion for judgment notwithstanding verdict on February 11th and defendants’ motions for judgment notwithstanding verdict and for a new trial on February 21st. All concerned the verdict returned on February 3, 1966. The alleged notice of appeal was contained in defendants’ motion for a new trial. The court filed its ruling on all these motions on April 4, 1966. Now let us suppose that all parties were dissatisfied with the court’s findings and desired a review. If we accept defendants’ contention that their notice of appeal was given on February 21, 1966, have the plaintiffs lost their right of cross-appeal by their failure to give notice “within 10' days after the notice of appeal is served on them,” as required by the statute?

Again: on May 31, 1966, (some 100 days after the alleged notice of appeal) the trial court entered an “order” in which it determined that the objections of the plaintiffs to the order of the court extending appeal time to seven months were not well founded and that the statement in the prayer contained in the motion for a new trial filed February 21, 1966, constituted substantial compliance with sections 2 and 3 of Act 555. Unquestionably plaintiffs would be entitled to have this order reviewed on cross-appeal and yet if the plain letter of the law is followed the 10 days notice requirement of the statute governing cross-appeals would deny them that right — unless of course we rewrite the statute.

§ 27-2106.2, supra, is clear regarding the clerk’s duty to inform all parties of the filing of notice of appeal and cross-appeal. If the clerk had accepted the statement in defendants’ motion for a new trial as the required statutory notice he would then have been confronted with the problem of wording the notice. He couldn’t have given positive notice that an appeal was being taken because no one knew at that time. Orderly procedure would hardly be served constructively if the clerk were called upon to give a preliminary notice of intent to appeal in case of an adverse ruling and then some weeks later give a final notice after disaster had struck. Our lawmakers certainly could not have contemplated that any such construction would be placed on the products of their constructive labors.

The General Assembly at the behest of the Organized Bar of Arkansas enacted Act 555 for the purpose of expediting and simplifying appeal procedures in line with rules governing appeals in federal courts. It is a good measure and the courts should be extremely reluctant to emasculate it in efforts to relieve every unfortunate incident that arises. It was clearly the legislative intent that notice of appeal be given at the conclusion of litigation and not at some intermediate point (or points) during the progress• thereof.

Naturally appellate courts give liberal construction to acts of this character, as they should, but no litigant should expect such liberality in construction as to render worthy legislation completely impotent. There must come a time when “generous construction” yields to the clear intent of our law making body and the weal of orderly procedure.

The motion to dismiss the appeal is granted.

Harris, C. J., dissents.

Carleton Harris, Chief Justice,

dissenting*. I recognize that there are two sides to the question here presented, but because of. the fact that the law favors determination of cases on the merits, rather than on technicalities of procedure, I would affirm the Circuit Court in its holding that the notice of appeal herein is adequate. In Wilhelm v. McLaughlin, 228 Ark. 582, 309 S. W. 2d 203, decided in 1958, the Chancellor, at the conclusion of the trial, delivered a comprehensive oral opinion, determining the issues which had been presented. Shortly thereafter, Wilhelm filed a notice of appeal, but this notice was given several days before the decree itself was signed. Thereupon, McLaughlin contended that the appeal notice had not been properly given, the contention being that the notice had to be given after the entry of the decree. This court held that the notice was sufficient, stating:

a* * * jVLa.xiy* situations may be conceived in which needless hardship would result from an inflexible rule nullifying every notice of appeal filed before the'entry of the judgment.* * *

“* * * The decisions of the state courts, construing statutes having some similarity to ours, are not in harmony, but we prefer the view that gives effect to a notice of appeal such as that filed by these appellants.

“In a case like this one the Supreme Court of Washington explained its position with these words: ‘The statutes g’overning appeals should be liberally construed, to the end that parties may have a review by this court of the rulings of the superior courts when they so desire. The appeal statute thus construed will require us to give force to a notice of appeal given after the court had announced its decision, although it was before the signing and entering of the formal judgment. For some purposes the judgment may not be complete until thus signed and entered, but, after such announcement, it was so far complete as to sustain a notice of appeal.’ ”

Our statute was patterned after Buie 73(b) of tbe Federal Buies of Civil Procedure, and there are numerous federal cases in which a liberal interpretation is given to the rule under consideration, in order that the right of appeal might be preserved. I see no point, however, in mentioning these cases, since I deem our own case, Wilhelm v. McLaughlin, supra, to be controlling in the matter at hand.

I therefore respectfully dissent.


source: Caselaw Access Project

author: Hugh M. Bland, Justice.

license: Public Domain

text:
    Mauldin et al v. Tanksley et al
    5-3976
    406 S. W. 2d 705
    Opinion delivered October 10, 1966

      Lookadoo, Gooch & Lookadoo, for appellant.

      Jerry Thomasson and Gilmore & Moore and McMillan, McMillan & Turner, for appellee.
   Hugh M. Bland, Justice.

By this appeal, the appellants, Ethel Mauldin, Yan Mauldin and Dean Bay, a minor, by his mother and next friend, Beatrice Bay and Beatrice Bay individually, seek to question the action of the circuit court in vacating default judgments in three consolidated cases during the term in which they were rendered.

Default judgments in all three cases were entered on November 15, 1965. The motions to set aside the judgments were filed on December 30, 1965. The order setting aside the judgments was dated January 11, 1966.

The term of circuit court in Clark County begins on the fourth Monday in January and ends the fourth Monday in July. Ark. Stat. Ann. § 22-310 (Repl. 1960).

The order setting aside the default judgments rendered during the same term is not final or appealable. Dodd v. Bonds, 220 Ark. 951, 251 S. W. 2d 587 (1952).

Since no final judgments have been rendered in circuit court from which to appeal, the appeal is dismissed.


author: Carleton Harris, Chief Justice.

text:
    Lindell Marshall v. I. E. McCray et al
    5-3930
    406 S. W. 2d 863
    Opinion delivered October 17, 1966

      J. B. Milham, for appellant.

      Ben M. McCray and Fred E. Briner, for appellees.
   Carleton Harris, Chief Justice.

Exie Marshall and Mary Jane Marshall were the owners of certain real estate in Saline County, Arkansas, upon which a building was located, the structure being used both for the operation of a cafe, and for a home. The property was mortgaged for the purpose of making repairs; the mortgagee, Ann Ehrlich, subsequently foreclosed the mortgage, obtaining a judgment of $13,137.10, and the property was ordered sold. I. E. McCray purchased same at the sale for the sum of $7,001.00. McCray then entered into an agreement with appellant Lindell Marshall, daughter of Exie and Mary Jane, wherein appellant would purchase the property. The facts thereafter are very much in dispute. Appellant contends that the agreed purchase price was the amount paid by McCray, i. e., $7,001.00 plus interest, and this amount was to be repaid at the rate of $100.00 per month. This contention is supported by her father and mother. They endeavored to testify that appellee had agreed to sell the property back to their daughter for the amount he paid at the sale, except for interest, but the court would not consider this testimony. Appellant also endeavored to testify that she never made any agreement to pay appellee more than $7,001.00, but the court would not permit this testimony.

McCray testified that, after he bought the property, he entered into a contract with appellant to sell it to her for the sum of $10,500.00. A written instrument (contract) for the sale was offered by McCray, showing the purchase price to be $10,500.00, same to be paid monthly at the rate of $100.00 per month, and bearing interest at 1%. Appellant was also to pay taxes and insurance. This contract was signed by appellee, but not by appellant, who testified that she did not sign it because it was not the amount agreed upon; in the meantime, she had been given possession of the property. The testimony is also in complete conflict as to the payment of taxes and insurance, appellant contending that she has paid the taxes and insurance, and appellee asserting that he has made these payments. Admittedly, appellant has paid several thousand dollars on the indebtedness. At the conclusion of the evidence, the court held that I. E. McCray (and wife) were the owners of the property and entitled to possession, and further found that all sums paid by appellant were to be considered as reasonable rent for the use of the property. From the decree so entered, appellant brings this appeal.

Both sides agree that an oral contract was made. It is quite clear that the court was of the opinion that the oral contract was in violation of the Statute of Frauds, and his findings were predicated on that premise. This holding was erroneous, for we have many times held that part performance takes an oral contract for the sale of land out of the Statute of Frauds. See Harper v. Albright, 228 Ark. 760, 310 S. W. 2d 475, and cases cited therein. As previously stated, though no written contract was entered into, Lindell Marshall went into immediate possession, and thereafter made numerous payments to McCray.

The question therefore, is simply, “What were the terms of the contract!” The court refused to consider the testimony offered by appellant and her witnesses as to the terms of the agreement, and this constituted reversible error. Nor was the question of the payment of taxes and insurance decided by the court, since it held that there was no contract and all payments were to he considered as rent for the use of the property.

In her brief, appellant mentions that she conld not be charged more than 6% interest, since the contract was oral, and an interest rate exceeding 6% cannot be enforced unless such agreement is in writing. That contention is correct. See Temple v. Hamilton, 178 Ark. 355, 11 S. W. 2d 465, and authorities cited therein. This matter, of course, is not before us at the present time, since the court did not find that a contract was entered into, and consequently made no finding as to the terms of the contract, or the amount of indebtedness due. The point, of course, may well arise on remand.

In accordance with what has been said, the decree is reversed, and the cause is remanded to the Saline Chancery Court with directions to determine the provisions of the oral contract, the amount due thereunder, and to proceed as in matters of foreclosure.

It is so ordered.

       “The Marshalls operated a cafe, and McCray had a “juke box” and marble machines therein; the testimony on the part of Exie Marshall was to the effect that he asked McCray to buy the property and sell it to Lindell, in order that the amount of the payments, which had been about $200.00 per month, might be lowered to a figure that the daughter or Marshall could afford to pay. He stated that he was helping and assisting his daughter to buy the property.

       “From the record: “MR. MILHAM: Did you ever agree to pay Mr. McCray more than $7,001.00 for the property? MR. BRINER: To which we object your honor. COURT: Objections sustained.”

      The court, several times, rendered rulings in support of this view. From the record: “MR. BRINER: Your Honor, I am going to object again. THE COURT: Objections will be sustained. MR. MILHAM: Does the Court mean you are not going to let me go ahead and show the conversation between Mr. McCray and this party here * * * ? THE COURT: I am not, Mr. Milham. For one reason, it violates the Statute of Frauds.” Later “THE COURT: Just a minute gentlemen. As it stands here now there is no contract before this court. Mr. Marshall, or the defendant has not signed any contract. Under the Statute of Frauds it is very clear that the sale of land in á contract has to be in writing. * * * THE COURT: I have sustained the objections to any oral testimony of the contract for the same reason it violates the Statute of Frauds.”


text:
    City of Little Rock et al v. Faith Evangelical Lutheran Church et al
    5-3970
    406 S. W. 2d 875
    Opinion delivered October 17, 1966

      Joseph C. Kemp and Perry V. Whitmore, for appellants.

      Lester & Shults, for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to a petition for re-zoning. Appellees own properties on the north side of West Markham Street in Little Rock, lying immediately east of the intersection of Jackson and West Markham Streets. The owners desire to sell their respective properties to the Texaco Oil Company which plans to construct a service station thereon. Under city ordinance, the lands are zoned “B” Residential District, and appellees filed a petition seeking to have the properties re-zoned as “F” Commercial. The Board of Directors of Little Rock denied the petition, thus supporting the view held by the Planning Commission. Appellees appealed to the Pulaski County Chancery Court (First Division), and that court held that the city had acted arbitrarily and capriciously in refusing to re-zone the properties to “F” Commercial; the court enjoined the city from interfering with appellees or their assigns in using the properties in question for purposes permitted under the ‘ F ” Commercial zoning classification, and directed the city to issue a building permit to appellees or their assigns authorizing the construction of improvements on these properties that met the requirements of an “F” Commercial classification. From the decree so entered, appellant brings this appeal. For reversal, it is asserted that the Chancery Court erred in finding that the refusal of the City of Little Rock to rezone the property to “F” Commercial was arbitrary.

Faith Evangelical Lutheran Church is located at the intersection of West Markham and Jackson Streets, and this property fronts on West Markham for a distance of 100 feet from the intersection. The testimony-reflected that the membership of the church had expanded from 57 members in 1959 to 261 members at the present time, and the membership has simply outgrown the church building. The congregation is building a new church at Mississippi and Markham, and desires to sell the present property to Texaco.

The property of Mr. and Mrs. Oliver Henry is immediately east of the chnrch property (a distance of 50 feet), and the remaining appellee, Ivan H. Smith, owns the 50 feet immediately east of the Henry property. The residences of Henry and Smith are located on their respective lots.

Mr. Smith testified on behalf of the appellees, and stated that, when he first purchased his property, West Markham was a two-lane street, with no commercial property in the area except for a small barbecue stand on the northwest corner of Markham and Van Burén Streets. A short time after his purchase, the northeast corner of Van Burén and West Markham was re-zoned for commercial property and an Esso station was built thereon. Sometime later the block between Van Burén and Jackson (north of West Markham) was re-zoned as commercial property, and a D-X service station was placed on the corner of Jackson and West Markham, just across from the Lutheran Church. Smith canvassed the neighborhood, taking a- petition to everyone on Monroe Street, the block affected on West Markham, North Jackson and Briekton Place, and he stated that only two people, both in Briekton Place, refused to sign the petition. At the present time, all property bordering West Markham from Jackson Street west to University Avenue is zoned either as ££F” Commercial or i£E-l” Quiet Business. Mr. Smith testified that the several houses which are located between Jackson and Monroe Streets are all rental property, except the two belonging to the witness and Henry; that after Markham Street was widened, the traffic increased immeasurably, and the noise has increased to a point where he cannot hear television in the front room of his house if the door is open. Mr. Smith further stated that mercury lights have been installed on Markham “so that the light makes it just like day time all the time,” and that he had put up heavy draperies throughout the house to keep out this light.

Mr. James H. Larrison, a Little Rock realtor and appraiser, testified that the present zoning classification of the properties here involved is not an appropriate one, due primarily to the continuing build-up of traffic on Markham Street; he stated however that, to determine the highest compatible use which could be made of the church property, a study would have to be made, but he was emphatic that it could not be feasibly converted to a single family residence.

Russell McLean, a professional real estate appraiser, testified that there are many nice homes in the general area. He specifically mentioned Brickton Place, a sub-division about ten years old, which is located just north of the properties here under discussion. In the opinion of Mr. McLean, the use of the properties belonging to appellees as a service station site would adversely affect the use of other properties in the area for residential use. He stated that the service station on the other side of Jackson Street did not have this same adverse effect because the street itself acted as a buffer. It was his opinion that the highest compatible use of the property presently occupied by the church would be office use; for instance, a doctor’s office or insurance office. Mr. McLean agreed with Mr. Larrison that it would not be economically feasible to redevelop the property for single family residential use. W. D. Kelly, who lives at No. 7 Brickton Place, voiced his objection to the re-zoning of the properties for use as a service station site.

Henry DeNoble, Director of Planning, and Traffic Engineer, for the city, stated that he felt that, since the church group no longer intended to use its building, the property should be rezoned as “E-l” Quiet Business, which fits in with residential type use. Mr. DeNoble agreed with Larrison and McLean that “B” Besidential is not the appropriate zoning classification. It was the opinion of the witness that if the properties here involved were re-zoned to “F” Commercial, there would be nothing to prevent this same zoning all the way down West Markham Street; DeNoble felt that commercial zoning had been successfully stopped at Van Burén because of the use of the “E-l” Quiet Business zone classification.

In rebuttal, appellees offered a report of the Federal Housing Administration (which referred to the property owned by Henry) wherein the F.H.A. denied mortgage insurance because “continuing marketability is too adversely affected by commercial encroachment, fast, heavy traffic, and dangerous vehicular entrance and exit from property to warrant mortgage insurance.”

We think the court erred in holding that the city acted arbitrarily in refusing to re-zone this property as “F” Commercial. We agree that the West Markham Street location is not ideal, mainly because of the large volume of traffic, for residential property, but, as pointed out by the city’s witnesses, the effect of re-zoning upon surrounding property must also be considered. Such re-zoning, according to the evidence, would have an adverse effect upon surrounding residential property, including Brickton Place. Apparently the intersection of Jackson Street and West Markham was considered (by the Planning Commission) a proper boundary for a “break” for the reason that the church building separated the residential property from the commercial property west of Jackson. Of course, the current problem has arisen because of the fact that the present church building is not adequate for the growth of the congregation. Appellant’s witnesses recognize that it would be impractical to try and convert the church property to residential use, and with this testimony we completely agree. However, that fact does not mean that the answer is to re-zone to “F” Commercial. For that matter, neither of the real estate appraisers testified that “F” Commercial would be the most appropriate use for the properties. Mr. Larrison, who testified on behalf of appellees, would only say that the properties would not be appropriate for single family residence, and he testified that a study would have to be made to determine the highest compatible use that could be made of the church property. Mr. McLean testified that the best and most appropriate use of the church property would be for clinics or offices, and this view was also concurred in by Mr. DeNoble. In other words, the last two witnesses are of the view that “E-l” Quiet Business is the proper classification, since this classification is ideal as a buffer between residential and commercial zones, and will fit in with residential use.

It is not likely, in any re-zoning case, that a solution could be reached which would afford complete equity and satisfaction to all parties. As in other matters, the welfare of all concerned must be taken into consideration. We stated in Downs v. City of Little Rock, 240 Ark. 623, 401 S. W. 2d 210:

“The composition of the entire area must be taken into consideration, and it is undisputed that both the area to the west of Beechwood for several blocks, and the area north of Markham and Beechwood for a similar distance are completely residential. The benefit to a few individuals cannot be allowed to override the best interests of the residents of the overall area. The Planning Commission has apparently spent long hours in rezoning property in the city of Little Rock with the view of establishing a long-range program, one that will best fit the needs of an expanding city in future years.”

Unquestionably, if this property is re-zoned as “F” Commercial, there is no reason why the adjoining owner would not be entitled to the same classification, and likewise all the way down West Markham Street.

From what has been said, it is evident that we do not consider the refusal of the City of Little Rock to rezone these properties to “F” Commercial to be an arbitrary decision, and it follows that the court erred in so holding. On the other hand, we are just as convinced that the church property cannot suitably be converted into residential property. In our view, the evidence clearly indicates that a re-zoning to “E-l” Quiet Business -would be the proper classification for the properties here involved. Apparently there has been no recommendation from the Planning Commission for this type of re-zoning, nor has there been an application from appellees requesting this particular change in zoning. Nonetheless, in reaching the conclusion that the Chancery Court erred in allowing the “F” Commercial re-zoning, we take into consideration the evidence of Larrison, McLean and DeNoble (heretofore discussed) relating to a proper classification for these properties.

Reversed.

       The City of Little Rock, its Mayor, and Board of Directors, are all named defendants, but we shall refer to these parties in the singular.

      From Jackson Street to Van Burén and about 1/3 of the block from Van Burén to Harrison, the zoning is “F” commercial; for the balance of the block to Harrison, and from Harrison to Tyler, from Tyler to Polk, from Polk to Taylor, from Taylor to Fillmore, from Fillmore to Pierce, and about % of the area from Pierce to University, the zoning is “E-l” Quiet Business.

      Brickton Place is a sub-division of ten or twelve houses, which sell in a price range of $16,000.00 to $20,000.00.


author: Ed. F. McFaddin, Justice.

text:
    Ruby Jean Larkin v. Jacob C. Pridgett et ux
    5-3964
    407 S. W. 2d 374
    Opinion delivered October 17, 1966
    [Rehearing- denied November 21, 1966.]

      Reinberger, Eilbott, Smith & Staten, for appellant.

      .George Hotoard Jr., for appellee.
   Ed. F. McFaddin, Justice.

The custody of a little boy — Wayne Edward Larkin — born March 13, 1961, is the object of this litigation. The appellant, Ruby Jean Larkin, is the mother of the child. He has no legal father; but appellees, Jacob C. Pridgett and wife, are the parents of the putative father. The appellant, Ruby Jean Larkin, filed this habeas corpus suit against the appellees on November 15, 1965, to obtain possession of the child. The record exceeds 300 pages and the trial was extended to several weeks because of court recesses. Finally, the Chancery Court denied the habeas corpus sought by the petitioner-appellant, and entered a decree awarding the legal custody of the child to the defendants, subject to reasonable visitation rights to the plaintiff and other interested relatives. From that decree there is this appeal in which the appellant urges one point with five sub-points, same being:

“The Court erred in awarding custody of the appellant’s minor child to the appellees.
“(1) Any Finding That The Appellant Was Incompetent Or Unfit To Provide For Her Child Would Have Been Against The Preponderance Of The Evidence.
“(2) The Finding By The Chancellor That The Appellant Abandoned Her Child Was Against The Preponderance Of The Evidence.
“(3) The Finding By The Chancellor That The Appellees Have Had The Physical Custody Of The Child Most Of The Time Since October Of 1962 Was Against The Preponderance Of The Evidence.
“(4) The Finding By The Chancellor That The Appellant Orally Agreed That The Appellees Could Adopt The Child Was Against The Preponderance Of The Evidence.
“(5) The Chancellor Erred In Not Applying The Applicable Law To The Facts Of The Instant Case. ’ ’

If a habeas corpus case were the same as a replevin case, then this decree would have to be reversed because the appellant established — in fact it was admitted — that she was and is the mother of the little boy and appellees are merely the parents of the putative father; and there is no applicable period of limitation fixed by statute in such a case. But a habeas corpus suit like this, involving the custody of a child, is not like a replevin case. No: the best interest of the child is a matter of vital importance in a habeas corpus case like this one. Tucker v. Tucker, 207 Ark. 359, 180 S. W. 2d 571.

There were many witnesses in this case and it is impossible to reconcile the testimony. In such a situation we must necessarily lean heavily on the ability of the Chancellor, who saw the witnesses and evaluated their testimony, to decide which witnesses to believe in determining the best interest of the child. We therefore copy in extenso from the Chancellor’s Opinion:

“The sole issue in this case involves the custody of Wayne Edward Larkin, a little boy' four years old. Wayne is the illegitimate child of the petitioner, Ruby Jean Larkin. The undisputed proof is that a son of the defendants is the putative father of this child....

“So the issue of who will have custody of the little boy is between his mother and the parents of the man who fathered this child. Even though they are not legally the paternal grandparents, the evidence reflects that their love and affection for the little boy has been manifested to just as great a degree as if they were, in law, the paternal grandparents.

“With some rare exceptions, the evidence is in serious and irreconcilable conflict. The Court can only resolve the issues by first resolving the conflicting testimony. The petitioner admits to giving birth to two illegitimate children and the evidence sustains a finding that she gave birth to a third illegitimate child.

“In September of 1962, petitioner left Wayne Edward in the custody of her mother and went to New York to work. Even though it was denied, the Court is satisfied that petitioner’s mother relinquished custody of Wayne Edward to the defendants in October, 1962 and that the defendants have had the physical custody of the child most of the time since then with the child visiting in the home of his maternal grandmother periodically. The defendants appear to have been the main support for the child for the past three years.

“The problem of the conflict between the natural parent and third parties for the custody of minor children has plagued our courts for many years, but from our cases, several rather clear-cut rules or principles of law have been established. In the early case of Verser v. Ford, 37 Ark. 27, the natural father of a little girl sought the custody. The child’s maternal grandparents had cared for and kept the child since the child was just a few days old. The Court in the Verser case stated some principles that are to be used as guides by the courts in custody cases. The Court stated: ‘Only a few general principles can be taken as guides, subject to which the Chancellor must exercise his judgment upon the peculiar circumstances of the case, and act as humanity, respect for the parental affection, and regard for the infant’s best interests may prompt. All three should be considered; neither ought to be conclusive.’ (emphasis supplied) Notwithstanding the Court’s finding that the petitioner, the natural father, was a moral man with the means of discharging his parental obligations, the Supreme Court affirmed the Chancery Court order that awarded the custody of the little girl to the grandparents. The Court said: ‘The father has shown himself to be a moral man, with the means of discharging his parental obligations. Certainly, under the circumstances, if he had been in possession of the child, no Chancellor could have found warrant in equity for taking her away to be placed under the grandmother’s care. But it cannot be ignored that the case does not present that attitude. “ ‘The child was placed where she is by the father’s assent, and has so remained. By his assent ties have been woven between the grandmother and granddaughter, which he is under strong obligation to respect, and which he ought not wantonly and suddenly to tear asunder. He has shown no urgent necessity for present action, and his appeal to the Circuit Court for aid was not such as to enlist in most hearts any very strong sympathy. ’

“The case of Coulter v. Sypert, 78 Ark. 193, involved the custody of a ten year old boy wherein the boy’s father was seeking the custody of the child from the grandfather. The Court, in awarding custody to the grandfather, stated: ‘The father has no proprietary right or interest in or to the custody of his infant child. As said by Senator Paige in Mercein v. People, 25 Wend., 64, 103, decided in the Court of Errors of New York in 1840: “There is no parental authority independent of the supreme power of the State, but the former is derived altogether from the latter. * * * The moment a child is born, it owes allegiance to the government of the country of its birth, and is entitled to protection of that government. And such government is obligated, by its duty of protection, to consult the welfare, comfort and interests of such child in regulating its custody during the period of its minority.” ’

“The case of Baker v. Durham, 95 Ark. 355, has been cited as authority that a natural parent will not be deprived of the custody of his or her child unless said parent is incompetent or unfit. However, even the Baker case recognized that other factors could be present that would warrant and require a Court to deprive a natural parent of custody even though the parent was competent, fit, and a moral person. The Court stated: ‘ There may be other exceptional cases where the father, by reason of indifference to the welfare of his child and the lack of proper affection for it, has voluntarily relinquished these parental obligations, privileges and pleasures to other hands for so long that the court will refuse to disturb the associations and environments which his own conduct has produced, and will leave in statu quo those whom he has thus permitted to stand in loco parentis.

“It should be noted in the case before the Court, that even though the petitioner did not relinquish the custody of Wayne Edward to the defendants in the first instance, the preponderance of the evidence reflects that she was aware of the fact that her mother had relinquished custody of the child to the defendants. The Court is of the further opinion that petitioner orally agreed at one time that the defendants could adopt the child involved.

“The case of Mantooth v. Hopkins, 106 Ark. 197, at page 205 stated the rule: ‘While the preferential right of parents as the natural guardians of their children entitling them to their custody, will always be respected aid enforced as between them and relatives or strangers to the blood, unless there are some special circumstances calling for a different disposition of them, still whenever these circumstances arise the Court will give force to them and will not treat the right of the parent as proprietary and as absolute and uncontrollable.’

“The case of Tucker v. Tucker, 207 Ark. 359, 180 S. W. 2d 571, stated the rule: ‘Many decisions (rendered both before and after Loewe v. Shook) are to be found where the court declined to restore the custody of an infant to a parent who was morally fit, and financially able to establish and maintain a suitable home for the child. When the language employed in Loewe v. Shook is read in the light of these cases it is apparent that the court did not by that decision change the rule announced in the earlier cases. Moral fitness and financial ability-remained, as before, proper, but not the only, nor even paramount, subjects of inquiry. All doubt, if any existed, must necessarily have been removed when in Massey v. Flinn, 198 Ark. 279, 128 S. W. 2d 1008, a contest between a father and an aunt, it was declared “We do not think that the fitness or competency of the father is the only criterion by which to judge his right to the custody and control of his child.”

“ ‘In the case last cited it was said: “We recognize the general rule that ordinarily the parent of the child is its natural guardian and is entitled to its care and custody, however, this is not always true. There are exceptions. Of prime concern and the controlling factor is the best interest of the child.” ’ (Emphasis added).

“Other cases that have set forth the rules of law as enumerated in the above cited cases are: Massey v. Flinn, 198 Ark. 279, 128 S. W. 2d 1008; Haller v. Haller, 234 Ark. 984, 356 S. W. 2d 9; Carr v. Hall, 235 Ark. 874, 363 S. W. 2d 223. In the Haller case . . . the opinion for the Court stated: ‘It is a well-established rule that the welfare of the child is the polestar.’

“It can be readily seen from the above quoted citations that a natural parent does not have an absolute right to the custody of his or her child. In a general sense, a natural parent is preferred over blood relatives or strangers, but this is not because of any absolute right that the natural parent may have but it is presumed to be for the benefit of the infant. The law presumes that it is better for a minor to be under the care of its natural protector. However, this is not a conclusive presumption. Therefore, when this Court is asked in this case to enter an order putting the custody of the minor child with the natural mother and to withdraw his custody from the parents of the putative father, it has a duty to look into all the circumstances and ascertain whether it will be for the real and permanent interests of the child.

"When this criterion is followed in this case, there can be but one result. Assuming without deciding that the natural mother is a fit and moral individual — and the admitted fact that she has had two illegitimate children would make this statement highly questionable— nevertheless, she left this child in the custody of the maternal grandmother in September, 1962, and went to New York where she has remained continuously since that time with one visit back home between that time and just shortly before the first trial of this case.

"Even though she testified that she has made regular payments for the support of this infant, other than that statement and the statement of her mother, there is nothing in the record to substantiate such a claim. As previously found by the Court, the defendants have had the custody for most of the time since October, 1962.

"The evidence reflects that the defendants are high type people of the Negro race who are providing a good home for this child. The evidence reflects that their own children have obtained a good education for persons with their economic standing. The petitioner is asking this Court to allow her to take this child from a stable and good environment to her room or apartment in New York City, with all of the hidden perils that may lurk in that metropolis, portions of which have sometimes been referred to as a jungle. The petitioner attempted to leave the impression that she did not live in a ghetto, but by her own testimony she went to New York to seek work and apparently was never able to be in a financial position, nor had the desire, to take the child to live with her in New York. ...

"The Court holds that the legal custody of Wayne Edward Larkin should be awarded to the defendants subject to reasonable visitation rights of the petitioner and other interested relatives. ...”

The appellant has failed to establish that the opinion of the Chancellor was in error in any respect.

Affirmed.


text:
    State Farm Fire & Casualty Co. v. Forrest E. Rice et ux
    5-3972
    406 S. W. 2d 880
    Opinion delivered October 17, 1966

      Brown, Compton & Prew&tt, for appellant.

      W. P. {Billy) Switzer, for appellee.
   Ed. F. McFaddin, Justice.

This is an action by an insured to recover for property alleged to have been lost by theft.

Appellees, husband and wife, were policy holders of a home owners’ policy issued by appellant. Among other things the policy covered “. . . personal property , . . owned, worn, or used by an insured while on the premises. . .” One of the perils insured against was “Theft, meaning an act of stealing or attempt thereat. . .” Appellees filed action claiming that Mrs. Rice’s cloth coat of the value of $80.00 had been stolen from the Rice home, and that they were entitled to be compensated under the policy provisions above quoted.

The appellant insurance company denied any liability; the case was tried to the Court without a jury; and there was a finding and judgment in favor of the plaintiffs for $80.00 and interest, plus costs, penalty, and attorney’s fee. From such judgment there is this appeal, and appellant urges only one point, to-wit:

“Under the facts and under the terms and conditions of the policy there is no substantial evidence to support the judgment.”

We have previously copied the germane provisions of the policy. The facts were disclosed by the testimony of Mrs. Rice. She testified that before going to the hospital for surgery she checked all her winter clothing and that the coat was in her bedroom closet. She remembered distinctly cheeking about the buttons. Some time after she returned from the hospital she discovered that the coat was missing from the closet. She made a thorough search of the premises and the coat was not to be found; and she notified the insurance agent of the loss. Mrs. Rice further testified that the only persons living in the home were her husband, herself, and their 13-year-old daughter; that they also had a maid for housework; that frequently the entire family had been away from the home; and that she could not say that the doors were always locked when the entire family was away.

The burden of proof was on the plaintiffs to prove that the coat was lost by theft. (National Surety Co. v. Fox, 174 Ark. 827, 296 S. W. 718.) Appellant argues that the proof offered by the appellees was not sufficient to warrant a finding that the loss was due to theft; and appellant claims that a mere disappearance of an article does not, of itself, mean a theft. There are a myriad of cases involving claims on insurance policies for loss of property. Even to attempt to delineate the cases would be a work of supererogation. In addition to the National Surety case previously cited, some of our own cases involving loss of insured property in which the insurance policy covered larceny besides theft, are: Central Surety Fire Corp. v. Williams, 213 Ark. 600, 211 S. W. 2d 891; Mass. Fire & Marine Ins. Co. v. Cagle, 214 Ark. 189, 214 S. W. 2d 909; and Equity Mutual Ins. Co. v. Merrill, 215 Ark. 483, 221 S. W. 2d 2.

There are interesting annotations in American Law Beports on “Burglary, Larceny, Theft, or Bobbery Within Policy of Insurance.” These annotations may be found in 41 A.L.B. 846; 44 A.L.B. 471; and 54 A.L.B. 467. In the last cited annotation it is stated: “While mere disappearance of an article covered by the policy is not sufficient, of itself, to warrant a finding that its loss was due to theft, larceny, or burglary, within the terms of the policy, a finding of such a felonious abstraction may, in a proper case, rest upon circumstantial evidence.” A case with facts somewhat similar to those here is Fidelity Cas. Co. v. Wathen, (Ky.) 266 S. W. 4.

It will be observed from the policy provisions previously copied that there was no provision in the policy concerning the nature of proof sufficient to establish a theft. The house did not have to be entered, etc., etc. The word “theft” is a generic word: Black’s Law Dictionary says of theft, “. . . it is a wider term than larceny. . . Theft is the fraudulent taking of corporeal personal property belonging to another . . . with the intent to deprive the owner of the value of the same. . .” Funk & Wagnall’s New Standard Dictionary says of theft: “Theft sometimes has a wider significance than larceny and . . . may apply to any illegal acquisition of property, whether by removing or withholding it, and includes embezzlement, breach of trust, robbery, cheating, etc.”

Mrs. Bice’s testimony went farther than to show a mere disappearance of the property. She stated the condition of the house and the absence of the family at times. In short, there were sufficient matters of a circumstantial nature to take the case to the fact finding agency to determine whether there had been a theft of the coat. So we find no merit in the appellant’s argument that the evidence was not sufficient to support the judgment to the effect that the coat was stolen.

While not listed as a separate point, the appellant also argues that the plaintiffs did not comply with the policy provisions as to notification of the loss. The policy says: “Upon knowledge of loss under this peril or of an occurrence which may give rise to a claim for such loss, the insured shall give notice as soon as practicable to this company or any of its authorized agents, and also to the police.” Mrs. Rice testified that she promptly notified the agent of the company; but it is claimed by appellant that Mrs. Rice did not notify the police. Mrs. Rice testified, without contradiction, that there was no police force in West Crossett, Arkansas; that the Sheriff’s office was located in the court house in Hamburg, a number of miles away, and that she discussed with the insurance company adjuster the matter of notifying the police and was advised that such was not necessary. Under the showing here made the matter of waiver of notice to the police became a fact question.

Finding no error, the judgment is affirmed; and appellees are allowed an additional $100.00 for attorney’s fee in this Court.

       The original complaint alleged the value of the cost to be $120.00; but by amendment this was reduced to $80.00; and no point is here made as to any irregularity in such reduction. The Trial Court allowed penalty and attorney’s fee, and the correctness of that ruling is not challenged on this appeal.


author: George Rose Smith, Justice.

text:
    Donald H. Bridges v. Yellow Cab Co., Inc. et al
    5-3988
    406 S. W. 2d 879
    Opinion delivered October 17, 1966

      Richard W. Hobbs, for appellant.

      BenJ. Harrison and Walter J. Hebert and Q. Byrum Hurst, for appellee.
   George Rose Smith, Justice.

In 1963 the city of Hot Springs, by a resolution of the city council, approved a five-year franchise that granted to Virgil Bast an 'exclusive concession for the operation of a limousine cab service at the municipally owned airport. East later assigned the franchise to the appellant Bridges. Yellow Cab Company, Inc., brought this suit to enjoin the city from interfering with Yellow Cab’s asserted right to maintain a cab stand at the airport. Bridges intervened, relying upon his exclusive franchise as a bar to the suit. This appeal is from a decree holding Bridges ’ franchise to be invalid under our constitutional prohibition of monopolies. Ark. Const., Art. 2, § 19 (1874).

Under the terms of the franchise Bridges pays the city a fixed monthly fee for the limousine concession. He is entitled to the exclusive use of four parking spaces at the airport. Bridges binds himself to provide a limousine cab service, to maintain his vehicles in good condition, and to carry public liability insurance in a specified amount.

Elsewhere, in decisions with which we agree, the courts have sustained exclusive limousine concessions such as this one. Miami Beach Airline Service v. Crandon, 159 Fla. 504, 32 So. 2d 153, 172 A.L.R. 1425 (1947); Stone v. Police Jury of Parish of Calcasieu, 226 La. 943, 77 So. 2d 544 (1954); Ex parte Houston, 93 Okla. Crim. 26, 224 P. 2d 281 (1950). In the Stone case the court used this pertinent language: “A necessary incident to the competent operation of an airport is adequate provision for transportation of passengers throughout the twenty-four hours of the day, and it would be unwarranted to hold that the Police Jury of Calcasieu Parish did not have the power to make contracts to insure the performance of these services. . . Since the Police Jury was empowered to enter into such, a contract, the plaintiff’s contention that the purpose of the Ordinance was to protect a monopoly cannot be legally sustained; its object was to protect the right granted by the contract, so as to insure to the person who obligated himself to provide the service an adequate return for his furnishing’ of transportation facilities, proper equipment, competent drivers, and sufficient insurance to protect the public.”

We do not agree with Yellow Cab’s contention that this case is controlled by North Little Rock Transp. Co. v. City of North Little Rock, 207 Ark. 976, 184 S. W. 2d 52, 159 A.L.R. 813 (1944). There the effect of the statute and ordinance was to grant to one company a monopoly upon the taxicab business in the entire city of North Little Bock. We pointed out that the company seeking the monopoly was under no obligation to continue its service for any length of time. Here, by contrast, Bridges is bound to provide service for the life of the franchise. His exclusive right is a narrow one, embracing only the maintenance of the limousine stand at the airport. Bridges concedes in his brief that competing cab companies may deliver departing passengers to the airport and that incoming passengers may telephone for the cab of their choice if they like. The city council’s resolution specifically found that there was not enough business for the service to be maintained upon a competitive basis. In view of all these facts we cannot say that the exclusive franchise offends the constitution.

Beversed.


author: Paul Ward, Justice. Ed. F. McFaddin, Justice,

text:
    Louis Minkowitz et al v. City of West Memphis et al
    5-3994
    406 S. W. 2d 887
    Opinion delivered October 17, 1966

      Ballon & Farrar and Nance & Nance, for appellant.

      W. H. Dillalmnty, for appellee.
   Paul Ward, Justice.

Appellants’ land, which was located at the end of an airport runway, was condemned to establish a clear zone or avigation easement. A jury trial resulted in a verdict and judgment, giving each appellant the sum of $2,500 as damages. On appeal appellants rely on only one point for a reversal — the trial court erroneously instructed the jury relative to the measure of damages. Below is set out a summary of the pertinent facts involved.

The airstrip in question lies just west of the City of West Memphis. It runs north and south, with the north end abutting or near Highway No. 70 which runs east and west.

Appellants, Louis Minkowitz and Louis Slepian (d/b/a United Iron and Metal Company) each own a ten acre parcel of land involved here. Each parcel is one-half mile long, and the south end abuts the north side of said Highway No. 70 — directly north of the north end of said airport runway. For several years appellants have operated a business on said strips of land.

On September 17, 1964 the City of West Memphis enacted Ordinance No. 467 which established a clear zone or avigation easement across and over a portion of appellants’ land. About a year later appellants filed a complaint against the City in circuit court to recover damages for the unlawful taking of their property. The City filed a counter-claim asking that the property be condemned for “a clear zone or avigation easement,” and asking that the compensation due appellants be determined by a jury.

At a pre-trial conference the parties agreed: (a) that the City was entitled to an avigation easement, and (b) that the only issue to be determined by the jury was the compensation to which appellants were entitled.

The jury trial which ensued resulted in a judgment against the Citv in favor of each appellant in the amount of $2,500.

For a reversal, it is the sole contention of appellants that it was error for the trial court to give instruction No.- 2 which, in material part, reads:

:“Now, you will find for the plaintiffs in some amount that you think will compensate them for the property rights taken. In finding for the plaintiffs, Louis Minkowitz and Louis Slepian, against the City of West Memphis, you must fix the amount of money which will reasonably and fairly compensate them, each of them, for the difference in the value of the property involved immediately before and immediately after the restrictions placed or imposed on the property and which limits the height of buildings or ■:v:-other objects, and the restrictions imposed on the property under the terms of the ordinance and by the taking of a clear zone approach or avigation easement. ’ ’

Appellants sole objection to the above instruction is that it does not allow the jury to award them the full value of the land included in the easement.

It is our conclusion that the trial court was correct in giving the instruction.

It is not denied that the City did not, under the ordinance or the judgment, take a fee in the land subjected to the easement. The fee still remains in appellants. The great weight of the evidence is that said land is still usable to a large degree. One witness testified that each parcel had not been damaged more than $1,-000, and another witness thought there had been no damage. The extent of damage is, of course, not an issue here. The ordinance permits the use of the land by the landowners by permitting buildings and trees of heights not greater than from 25 to 75 feet — depending on the distance from the runway.

In situations such as obtain here the well established rule appears to be that the land owner is entitled to recover the difference in value of the land before and after the imposition of the restrictions. See: Ackerman v. Port of Seattle, 55 Wash. 2 400, 348 P 2 664; Hopkins v. United States, 17 3 F. Supp. 245.

As we understand appellants’ position, they do not question the above cited authorities because, they say, our own decisions are to the contrary. In support they rely on Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S. W. 2d 399; Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684, and; State ex. rel. Publicity & Parks Commission v. Earl, 233 Ark. 348, 345 S. W. 2d 20.

In our opinion the above decisions are not in conflict with the result we have reached, since they are distinguishable on the facts from the case here under consideration. Here, as pointed out previously, appellants’ entire use of the land has not been taken, nor can it ever be taken without remuneration. This is not the situation in the cited cases. In the Baucum case the court pointed out "... that the company acquired by condemnation proceedings the power to make such use of right-of-way as its future needs required . ...” In the Morris case we made the same statement quoted above. In the Earl case, which also involved the taking of land near the landing strip for airplanes, there appears this distinguishing sentence: “The court” — (sitting as a jury)— “concluded that appellants’ use of the said strip destroyed permanently all use and benefit to appellees, and therefore appellees should be paid full value.” (Emphasis ours.)

Affirmed.

McFaddin, J., dissents.

Ed. F. McFaddin, Justice,

dissenting. I think the holding of the Majority in the present case is in direct conflict with our holding in State ex rel Publicity & Parks Comm. v. Earl, 233 Ark. 348, 345 S. W. 2d 20. In that case, as here, land adjacent to an airport was being taken for the protection of the planes entering and leaving the airport; and we held in that case that the landowner was entitled to recover the full value of the land for the easement taken. I copy from that opinion:

“Appellant states that ‘The court erred in fixing the valuation of the easement as if it were a taking in fee.’ It will be recalled that appellant sought to obtain a fee in the 350-foot strip of land to be used for a runway, but asked for only a permanent easement as to the 400-foot strip on each side of the said runway. The trial court concluded that appellant’s use of the said strip destroyed permanently all use and benefit to appellees, and therefore that appellees should be paid full value. After careful consideration we have concluded that the trial court was correct.
Although the exact issue here presented has never been passed on by our court we do find support for the trial court’s determination in the case of Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S. W. 2d 399; Texas Illinois Natural Gas Pipeline Co. v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477; and Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684. In the Baucum case above cited, we find this statement: ‘We adopt the view of the Supreme Court of Tennessee in the case of Kentucky-Tennessee Light & Power Co. v. Beard, 152 Tenn. 348, 277 S. W. 889 where it was held, after a review of the authorities (which we do not repeat), that where an electric light and power company, in condemnation proceedings, acquired a permanent easement across the land of another, it became liable for the full value of the right-of-way as if the fee had been taken. ’ In the Lawhon case above cited this court said: ‘Under the law of this State, the owner of land is entitled to be paid the full value of the land embraced within the right-of-way easement, as if the fee had been taken even though the landowner, after the pipe line was constructed, had the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement.’ ”

The Majority attempts to distinguish the Earl case from the present case by inferring that there is only a “small taking” of the use of the land in the case at bar. I consider the taking in the present case to be as great as was the taking in the Earl case. In Section 5 of the Municipal Ordinance of the City of West Memphis there is a restriction in the nse of the appellants’ land. In Section 6 of the Ordinance the City has the right to go on the land of the appellants at any time it desires and install and maintain markers and lights for the protection of planes entering or taking off from the West Memphis Airport. In Section 7 of the West Memphis Ordinance the landowners are forbidden to make any material change in the use of the land by erection of structures or growth of trees. With all of these provisions in the West Memphis Ordinance, I think the jury should have been allowed to find:

(a) Avhat portion of the use of the appellants’ property Avas fully taken; and

(b) the value of the fee of such portion so fully taken.

The only way I can harmonize our holdings in the Earl case and the previous cases would be on the basis of the full value of the land for the easement taken.

Therefore I dissent from the Majority in the case at bar.

      Seetion 5 reads: “Use Restrictions — Notwithstanding any *>ther provisions of this ordinance, no use may be made of land within any zone established by this ordinance in such a manner as to create electrical interference with radio communication between the airport and aircraft, make it difficult for flyers to distinguish between airport lights and others, result in glare in the eyes of flyers using the airport, impair visibility in the vicinity of the airport, or otherwise endanger the landing, taking-off or maneuvering of aircraft.”

       Section 6 reads: “(b) Marking and lighting — Notwithstanding the preceding provisions of this section, the owner of any nonconforming structure or tree is hereby required to permit the in» stallation, operation, and maintenance thereon of such markers and lights as shall be deemed necessary by the West Memphis Airport Commission to indicate to the operators of aircraft in the vicinity of the airport, the presence of such airport hazards. Such markers and lights shall be installed, operated, and maintained at the expense of the West Memphis Airport Commission.”

       Section 7 reads: “(a) Future Uses. Except as specifically provided in paragraphs 1, 2 and 3 hereunder, no material change shall be made in the use of land and no structure or tree shall be erected, altered, planted or otherwise established in any zone hereby created unless a permit therefor shall have been applied for and granted. Each application for a permit shall indicate the purpose for which the permit is desired, with sufficient particularity to permit it to be determined whether the resulting use, structure or tree would conform to the regulations herein prescribed. If such determination is in the affirmative, the permit shall be granted.”


author: Osro Cobb, Justice.

text:
    Joe Hoelzeman Jr. v. State of Arkansas
    5207
    406 S. W. 2d 883
    Opinion delivered October 17, 1966

      Wright, Lindsey & Jennings and William R. Over-ton, for appellant.

      Bruce Bennett, Attorney General; Jim Wood, Asst. Atty. Gen., for appellee.
   Osro Cobb, Justice.

This case involves a re-examination of our statutory requirements in perfecting appeals from inferior courts to the circuit court.

INTRODUCTORY FACTS

At a point some three miles north of Morrilton on Highway No. 9 appellant lost control of his car and went through a ditch some 18 feet in width and struck and knocked over a farm fence post. He was alone and there were no witnesses other than appellant to the incident. Appellant could not extricate his car and locked it and when he reached a telephone called State Patrolman Bill Mitchell to report the incident, and to inquire if his car could he safely left at the scene overnight. It is undisputed in the record that Patrolman Mitchell told him he could do so and, in fact, the officer promised appellant that he would go with him to the scene the following morning; but, instead, went to the scene independently and thereafter arrested appellant for reckless driving.

Appellant pleaded not guilty and at the hearing before the Justice of the Peace, State Patrolman Mitchell was the only witness to testify for the prosecution, and he asserted that he had concluded from the skid marks, which were not clearly identified with appellant’s car, that appellant must have been going at a high rate of speed at the time of the accident. On cross examination the officer admitted that appellant had reported the incident to him promptly and had stated that he had been proceeding in a careful and prudent manner when a cow jumped upon the highway, causing him to swerve to avoid a collision, and that in doing so he lost control of the car and possibly stepped on the accelerator rather than the brake. Solely upon the inferences drawn from the markings at the scene by Officer Mitchell, appellant was convicted of the offense of reckless driving and judgment was entered fixing a penalty of $100.00 fine, $50.00 of same to be suspended on the condition that appellant write for the court “I 'will not drive in a reckless manner” 500 times.

Appellant, who was not represented by counsel at his trial before the Justice of the Peace, advised the Justice of the Peace on the record that he desired to appeal the case to the circuit court. Significantly, the Justice of the Peace advised the defendant, not once but twice, that he would prepare the papers for appellant’s appeal. See page 55 of the trial transcript. Thereafter, appellant made repeated requests of the Justice of the Peace to prepare and file the transcript perfecting his appeal to the circuit court and, in reply to each such request, the Justice of the Peace advised appellant that he would do so in time to protect the interest of appellant as to his appeal. Unhappily, the 30 days time in which to file the transcript on appeal transpired without the Justice of the Peace having performed his promises and assurances to appellant. Immediately following the default of the Justice of the Peace in failing to file the transcript, appellant filed his affidavit for an appeal of his conviction in the circuit court. Motion was made to dismiss the appeal because of failure to file the transcript within 30 days and upon hearing the circuit court dismissed appellant’s appeal. It is from this action that the case reaches us for review.

Appellant contends that it was the positive and inescapable duty of the Justice of the Peace to file the transcript of the record and that any duty upon appellant in the matter was that of exercising reasonable care and prudence as to those matters relating to the appeal which were within his personal control. On the other hand, appellee takes the position that even if the Justice of the Peace had in fact misled appellant by his promises and assurances to file the transcript, that the expiration of the 30 day time limit foreclosed appellant’s right of appeal.

Appellant’s contention of error in dismissing his appeal.

The question of fixing the responsibility for filing the certified transcript of proceedings in cases appealed from a judgment of the Justice of the Peace with the circuit court has been the subject of considerable legislative action by our General Assembly over the years.

In 1908 existing statutory provisions made it the duty and responsibility of the Justice of the Peace to file such transcripts. See c. 151, Section 2, Acts of 1905. This Court in a unanimous opinion, Cain v. State, 86 Ark. 455, 111 S. W. 267, (1908), noting- that the Justice of the Peace had failed to seasonably file the transcript and that appellant’s appeal had been dismissed because thereof, reversed the dismissal of the appeal, stating:

“Section 2 of the Act of April 11, 1905, makes it the duty of the justice, and not of the appellant, to file the transcript in the circuit clerk’s office.”

In 1939, Act 323 was passed by our General Assembly regulating appeals from inferior courts to the circuit courts. We quote Section 1 thereof, which is pertinent :

“A party who appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment must file the transcript of the judgment in the office of the circuit court clerk within 30 days after the rendition of the judgment. If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond. ’ ’

The language quoted from said Act 323 of 1939 cannot be said to be ambiguous. It placed the responsibility for seasonably filing transcripts upon appellants, rather than upon the Justice of the Peace.

Obviously, general opposition developed as to the placement of this responsibility upon the appellants as the General Assembly in 1953 passed Act 203 for the express purpose of repealing Act 323 of 1939, and removing this responsibility from appellants and placing-same again squarely upon the Justice of the Peace. We quote Section 1 of Act 203 of 1953, which is the last statutory expression of our General Assembly upon this subject, same now appearing as Ark. Stats. Ann. 26-1307, Yol. 1, (Repl. 1962):

“26-1307. Clerk or justice of peace to file transcript of judgment within thirty days. If a party appeals from a justice of the peace judgment the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the circuit court clerk within thirty (30) days after the rendition of the judgment. (Acts 1939, No. 323 § 1, p. 851; 1953, No. 203, § 1, p. 615).”

The language of the 1953 statute again is clear and free of any ambiguity. Its purpose is equally clear, being the removal of the evils experienced under the previous law which made appellants responsible for filing their transcripts on appeal. It also repealed authority to issue execution against the signers of the appeal bond as set forth in the Act of 1939.

In Whitely v. Pickens, 225 Ark. 845, 286 S. W. 2d 4 (1956), we held that the Act of 1953 made it the duty of the Justice of the Peace to prepare and file the transcripts and placed a companion burden upon appellants to see that transcripts were duly filed. It is clear that in situations where the trial Justices of the Peace die, become incapacitated, depart the state or advise the appellant that they are not going to prepare and file the transcript, that an appellant in the face of such notice must assume the burden of taking prudent and diligent measures to protect his rights of appeal, eliminating, of course, therefrom burdens of a character completely beyond the control of such appellants.

In this particular case, which is factually distinguishable from Whitely v. Pickens, supra, every time appellant asked the Justice of the Peace to proceed with the filing of his transcript on appeal, appellant was unequivocally advised by the Justice of the Peace that same would be done in time to protect his interests, i. e., 30 days from judgment. These unfulfilled promises served to deprive appellant of a proper basis in fact for a petition for relief by mandamus. We are also confronted with the inescapable fact that this appellant could not control the actions of the Justice of the Peace in preparing and filing the transcript, nor could this appellant personally presume to prepare a certified transcript of the proceedings. These functions were peculiarly within the power of the Justice of the Peace.

The constitutional guaranty of a fair and impartial trial of one accused of a crime could become a nullity if trial courts are permitted to mislead persons convicted of a crime as to matters necessary to their appeals and so as to effectively deny such persons appellate review.

Appellant vigorously sought to prosecute his appeal. He made repeated requests of the Justice of the Peace to file the transcript and when the Justice of the Peace defaulted in filing’ his transcript, appellant filed his affidavit of appeal in the circuit court within a matter of two days. The Justice of the Peace finally filed the certified transcript some 90 days after the judgment of conviction. Thus we conclude that appellant diligently, prudently and seasonably met every burden which could be reasonably placed upon him in seeking appellate review in the circuit court.

The following facts in this case are pertinent:

(a) Here, the trial court and not a deputy or clerk personally made the explicit assurances and promises to appellant.

(b) There was no showing that the certified transcript had been seasonably prepared by the Justice of the Peace, and that appellant had been called to pick it up and file it himself if he cared to do so.

(c)The record here shows no inadvertence or oversight by the Justice of the Peace with reference to his statutory duty to file the transcript; but, on the contrary, it indicates a deliberate course of action to deprive appellant of his appeal.

(d) Appellant did not stand idly by but diligently and persistently importuned the Justice of the Peace to make certain that the transcript was properly and seasonably filed to protect his rights on appeal, each time being assured that this would be done.

So long as appellant was being assured by the Justice of the Peace that the transcript would be seasonably filed as required by law, appellant could rely thereon. There is certainly no presumption of law that a public official will refuse to discharge a duty detailed by statute.

It is doubtful, in view of the assurances of the Justice of the Peace, that appellant could state adequate grounds for relief by mandamus prior to the default as to such promises.

This appellant seasonably and prudently met every reasonable burden which was his in respect to this appeal. It would abort the ends of justice to deny appellant de novo review in the circuit court.

For analogous reasoning, see Marshall Motor Service v. Norm Co., 194 Ark. 805, 109 S. W. 2d 662 (1937), wherein we stated:

“Of course, if there is a satisfactory showing that the delay is due to matters over which the appellant had no reasonable control, and justice requires that the delay be disregarded and that the cause be heard de novo on its merits, then the Circuit Court should overrule a motion to dismiss.”

The cause is reversed and remanded for further proceedings on the appeal from the judgment of the Justice of the Peace.


author: Guy Amsler, Justice.

text:
    Harvey A. Belford v. Elmo Taylor, Judge
    5-3985
    406 S. W. 2d 868
    Opinion delivered October 17, 1966

      John D. Eldridge, for petitioner.

      Fletcher Long, for respondent.
   Guy Amsler, Justice.

The capable attorneys in their statements have fairly outlined the issue and undisputed facts. Petitioner’s attorney recites these facts:

“This is a proceedings for a Writ of Prohibition against Elmo Taylor, Circuit Judge of the First Judicial Circuit, to prohibit that court from taking-jurisdiction of an action filed by one Brenda Humphrey against the petitioner, Harvey A. Belford, being Cause No. 6553 in said Woodruff Circuit Court.
“The sole question being decided by this court is whether Brenda Humphrey, at the time of the accident and injury complained of, resided in Wood-ruff County as the term is used in Ark. Stat. Ann. § 27-610 (Repl. 1962).
“On June 3, 1965, Brenda Humphrey was driving her automobile on U. S. Highway 70 between Memphis and West Memphis in Crittenden County when it was collided with by an automobile driven by Harvey A. Belford of Pocahontas [Randolph County, Arkansas.] Brenda Humphrey secured employment with the General Electric Plant in Memphis in April, 1961 and worked continuously for that company until the time of the accident in June, 1965. During all of that time she lived either in apartments or rooming houses in West Memphis, Crittenden County, Arkansas. On most weekends she would return to her parents’ home in McCrory, Woodruff County, Arkansas. Her driver’s license was issued in Woodruff County and in most of the years she assessed and paid her personal property taxes in Woodruff County. She voted absentee ballot in Woodruff County.
“Her address on her income tax return and on her W-2 forms and at her employer’s office was given as her address in West Memphis. She would save up her soiled clothing and carry it home to McCrory each week, picking up clean clothing and taking it back to West Memphis. She paid rental on a monthly or weekly basis at her various places of abode in the City of West Memphis. When she was first admitted to the hospital in West Memphis following the accident her address was given as 204 East Cooper, West Memphis, Arkansas, and upon readmission this was changed to show her address as McCrory, Arkansas.”

Counsel for respondent added:

“During the time she was working in Memphis, and during the time which petitioner claims she established a residence in West Memphis, lived only in furnished rooms and apartments. She at all times ate her meals at a restaurant, with rare exceptions when she was invited out to the home of a couple she knew there, she kept her winter clothes in Mc-Crory during the summer, and her summer clothes in McCrory during the winter. She was furnished in her various rooming houses and apartments in West Memphis with linens, towels, and did not so much as own any of the pictures on the walls or other decorations in her room.
“Her automobile registration and her driver’s license during the two or three years immediately preceding this collision were issued in Woodruff County and showed Woodruff County as her address.
“Her time spent in West Memphis consisted in Sunday, Monday, Tuesday, Wednesday and Thursday nights of each week, and her time spent in McCrory consisted in Friday nights, Saturdays, and Sundays. So far as the record shows, she never acquired any friends or close acquaintances in West Memphis while she had employment in Memphis. The West Memphis address given her employer was for purposes of receiving company bulletins and tax forms, and this address was required by her employer because they wanted the address where she stayed during working hours.”

The sole question is whether the trial court correctly held that respondent was a resident of Woodruff County within the purview of our venue statute, supra.

The attorneys have fully analyzed, and compared most of our decisions dealing with the venue act since the legislation was enacted in 1939. Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765; Wilhelm v. Taylor, 236 Ark. 85, 346 S. W. 2d 674; Fort Smith Gas Company v. Kincannon, 202 Ark. 216, 150 S. W. 2d 968; Twin City Coach Co. v. Stewart, 209 Ark. 310, 190 S. W. 2d 629; Missouri Pacific v. Lawrence, 215 Ark. 718, 223 S. W. 2d 823; Burbridge v. Redman, 211 Ark. 236, 200 S. W. 2d 492; Murry v. Maner, 230 Ark. 132, 320 S. W. 2d 940 (1959).

Twin City Coach Co. v. Stewart, supra, involved the death of an 18 year old girl (respondent here is 24) who worked in Fort Smith (Sebastian County) six days a week, sharing a rented apartment with some other girls, where she kept her clothes. Nearly every weekend, after working six days, the decedent returned to Boone-ville (Logan County) where her parents lived, bringing along her soiled clothes so that she and her mother could launder them. In the early spring of 1944, the building-in which she worked was closed for repairs and she spent the time during closure with her parents. There was no proof of payment of taxes, procuring driver’s license or ownership of property.

Miss Stewart lost her life in a collision that occurred in Sebastian County. Her administrator sued in Logan County. The question of residence arose and we held that Logan County was the proper forum under our venue act.

In comparing- the instant case with Twin City there are two differences to which we do not accredit major significance. The respondent had been in West Memphis (Crittenden County) somewhat longer than Miss Stewart had worked in Fort Smith and Miss Stewart had attained her majority only a short time before her demise while Miss Humphrey is several years older. On the other hand Miss Humphrey had assessed property, paid poll and property taxes and voted in Woodruff County.

As early as 1884 we said that each case of this type (dealing with residence) must be decided on its own state of facts. Krone v. Cooper, 43 Ark. 547.

G-enerally in a case where venue is questioned there must be a determination on the facts. In Murray v. Maner, supra, we stated the well settled rule of this court that prohibition is not the proper remedy when the trial court’s jurisdiction depends on a disputed question of fact. One of the virtues of this rule is that a litigant by protecting his record throughout the trial may give the court the benefit of all the facts before the issue is ruled on.

The able trial judge concluded that venue lies in Woodruff County. We give persuasive weight to his conclusion and are unwilling to say that petitioner has discharged the burden of proving that respondent is not a resident of Woodruff County.

Petition denied.