author: Eakin, J.

text:
    Mitchell vs. Moore.
    Beports of Supreme Court: Reporter controls printing of.

    The control of the printing of the Supreme Court Beports belongs to the Beporter, subject to the approval of the Governor, Auditor and Treasurer, and not to the Commissioners of Public Printing.
    APPEAL from Pulaski Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      U. M. Rose, for appellant.

      John Fletcher, for appellee.
   STATEMENT.

Eakin, J.

Appellant filed in the circuit court a petition for a mandamus, against Moore, as Reporter, stating':

That the state board of commissioners, whose duty it was to superintend the letting of public contracts, in September, 1878, awarded to W. D. Blocher the public printing for two years from the first of January, 1879; that Rloeber died, and, afterwards,in December, 1879, petitioner was, by the board, substituted in his place; that in July, 1880, he made with said board another contract to do the printing for the two succeeding years. That defendant is the Reporter of this court, and has in his hands manuscripts of its decisions ready to be printed as the thirty-fourth volume of Arkansas Reports, and refuses to deliver them to petitioner. ITe prays that he may be ordered to do so.

The defendant, in answer, claims the power of letting and superintending the printing and binding of the reports, and says that he has contracted therefor with another company, which contract has been approved by the governor, auditor and treasurer of the state ; and that the printing and binding of said volume of reports is not embraced in petitioner’s contract with the board of commissioners.

A demurrer to this answer was overruled. Petitioner rested, and, the writ being refused, appealed.

OPINION.

The contracts being admitted, the only question is, as to the power of the Reporter to let and superintend the printing of the reports.

The public printer was formerly a bonded officer, elected by the general assembly. (Gould’s Digest, ch. 137, secs. 1

and 2.) As such, it was made his duty to print the decisions of the supreme court, (Ib., ch. 146, secs. 10 and 11.) There can be no doubt that it was considered such work as would be public printing.

The constitution of 1868 (Art. V, sec. 15) authorized the legislature to prescribe, by law, the manner in which the state printing should be executed. Whereupon, by act of 1869, it constituted a board of public printing, to be composed, of the governor, secretary of state, treasurer, and one member to be chosen by each house, with full powers to make any and all contracts respecting the public printing of the state. (Gantt’s Digest, secs. 4879-80.) This act, in effect, abolished the former statutory office of public printer, and vested all power as to the Reporter in the board. It continued to be the habit to designate the person, with whom the contract was made, as public printer, although he was only an employee of the board.

Such was the law at the adoption of the constitution of 1874, which continued the office of Reporter, without any designation of his duties (Art. VII, sec. 7), and provided that all printing, etc., should be done under contract, with the lowest responsible bidder, below such maximum price and under such regulations as might be fixed by law; said contracts to be subject to the ^approval of the governor, auditor and treasurer, (Ib., Art. XXX, sec. 15.) In accordance with this section, by act of November 28, 1874, the general assembly made the governor, auditor and treasurer a board of Commissioners, and empowered them to let, to the lowest bidder, for the term of two years, contracts for all the printing and binding, of whatever description or character, required for the use of all the departments of the state government. These powers, evidently included the reports. With regard to them, however,‘a change of policy seems to have soon become desirable ; and the same general assembly, by a special act for the purpose, December 14, 1875,empowered the Reporter, and made it his duty when he had sufficient copy to make a book of 600 pages, to contract for its printing and binding, with the lowest responsible bidder, such contract to be approved by the above-named officers. This act was doubtless prompted by the consideration, obvious to all, that the Reporter was best able to judge of the kind of work to be done and the style of its execution; and was peculiarly qualified, by virtue of his legal education and professional experience, for that careful supervision of the work, so essential to prevent misleading errors which might disturb the due administration of justice throughout the state. The board of commissioners were, in other respects, left in full possession of all their powers conferred by the act of November 28,1874. These were very extensive, embracing many other matters besides the public printing, and all of that, save the repoits. Such was the law when the contract for public printing was made with Blocher, for whom petitioner was substituted, in 1879. He can not have greater rights than Blocher had, and, therefore, no right under that contract to claim the printing of the reports.

This decides the case. Petitioner is still acting under the contract with Blocher. But as the new contract, which he, himself, made with the board, in July, 1880, will soon come into operation, and is brought to our notice in the petition, it is of public importance to avoid delays in getting out the reports, that we determine its scope and effect.

It is contended that a,n act of March 11, 1879, restored to the commissioners the control of the printing and binding of the reports. It will be remembered that said board had been left with a large residue of powers regarding the public printing, the great mass of it being still under their control. The first section of the act directs and requires them, “in giving out the contracts for all public printing required by law to be done,” to advertise and receive bids for the governor’s message, reports of the auditor, treasurer, secretary of state, attorney general, commissioner of the state landp, receiver of the Real Estate bank, superintendent of public instruction, officials of the penitentiary, the State Industrial university, and other heads, on to eighteen in number, closing with “ all other public printing of every character and description required to be done and not embraced ■ within either of the above-named classes.”

The next section requires the board to let to the lowest-bidder; and the next section, and last, repeals all laws in conflict with it.

The act does not, in terms, give the board any new powers, but seems rather intended to regulate those it had. The printing of the reports is not enumerated amongst the classes, in a list which seems to have been intended to be exhaustive, although the last clause was properly inserted to cover any other kinds of printing within their vested powers which might have been omitted.

Considering the special care which the legislature had formerly taken to separate the printing of the reports from all other printing, and take it from the board, it is not reasonable to suppose that it would have been omitted from the enumeration of classes of powers which were being then only regulated, not conferred. In the wide range of public printing, there is enough of detail to make the concluding clause proper, without drawing in the printing of the reports.

Acts in pari materia, explain each other. From the review of legislation on this subject, it appears clear that the control of the printing of the reports rests with the Reporter, subject to the approval of the governor, auditor and treasurer. ,

The detnurrer reaches back to the petition, which shows no grounds for the mandamus.

Affirm the judgment.


source: Caselaw Access Project

license: Public Domain

text:
    St. L., I. M. & S. Railway Co. vs. Morris.
    1. License to Overplow Lands: Not given by grant of right of way.

    The grant of a right of way across one’s lands to a railroad company is no license to it to overflow the grantor’s lands hy the unskillful construction of a levee on the right of way.
    2. Statute op Limitations : In actions for overflowing lands by building levee.

    The statute of limitations of three years applies to actions against a railroad company for overflowing one’s land hy the building of a levee, and commences as soon as the levee is completed.
    3. Damages : Overflowing land by building levee.

      A railroad company building a levee across a branch which overflows, and thereby causing a greater overflow of adjoining lands, is not relieved from damages therefor by making ditches and trestles that carry off the water as fast as the branch would when not overflowed.
    4. Railroad Company : What injuries not liable for.

    Railroad companies, acting within the limits of their franchises, and using due skill and care in the construction and operation of their roads, and having the right of way, are not liable as trespassers, nor for injuries to outside property which are the natural and unavoidable effect of the road.
    5. Damages : Not diminished by benefits of road.

    Damages for overflowing land by the construction of a railroad levee can not be diminished hy the enhanced value given to the land in common with other lands in the vicinity by the presence of the road.
    6. Same: Rule for, for overflowing land.

    The rule for assessing damages for overflowing land by the construction of an embankment is, to take the actual value of the land at the completion of the work, supposing the consequences to be known, compare it with what the value would have been if the overflow had remained as before the construction of the embankment, and fix the damages at the difference.
    APPEAL from Jackson Circuit Court.
    Hon. William Byers, Circuit Judge.
    Winfield, Dodge Johnson, for appellant.

      Charles Minor, contra.

   Eakin, J.

Morris, the owner of a tract of land in Jackson county, for the consideration of a dollar gave a right of way across the same to the defendant railway company.

On the thirteenth of July, 1876, he brought this action at law against the company; alleging, in substance, that it had wrongfully erected an embankment upon the line of its road, and built a trestle, near the lands, and was continuing the same, whereby it caused the waters of Lye branch and White river to overflow them, and rise higher and remain longer upon them than before,’with other injuries; that, his lands were rendered unsalable and unfit for tillage. Prayer for damages.

The defendant answered, putting in issue the wrongful construction of the embankment and trestle, the overflow of the lands and all other injuries. It pleaded also the statute of limitations of three years, and specially:

That the road was constructed by the Cairo and Eulton Railroad company, a corporation organized under our state laws, to which plaintiff had granted the right of way. That the embankment and trestle were necessary, and that they were constructed in a prudent and skillful manner,, and that the injuries (if any) were unavoidable. Also, that the lands in question were rendered more valuable by the construction of the railroad.

The plaintiff amended, to show that the defendant was the successor of. the Cairo and Eulton-railroad, and upon these pleadings the cause went to the jury.

There was a good deal of evidence pro and con, as to the effect upon the lands produced by the embankment and trestle. The preponderance of it, as shown in this transcript, is to the effect that a solid road-bed embankment was built across a wet-weather stream which drained an area of seyeral square miles, and that at a considerable distance from the natural crossing the company left an open trestle, and endeavored by a ditch to drain off the water through that. The effort seems to have been ineffectual. The proof justified the jury in finding that damage had resulted from want of due care and skill. Whether the court erred in instructions, remains to be considered.

The court, on motion of plaintiff, instructed the jury, in effect:

1. That if defendant constructed the road-bed in the vicinity of the lands so as to obstruct the natural flow of water in Lye branch, and alter the natural drain, and thereby injured the lands by overflowing them,, they should find for the plaintiff.

2. In that case the measure of damages is the difference in the market value of the lands just before the construction of said road-bed, and just afterwards; in estimating which damages the jury should consider only the direct benefits to the plaintiff’s lands from the construction of the road, not affecting other lands in the neighborhood.

3/ That notwithstanding the grant of the right of way, it was the duty of the company.to construct its road-bed in a skillful and careful manner, or be liable for failure.

4. That the statute of limitations is three years.

For the defendant, the court instructed:

That if more than three years had elapsed from the time of the injury to the bringing of the suit, it would be barred; and further:

That if the benefit to the land resulting from defendant’s own acts in the construction of the road-bed, equaled or exceeded the damage, they should find for defendant.

It refused to instruct; on defendant’s motion, as follows :

1. That if the land was worth as much after the road was built as before; or,

2. That the road-bed- was constructed and completed across the branch, more than three years before the suit was brought; or,

3. That plaintiff granted the right of way over his lands, in consideration of one dollar and the benefits to be derived from the road; or,

4. That the damage resulted not from diverting or damming a running stream, but surface water; or,

5. That if• defendant, after diverting the stream by the embankment, made artificial drains down the embankment and through the trestle, and back into the natural be'd below, and that said ditches were sufficient to carry off’, the water as rapidly as the branch when not overflowed; or,

7. If the damages were not produced by the defendant’s unlawful entry on the land, and taking the same for the use of the road-bed, but was a matter happening outside of the limits of its road-bed; they must, in either case, finding the facts, give a verdict for defendant.

The court also refused to instruct for the • defendant: That the measure of damages was the difference between the damage done by the natural overflow of the land, and the natural character of the seasons, which would otherwise have resulted without the road being built, and .the damage caused by it.

During the trial and after the evidence, defendant asked and was refused leave to plead the statute of limitation of two years, under the act of January 22,1865, section 4. The refusal was proper, as the act does not apply to this case.

The jury returned a verdict in favor of plaintiff for $2,965.50, for which judgment was entered. Defendant moved for a new trial, which being refused, he excepted and appealed.

1. License to OvekeloivLands

Not given by grant of right of way.

2. Limitations:

To actions for overflowing lands by levee.

3. Damages

Overflowing lands by building levee.

Exceptions to instructions given for plaintiff, and refused for defendant, as well as to the verdict on the evidence, were duly saved by motion for a new trial.

The first instruction given for plaintiff is correct, taken in connection with the third. The grant of the. right of way certainly was no license to the company to injure plaintiff by unskillful work. If it is to be considered at all it should, in conscience, have imposed upon the company an obligation to be tender of the property rights of the donor.

The statute of limitations of three years.. applies to this case, as the court properly instructed, and it began to run as soon as the company had finished its work about the embankment, trestle and ditches. Until that was done, it could not be said that the embankment itself had caused any injury. If the open trestle and ditches had been properly located, and skillfully completed, there would have been no damage, nor cause of action. There was evidence to support the verdict on this point.

The consideration of plaintiff’s instruction on the measure of damages, will be taken up in connection with that asked by defendant.

There was no evidence that the injury was caused by the obstruction of surface water. Lye branch was, by all the evidence, a stream with a defined bed, but sluggish. It is not necessary, in this case, to define the difference between the two cases.

The fifth instruction was properly refused. It .was not sufficient , to construct the .works so as to carry off the water as rapidly as the branch would “ when not overflowed.” Streams do overflow, and engineers should provide reasonably against that, also, by openings of sufficient capacity, or property holders would be left to the mercy of the- elements.

cmfpANY't1’

ju^atlot for’

6Damages;

ishedimiby

The seventh instruction asked by defendant presupposes that a right of entry upon, and use of, land for road purposes, absolves the company from all liability for injury to other lands outside of the road-bed. This is a misapprehension of the true and rational doctrine.

Railroads exercise franchises granted by the state for the public-good. The companies invest large sums for the use of these franchises, looking, however, only to the vidual profit of the stockholders. Both interests are to be kept in view, a$d protected If the companies act within the limits of their franchises, and use due skill and caution in the construction and operation of the roads, and acquire the right of way, they can not be made liable either as trespassers, or on account of detriment to outside property, which is the natural and unavoidable effect of the road. Some places are rendered less valuable, or endangered, by the mere vicinity of a railroad, constructed with the utmost care. It will bring less in market. This is the misfortune of the owner. But the public good requires that he shall submit to it, or railroads could not be built and run with private capital. But there is no case, whether with regard to lands inside or outside of the limits of the right of way, in which railroads or individuals may injure, the property of others by -the negligent and unskillful exercise of a right, without a corresponding liability. That would be shocking to justice, and violate a principle of common law which admits of no exception.

The really important question in this case regards the true measure of damages — the liability being once fixed. A few principles are well settled. The defendant can diminish them by such appreciated value, given to the lands, as is common to other lands in the.vicinity, and' which results from the conveniences of the road. Each citizen is entitled to that, and his full share of it. It is not matter of grace from the corporation, and it may not wantonly or carelessly defeat it.

6,Ruielor! f°irowYns Iands'

It is held in a number of cases that the company may claim, in diminution, such appreciations of value as result to the land from the direct material operations of the company upon or near it, and which are special. For instance, an embankment may operate as a levee and reclaim lands from overflow; or ditches to relieve road-beds from water may operate as drains, and reclaim wet lands. The principles of justice upon which these decisions are based are not so obvious at first glance, as it seems & non sequiiur that because the road must benefit the owner in some respects, it may injure him to a corresponding extent in others. There is nothing in this case to require a determination of this last point.

The instruction given for plaintiff' is in the language of some of the cases. Generally it is correct to say that the measure of damages to any property, is the difference in its value, just before, and just after the injury. But it is plain that this can only be the true measure, where the damage itself is the sole element affecting the value. Here were railroad works some time in construction, during which there may have been great shrinkage of value in all sorts of property.. If the works had been done, never so skillfully, there may, still, have been a great difference between the values of the land before the embankment was begun, and when work on the ditches ceased. The instruction was misleading.

That asked on this point by defendant was substantially correct, but calculated to embarrass and confuse a jury. Properly understood, it has the support of a recent case in the queen’s bench, quoted in a note to Mr. Sedgwick’s work on Measure of Damages, p. 137, mar. It is a rule difficult of application, and in this case would have required the jury first to fix the value of the land as entirely free of injurious water — then to estimate the damage done by nature — then the damage done by nature and the road together, and take the difference. The evidence did not afford data for these calculations.

The true rule, and the one in this case easily applicable by a jury of practical men, was to take the actual value of the land at the time the work was completed, supposing the consequences to be known, compare it with what the value would have been if the overflow had remained as formerly, and fix the damages at the difference. This allows all appreciation of land to complainant, and affords just compensation for want of care and skill.

Eor error in giving the second instruction of plaintiff, reverse the judgment, and remand, the cause for a new trial, etc.


author: English, C. J".

text:
    Euper vs. The State.
    Gaming : Pico.

    Pico, like keno, is a gambling device, within the mischief intended to be suppressed by secs. 155.7, 1560 of Q-antts Digest.

    APPEAL from Sebastian Circuit Court.
    Hon. John H. Rogers, Circuit Judge.

      W. Walker, for appellant.

      Henderson, Attorney .General, contra.

   English, C. J".

The indictment charged that “Anton Euper, on the tenth day of February, A. I). 1880, in the county of Sebastian, and in the Eort Smith district thereof, being then and there the occupant of a certain house in the city of Eort Smith, in said county and district, did then and there unlawfully and knowingly permit and suffer a certain gaming bank or gambling device, adapted, devised and designed for the purpose of playing a game of chance, and at which money or property may be won or lost, which said gaming bank or gambling device was commonly called pico, to be carried on in the said house so occupied by him, the said Anton Euper, as aforesaid, against the peace,” etc. '

On plea of not guilty, the defendant was tried by a jury, found guilty,'and his punishment fixed at $100. A new trial was refused him, and he took a bill of exceptions; judgment was entered upon the verdict, and he appealed..

On the trial, it was proved that the defendant was a saloon-keeper of Eort Smith, and that the gambling device called pico was set up, exhibited, and carried on in a back room of his saloon. He admitted that the game of pic® was carried on in the house occupied by him, by his consent, at the time and place stated in the indictment. And it was also proved (the bill of exceptions states) that the game of pico is the same in principle and detail as the game of heno, and is played and carrie'd on in the same manner, as stated from the proof, in the opinion of this court, in Portis v. The State, 27 Ark., 360, and in Trimble v. The State, ib., 355, and that1;he game set up and carried on in the house occupied by defendant was the same gambling device as that described as heno, in the opinions above mentioned, with these exceptions, that in pico common playing-cards were used, both on the balls and on the pico cards, sold to the players, instead of numbers, as in keno, and that there were but four cards to fill out on a pico card, instead of five numbers, as in keno, in order to be the winner. And that the exhibitors of the game bet nothing on tlfe game, but, as in the-game of keno, exacted, and took out of the money paid, by the players, a commission.

The charge of the court to the jury was in harmony with the opinions of this court in the keno cases above referred to. Counsel for appellant moved instructions not in harmony with those opinions, and, in substance and effect, that the gaming device pico, as described in the evidence, was not within the purview of secs. 1 and 4 (Gantt’s Digest, secs. 1557, 1560) of the gaming statute, which the court refused.

Counsel for appellant submits that the opinions in the keno cases are not in harmony with previous decisions of this court, and should be overruled.

Neither public morals nor good order would be promoted by overruling those cases. No doubt pico, like keno, is a gambling device within the mischief intended to be suppressed by the sections of the. statute above referred to.

Affirmed.


author: English, C. J.

text:
    Erb vs. The State.
    Liqtjok License : Dram-shops.

    Between the twenty-eighth of March, 1879, when the liquor law of the eighth of March, 1879, went into operation, and the general election of 1880, no dram-shop license could be issued, and no one could keep a dram-shop or drinking-saloon without being amenable to the penalty of the act.

      ERROR to Pulaski Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      F. W. Compton and P. A. Howard, for appellant.

      Henderson, Attorney General, contra.

   English, C. J.

On the twenty-third of December, 1879, S. Erb was indicted in the circuit court of Pulaski county, for keeping a dram-shop without license. There were two counts in the indictment.

The first count charged in substance (after an awkward commencement), that “said S. Erb, on the fifteenth day of December, 1879, in the county of Pulaski, etc., did then and there unlawfully keep a dram-shop, for the retail of ardent spirits by quantities less than one quart, and by the drink, without having first obtained a license from the county court authorizing him to exercise the privilege of keeping a dram-shop, against the peace,” etc.

The second count charged that “said S. Erb, on the fifteenth day of December, 1879, in the county aforesaid, did then and there keep a dram-shop, where ardent spirits are sold and drank, he, the said S. Erb, having then and there unlawfully failed to procure a license from the county court authorizing him to exercise the privilege of keeping a dram-shop, against the'peace,” etc.

The defendant demurred to the whole indictment, on the ground that the facts stated in it did not constitute a public offense; and the court overruled the demurrer.

The defendant was tried the eleventh of February, 1880, on plea of not guilty, and the jury found him guilty and assessed a fine against him of $200.

He moved for a new trial, on the grounds that the verdict was contrary to law and evidence; that the court erred in refusing the fourth and fifth instructions moved by him; and also erred in its general charge, m its construction of the act of March 8,1879, and as to the punishment to be inflicted for the offense charged.

The court overruled the motion, and defendant took a. bill of exceptions. Judgment was entered in accordance with the verdict, and defendant brought error.

It appears, from tbe bill of exceptions, that on the trial the following evidence, in substance, was introduced:

Mandeville Howe testified that defendant had a grocery store on the corner of Ninth and Broadway, in the city of Little Rock, where he kept liquors and wines, as well as other articles commonly kept by grocery-keepers, such as flour, meat, etc. He sold whisky and wine in any quantity wanted, to be drank in the house. "Witness was in his. house frequently during the month of April, 1879, and bought whisky by the drink and drank it there. One time he bought a drink and paid for it, and at another time he bought a drink from him and did not pay for it. He arrested defendant in April, 1879, at the time he arrested all the saloon keepers. Defendant had a regular bar.

Washmood testified that defendant kept an ordinary grocery store, and sold whisky and wine — sold whisky in all shapes, to be drank on the premises. Saw it drank there in December, 1879, before he went before the grand jury as a witness, etc.

R. W. Worthen, clerk of the county court, testified that he issued to defendant what he called a wholesale license; that is,license to sell whisky in quantities not less than one quart, on the nineteenth of January, 1879. He did not execute a bond, as it was not required. He did not get a. dram-shop license. In the sixth ward, dram-shop license was voted down, at an election held in November, 1878, for one year. That dram-shop license could not be issued in that ward until the year after the election had expired. The defendant obtained the only license the county court would grant'him, or any one, in the sixth ward, under that -election.

The court gave the first, second and third instructions moved for defendant, which follow:

“1. Before the jury can convict defendant, they must ■find, from the testimony, that he kept a dram-shop, for the sale of ardent liquors, without procuring a dram shop license.

“ 2. That keeping a dram-shop is keeping a house for the purpose of generally selling ardent, vinous, malt or fermented liquors.

“ 3. That the mere sale of ardent, vinous, malt or fermented liquors in a less quantity than one quart, does not constitute the offense charged in the indictment, but the jury must find, from the evidence, that the defendant kept a house for the purpose of such- sale.”

It may be remarked, in passing, that, under these instructions, there was evidence to warrant the verdict.

Instructions four and five, moved for defendant, and refused by the court, follows:

“ 4. If the jury find from the evidence that the sale of liquor, with which the defendant stands charged, was during the month of December, 1879, then they can not find a verdict of guilty again.-t him under this indictment.

“ 5. If the jury find from the evidence that the sale of liquor charged herein was after the twenty-eighth day of March, 1879, they can not find the defendant guilty under this indictment.”

The general charge of the court was as follows:

“The dram-shop, or drinking-saloon, contemplated by the act upon which this indictment is based, is not necessarily-confined to a place where there is a regular bar and an exclusively saloon or whisky business carried on. But if it be a house engaged in the regular business of selling whisky by the drink, or in quantities less than one quart,to be drank on the premises, then it comes within the prohibitory clause of the act, and the party is not permitted to carry it on without a license, and if he does so he is punishable under this indictment.

“A license to sell whisky by the wholesale is intended to protect only those houses whose whisky is sold in quantities of one quart or more, and would be no protection to a party carrying on the business of keeping a dram-shop or drinking-saloon, who is, by the law, required to pay for and produce an additional license.

“ The court instructs that, by the act of March 8, 1879, all prior acts on this subject were expressly repealed, and from the twenty-eighth of March, 1879, when, by its terms, it went into operation, this act became and is the law of the land on this subject.

“ 2. That the act was designed to regulate the keeping of dram-shops or drinking-saloons, and annexes certain conditions to be complied with before any person shall be permitted to exercise the privilege. He is to present his petition to the county court for license, stating the place where he purposes to keep his saloon; is to enter into bond in the sum of $2,000, as prescribed; is to accompany his petition with a receipt showing the payment of the two hundred dollars required of all persons selling • vinous or ardent liquors in any quantities, and is to pay such additional amount for license as the county court shall require. Thereupon the county court is to grant him a license to keep such saloon until the ensuing thirty-first day of December.

“Now the difficulty in applying the law grows out of the provision in section seven, that there ‘ shall be at each' general election for state officers,’ an election to determine 'the question whether or not license should be granted by the county court, and the fact that the first general election subsequent to the act occurs next September, and hence from the twenty-eighth of March, 1879, to September, 1880, there is an obvious impossibility of compliance with this provision.' Section 14 provides that ‘any person who shall keep a drinking-saloon or dram-shop without procur-. ing a drinking-saloon or dram-shop license, as provided by this act, shall be deemed guilty of a- misdemeanor,’ etc. The court instructs that the fact that this provision could not be complied with would not defeat the operation of the act; that the fourteenth section should not, on the other hand, be construed to amount to an absolute prohibition, but that, on the petitioner complying with the provisions of the act in other respects, he would be entitled to his license from the county court. The condition as to any election being an impossibility prior to September, 1880, is simply dispensed with until that time.1

“ That under such construction, section 14 is operative, and has been since the twenty-eighth day of March, 1879, and saloon keepers must procure their license as therein provided for, and are properly punishable for keeping saloons or dram-shops without such license.”

To which charge of the court the defendant excepted.

It appears that plaintiff in error procured no license to keep a dram-shop for the year 1879, under the act of thirtieth May, 1874, because-the electors of the Sixth ward had voted against license at the election held under that act in November, 1878 ; and if that act had not been repealed by tbe act of eighth of March, 1879, he could have procured no license to keep a dram-shop in the Sixth ward until after the next annual election in November, 1879, and not then unless a majority of the electors of the ward had voted in favor of the license.

His counsel submits that, inasmuch as the act of thirtieth of May, 1874, was repealed by the act of ninth of March, 1879, and the latter act provided for no vote on the question of license until the general election in 1880, he had the right to keep.a dram-shop without license until such election should be held.

No doubt, in the absence of any law forbidding, or regulating it, any person is at liberty to keep a dram-shop. But the occupation being pernicious in its character to society, it is well settled that it is under the control of the legislature in the exercise of the police power of the state.

The first'section of the act of eighth March, 1879, makes it unlawful to sell, and, in effect, absolutely prohibits the sale of vinous, malt, or fermented liquors, or any compound or preparation thereof, commonly called tonics, bitters, or medicated liquors, in any quantity, or for any purpose whatsoever, without license.

There are but two exceptions to this sweeping prohibition in the act, one in favor of manufacturers, who are left at liberty to sell in original packages, not to contain less than five gallons (section 1), and the other in favor of persons who may' manufacture and sell wines from native grapes, or berries, or othef fruits grown in the state, and who sell no other liquors — ardent, malt, vinous or fermented. (Section 15). There is certainly no exception in favor of dram shops or saloons.

The act provides for two classes of licenses, one to persons who desire to sell in quantities not less than one quart, and the other for dram-shops or drinking-saloons.

The mode of obtaining from the county courts, license to sell in quantities less than a quart, and the terms on which such license may be procured, are prescribed in sections two to six of the act, and section five fixes the penalty for selling without such license. No vote of the electors of townships and wards is required to authorize the county courts to grant such license.

But sections 7, 8 and 9, of the act, plainly require a majority vote of the electors of any township) or ward in favor of keeping a dram-shop or drinking-saloon therein, before the county court can lawfully grant such license. There is no power in the court to issue such license except upon such favorable vote. Eollowing sections prescribe the mode of application and terms on which such licenses are to be granted; and section 14 provides that “ any person who shall keep a drinking-saloon or dram-shop, without procuring a dram-shop or di'inking-saloon license, as provided by this act, shall be deemed guilty of a misdemeanor, and on conviction shall be fined in any sum not less than two hundred dollars,” etc.

In requiring a vote of the electors of a township or ward to authorize dram-shop licenses, the legislature continued the policy of the act of thirtieth of May, 1874, but abandoned the policy of the annual elections required by that act, because,, perhaps, of, inconvenience aiid expense, and required the electors of each township and ward to vote-on the question of dram-shop or drinking-saloon license-at each general election held for state officers. Sec. 7.

It can not be supposed that the legislature did not know or overlooked the fact that the general elections for state officers were, by the constitution', biennial, and that no-such election would be held until the fall of 1880.

They did not seem to suppose that communities would suffer much for want of dram-shops or drinking-saloons before the general election in 1880, and did not provide that they should have them after that election unless they voted for them.

The court-below did not err in refusing the fourth and fifth instructions moved for plaintiff in error, nor in overruling the motion for a new trial.

His honor, the circuit judge, thought that until tbe general election in September, 1880, tbe county court might have granted the plaintiff license to keep a dram-shop,, without a vote of the electors of his ward, on his applying therefor, paying for the license, giving bond, etc., and that he should be punished for not doing so; while the learned counsel for plaintiff insist that he had the right to keep a dram-shop without license, as there was no provision to grant him any until after such general election. With all due respect, we think that neither view is in harmony with the provisions of the act of the eighth of March, 1879.

If the omission of the legislature to provide for an earlier election was a hardship upon persons desiring to keep dram-shops, it may have resulted in a benefit to communities.

Affirmed.


text:
    Wright vs. The State.
    1. Jury: When error in overruling challenge cured.

    A prisoner can not complain of an error of the circuit court in deciding-incompetent jurors to be competent, and forcing him to a peremptory challenge of them, where the panel has been completed without his exhausting the peremptory challenges to which he was entitled.
    2. New Trial : Rejecting competent juror no cause for.

    The erroneous rejection by the court, of a talesman, as a juror, is no ground for a new trial.

      3. Same : Affidavits for must be in bill of exceptions.

    "Where affidavits are filed in support of a motion for new trial, they should be incorporated in the bill of exceptions, or referred to, identified, and made part of the record.
    4. Same : Separation, of jurors.

    It is no abuse of the discretion of the circuit court to refuse a motion for new trial on the ground that the jury, before and after the final submission of the cause, were permitted to sleep at night in separate rooms unlocked and unguarded, and that one of them, a colored man, was permitted to take his meals with other colored men in a separate room from the other jurors, when it is shown that there was an open door between the two rooms and the colored juror was under the observation of the sheriff and was not approached or talked to on the subject of the trial.
    5. Same: Furnishing prisoner with list of jurors.

    The Criminal Code makes no provision for furnishing a prisoner with a list of the jurors before the trial.
    <3. Evidence : Statements of defendant.

    The fact that a prisoner, in a conversation with a witness, said something which the witness can not remember, will not exclude his testimony of what he does remember.
    I. Indictment : Murder in first degree.

    If an indictment contain all the allegations and technical requisites in a common law indictment for murder, the defendant may be convicted of either grade of murder or of a lower grade of homicide.
    APPEAL from Garland Circuit Court.
    Hon. Jabez M. Smith, Circuit Judge.
    -, for appellant.
    Henderson, Attorney General, contra.

   English, C. J.

On the second of November, 1878, Albert Wright was indicted for murder, in the circuit court of Garland county. He was tried in February, 1880, on plea of not guilty, the jury found him guilty of murder in the second degree, aud fixed bis punishment at imprisonment in the penitentiary for seventeen years. A motion for a new trial was overruled, and bill of exceptions taken. He was sentenced in accordance with the verdict, and prayed an appeal, which was allowed by one of the judges of this court.

i. jUET.

oveiuTini ^enTíred

I. The twelfth assignment in the motion for anew trial is, that the court erred in deciding that H. F. Crim, O. E. Gwinn, Jackson Mathews and ¥m. M. Stengler, were competent jurors.

It appears from the bill of exceptions, that H. F. Crim and C. E. Gwinn were severally challenged for cause by the prisoner. The challenges were tried by the court on examination of the jurors under oath, and the court found the jurors qualified, whereupon they were challenged peremptorily by the prisoner. The grounds of the challenges for cause were that the jurors had formed opinions, etc. The bill of exceptions also shows that when the panel of jurors was completed, the prisoner had used but seventeen of the twenty peremptory challenges allowed him by the statute.

It is not material to inquire whether the court correctly decided these jurors to he qualified or not. The prisoner got clear of them by peremptory challenges, and his peremptory challenges were not exhausted when the panel was made up.

The rule, as settled in this court, is that if, after the court has overruled the challenge of a juror for cause, the defendant elects to challenge him peremptorily, and the record shows that he did not exhaust his peremptory challenges, he can not complain of the decision here as error. Benton v. The State, 30 Ark., 328; Meyer v. The State, 19 ib., 156; Stewart v. The State, 13 ib., 720.

- The bill of exceptions shows that Jackson Mathews was challenged by the. prisoner for cause, and, being sworn, he stated that “ he might have formed an opinion in the ease as to the guilt or innocence of the defendant; that he had no opinion now. That he had heard John "Warford, a brother of the deceased, talk about the case in a store down town, next morning after the killing ; that he was talking to others, and he heard little of what was said, and paid little attention to it. That he could and would be governed alone by the law and the evidence in the case, and that he could and would give the defendant a fair and impartial trial as if he had never heard of the case.”

Upon this statement, the court decided the juror to be competent, defendant excepted, and the juror was then accepted by the parties to try the case.

The prisoner did not get clear of this juror by peremptory challenge, but rested on his exception to the opinion of the court deciding him to be competent. (Meyer v. State, supra.) And we will inquire whether the court erred in this matter, notwithstanding the provision of the statute (Grantt’s Digest, sec. 1978), that “the decisions of the court upon challenges to the panel, and for cause, and upon motions to set aside an indictment, shall not be subject to exception.” Palmore v. The State, 29 Ark., 248; Benton v. The State, supra.

Challenges are tried by the court, etc. Gantt’s Digest, sec. 1917.

“ Actual bias, is the existence of such a state of mind on the part of the juror, in regard to the case or either party, as satisfies the court, in the exercise of a sound discretion, that he can not try the case impartially, and without prejudice to the substantial rights of the party challenging.” Gantt’s Digest, sec. 1910.

There was no abuse of the sound discretion of the court in deciding Mathews to be a competent juror. Benton v. The State, sup.

2. New Trial:

Rejecting competent juror, no ground for.

The bill of exceptions is silent as toVm. M. Stengler.

II. The thirteenth assignment in the motion for a new trial is, that, the court errecl in deciding A. P. Aldrich to be an incompetent juror.

It appears from the record entries of the trial, that after the regular panel of jurors for the term had been exhausted without making up a jury, A. P. Aldrich, and others, were summoned by the sheriff, under an order of the court as talesmen. When Aldrich was called, it appears from the bill of exceptions that he was sworn to answer questions, and stated that he had formed an opinion as to the guilt or innocence of the prisoner from rumor; that such opinion was based principally upon what he read in the city [Hot Springs] papers; that he did not recollect whether it was a detailed statement or not; that he could and would discard from his mind any such opinion,, and could and would, if a juror, decide the case alone from the law and evidence introduced on the trial. Upon this statement the court declared him incompetent, and the prisoner excepted.

Whether the court was right or wrong in this, it is not materia] to decide, for if wrong, the erroneous rejection of a talesman would be no sufficient cause for granting the appellant a new trial. He had no legal right to have that particular person as a juror. The court might have excused the talesman from serving on the jury for any cause deemed sufficient in its discretion, without legal prejudice to appellant. Hurley v. The State, 29 Ark., 22.

III. The fourteenth assignment in the motion for a new trial is, that three of the jurors — George McKnight, J. A. Jacobs, and R. A. Montgomery — were prejudiced against defendant at the time they were selected upon the jury, and had, previous to their selection, so expressed themselves in terms and effect; and, in support of this fact, defendant offered the affidavits of Calvin Davis, Bob Robbins and Jackson D. Page, and stated that the above information came to his knowledge since the trial.

8.--: exceptions.

There are four affidavits copied in the transcript, following the motion for a new trial, purporting to have been made by Jackson D. Page, L. G-. Robbins, Calvin Davis and Jane Hunter, in relation to expressions made by the three jurors named above about the prisoner, shortly after John R. Warford was killed in August, 1878. The bill of exceptions makes no reference whatever to these affidavits. It merely states that on the twenty-fourth of February, 1880, the defendant filed a motion for a new trial, setting forth the grounds thereof; which was, on the same day, overruled by the court, and defendant thereupon excepted, etc.

Where affidavits are filed in support of a motion for a new trial> they should be incorporated in the bill of excep^i0ns, or referred to, identified, and made part of the record.

If counter affidavits are filed, a like practice should be observed as to them.

All that the bill of exceptions shows about the three jurors named above is, that when they were called they were sworn to answer such questions as might be asked them touching their qualifications as jurors, and were asked the usual questions concerning their bias or prejudice, and whether they had formed or expressed an opinion touching the guilt or innocence of the defendant. To all of which questions they made answers satisfactory to 'the court and parties, and were declared competent by the court, and accepted by the parties as jurors.

A challenge to a juror must be taken before he is sworn in chief, but the court, for a good cause, may permit it to be made.at any time before the jury is completed. Gantt’s Digest, sec. 1905.

Chapter LXXXI, Gantt’s Digest, prescribes the qualifications of jurors, and mode of selecting them in civil and criminal cases. By see. 3657 it is provided that: “No verdict shall be void or voidable because any of the jurymen fail to possess any of the qualifications required in this chapter, nor shall exception’s be taken to any juryman for that cause after he is taken upon the jury and sworn as a juryman.”

In Meyer v. The State, 19 Ark., 165, commenting upon similar statute provisions, the court, by the Chief Justice, said: “ The right to be tried b}7 an impartial jury being guaranteed to the prisoner by the constitution, we are not prepared to say that a new ti’ial should be granted in no case where it is discovered, after verdict, that one or more of thq jurors were incompetent by reason of prejudice, * * * because cases' might arise in which one or more jurors, who .had prejudged the prisoner’s guilt, might impose themselves upon the panel by concealment or perjury, notwithstanding the prisoner- availed himself of all’ the privileges allowed him by law to obtain an impartial jury. In such cases the incompetent jurors would be guilty of a fraud upon the law, and it might be necessary to grant the prisoner a new trial, in order to give him a constitutional right, of which he had been deprived without fault or negligence on his pai’t.

“But it would not be safe to hold that the prisoner, after conviction, could take the ex parte affidavits of persons out of doors to'establish the prejudice of the juror, and bringing them into court, claim a new trial, absolutely, and as a matter of right. * * * Such a practice might open the door for corruption and perjury.

• '

“.On the contrary, where such affidavits are filed in support of the motion for a new trial, on such grounds, the court might well have the persons who made them brought into court, for the purpose of ascertaining that the affidavits were fairly obtained, and that they were persons of credit, etc. It might, also, have the impeached juror called in for the purpose of affording him an opportunity of explaining any remarks attributed to him, as manifestations of his incompetency. And after ascertaining all the facts in relation to the matter, the court would necessarily have to exercise a sound legal discretion in disposing of the motion, as in applications for new trials upon other grounds.”

There is nothing shown by the bill of exceptions in this case upon which we can decide that the court below abused its discretion, or erred, in refusing a new trial on the fourteenth assignment.

IY. The eighth assignment is, “That the officer in charge of the jury permitted them to separate during the trial of the case, and after a material portion of the evidence had been taken, without the consent of the defendant and contrary to the instructions of the court; in support of which fact the defendant offers the affidavit of -.”

The motion for a new trial was filed on the twenty-fourth of February, overruled on the same day, and the bill of exceptions signed on the twenty-eighth of the same month.

We find copied into the transcript an affidavit, purporting to have been made before the clerk, by J. H. Nichols, sheriff, on the twenty-eighth of February, four days after the motion for a new trial was overruled, and not noticed in the bill of exceptions. .

Passing over, but not meaning to sanction such irregularities, we have considered the affidavit of Nichols as if filed before the motion for a new trial was overruled, and as if brought upon the record by the bill .of exceptions.

He states, in substance, that, as sheriff", he had charge of the jury, etc. That during the progress of the trial the jury slept in four or five different rooms; that is to say, all of them were not required by him, or his deputies, to sleep in the same room, but they slept in different rooms, and some of the rooms in which they slept had no locks on the doors, and no officer staid in the different rooms with the jurors after they retired. That during the progress of the trial the jury were permitted to separate at their meals— that is to say, Jackson Mathews, a colored juror, ate in a separate room from the one in which the balance of the jurors ate, though there was a door between the two rooms, and Jackson Mathews sat near the door, and affiant could hear and see him all the time. Affiant frequently, during the trial, while the jury were at their meals, saw colored men dining at the same table with Jackson Mathews, though they did not talk about the case. The separations of the jury above spoken of, during the times of sleep and eating, occurred both before and after the final submission of the case to the jury.

The sheriff’ but conformed to a prevailing social custom in permitting the colored'juror, Mathews, to separate from the white jurors in taking his meals; but the juror was •under his observation, and he saw that he was not approached on the subject of the trial. There was no grounds-for a new trial in the conduct of the jury. Wilder v. The State, 29 Ark., 294.

There were no locks on the doors of some of the rooms in which the jurors slept, and the sheriff'-.did not keep a bailiff on guard at such doors during the night to watch for intruders. It is not to be presumed that persons, in violation of law, obtruded themselves into the rooms of the jurors, after they had retired to sleep, for the purpose of influencing their verdict.

2‘ üüraühl e? wit¿SHst of jurors,

The whole matter, however, was addressed to the sound discretion of the court below, and there was no abuse of such discretion in refusing a new trial for the causes stated in the eighth assignment. Collier v. The State, 20 Ark., 50; Palmore v. The State, 29 ib., 248.

V. The seventh assignment is, that the prisoner was put on trial without being furnished with a list of jurors, recor(j s’a0Vys that he announced himself ready for trial; the bill of exceptions is silent as to the list of jurors, and the present Criminal Code makes no provision for furnishing such list before trial. Benton v.. The State, 80 Ark., 344.

VI: The sixth assignment is, that the court permitted the prosecuting attorney, over the objection of the defendant, to close the evidence of the state without calling and examining all the witnesses to the transaction whose names were indorsed upon the indictment, and who were summoned upon the part of the state.

. This is a mere statement in the motion for a new trial. The bill of exceptions shows nothing on the subject except that the state closed after calling and examining eleven witnesses. The state was not obliged to call and examine all the witnesses whose names were indorsed on the indictment. If any of them, not called, were material witnesses for the defendant, he had the right to call and exami ne them.

VII. The first, second and third grounds of the motion for a new trial are, in substance, that the verdict was contrary to law and evidence.

The testimony is voluminous and conflicting. We have carefully examined the whole of it, but it will be sufficient to state the substance of the leading and material facts in evidence.

The indictment, in substance, charged that the prisoner murdered John R. Warford, in Garland county, on the first of August, 1878, by striking and thrusting him with a knife, or some other sharp instrument, in and upon the left side of his chest and near his heart, giving him a mortal w-ound, of which he then and there died, etc.

On the night of the thirty-first of July, 1878, John R. Warford, John Warford, Wm. Hausard, John T. Green and Pat Young, who were country people, were camped with their wagons not far from the graveyard, and near the street railway which runs down the Hot Springs valley, and out to the depot of the Malvern railroad. About 12 o’clock of that night John R. Warford was stabbed and killed, near the camp. The four other persons above named, who were camped with him, and not far from him when he was stabbed, were examined as witnesses by the state, on the trial, and gave, substantially, the same account of the matter.

Green testified, in substance, that their wagons were some twelve feet from the north edge of the street leading to the depot. Some of their party had been up town that night to see about selling their produce. After their return, some parties passed by the camp, walking along the street railway. William Hausard said to the woman, “Good evening, ma’am.” She called out to Mr. Wright, saying, “Oh, Mr. Wright, these nasty, stinking sons of bitches are after me again.” The party who answered to the name of Wright said, “ If you don’t let that woman alone I’ll arrest you, or have you arrested immediately.” At the time Hausard spoke to the woman, he, John Warford and John R. Warford were sitting on the north edge of the road, or street, leading to the depot. The woman who called to° Wright when Hausard spoke to her, was on the street-railway track, going towards the depot, and the man who answered to the name of Wright, who seemed to be twenty-five or thirty steps behind the woman when she called to him, was also on the street-railway track. After the man answering to the name of Wright made his threats of arrest, John Warford said to him, “We mean no harm; we are camped here with our 'wagons.” The woman replied to him, “Oh, yes; I know you. I bought some peaches from you this evening.” John Warford responded, “Of course you did.” When these words occurred between the woman, Wright and the campers, Pat. Young and witness wei'e sitting on their wagon-tongue, ten or twelve feet north of where the two Warfords and Hausard were sitting, on the edge of the road. Witness and Young had a candle burning at their wagon. About the time the woman said “ these’ nasty, stinking sons of bitches are after me again,” John R. Warford got up from the edge of the road where he was sitting, and went off in an-easterly direction. Witness watched him until he got behind his wagon. He could not tell then which way he went. When Hausard spoke to the woman on the street railway track, she did not stop, but continued to walk pretty fast on towards the depot. When the man who answered to the name of Wright came up on the track to a point opposite the place where the two Warfords and Hausard were sitting, he made his threats of arrest, and continued to walk on down the track in the direction the woman had gone for twenty-five or thirty yards, when he left the track, and went across the road leading to the depot and running along beside the street-railway track in a northeasterly direction. Witness saw him until he got to the north "edge of the road, or street, when he passed out of his sight. About the time he passed out of his sight, witness heard him say to some one, What are you stopping a woman along the street here for ?” John R. Warford said, “ I haven’t stopped your woman.” The man then said, “Get back to your "wagon, or I’ll arrest you, or have you arrested immediately.” About that time John R. Warford called to his brother, saying, “Oh, Jay ! Come here !” John Warford and Hausard then got up and went to where he was. When they got there, one of them called to Young and witness, who were still sitting on the wagon-tongue, to bring a light. Witness took the candle to them, and found John R. War-ford about five or six steps "from a gum tree, lying on the ground, dying. Erom the sound of the man’s voice who answered to the name of Wright, when he said, “ What are you stopping a woman along the street for?” and the sound of the voice of deceased when he replied, “ I haven’t stopped your woman,” they were close together at the time. Deceased, when he wrent to him with the light, was about thirty yards from the wagon of witness, and about the same distance from the street railway. ■ It was dark, and witness did not see1 the man who answered to the name of Wright when the woman first called to him, but did see him about the time he got opposite. the camp, on the street-railway-track, and could see his bulk as he passed on. When he saw deceased lying on the ground, he noticed blood on the left side of his shirt. The inquest was held on the body next morning, etc. . •

John Warford stated some additional facts. When his brother called him, and he approached to where he was, he heard footsteps going off. On' reaching his brother, ,he said, “ Them negroes have stabbed me.” Pound him squatted down against a gum tree. Picked him up and tried to carry him to the wagons. He took two or three steps, and' sank down. "Witness then called for a light, and on its being brought, he found he was stabbed a little below the left nipple, etc.

6.Evidence Statement of^defend-

Prisoner and the woman who passed the camp before him were colored.

None of the camp witnesses identified the prisoner as being the person called Wright by the woman, but it was proved by his pwn witnesses that he passed the camp as stated by the camp witnesses, and threatened the campers with arrest for accosting the woman.

The camp witnesses stated in effect that the voice which threatened them with arrest at the camp, was the same which they heard in altercation with the deceased just before he called to his brother.

Several witnesses for the defense, who claimed to have been in company with the prisoner, testified that he did not leave the street-railway track after he passed the camp, but went on down it, etc.

There were many minor facts in evidence, bearing with more or less force on the issue. But the above statement is sufficient to show the character of the case, that the testimony was conflicting, and that it was the province of the jury, and not ours, to decide whether the weight of the evidence established the criminal agency of the prisoner in the death of Warford. If the jury had believed the witnesses lor the prisoner, and disbelieved the wituesses for the state, they might have acquitted the prisoner.

VIII. The eleventh ground of the motion for a new . , . . . , trial is, that tiae court erred in admitting the prooi or the declarations of the defendant by George N. James, when he stated that he could not remember all of said declarations.

The bill of exceptions shows that George N. James, the fifth witness examined on the part of the state, testified in substance as follows: That he had-a conversation with defendant, Wright, on the night Warford was killed. That defendant came into the office of the Arlington hotel, where witness was at the time night watch, and defendant was head porter. Defendant came in that night and said a man had been killed down about the grave-yard. That he and John Cox had been down about the depot with some ladies — Mrs. Smith and others — and while on their way home with them they passed some campers near the grave-yard, and aman from the camp stopped Mrs. Smith, and she called to him, and when the man saw that Mrs. Smith had a man with her, the man that stopped her turned and went on down the railroad track, and in coming back along up the street-railroad track from Mrs. Smith’s when they got to a point opposite a place where some men were camped, two men hailed them and asked if they were policemen. They said, “No.” The man who hailed them then said, “There has been a man killed over here.” That he and Cox went over and looked at him. Witness asked him how the man was killed. He said that he was cut or stabbed, and pulled a small knife out of his pocket, and said to witness, this is the only knife I have; “but just previous to pulling out his knife defendant said something else which I can not now remember, but I have stated the substance of his statement.” Witness supposed it was between 12 and 1 o’clock when this conversation occurred. Defendant also said that after he and Cox left the body they came on up town'; that they met James R. Ford, a policeman, and James Nasb, and told them of the man’s having been killed down by the grave-yard.

After the defendant had cross examined this witness, and after all of the witnesses for the state had been examined in chief, and the state had closed, defendant moved to exclude the whole of the testimony of the witness, for the reason stated in the eleventh ground of the motion for a new trial, and the court overruled the motion.

It is competent for the state to prove any voluntary confession or admission of the accused, tending to establish his guilt. B.ut if one part of a conversation is relied on, as proof of a confession of the crime, the prisoner has a right to lay before the court and jury the whole of what was said in that conversation. 1 Greenleaf, sec. 218.

The statement or confessions of the party to be affected must be delivered to the jury as they were made ; certain facts can not be extracted and detailed to the jury, and other parts withheld. Coon v. The State, 13 Sm. & Mar., 250.

Where the confession of a party is given in evidence, the whole, as well that part which makes for him as that which is against him, must be taken together, and go to the jury as evidence in the case. But, like other evidence, it must be weighed, and believed or disbelieved, in whole or in part, as reason may decide. Brown’s case, 9 Leigh, 634.

In this case, there was no attempt on the part of the state to violate the rule. The witness James was permitted to state all that the prisoner said to him in the conversation referred to, as far as he could remember it. Before pulling out his knife, prisoner said something else which the witness could not remember, but he stated, he said, the substance of the prisoner’s statement. The fact that prisoner said something which witness could not remember, and which might happen in any case where a witness undertakes to repeat a conversation with a party after considerable lapse of time, may have lessened the weight and value of the evidence, but was not ground to exclude it from the jury-

7. IudictMEN'r:

ur er’

IS. The fourth assignment in the motion for a new trial is, that the court erred in refusing instructions moved for defendant, numbered one, eight, nine, eleven and twelve, and the fifth is that the general charge of the court was contrary to law.

The bill of exceptions shows that the prosecuting attorney moved ten instructions, some of which were given, and others refused by the court, but no objection appears to have.been made on the part of the prisoner to such of them as were given.

The general charge of the court is set out in the bill of exceptions, but it is not stated that any objection was made to it, or to any part of it, nor has the counsel for the prisoner in his brief here, specified any part of it that he deems erroneous or objectionable. The charge is long, but plain, just to the state and fair to the prisoner. It is made up of familiar principles, and it would not be useful to copy it.

Eor the prisoner thirteen instructions were asked, and all of them given except the first, eighth, ninth, eleventh and twelfth, and for one of them a substitute was given, but for which, the bill of exceptions fails to show.

(a). The first instruction asked for the prisoner, and refused, follows: .

“ That the grade of the offense charged in the indictment . . • bemg for murder simply, the jury, in considering the case, can not find the defendant guilty of murder in the first degree, but of one of the lower grades of that offense only, and not of such lower grade unless they are satisfied, beyond a reasonable doubt, that all the ingredients of fact necessary to constitute such offense, and the defendant criminally connected therewith, have been proved.”

Sufficient allegations of, in first degree.

Appellant was not couvicted of murder in the first degree, and if the court erred in refusing the instruction, he was not prejudiced by the error.

But the instruction was based on a mistaken view of the indictment.

It commences thus: “The grand jury, etc., accuse Albert W. Wright of the crme of murder, committed as follows, to-wit.” But in the body of the indictment the offense is charged to have been committed “ feloniously, willfully, deliberately, and of his malice aforethought, and with -premeditation, etc.,” thus employing all the words used in the statute defining murder in the first degree. Gantt’s Digest, sec. 1252.

Moreover, it contained • all the allegations and technical words requisite in a common law indictment for murder, and under such an indictment the accused may be convicted of either of the statute degrees of murder (though there are some decisions to. the contrary), or of a lower grade of homicide. McAdam v. The State, 25 Ark., 405.

Here it may be remarked that there was a demurrer to the indictment because it did not specify the grade of offense with which defendant was charged., and the court overruled the demurrer.

(5). The eighth instruction, which was refused, follows:

“The burden of proving everything essential to the establishment of the charge against the defendant lies on the state, and evidentiary facts must all be proved, and the existence of' none of them can be presumed; and if the jury believe the evidentiary facts in this case have not all been proved, they will acquit.”

It is not probable that the jury would have understood the meaning of the expression 11 evidentiary fads” as used in this instruction, if it had been given, or that it would have afforded them any light, or been any guide to them in making up their verdict.

We are not sure that we rightly understand what was in the mind of the learned counsel who drafted the instruction, when he employed the words “ evidentiary fads.”

The word “ evidentiary” was introduced, or coined, by Mr. Bentham, and, as used by him, is defined in BurrilVs Law Dictionary. Mr. Burrill uses the word in his work on Circumstantial Evidence, page 3, in a sense which he explains, and in a note gives Mr. Bentham the credit of introducing it and other words, which he pronounces uncouth and uncalled for.

Some of the writers on Code-pleading divide facts into two classes — principal facts, such as must be averred in the pleadings, and evidentiary facts, such as need not be averred, but must be introduced as evidence to prove the principal facts alleged in the pleadings.

An instruction which the jury might not understand, and which might mislead them, should not be given. The court, in its general charge, sufficiently and plainly instructed the jury as to what facts the state should prove to establish the guilt of the prisoner of any one of the grades of homicide embraced in the indictment.

(c). The bill of exceptions states that the court modified instruction No. — so as to read as follows:

“The hypothesis of the guilt of the defendant must flow naturally, reasonably and necessarily from the facts proved, and be consistent with them all, and inconsistent with any other reasonable hypothesis or supposition, or the jury will acquit.”

This language is copied as instruction numbered nine in the defendant’s series, and is noted “given” in the margin. So it must have been instruction No. 9, as offered for defendant, that the court modified to read as above. We can not tell whether the court erred in making such modification, because the instruction, as proposed, does not appear in the transcript. The instruction as modified appears unobjectionable.

(d). The eleventh instruction offered for defendant, and not given by the- court, follows:

“ It is the rule in criminal cases when circumstantial evidence is relied upon as a medium of proof, that the issue shall be determined upon the strength of the evidence of the state, and not the weakness or absence of evidence for the defense.”

The burden of proof is on the state where the plea is not guilty, in all criminal cases, whether circumstantial or direct evidence-be relied on; and the court, in its general charge, distinctly and plainly instructed the jury that the law presumed the defendant to be innocent, and that this presumption continued until the state proved his guilt, etc.

(<?). The fourteenth instruction follows:

“In proving the admissions, declaration or confession of defendant, the prosecution is held to prove all the declarations made on the given occasion, or such testimony must not be considered by the jury.”

This instruction is noted as inapplicable, and refused.

James was- the only witness that proved any confession or statement of the prisoner, and in considering the eleventh assignment in the motion for a new trial, we have- stated the rule relating to the proof of admission, etc. T&e court having overruled the motion to exclude the testimony of James, the instruction, as framed, was properly refused.

X. The ninth and tenth assignments relate to the same character of matter. The counsel for the prisoner attempted, in the examination of several witnesses, to raise a suspicion that a man named Gleason was connected with the killing of War ford, which the court ruled out, and we think properly, as too remote.

Upon the whole record, we find no error of law for which the judgment should be reversed.

Affirmed.


author: Per Curiam.

text:
    Rufus Antonio BOX v. STATE of Arkansas
    CR 02-751
    83 S.W.3d 416
    Supreme Court of Arkansas
    Opinion delivered September 5, 2002

      David Mark Gunter, for appellant.
    No response.
   Per Curiam.

Appellant Rufus Antonio Box, by and through attorney, David Mark Gunter, has filed a motion for belated appeal. Attorney, David Mark Gunter, states in the motion that the notice of appeal was filed late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Ross Lamar BURNETT, Sr. v. STATE of Arkansas
    CR 02-336
    83 S.W.3d 417
    Supreme Court of Arkansas
    Opinion delivered September 5, 2002

      G.B. “Bing" Colvin, III, for appellant.
    No response.
   Per Curiam.

Appellant, Ross Burnett, through his attorney, G. B. “Bing” Colvin, has filed a motion for permissipn to file a belated brief. Pursuant to a granted motion for extension of time, Burnett’s brief was due on or before July 14, 2002. Mr. Colvin acknowledges that on August 8, 2002, he received the State’s motion to dismiss due to his failure to file the brief, but did not file his motion for belated brief until August 21, 2002. Mr. Colvin has accepted fault for the untimely tendering of the brief and asks the court to grant him extra time in which to file the brief.

We grant Burnett’s motion with the brief due on or before twenty-one days from the date of this order. A copy of this per curiam will be forwarded to the Committee on Professional Conduct.

       We also note that on August 21, 2002, Mr. Colvin caused a case in die Arkansas Court of Appeals to be dismissed due to his failure to file a brief. Robinson v. State, CACR 02-558.


text:
    Robert Stephen HILL v. STATE of Arkansas
    CR 02-700
    83 S.W.3d 416
    Supreme Court of Arkansas
    Opinion delivered September 5, 2002

      James E. Hensley, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Robert Stephen Hill, by and through his attorney, has filed a motion for rule on clerk. Attorney, James E. Hensley, Jr., states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Anthony Tyrone MATTHEWS v. STATE of Arkansas
    CR 01-1135
    83 SW.3d 418
    Supreme Court of Arkansas
    Opinion delivered September 5, 2002
    C. Scott Nance, for appellant.
    No response.
   Per Curiam.

Comes now appellant Anthony Tyrone Matthews, by his attorney, C. Scott Nance, and moves for an extension of time to file appellant’s brief until July 12, 2002.

On May 23, 2002, this court granted the State’s Motion to Direct Compliance with Arkansas Supreme Court Rules 4-2(a)(6) and 4-3 (h) and gave appellant thirty days to comply, or until June 22, 2002. Appellant failed to comply as of that date due to an oversight of counsel and now requests that the deadline for filing be extended to July 12, 2002. On August 6, 2002, appellant’s brief was tendered to the Clerk of the Supreme Court for filing.

Appellant’s motion is granted, and the Supreme Court Clerk is directed to file the brief.

A copy of this opinion will be forwarded to the Professional Conduct Committee.


text:
    Wesley L. ROBERTS and His Parent Penny Roberts v. STATE of Arkansas
    CR 02-742
    84 S.W.3d 43
    Supreme Court of Arkansas
    Opinion delivered September 5, 2002

      Michael Loggains, for appellant.
    No response.
   Per Curiam.

Appellants Wesley L. Roberts and Penny Roberts, by and through their attorney, have filed a motion for rule on clerk. Attorney, Michael Loggains, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Tom Glaze, Justice.

text:
    THE TRAVELERS INSURANCE COMPANY v. John O’HARA and Jo O’Hara, His Wife, Emilio Tirado, M.D., and Emilio Tirado, M.D., P.A.
    02-77
    84 SW.3d 419
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Pryor, Robertson & Barry, PLLC, by: John R. Beasley, for appellants.

      Compton, Prewett, Thomas & Hickey, L.L.P., by: Floyd M. Thomas, Jr., for appellees John O’Hara and Jo O’Hara.

      Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Dennis L. Shackleford and Norwood Phillips, for appellee Emilio Tirado, M.D. and Emilio Tirado, M.D., P.A.
   Tom Glaze, Justice.

This case requires us to determine whether or not a workers’ compensation insurance carrier may pursue its subrogation rights against a third-party tortfeasor when the tortfeasor and the injured party have reached a settlement. The injured worker in this case, John O’Hara, suffered a work-related hernia, and underwent surgery to repair the hernia in March of 1993. During surgery, Dr. Emilio Tirado allegedly placed a stitch that injured O’Hara’s femoral nerve, causing him a great deal of pain and difficulty in walking. O’Hara and his wife filed a medical malpractice action against Dr. Tirado, and The Travelers Insurance Company, O’Hara’s workers’ compensation carrier, intervened in the litigation. The case went to trial and resulted in a jury verdict for O’Hara in the amount of $77,332.03. However, the trial court granted O’Hara’s motion for a new trial, finding that the jury’s award of damages was inadequate. The court of appeals affirmed this decision in Tirado v. O’Hara, 70 Ark. App. 152, 15 S.W.3d 715 (2000).

•Following remand, O’Hara and Dr. Tirado entered into a settlement agreement whereby O’Hara agreed to accept $225,000. The agreement specifically included all claims the O’Haras could assert against Dr. Tirado, and also provided that it was intended to include settlement of any claims that Travelers sought to enforce as a workers’ compensation subrogation lien. Further, the agreement provided that it was not intended to “settle around” Travelers, and stated that both the O’Haras and Dr. Tirado would contend that Travelers was not entitled to any lien on the proceeds of the settlement because O’Hara had not been made whole by the amount of the settlement.

Travelers objected to- the settlement agreement, arguing to the trial court that it was entitled to a lien on the settlement proceeds under Ark. Code Ann. § 11-9-410 (Repl. 2002). Following a hearing on the settlement agreement, the trial court found that the $225,000 would not make O’Hara whole, and dismissed with prejudice Travelers’ lien claim. From this order, Travelers brings this appeal, arguing that it should have been permitted to pursue its subrogation lien against Dr. Tirado. We disagree, and affirm the trial court.

Subrogation is an equitable remedy that rests upon principles of unjust enrichment and attempts to accomplish complete and perfect justice among the parties. St. Paul Fire & Marine Ins. Co. v. Murray Guard, Inc., 343 Ark. 351, 37 S.W.3d 180 (2001). At its essence, subrogation is the substitution of one party for another in the exercise of some legal right. Welch Foods, Inc. v. Chicago Title Ins. Co. 341 Ark. 515, 17 S.W.3d 407 (2000) (citing Black’s Law Dictionary, 1140 (7th ed. 1999)).

The workers’ compensation statutes afford a right of subrogation to compensation carriers in certain instances. Arkansas Code Annotated § ll-9-410(b) (Repl. 2002) provides that “[a]n employer or carrier liable for compensation under this chapter for the injury ... of an employee shall have the right to maintain an action in tort against any third party responsible for the injury . . . .” § 11-9-410(b)(1). The purpose of this statute is to protect the rights of both the compensation carrier and the employee, and as such, the proceeds of any compromise settlement of a tort claim are subject to the lien of the employer or the compensation carrier unless the settlement has been approved by a court having jurisdiction or by the Workers’ Compensation Commission, after the compensation carrier has been afforded adequate opportunity to be heard. Travelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (1972).

Travelers argues that, if a trial court determines that an insurer’s lien rights are unenforceable against a settlement between a plaintiff and defendant, the language of § 11-9-410 should be construed in such a way as to grant the workers’ compensation carrier its conventional subrogation right to pursue the defendant directly. Thus, because the trial court approved the settlement between the O’Haras and Dr. Tirado, but ruled that the settlement did not make the O’Haras whole, Travelers asserts that it has an absolute statutory lien on the settlement proceeds that entitles it to pursue Dr. Tirado in order to recover the money it paid to O’Hara.

However, this court recently considered a similar question in General Accident Insurance Co. v. Jaynes, 343 Ark. 143, 33 S.W.3d 161 (2000), where we were asked to decide whether or not a workers’ compensation carrier was entitled to a lien upon the proceeds of a settlement between the injured employee and the third-party tortfeasor. The trial court had ruled that, because the plaintiff had not been “made whole” by the settlement amount, the workers’ compensation carrier, General Accident, was not entided to a lien on any of the settlement proceeds: This court affirmed, holding that an insurance carrier’s lien right against an insured’s settlement with a third-party defendant is not absolute; rather, the settlement is subject to a court’s approval after the carrier has been afforded adequate opportunity to be heard. Jaynes, 343 Ark. at 153. In addition, even though an insurer’s right to subrogation is statutory, that right does not arise until the insured is made whole. Id. at 152; see also Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992).

The Jaynes holding was premised on this court’s earlier decisions in Bough, supra, and Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 837 (1997). In Bough, the court noted that the equitable nature of subrogation is granted an insurer to prevent the insured from receiving a double recovery, and where an insured has been made whole for his loss and is in a position where he or she will recover twice for some of his or her damages, the insurer should not be precluded from employing its right of subrogation. Bough, 310 Ark. at 28 (holding that the plaintiff had been made whole, and the insurer was entitled to pursue its subrogation rights). In Franklin, on the other hand, the plaintiff was not made whole by the settlement reached with the tortfeasor, and this court reversed the trial court’s ruling that the insurer was entitled to its subrogation rights under the insurance policy. Noting that “equity will require that the insured be made whole before the insurer’s right to subrogation will arise,” Franklin, 328 Ark. at 168 (emphasis in original), the court concluded with the following:

An insured’s right to subrogation takes precedence over that of an insurer, so the insured must be wholly compensated before an insurer's right to subrogation arises; therefore, the insurer’s right to subrogation arises only in situations where the recovery by the insured exceeds his or her total amount of damages incurred.

Id. at 169 (emphasis added).

On appeal, Travelers does not contest the trial court’s decision to award O’Hara all of the third-party settlement. O’Hara was clearly not made whole by the settlement for $225,000; at the hearing on the settlement motion, O’Hara stated that his damages were in excess of $400,000, and Travelers did not dispute this figure. Instead, as noted above, Travelers asserts that it should have been allowed to pursue Dr. Tirado independently and direcdy to recover its subrogation interest. However, this court has held that “there is but one cause of action” as between an injured employee, a tortfeasor, and a workers’ compensation carrier. St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W.2d 322 (1967). The court in Wood specifically held as follows:

While § 40 [now § 11-9-410] recognizes that either the injured employee or the compensation carrier may initiate a tort suit against a third party, it requires that reasonable notice of the initiation of such cause of action be given to the other party. Thus, there is but one cause of action. In this situation, can we hold that the rule against splitting a cause of action prohibits the compromise settlement here proposed by Wood [the injured employee] and First Electric [the tortfeasor]? The answer is that the rule against splitting a cause of action is for the benefit of the defendant to protect him against a multiplicity of suits[. ]

Id. at 889 (emphasis added). See also U.S. Fidelity & Guaranty Co. v. Glass, 261 Ark. 45, 245 S.W.2d 924 (1977) (although the workers’ compensation carrier and the beneficiary have separate rights to institute an action against a third-party tortfeasor, there is only one cause of action, and it cannot be split without the defendant’s consent).

Therefore, it is clear that the settlement between the O’Haras and Dr. Tirado extinguished not only any claims between them, but also any claims that Travelers could assert against Dr. Tirado. The workers’ compensation statute does not afford the compensation carrier the right to veto any compromise setdement not to its liking; the question of whether the proposed setdement should be approved is properly addressed to the discretion of the trial court. Liberty Mut. Ins. Co. v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974). Here, the trial court did not abuse its discretion in approving the settlement agreement between the O’Haras and Dr. Tirado, because the O’Haras were not made whole by the settlement amount; indeed, Travelers does not argue that it was error to approve the settlement. Neither did the court err in denying Travelers’ request to sue Dr. Tirado directly, because, simply put, there was no independent cause of action Travelers could have pursued against the doctor. Therefore, the trial court’s dismissal of Travelers’ subrogation claim against Dr. Tirado is affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    CITY OF CORNING, Arkansas v. Bob COCHRAN, Tina Woods, Harry W. Hudson
    02-139
    84 S.W.3d 439
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Branch, Thompson, Philhours, Warmath & Hitt, by: Robert F. Thompson, for appellant.

      Richard Whiffen, P.C., for appellees.
   Annabelle Clinton Imber, Justice.

This case concerns whether a mayor and city clerk can purchase prior-year retirement credits in the Arkansas Public Employee Retirement System (APERS) without specific approval from the city council. We do not reach the merits of this case because the appeal is not from a final, appealable order as required by Ark. R. App. P. — Civ. 2(a) (2002) and Ark. R. Civ. P. 54(b) (2002). We therefore dismiss this appeal for lack of finality.

Because we do not address the merits of this case, we only recite the facts as they pertain to the issue of finality. In the November 1998 elections, incumbent Corning Mayor Bob Cochran and Corning City Clerk, Treasurer, and Recorder Tina Woods were defeated. On December 18, 1998, Cochran and Woods purchased prior-year retirement credits in APERS for Woods and for retiring City Road Superintendent Harry W. Hudson.

The City of Corning filed suit against Cochran, Woods, Hudson, and APERS seeking to recover the expenditures for prior-year retirement credits. The pleadings sought a declaratory judgment to the effect that the expenditures were without authority and in violation of state statutes and city ordinance, and to declare the defendants liable to the City for the money expended, interest, and attorney’s fees. The City also claimed the tort of conversion jointly and severally against the defendants, and the City sought the imposition of a constructive trust against APERS. Hudson counterclaimed seeking a judgment declaring that he was entitled to retirement credits for his full twenty-nine and one-half years of service, rather than the seven years of retirement credits purchased for him by Cochran and Woods.

APERS filed a motion to dismiss on grounds of sovereign immunity and improper venue. Shortly thereafter, the circuit court granted a motion for voluntary nonsuit filed by the City and dismissed APERS without prejudice. Following a bench trial, on September 6, 2001, the circuit court issued an order ruling, in part, that Cochran and Woods were without authority to purchase retirement credits for Hudson and ordering APERS to refund $17,030.83 plus accrued interest to the City of Corning. The circuit court did not rule on Hudson’s counterclaim.

Even though the question of a final order was not raised by the parties, a violation of Rule 54(b) relates to the subject-matter jurisdiction of this court, and we must raise the issue on our own. Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998). Under Rule 54(b), an order is not final for purposes of appeal when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Eason v. Flannigan, 349 Ark. 1, 75 S.W.3d 702 (2002); Ark. R. Civ. P. 54(b) (2002). The policy behind Rule 54(b) is to avoid piecemeal appeals. Hambay v. Williams, supra.

The order entered by the circuit court failed to address Mr. Hudson’s counterclaim. We have held that where the trial court did not rule on a counterclaim, it was not a final order. Stockton v. Sentry Ins., 332 Ark. 417, 965 S.W.2d 762 (1998); Jordan v. Thomas, 332 Ark. 268, 964 S.W.2d 399 (1998); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994); Williamson v. Misemer, 316 Ark. 192, 871 S.W.2d 396 (1994); Carmical v. City of Beebe, 302 Ark. 339, 789 S.W.2d 453 (1990). Accordingly, we could dismiss this appeal on the failure to address the counterclaim alone. However, the circuit court’s order lacked finality in other respects as well.

To be final and appealable, “[t]he order must put the judge’s directive into execution, ending the litigation, or a separable branch of it.” Payne v. State, 333 Ark. 154, 158, 968 S.W.2d 59, 61 (1998); Tucker v. Lake View School Dist. No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996); Festinger v. Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978). In the instant case, APERS was dismissed from the lawsuit, thereby making it a non-party. Yet, the circuit court order imposed judgment against APERS. Because APERS is a non-party, the circuit court’s directive cannot be put into execution. As such, the circuit court’s order is not a final, appealable order.

Finally, we note that the circuit court did not specifically rule on the City’s claim of conversion. Therefore, there appears to be no final adjudication of the conversion claim. For the reasons stated above, the circuit court’s order was not a final, appealable order, and the appeal must be dismissed.

Appeal dismissed.