text:
    Brown v. State.
    4957
    329 S. W. 2d 521
    Opinion delivered December 14, 1959.

      Robinson, Sullivan S Rostech, for appellant.

      Bruce Bennett, Atty. General by Ancil M. Reed,. Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Willie (Bob) Brown, was charged with First Degree Murder, and on trial was convicted of Voluntary Manslaughter and his punishment fixed at five years imprisonment in the State Penitentiary. From the judgment comes this appeal.

Numerous alleged errors are cited in the Motion for New Trial, the first several questioning the sufficiency of the evidence. The proof on the part of the State reflected that appellant and Elmer Isaacs were members of the Elks Club, located at 914% Gaines Street, and were present there on Saturday night, June 21st. Isaacs was employed at the Elks Club and was in charge of the bar and gambling activities. Brown had reported a shortage from the tables, and testified that Isaacs called him “watch-dog”, and “every time I would go past him, he would wheel around like this (indicating) so that I could see that pistol. ’ ’ George King, who was also at the club, stated that between two and three a.m. (Sunday morning), Isaacs told him to stay away from Bob Brown — that he was going to kill Brown and didn’t want to shoot King accidentally. The witness testified that he told Brown about this conversation, and asked the latter to leave. Around 7 a.m., King went downstairs from the building, and saw Brown sitting in Ms car. He testified that appellant called to Mm, and he went over, and the two engaged in conversation. When they heard Isaacs coming down the stairs, Brown got out of the car and started around it. The witness stated that Brown called Isaacs and said, “I want to talk to you”, then “don’t come out of your pocket”, and further testified that Brown fired three shots in quick succession. Other testimony indicated that there was a pause after the first shot, but that the last two were fired in quick succession. Both King and Bud Davis (who was walking down the stairs with Isaacs) testified that they did not see a gun in Isaacs’ hand when Brown commenced shooting. From Davis’ testimony :

“A. Well, he was standing up there at the curb when I saw him and he walked up and called Mr. Ike and told him not go to his pocket and I just thought they was playing and when I saw anything he shot him and he kind of staggered, and after he came to the door and kind of straightened up, Bob shot him a couple more times.
Q. You heard him say, ‘Don’t go for your gun’?
A. Yes, sir.
Q. Did Ike have his gun out coming downstairs?
A. No, sir.
Q. Did you know he had a gun?
A. No, sir.
Q. Did you see it in his hand coming down the steps?
A. No, sir.
Q. When did you see it?
A. When he straightened up to come back to the door.”

All three shots struck Isaacs, and Dr. H. A. Dishongh, county coroner, testified that any one of the three could have been a fatal wound. A pistol was found under Isaacs’ body, but was on safety. The proof thus clearly reflects that Brown was armed in advance, had been told several hours earlier that Isaacs had threatened him (Brown), but instead of leaving or trying to avoid an encounter, was apparently waiting in his car for Isaacs to leave the club. The jury could certainly have found that Brown was in no danger of losing his life, or of receiving great bodily harm; that he was the aggressor, and opened fire without any legal justification. The proof was adequate to justify a conviction for manslaughter, and in fact, might well have justified a conviction for a higher degree of homicide.

By assignment No. 9, appellant argues that the court erred in refusing to allow Buford Husband to testify relative to threats made by the deceased toward appellant. A record was made in Chambers, which reflects only threats made toward Husband, rather than threats toward appellant. The testimony was properly refused.

By assignment No. 10, appellant argues that the Court erred in making a remark in open court, which was printed in the Arkansas Gazette, on Tuesday, February 17, 1957, as follows:

“When all of Sullivan’s cross-examination questions to King produced only more details about the threat, Judge Kirby asked Sullivan if King were his witness. Kirby remarked that Sullivan had not challenged any of King’s testimony on cross-examination.” The assignment of error pointed out that the jury had ample opportunity to read the article containing this statement. As noted by the Attorney General, it is not clear whether this assignment of error deals with the remark made by the court in the presence of the jury, or whether the assignment relates to the newspaper article which could have been read by the jury. As regards the former, the record reflects that near the end of the cross-examination, after several questions by appellant’s counsel, the court said:
“The Court: Let him answer the questions. Is this your witness?
Mr. Sullivan: No, I am cross-examining him.
The Court: You haven’t been cross-examining him. ’ ’

No objection was made to the remark, and accordingly, the alleged error cannot be considered by this Court. See Roach v. State, 222 Ark. 738, 262 S. W. 2d 647. Turning now to the newspaper article, it might first be stated that no such remark (as was attributed to it by the story) appears to have been made by the court; at any rate, it is not shown that the article in question was objected to, or even mentioned, during the trial. Furthermore, there is nothing in the transcript which indicates that any juror read the article. Of course, it is necessary that appellant show not only that members of the jury read the item, but that they were prejudiced thereby. The record also reflects that upon recessing February 16th, the court admonished the jury not to read any newspaper articles about the case. No objection having been made, and no prejudice having been shown, it follows that this assignment is without merit.

It is argued that the court erred in ‘ ‘ permitting the State to offer parts of a statement or confession made by the defendant into evidence and in refusing defendant’s request for a copy of such purported statement or confession.” According to Brown, he was taken from the jail to the prosecuting attorney’s office the day after the shooting occurred, and required to make a statement. “There was so many people up there — I thought it was a bunch of TV men and radio men and reporters and those two officers and I don’t know who all — Deputy Sheriff Bussey.” Appellant’s argument indicates that he considered the statement as being in the nature of a confession. The statement was not a confession, was not signed, was not considered by the State as a confession, and was never offered in evidence by the prosecuting attorney. During cross-examination, the prosecuting attorney, for the purpose of impeaching appellant’s testimony, interrogated Brown as to some answers which had been given under questioning in the statement taken the day after the shooting, and which had been transcribed by a stenographer. The purpose was to show the inconsistencies between appellant’s testimony before the jury and his statement made in the prosecuting attorney’s office. Counsel’s objections were overruled by the court. Prior to commencing the trial, appellant’s counsel requested a cop3r of the statement, and during the examination, they again made the request. The request was disallowed by the court. Appellant argues that in permitting the prosecuting attorney to read excerpts from the statement, the State was enabled to present to the jury such portions as favored the prosecution, without letting them hear the portions that favored the defense; that the jury should have been allowed to see, or hear, the entire statement read. In Black v. State, 215 Ark. 618, 222 S. W. 2d 816 (’19), the appellant objected to the use, by the deputy prosecuting attorney, of notes transcribed by a stenographer relating to what the accused had said at the police station after arrest. This Court said:

“Objection was made and overruled to the use of these notes. Had a confession been shown, it would have been improper to introduce any part thereof without introducing the whole statement; however, the deputy prosecuting attorney in his examination of appellant offered to submit the transcription to appellant’s attorney, which offer ivas declined. The principal use of the transcription was to ask appellant if he had made certain statements disclosed by the transcription, some of which he admitted, while others were denied. The testimony on the part of the state was to the effect that appellant had made at the police station certain statements which he denied having made while testifying as a witness at the trial. We think this cross-examination was entirely proper and permissible.”

In Hamm v. State, 214 Ark. 171, 214 S. W. 2d 917, the same contention was made, and in affirming appellant’s conviction for rape, this Court said:

“Appellant was questioned by tbe Prosecuting Attorney after his arrest, and bis answers were taken down by tbe Prosecuting Attorney’s stenographer. These statements were not in tbe nature of a confession. On tbe contrary, they were a denial of guilt. But appellant as a witness undertook to account for bis whereabouts on tbe night of tbe crime, and particularly as to tbe time when be returned home that night. Tbe stenographer was called to read her notes in contradiction of tbe testimony given by appellant at tbe trial. It is permissible always to impeach tbe testimony of a witness by showing that be bad previously made statements in conflict with bis testimony.”

It appears therefore, that there was no error in permitting tbe State to show these prior inconsistent statements. In addition, tbe prosecuting attorney offered to allow tbe appellant’s attorney to examine tbe statement while be read from it, and tbe court suggested that counsel “go over there and read it with him.” We certainly see no sound reason for refusing to give a defendant a copy of any statement made by him, and are rather of tbe opinion that tbe better practice would be to furnish a defendant with a copy of a statement — or confession — -made by him. However, we know of no law that requires tbe State to divulge every detail of its case. Be that as it may, in tbe case before us, we find no prejudice to appellant’s rights because of tbe court’s ruling.

It is argued that tbe court erred in giving State’s Requested Instruction No. 8, which reads as follows:

“Tbe killing being proved, tbe burden of proving circumstances of mitigation that justify or excuse tbe homicide shall devolve on tbe accused, unless by proof on tbe part of tbe prosecution it is sufficiently manifest that tbe offense amounted only to manslaughter, or that tbe accused was justified or excused in committing the homicide.”

Appellant contends this instruction is misleading, in that the jury could feel that if there was a reasonable doubt of the guilt of Brown on the murder charge, they could still convict him of manslaughter. The instruction is copied from the statute (Ark. Stats. § 41-2246). In Tignor v. State, 76 Ark. 489, 89 S. W. 96, this Court said:

“Again, the court gave section 1765 of Kirby’s Digest, to the effect that, the killing being proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, etc. Now, this instruction is taken from the statute, and is the law, but it should have been accompanied with an instruction that on the whole case the guilt of the defendant must be proved beyond a reasonable doubt, so that the jury might understand that, though the burden of proving acts of mitigation may devolve on the accused, it is sufficient for him to show facts which raise in the minds of the jury a reasonable doubt as to his guilt. But, so far as the record here shows, the court did not refer to the question of reasonable doubt in any portion of his charge. The only reference to that question found in the record is in an instruction asked by defendant which was refused, and properly so, because it did not state the law correctly.”

In Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11, the identical instruction was given. In an opinion written by the late Justice Frank Smith, we said:

“It is argued that this instruction placed upon the defendant the burden of proving his innocence, inasmuch as he admitted the killing. Such, however, is not the effect of the instruction when read in connection with instruction No. 11, given by the court, reading as follows: ‘Under the law the defendant is presumed to be innocent. This presumption is evidence in his behalf and protects him from a conviction at your hands until his guilt is established to your satisfaction beyond a reasonable doubt.’ ”

In the instant case, the jury was instructed that appellant started out in the trial with the presumption of innocence in his favor, and that snch presumption “follows him throughout the trial”, and until they were convinced of his guilt beyond a reasonable doubt.

It is contended that the court committed error in giving State’s Instruction No. 10 as amended. As given, the instruction read as follows:

“Although you may believe that the defendant fired the first shot in necessary self-defense, still, if you believe that the second shot was fired at a time when it was not necessary to further defend himself, then the defendant would be guilty of murder in the first degree, or murder in the second degree, or manslaughter, provided you believe that the second or third shot contributed in any manner to the death of deceased.”

Appellant asserts that the proof did not support that part of the instruction dealing with the second and third shots, for all the evidence in the record shows that Isaacs had his pistol in his hand at the time the last two shots were fired. Appellant also points out that though nothing was said in the first part of the instruction about the third shot being fired in self defense, the jury was told that if the third shot contributed to the death of deceased, appellant would be guilty of some degree of homicide. While the instruction is somewhat awkwardly worded, and probably should have referred to “subsequent” shots rather than “second” and “third”, we do not agree that this instruction was prejudicial. The proof was conflicting, even the State’s witnesses disagreeing as to the manner in which the shots were fired. According to one witness, they were fired in quick succession; according to another, there was a short pause after the first shot. Proof was offered to the effect that Isaacs was perceptibly staggered after the first shot, and it was a question for the jury whether the subsequent shots were necessary. Likewise, the gun was found under the body with the safety unreleased. We here point out that the credibility of a witness is a matter to be determined solely by the jury. The members of a jury are not required to believe the testimony of any witness — it is within their province to accept all of his testimony — reject all of his testimony — or accept part and reject part — and though the witness Davis testified that deceased had the gun in his hand at the time of the firing of the second and third shots, the jury was not bound to accept such testimony at face value. Of course, since the testimony reflected that any of the shots could have proved fatal the jury might well have resolved the issue on the basis of the first shot. Nor do we find merit in the last part of the objection. Juries are composed of intelligent people, and we cannot conceive that this jury was under the impression that appellant must be found guilty of some degree of homicide if the third shot contributed in any manner to the death of the deceased, even though it was fired in self defense. The omission of the “third shot” in the first part of the instruction was evidently an oversight, which would have been corrected if called to the court’s attention. No specific objection was made upon this particular point, the objection relating only to the instruction including any reference to shots fired after the first.

Other alleged errors are set out in the Motion for New Trial, including the giving of certain instructions requested by the State, and the failure to give various instructions requested by the defendant. We have examined each alleged error in the Motion for New Trial, and find appellant’s contentions to be without merit.

No reversible error appearing, the judgment is affirmed.

Robinson, J., not participating.

       Brown claimed self defense, but this made a question for the jury.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Alexander v. Botkins.
    5-1999
    329 S. W. 2d 530
    Opinion delivered December 14, 1959.

      Harrison & Harrison, Omar Green and Graham Partlow, Jr., for appellant.

      Henry J. Swift and Bruce Ivy, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a judgment entered in favor of Ina Ray Botkins, Administratrix, and Ina Ray Botkins, Individually, in the Circuit Court of Mississippi County, Osceola District. The jury found appellant, Betty Alexander, guilty of negligence (100%) and awarded appellee, as administratrix, $10,000 for the use and benefit of the estate of Johnny S. Botkins, deceased; awarded $25,000 for the use and benefit of the widow for loss of contributions, support, and maintenance, $15,000 for Ina Ray Botkins, individually, for loss of consortium, and $13,000 for personal injuries sustained. For reversal of the judgment, it is first asserted that the verdict and judgment are contrary to the law and the evidence, second, that the verdict is excessive, and third, that the court erred in permitting the deposition of Dr. H. K. Baldridge to be read in evidence.

We see no need to detail all of the evidence, since we are only concerned with whether there was substantial evidence to support the verdict of the jury. As stated in Hot Springs Street Railway Company v. Hill, 198 Ark. 319, 128 S. W. 2d 369:

“In determining the sufficiency of the evidence to support a verdict, the Supreme Court views it with every reasonable inference arising therefrom in the light most favorable to the Appellee, and if there be any substantial evidence to support the verdict, it will not be disturbed on appeal.”

Accordingly, though appellants presented evidence which, if believed by the jury, would have justified a verdict for them, we are here only concerned with whether the evidence offered by appellee was of a substantial nature, sufficient to support a finding that the collision was the result of negligence on the part of Mrs. Alexander, rather than the result of negligent acts on the part of Johnny Botkins (Botkins died as a result of the collision).

Appellant, Betty Alexander, traveling north on state road No. 77, in attempting to make a left turn on to a county dirt road, was struck by a truck operated by Botkins, who, traveling in the same direction as appellant, was in the act of passing. Mrs. Alexander testified that she gave no arm signal, but did turn on the signal light for a left turn; that the light was apparently working . . . she was traveling about 10 or 15 miles per hour when she started the turn. She further testified that the turn was gradual . . . that no horn was blown by the truck before it started by . . . that she had already observed the truck some distance behind her . . . she gave a signal about 300 feet before the turn . . . but never glanced back after giving the signal. Testimony was offered by other witnesses to the effect that they heard no horn blow. However, appellee offered evidence that the automobile driven by Mrs. Alexander left skidmarks. A deputy sheriff of Mississippi County testified that he stepped off 18 feet of skidmarks left by the Alexander car, beginning in her right lane of traffic, extending across the center line, and into the left lane of traffic, which was being traveled by the Botkins truck. The evidence as to skidmarks was corroborated by Dewey Neely and H. M. Pendergrass, the latter the driver • of the ambulance which went to the scene. Mrs. Alexander was unable to state that the signal lights were functioning at the rear, and the testimony showed that these lights were not operating after the collision, though the brake lights were working. According to evidence, there was no damage to the rear of the automobile. A bread truck driver behind the Botkins truck testified that he saw no blinking lights on the Alexander car at the time the truck pulled out to pass. Evidence also indicated that partial obstructions obscured the dirt road. Botkins was a stranger in the community, and without knowledge of the location of this road. Appellee testified that her husband blew the horn, pulled over to the left lane preparatory to passing, and that Mrs. Alexander, without giving any signal of any kind, suddenly turned to the left in front of the truck. While, as stated, the testimony was conflicting, there was ample evidence upon which the jury could find that Mrs. Alexander was operating her vehicle in a negligent manner, and that the collision resulted therefrom.

The jury awarded for the benefit and use of Mrs. Botkins as widow $25,000 for loss of contributions, support and maintenance. Mr. Botkins was 40 years of age at the time of death, and the parties stipulated that he had a life expectancy of 31 years. Appellee testified that his earnings averaged between $2,000 and $3,000 per year; that he was healthy, strong, and able-bodied. We cannot say that this award was excessive.

$10,000 was awarded for the use and benefit of the estate of Johnny Botkins. Mrs. Botkins testified that after the collision, she heard her husband calling her, ran to him, and he grasped her hand. Botkins was still alive when the ambulance reached the hospital in Osceola. Testimony reflected that the truck was worth approximately $600 before the accident, and brought only $150 as salvage. Funeral expenses amounted to $722.84, and the hospital bill for deceased was $25. Of course, there is no way to determine the amount of pain and suffering experienced by the deceased; it is likewise difficult to determine a proper pecuniary award for pain and suffering. Any reduction of this award would have to be based upon a guess, which would amount to no more than substituting our judgment for that of the jury. Certainly, the amount is not so large as to “shock the conscience of the Court”; nor is there indication that the verdict was a result of “passion or prejudice”. In fact, appellee and her husband were strangers to Mississippi County, while appellants were residents of that county, and if prejudice were to enter into the picture, it would certainly be logical to assume that local residents would be favored, in preference to outsiders. We are unable to say that this amount was excessive.

The jury gave appellee $15,000 for loss of consortium. Here we have a recent precedent. In Mo-Pac Transportation Co. v. Miller, 227 Ark. 351, 299 S. W. 2d 41, we allowed a recovery of $15,000 for loss of consortium. In that case, there was no total loss of companionship, for Mr. Miller did not lose his life as a result of the injuries sustained. This item of recovery is not dependent upon the income of the deceased or the beneficiary’s loss of support, for all happily married persons enjoy the comfort, society, and affection of their spouse, irrespective of financial status. This loss is as poignant to one of meager circumstances as to one who is amply provided with the luxuries of life. We do not find this award excessive.

The jury awarded appellee $13,000 for injuries sustained by her. According to the evidence, her expenditures for medical expenses amounted to $1,825. Dr. H.. K. Baldridge, a physician of Heber Springs, testified that Mrs. Botkins suffered the following injuries: Multiple lacerations of the face; a fracture of her nose, contusions and abrasions over a great part of her body, and a particularly severe bruise on the right leg which limited her walking considerably; a cerebral and spinal concussion; a fracture compounded of the left nasal bone; deep laceration of the upper and lower lip; laceration of the right calf with contusion, a large contusion underneath; laceration of the right knee, left forearm, and left hand; sprain of the left suprespinatus muscle and tendon; contusion of the left anterior chest and left upper lobe of the lung anteriorly; contusion of the right knee and right calf muscle with deep hematoma; and multiple minor abrasions, contusions and sprains. The doctor testified:

“I saw her in the hospital, as an in-patient, I saw her twice a day, sometimes more. I try not to see them any less. The 10th of October 1957 through the 14th of October 1957, in the hospital; then in the clinic, I have seen her apparently about 19 times.”

This covered the period from October 9th, 1957, to June 16th, 1958. Dr. Baldridge testified that appellee’s left shoulder was still damaged, but that it should improve over a period of two or three years from the time of injury. He was unwilling to state whether she would have a complete recovery from this injury. Relative to her right leg, the doctor testified:

“She had a crushing injury to her right calf muscles, the lower part of it. Specifically it is, I believe, the gastrocnemius muscle and other structures. She had a large hematoma in that injury. That is, she had a large amount of blood out into the tissue. This limited her from walking at the time and it improved some, for a time, and then, recently, it is getting worse and I don’t know whether, I can’t determine at this time, whether it is going to continue to be worse or better.”

Further :

“Now, Doctor, you say this injury to her right leg and to the calf of the right leg; is there a marked scar there now?
A. Oh, yes.
Q. What is the appearance of the scar?
A. Well, it is a defect; it is a hollowed out place and it is dark.
Q. Discolored?
A. Yes, discolored.
Q. Has this given you a lot of concern recently?
A. Well, yes, it concerned me enough that I sent her to an orthopedic specialist for examination.”

Further:

“I expressed the opinion once before that she had 20% disability of that leg; probably that would be 25% now. That was April 1, and, since that time, this has become worse.”

He further testified that Mrs. Botkins was not able to do any work.

Dr. Richard N. Logue, an orthopedic surgeon of Little Rock, testified that, in his opinion, Mrs. Botkins had suffered a permanent disability as far as the injury to the right leg was concerned. In describing an operation performed, Dr. Logue testified:

“I excised the scar completely which measured about an inch and a half in circumference with two or three radiating lines and found the fat and tissue under the skin to be adhered or stuck to the covering of the muscle which was in itself scarred, this scarring throughout the medial side of the muscle. I opened the facis over the muscle to examine this and determined that any attempt to repair it would probably not be, no result in any great improvement, so I excised the scar completely and did a plastic revision so that she will end up with a curved, not too unsightly scar. In other words, the leg will look better than it did before and the painful neuroma which was contained in this scar is now gone.”

Further:

“The superficial branch of the saphenous nerve was involved and I merely excised the area of the scar and she will have some numbness which probably will reduce with the passage of time from the incision down towards the inner side of her ankle.”

The doctor testified there was damage to the nerve that could not be repaired, in addition to permanent damage to the muscle of the leg. We are of the opinion that the evidence justified the award given.

Appellants contend that the court erred in permitting the use of the deposition of Dr. Baldridge because the provisions of § 28-352, Ark. Stats. Anno. (47), were not complied with. The Caption, Stipulation and Agreement, of the deposition provides:

“The parties hereto waive all formalities in the taking, transcribing and forwarding said deposition, and the signature of the witness is also waived. The right to object to said deposition for incompetency, irrelevancy and immateriality is reserved and may be urged at the trial of said cause.”

We agree with the reasoning of the trial court as follows:

“With respect to the objections to the use of the deposition of Dr. H. K. Baldridge, the court is overruling the objection and permitting it to be used as testimony. The Caption and Stipulation and Agreement, as reflected in the deposition on pages 1 and 2, and referred to in the certificate of the person transcribing the notes as having come from her shorthand notes, contains sufficient waiver to overcome, in the court’s opinion, the objections made as to the formalities required in the taking, certifying, filing, recording of the deposition. The statement of counsel reflects that, as of this time, opposing counsel did have a copy of the depositions. That they do have copies of the depositions seems to do away with the necessity of any formal notice by the clerk. The stipulation and agreement was to the effect that the same need not be submitted to the witness nor read to or by him, and reserved the right of the plaintiffs to object to the competency, materiality and relevancy of any testimony adduced. * * * The court further. feels no statement is necessary further than that contained in the deposition itself, caption thereto, with reference to waiver of any rights of the parties involved, for these reasons the objection is overruled, the motion is denied.”

In addition, no exceptions were filed to the use of the deposition until the second day of the trial, though it was not denied that counsel had copies of the deposition several months before the trial. Subsection (d) of § 28-354 provides as follows:

“Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Section 5 and 6 (§ § 28-352- 28-353) are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.” We hold appellants’ contention to be without merit.

Finding no reversible error, the judgment is affirmed.

       The original complaint was filed by Betty Alexander and husband, W. J. Alexander, seeking judgment because of damages to their automobile. By amended complaint, Betty Alexander sought damages for alleged personal injuries. Appellee cross-complained, and also filed separate suit. The suits were consolidated for trial.

       Specific objections were as follows: “(a). The purported officer taking same did not certify, properly file, record or mark the same. (b) . That no copy of such deposition was furnished opposing parties; (c) . That no notice was given to all parties of such filing, if filed, as required by law; (d). That same was not submitted to witness or read to or by him as required by law; (e). That no opportunity was given witness to make any changes, if any were necessary; (f). Officer did not sign stating on record any waivers of rights;”.


author: J. Seaborn Holt, Associate Justice.

text:
    Ark. State Highway Comm. v. Addy.
    5-1986
    329 S. W. 2d 535
    Opinion delivered December 14, 1959.

      W. R. Thrasher, Dowell Anders, O. Wendell Hall, Jr., W. B. Brady, Thomas B. Keys, for appellant.

      C. M. Carden, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Arkansas State Highway Commission, by proper procedure condemned and took possession of 4.622 acres of appellee’s land for highway purposes. A jury trial resulted in a verdict in appellee’s favor in the amount of $22,500.00 as damages for the taking of their land. From this judgment, which appellant insists is excessive, comes this appeal.

For reversal, appellant relies on but one point: “There is no substantial competent evidence to support the allowance of $22,500.00 as damages for the taking of the land. ’ ’

Appellees owned before condemnation 9% acres outright and leased 2 additional contiguous acres on the corner, upon which they had operated for some two years a commercial amusement attraction known as a speed bowl for racing stock cars, a form of automobile racing.

There was testimony from a number of witnesses on behalf of appellees. Lee Trickett, who had been in the real estate business in Benton for some five years, testified that the value of the land before taking was $1,-250.00 per acre and $1,000.00 per acre after taking; or $26,389.98 including improvements, before taking and only $5,695.70 for the land after the taking and appellee’s damages amounted to $20,694.28.

Appellant’s witness, Mack Wilson, an employee of the State Highway Department with wide experience as a land appraiser, valued the land at $1,000.00 per acre before and $750.00 per acre after the taking, or that the value of appellee’s property (the 9% acres plus the 2 leased acres) before taking was $16,500.00, after taking $9,600.00 and that appellee’s damages amounted to $6,900.00.

Wesley Adams, a witness for appellees, testified that his business was that of “realtor and appraiser” — that he had been “in the real estate business since 1939 and in the appraisal business since 1947”; that he is a member of the American Society of Appraisers and had recently appraised property in Saline County for appellant. He testified that the value of appellee’s property before the taking was $29,000.00, after taking only $3,000.00, and that appellees had been damaged in the amount of $26,000.00.

Fay Wallace testified that appellees has been damaged by the taking of their property $6,750.00 and A. W. Emmerling testified that their damages amounted to $6,-550.00. It thus appears that there is a wide difference in the views of the witnesses as to the amount of damages that appellees have suffered. The highest damages were placed at $26,000.00 by appellee’s witness Adams and the lowest at $6,550.00 by Mr. Emmerling. In these circumstances it becomes the duty of this court to determine whether there is any substantial evidence to support the jury’s verdict and in determining this question our rule is well settled that we must view the evidence in the light most favorable in support of the jury’s verdict and when we have done so here we cannot say that there was no substantial evidence to support the verdict rendered by the triers of the facts, the jury. The test is clearly stated by this court in Hot Springs Street Railway Company v. Hill, 198 Ark. 319, 128 S. W. 2d 369, in this language: “In determining the sufficiency of the evidence to support a verdict, we must view the evidence with every reasonable inference arising therefrom in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict, it cannot be disturbed by this court. If the evidence on the part of the appellee, although contradicted by evidence of the appellant, is of a substantial character, evidence that the jury could reasonably have believed, the case will not be reversed because of the insufficiency of the evidence, although this court may think that the verdict is against the preponderance of the evidence.”

While it appears to us that the amount of damages allowed in this case is liberal in the extreme, however, as indicated, we think there was some substantial evidence to support it and accordingly, we must and do affirm.


author:
Ed. F. McFaddin, Associate Justice.
      J. Seaborn Holt, Associate Justice,

text:
    Merritt v. Rollins.
    5-1922
    329 S. W. 2d 544
    Opinion delivered December 14, 1959.

      Charles A. Walls, Jr., for appellant.

      House, Holmes, Butter <& Jewell, for appellee.
   Ed. F. McFaddin, Associate Justice.

The issue on tbis appeal is whether tbe claim of appellant was presented in tbe manner required by tbe Probate Law (§ 62-2604 Ark. Stats.).

L. C. Merritt died testate, a resident of Pulaski County, Arkansas; and tbe appellee, Mrs. Linnie Rollins, was duly appointed executrix of bis estate. Within tbe time provided by law (on October 10, 1957), tbe appellant, Mrs. Tommie Merritt, went to tbe office of tbe executrix and presented her with a document reading:

“In tbe Probate Court of Pulaski County, Arkansas
In tbe Matter of tbe Estate of Lawrence C. Merritt, deceased No. 32564
“During tbe time that tbe decedent and Russell and Tommy Merritt were in business together in California the earning of tbe Claimant and her deceased bus-band was $80,000.00, which amount was retained by the decedent for safe keeping, and $19,000.00 which amount is now due to the claimant as her share of the operation of the business in Mississippi.
"That the decedent had in his possession $80,000.-00 of claimants moneys and the balance of $19,000.00 is due for settlement of accounts from the operation of businesses in Mississippi making a total due of $99,-000.00.
"Affidavit to claim against estate.
I, Tommie Merritt, do solemnly swear that the attached claim against the estate of Lawrence O. Merritt, deceased, is correct, that nothing has been paid or delivered toward the satisfaction thereof except what is credited thereon, that there are no offsets to the same, to the knowledge of this affiant, except as therein stated, and that the sum of Ninety Nine Thousand and no/100 Dollars ($99,000.00) is now justly due (or will or may become due as stated therein). I further state that if this claim is based upon a written instrument, the copy thereof, including all endorsements, which is attached hereto, is true and complete.
STATE OF ABKANSAS COUNTY OF PULASKI
Subscribed and sworn to before me, this day of , 19
(SEAL)
Official Title.”

It will be observed that the paper presented to the executrix was unsigned and that the affidavit was likewise unaccomplished. When she presented the paper to Mrs. Bollins, Mrs. Merritt said: "I brought you a present ... It is some money Mr. Merritt owed Bussell”. Mrs. Bollins said: "This is ridiculous”. Mrs. Merritt said: “What shall I do with this?”; and Mrs. Rollins replied: “Take it and file it at the Clerk’s office ’ ’. Mrs. Merritt left the unsigned document, as copied above, with Mrs. Rollins; and went immediately to the Pulaski Probate Clerk’s office and filed with him another document identical to the one above copied except that the filed paper was signed by Mrs. Merritt and the affidavit was duly completed by the Clerk. Both the document left with Mrs. Rollins and the one filed with the Clerk are before us, and one is a carbon copy of the other, except that the one left with the Clerk was signed by Mrs. Merritt and the affidavit completed by the Clerk and bears the notation: “Piled October 10, 1957. R. S. Peters, County and Probate Clerk, Pulaski County, Arkansas”. The claim shows that it was filed in the Estate of L. C. Merritt.

On November 3, 1958 the executrix, Mrs. Rollins, filed her disapproval and disallowance of the Merritt claim; on January 22, 1959 there was a hearing in the Probate Court on the disallowance of the claim; and the Probate Court, on appellee’s motion,' entered judgment dismissing the claim. This appeal resulted; and the only question before us is the correctness of the Court’s order holding that the claim was not properly presented. We are not now concerned with the merits of the claim.

We reach the conclusion that the requirements of the law, for the presentation of the claim, were substantially complied with in this case. Our present statute on the presentation and filing of claims is § 113 of Act No. 140 of 1949, and may be found in § 62-2604 Ark. Stats. A claimant may file Ms properly verified claim with, the personal representative; or, in the alternative, the claimant may file the properly verified claim with the Court, and then the duty is on the claimant to see that the personal representative is properly notified of the claim. In the case at bar the claimant notified the personal representative of the claim by furnishing an unsigned copy; and then, at the direction of the personal representative, the claimant filed with the Court — the same day — a full and correct claim, duly signed and with the affidavit completed.

It would be putting form above substance to hold that a personal delivery of a copy of the claim to the personal representative was not a sufficient compliance with the requirement for sending of a notice by registered mail. It would likewise be putting form above substance to hold that the notice to the personal representative had to be given after the claim had been filed with the Court, when both events took place on the same day. That the Arkansas decisions have not stood for technicalities in this matter of the form and presentation of claims, is shown by the following cases: In Eddy v. Loyd, 90 Ark. 340, 119 S. W. 264, the required affidavit to the claim did not use the exact statutory words, but rather used words of a similar import. This Court held that the statute had been substantially complied with, and Chief Justice McCulloch used these words: “The affidavit substantially conforms to the requirement of the statute.” Likewise, in Wilkerson v. Eads, 97 Ark. 296, 133 S. W. 1039, the affidavit did not use the correct statutory words; but this Court held that the words used substantially complied with the statute. Chief Justice McCulloch again used the words, “There is substantial compliance with the statute”. In Davenport v. Davenport, 110 Ark. 222, 161 S. W. 189, the claimant merely attached a verbatim copy of the note to the affidavit instead of the original note, as the law then required; but this Court held that the verbatim copy, along with the affidavit, was substantial compliance with the law. Judge Frank Gr. Smith, writing the opinion of this Court, used these words:

“Here the proper affidavit was made and was attached to a verbatym copy of the note sued on, and the jurisdictional requirement was complied with. If it be said that a literal reading of the statute provides that the affidavit be physically attached to the note itself, which we do not decide, there has been substantial compliance with it. This question was raised and decided in a case of Wilkerson v. Eads, 97 Ark. 296, wherein a suit upon a note instituted in the chancery court the only affidavit consisted in the verification of the complaint, but its language was such that the court held it to be a substantial compliance with section 114 of Kirby’s Digest, although it was there expressly stated that the statute applied to actions according to the forms of the common law against estates of deceased persons, as well as to presentations in the probate court of claims against such estates. The law having been, at least, substantially complied with, the court below should not have dismissed the proceeding, and for its action in so doing the judgment is reversed and the court directed to hear the demand upon its merits.”

The rule generally is that substantial compliance is sufficient in this matter of the presentation of claims. The point is discussed in 34 C. J. S. p. 192, “Executors and Administrators” § 415; and also in 24 C. J. p. 347, “Executors and Administrators” § 982. In each volume the holdings are summarized in these words: “. . . a substantial compliance with the provisions of such statutes may be sufficient . . .”; and in the two volumes a score of cases from other jurisdictions are cited to sustain the text. The purpose of the presentation of a claim to the administrator or the court is well stated in 21 Am. Jur. p. 577, “Executors and Administrators” § 342:

“Presentation is, in general, required for the purpose of protecting the estate of deceased persons, by informing the executor or administrator of the claims against it and thus enabling him to examine each claim and to dermine whether it is a proper one which should be allowed. It has also been said that the primary object of the provisions requiring presentation is to apprise the administrator and the court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full, or by pro rata portion in the due course of administration.”

In the case at bar, the claim had the correct form of affidavit, just as prescribed by Official Form No. 18 of the Probate Code Forms, and the affidavit was duly completed and the claim duly filed with the Court. The claim as filed with the Probate Court was complete in every respect. No registered letter was sent by the claimant to the personal representative because the personal representative had already received an unsigned copy of the claim and told the claimant to present the claim to the Probate Court. It all happened the same day; and we hold that there was substantial compliance with the law regarding presentation of the claim. Therefore, the judgment of the Probate Court is reversed and the cause is remanded for the claim to be heard on its merits; and for further proceedings not inconsistent with this opinion.

Holt, J., dissents.

J. Seaborn Holt, Associate Justice,

dissenting. I would affirm the judgment of the probate court in this case. Mrs. Rollins, as executrix of the estate here, all will agree, was acting not as an individual but as an officer of the court and her duty in administering the estate placed in her hands has been clearly set out by statute. These duties are mandatory and must be literally followed by her official capacity. “Executors and administrators are officers of the court and occupy a fiduciary relation toward all parties having an interest in the estate. They are not agents of the estate, or of the decedent, and have no principal whom they can bind; they are merely instrumentalities established for performing the acts necessary for the transfer of the effects left by the deceased to those who succeed to their ownership. An executor or administrator as an individual and as an official is, in the eyes of the law, two separate and distinct persons. ” Yol. 33 C. J.S. Sec. 3-b (Executors and Administrators) page 879-80.

The record discloses the following facts: Exhibit One, as set forth in the majority opinion, an admittedly unsigned and unverified claim against the estate of Lawrence Merritt, is the only claim that appears in the record before us. Quoting from the testimony of Mrs. Rollins: “ Q. Mrs. Rollins, were you served with an executed copy of this claim which is signed, this one having been signed by Tommie Merritt! Were you served with a signed copy of "that! A. No I was not. Q. Will you tell the court the only notice — THE COURT: She is the administratrix of the estate! MR. TRIMBLE: That is correct. THE COURT: You were not served with any copy! A. The only copy I was served with, Mrs. Merritt brought it up to the office one day and she laid it on the desk, folded like this, and she said ‘Mrs. Rollins, I brought you a present’. I opened it up and that is what it was. There was no date, no name or anything on it. Just like that. THE COURT: Was it the same as that? A. Same as that and it was not signed and no date. That is the way it was presented. Q. (Mr. Trimble continuing) Mrs. Rollins, have you ever been served with any notice of any type or nature other than the conversation you just referred to by any party as to the existence of any claim or the fact it had been filed in this estate? A. I have not. Q. I will ask you, is this the instrument or paper Mrs. Tommie Merritt gave to you? A. Yes. THE COURT: Exhibit One. (Said Claim, being admitted by the court, is marked Exhibit 1 and appended hereto) . . . Q. Mrs. Rollins, the day Mrs. Merritt presented that claim to you did you all discuss it at all? A. No, only she just handed it to me and I looked at it. I said, ‘What is this, Tommie ? ’ I call her Tommie, and she said, 4 It is some money Mr. Merritt owed Russell.’ MR, TRIMBLE: I object to any self serving declaration made by the claimant, any evidence in direct regard to the claim itself. Q. (Mr. Walls continuing) Of course that was not the answer I was seeking. I wanted to know whether or not she stated to you it was a claim she had filed against the L. C. Merritt estate ? A. No that is all she said,41 brought you a present. ’ Q. She did not state she had filed the original? A. No. . . . Q. Mrs. Merritt, I hand you Exhibit No. 1. Did you or did you not deliver that to Mrs. Rollins? A. I did. Q. At the time of delivery did you state to Mrs. Rollins what it was ? A. Yes. Q. Tell the court just what you did state at that time? A. Well Mrs. Rollins and I have always been very friendly and always made a joke out of it and when I told her the amount she said 4 That is ridiculous ’ and laughed. I said4 What shall I do with this ? ’ and she said4 Take it and file it at the Clerk’s' office.’ And so I left her a copy (obviously Exhibit One herein) and we did look at the amount. Q. You went from there to the clerk’s office? A. Yes. I also said to Mrs. Rollins, I said 4 You know he has our money. ’ MR. TRIMBLE: I object to any conversation in regard to the merits of the claim. THE COURT: Sustained. A. I also asked the Clerk of the Court over there if that was all I had to fill out and he said yes that was all that was necessary. He did not tell me to sign it or anything. Q. Mrs. Merritt, I hand you this. Is that exactly like the one that you presented to Mrs. Rollins ? MR. TRIMBLE: I think they will speak for themselves. THE COURT: One is signed and one is not. Q. (Mr. Walls) Is this the one you filed with the Clerk? A. Yes. THE COURT: One is signed by her and the other one is not. A. As well as I recall I asked Mrs. Rollins if that was all that was necessary to do.”

In the present case appellant, Mrs. Merritt, claims that she has substantially complied with our statutes by filing her claim with the clerk. In the present case the executrix, Mrs. Rollins, never received and never saw appellant’s claim until trial before the probate court. She did not receive it through the mail or otherwise. The only claim that she did receive was ‘ ‘ Exhibit One ’ ’, according to the record here. It seems to me that the clear and mandatory duty rested upon Mrs. Merritt to see that the required notice of her claim was given to the executrix and any doubt that she has performed this duty must be resolved in favor of the executrix. The proper procedure for perfecting a claim against an estate is set forth in Sections 62-2604 and 62-2012, Ark. Stats. That part of Section 62-2604 applicable here is as follows: “b. As an alternative to the procedure set forth in sub-section a, a person having a claim against an estate may file it with the court, whereupon the clerk shall, by registered mail, notify the personal representative of the filing of the claim.” The applicable portion of Section 62-2012 is: ‘ ‘ C. . Except when by statute or by order of the court otherwise expressly provided, a notice in a probate proceeding shall be in writing, or print, prepared by or by the procurement of the party upon whom rests the burden of giving the notice and signed by the clerk. If service is to be by mail, (as was the case here) the person preparing the notice shall deliver the same to the clerk properly prepared for the post and the clerk shall be required only to post the same ...”

These sections must be read together and when this is done, we think the meaning of these provisions is clear and we hold that they are mandatory. They require that a claimant (as appellant here), after filing her claim with the probate clerk, and thus requiring that serving of notice of the filing of the claim be given to the executrix (Mrs. Rollins here) by mail; then it was claimant’s mandatory duty, and the burden was on her, after preparing such notice in writing, then properly to prepare such notice for the post, then deliver it to the clerk, and the only duty required of the clerk was to sign and post said notice. This appellant did not do.

The history of Section 62-2012 (c) seems to dispel any possible donbt in the matter. This was originally Section 12 (c) of the Probate Code and read as follows: ‘ ‘ Service by publication and by mail shall be made by the clerk at the instance of the party who requires such service to be made. Personal service may be made in any part of this state and, except as provided in subsection b (2) hereof, may be made by any person not an incompetent. ’ ’ Act 140 of 1949, Section 12 (c). It is quite plain that under the original statute the direction that service by mail be made “by the clerk at the instance of the party” left some doubt as to where the responsibility for preparing the notice rested. In 1951 the legislature clarified its intention by amending Section 12 (c) to read as it does now, with the duty clearly placed on the party to prepare the notice and deliver it to the clerk ready for mailing, so that he need merely sign and post it. Act 255 of 1951.

As pointed out, appellee, the executrix, did not receive Mrs. Merritt’s claim by mail or otherwise and the only claim that was ever presented to her, according to this record, was “Exhibit One”, an unsigned and unverified claim. Therefore, I think the trial court correctly denied this claim.

       The judgment reads: “On this day was presented to the court the motion of the Executrix of the Estate of Lawrence C. Merritt to dismiss the claim of Tommie Merritt; and the Court, after hearing oral evidence and other things and matters before the court, and argument of counsel, does find: No claim in proper form was ever presented to, nor was any proper notice of the filing of said claim ever served upon Mrs. Linnie Rollins, Executrix of the Estate of Lawrence C. Merritt, deceased. The proper time within which a proper notice may be issued and served has elapsed. Therefore,' the cíaim should be dismissed with projudice. It is Therefore, Considered, Ordered, Adjudged and Decreed that the claim of Tommie Merritt be, and it hereby is, dismissed with prejudice.”

       This section reads: “a. A person having a claim against an estate may present it to the personal representative, properly verified, for approval. The personal representative shall endorse upon the claim the date of the presentation thereof to him, his approval or disapproval thereof, and, if approved, classification thereof, and shall sign the endorsement. A claim approved by the personal representative must be filed with the court by or on behalf of the claimant within thirty days after the expiration of six months from the date of the first publication of the notice to creditors or it shall be barred, as provided in Section 110 (§ 62-2601). A claim, disapproved or not acted upon by the personal representative, must be filed with the court by or on behalf of the claimant within the period fixed by Section 110 (§ 62-2601) or within thirty days after the date of its presentation to the personal representative, whichever shall be the later date, or it shall be barred, as provided in Section 110 (§ 62-2601).
      “b. As an alternative to the procedure set forth in subsection a, a person having a claim against an estate may file it with the court, whereupon the clerk shall, by registered mail, notify the personal representative of the filing of the claim.”

       Section 62-2021 (c) (as amended by § 2 of Act No. 255 of 1951) places on the person giving the notice the burden of preparing, etc. the registered notice.

       This fact completely satisfies the holdings cited in Williams v. Dawson, 185 Ark. 1190, 46 S. W. 2d 634.


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

text:
    Tomlin v. Reynolds Mining Corp.
    5-1989
    329 S. W. 2d 552
    Opinion delivered December 14, 1959.

      Wright, Harrison, Lindsey S TJpton, for appellant.

      George W. Johnson, Warner, Warner & Rag on, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an appeal from the order of the Chancery Court refusing a new trial. The claimed ground for the new trial was: “Accident or surprise which ordinary prudence could not have guarded against” (being the third cause stated in § 27-1901 Ark. Stats.). Appellants say that the accident was the inability to obtain the transcribed testimony of the witnesses.

A decree adverse to the appellants was rendered by the Sebastian Chancery Court, Greenwood District, on December 17, 1958. Notice of appeal was filed in the Chancery Court on January 7, 1959, and the entire record was designated. By a series of orders the appellants were given until July 17, 1959 to file the transcript of all the testimony; but on March 18, 1959 it became established that such transcript could not be furnished. The regular Chancery Court Reporter, Mr. Batchelor, was in the hospital when the witnesses testified on December 17th, and Mr. Smith acted as substitute Reporter. Unknown to all, and for some unexplained reason, the machine used for taking the testimony of the witnesses was not working properly; and thus it became impossible to transcribe to the pages the record from the machine. This fact was definitely determined on March 18, 1959 when Mr. Batchelor advised the attorney for the appellants:

“The girl who does my typing was able to get the first 22 pages, ... I feel that there are some additional parts of the transcript that we could transcribe, but that there is at least 75% that we will be unable to transcribe. Do you want us to transcribe the parts we can and then try to stipulate on the parts that cannot be transcribed; and if this is done, it will be very sketchy and probably won’t be of much aid in either determining what exhibits were introduced or what the testimony was . . .”

On April 17, 1959 appellants filed in the Chancery Court their unverified motion for new trial, alleging the facts substantially as hereinbefore stated, and also saying:

“The issues in the case involve a direct controversy between interested witnesses. The exact testimony given by each witness is extremely important in the proper determination of the issues and at this late date it is impossible to accurately stipulate the testimony given. The failure to have a proper transcript on the appeal to the Supreme Court of Arkansas constitutes an accident which the defendants exercising ordinary prudence could not have guarded against.”

This motion for new trial was heard by the Chancery Court on July 14, 1959 and on that date was denied; and from that order there is this' appeal. The Chancery Court made the following findings in denying the motion for new trial:

“That said defendants have failed to comply with the provisions of Arkansas Statutes 1947 § 27-2127.11 . . .
“That said defendants received notice of the state of the record herein on March 18, 1959, one month and 2 days prior to the expiration of the term in which said cause was heard and a decision handed down; but said defendants failed to have said motion for new trial heard until July 14, 1959, three days prior to the expiration of the 7 months maximum time that can be granted for filing the record with the Supreme Court of Arkansas . . .
“That to grant a new trial in this matter at this time, with said defendants having failed to comply with Arkansas Statutes 1947, Sec. 27-2127.11 and said defendants having no new evidence to present in this matter, presenting only a fact question, would result in unreasonable delay in this matter, and additional expense and inconvenience to the plaintiff and other defendants in this action, which, under the circumstances, would make it inequitable.”

The question before us is whether the Chancery Court abused its discretion in denying the motion for new trial. A lengthy dissertation could be written on this matter of new trial because of the loss of the transcribed testimony. We have at least three cases in Arkansas involving such a situation, and being: Dent v. Peoples Bank, 114 Ark. 261, 169 S. W. 821; Criner v. Criner, 217 Ark. 722, 233 S. W. 2d 393; and Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481. There are many cases from other jurisdictions: we list only a few. Flickett v. Rauch, 31 Cal. 2d 110, 187 P. 2d 402; Weisbecker v. Weisbecker, 71 Cal. App. 2d 141, 161 P. 2d 990; Rambo v. Rambo, 84 Cal. App. 2d 632, 191 P. 2d 480; Duarte v. Rivers, 90 Cal. App. 2d 152, 202 P. 2d 612; Hoffart v. Lindquist £ Paget Mtg. Co., 182 Or. 611, 189 P. 2d 592; King v. King, 119 Ind. App. 46, 82 N. E. 2d 527; Brooks v. National Shawmut Bank, 323 Mass. 677, 84 N. E. 2d 318; People v. Kaplan, 278 App. Div. 665, 102 N. Y. S. 2d 714; Dudley v. Hull, 105 Conn. 710, 136 A. 575; Coan v. Plaza Equity Elevator Co., 60 N. D. 51, 232 N. W. 298; and Reynolds v. Romano, 96 Vt. 222, 118 A. 810. To these may be added the other cases cited in the annotations on “Inability to perfect record for appeal as ground for new trial”, as contained in 13 A. L. R. 102; 16 A. L. R. 1158; and 107 A. L. R. 603.

We do not discuss the requirements of § 27-1901 et seq. Ark. Stats, on the necessity of presenting during the term an unverified motion for new trial and the necessity that a motion for new trial be verified when considered after the lapse of the term; because in Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481, we pointed ont the correct way in which appellants could undertake to supply a record which otherwise could not be furnished. In that case, as here, the reporter’s mechanical device for recording the evidence was out of order so that the testimony could not be transcribed, and we said: “. . . but the statute provides a method for supplying the deficiency in a situation like this (Ark. Stats. 1947 § 27-2127.11). These appellants have not availed themselves of the corrective procedure”. The Statute referred to above is Section 19 of Act No. 555 of 1953, which reads:

Appeals When no Stenographic Report Was Made. In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.”

The appellants did not prepare a statement of the evidence of the proceedings, and serve it on the appellee, and proceed as provided in the above section; therefore the appellants are not in a position to say that the Chancery Court abused its discretion in denying the motion for new trial in the case at bar.

Affirmed.

Holt and Ward, JJ., dissents.

Paul Ward, Associate Justice,

dissenting. I do not agree with the result reached by the majority, nor do I agree with the reason assigned.

The facts in this case are essentially as follows. In certain litigation in the Chancery Court of Sebastian County in which the issue was the ownership of certain oil and gas royalties, considerable oral testimony was taken on two different occasions. On December 17, 1958, the Chancery Court found contrary to the contentions of Mr. and Mrs. Tomlin, the appellants herein. The decree was entered on December 22, 1958, and on January 5, 1959, appellants gave notice of appeal. Following this the attorneys for appellants made a request for a transcription of the testimony in order to prepare for an appeal from the decree entered on December 22, 1958, and sent as an advance payment therefor the sum of $75.00 on February 13, 1959. The testimony at the two hearings was taken on a “dictaphone” or recording machine. On March 15, 1959, the reporter informed appellants to the effect that they were having difficulty in transcribing the testimony. Two days later the Chancellor extended the time for securing the record to May 7, 1959, but one day later appellants ’ attorneys were notified that it was impossible to transcribe the testimony. On April 14,1959, appellants filed a motion for a new trial on the ground that it was impossible to obtain the record. Thereafter, on April 22, 1959, the Chancellor extended the time for perfecting the appeal to June 17,1959 and later extended that time to July 17,1959. On July 14, 1959, the Chancery Court denied appellants’ motion for a new trial on the ground, among others, that appellants had not complied with Ark. Stats. Section 27-2127.11. This section in all parts material here provides that in the event no stenographic report of the evidence or proceedings at a trial is made, the appellant MAY prepare a statement of the evidence from the best possible means, including his recollection, for use instead of a stenographic transcript. This section also provides that the appellee MAY serve his objections or proposed amendments and that thereafter appellant’s statements and the proposed objections or amendments shall be submitted to the trial court for settlement and approval, and as settled and approved shall be included by the Clerk of the Court in the record on appeal.

In appellants’ motion for a new trial it was stated that: “The issues in the case involved a direct controversy between interested witnesses. The exact testimony given by each witness is extremely important and the proper determination of the issues and at this late date it is impossible to accurately stipulate the testimony given.”

The majority opinion rests on the proposition that Ark. Stats. Section 27-2127.11 is mandatory. I cannot agree with this conclusion for the following reasons.

One. In the first place the wording of the statute itself strongly indicates that it is not mandatory. It seems to me if the Legislature meant for this section to be mandatory it would have used the words MUST or SHALL and not the word MAY.

Two. It is easy to imagine many situations where grave injustices would result if said statute is held to be mandatory. Let’s consider a case, not unusual, where several days are consumed in the taking of testimony and further assume that the exact wording of the testimony is essential to a correct decision on the merits. Then assume that more than two months had elapsed, as in the case under consideration, before it is discovered that no stenographic record was made. In such a case it is unreasonable to expect that attorneys or the trial court to remember correctly what the witnesses said. In such a case the appellant would not have a fair chance to present his case to this court for review on its merits — a denial of his fundamental rights.

Three. The majority, in the next to the last paragraph of the opinion, relies entirely upon the decision in the case of Mowery v. Coleman, 224 Ark. 979, 277 S. W. 2d 481. In this I submit that the majority are in error. In the Mowery case there was an appeal from the decree of the trial court on the merits. In the case under consideration there is no appeal from the decree on the merits but this appeal is taken from the order of the Chancellor denying a new trial. In the Mowery case there was no motion for a new trial as there is here, and this court merely decided that the trial court had a right to enter its original decree before the testimony taken by the reporter had been transcribed. It was not necessary to the opinion in the Moivery case for this court to mention Ark. Stats. 27-2127.11, and, therefore, I consider such reference as dictum only. However, regardless of whether the reference to the statute is considered dictum or essential to the opinion in the Moivery case, I think it is more important that we do not extend the effect of that decision any further than is necessary in view of the great injustices likely to result as heretofore pointed out.

The majority opinion did not rely upon the manner in which the motion for a new trial was presented but it is intimated that appellants could not prevail here because such motion was not heard in due time. I do not agree with this intimation. In my opinion this case is governed by the rule announced in the case of Davies & Davies v. Patterson, 132 Ark. 484, 201 S. W. 504. At Page 494 of the Arkansas Report the court made this unqualified statement: “It follows that the error complained of appeared on the face of the record proper and, therefore, no motion for a new trial was necessary”. In the case under consideration it appears to me that the error complained of not only appears on the face of the record but that it actually constitutes the record. This appeal is solely for the purpose of pointing out the error — that the testimony oil the trial in chief could not be obtained. In addition to that under our new procedure (Act 555 of 1953, Section II) “no motion for a new trial and no assignment of error shall be necessary”.

Since it was conclusively shown to the trial court that appellants will have no opportunity to present the merits of their case to this court for a review unless a new trial is granted, it can hardly be said that the court did not abuse its discretion. It is my conclusion, therefore, that this cause should be remanded for a new trial.

Holt, J., joins in this dissent.

       The case involved the question of whether there was a constructive trust or an express trust. The appeal from the decree of December 17, 1958, has never been filed in this Court. The appeal here involved is from the order of July 14, 1959 refusing a new trial.

       So far as the record discloses there was no attempt made to stipulate.

       The terms of the Sebastian Chancery Court, Greenwood District, are fixed by law (§ 22-406 Ark. Stats.) to be the third Monday in April and October. Thus the trial in December 1958 was in the October 1958 term, and this motion for new trial was not heard by the Court until a day in the succeeding April 1959 term.

       This Section 19 of our Act 555 of 1953 is a verbatim, copy of Rule 75(n) of the Federal Rules; and an interesting case in which the section was unsuccessfully invoked is that of Hawkins v. Mo. Pac. (8th Cir.), 188 F. 2d 348.


author: George Rose Smith, J.

text:
    Ark. State Highway Commission v. Cook.
    5-2003
    329 S. W. 2d 526
    Opinion delivered December 14, 1959.

      W. R. Thrasher, W. B. Brady, for appellant.

      Ohmer C. Burnside, for appellee.
   George Rose Smith, J.

In 1940 a number of Chicot county landowners gave the state highway department the right of way for a highway leading to the Greenville Bridge. The grant was put into effect by means of a condemnation order entered by the county court. In 1941 six of the landowners brought a suit in equity to reform the county court order, asserting that the order had wrongfully described more land than the owners meant to contribute. The chancery court, apparently with the consent of the highway department, entered a decree correcting the county court’s description of the right of way. The present case turns upon the meaning of that decree, its validity not being in issue.

In 1958 the Highway Commission, preparing to reconstruct part of the highway in question, brought this action to condemn additional land so that the right of way would be 120 feet wide. With respect to the only part of the appellee’s land that is involved in this dispute the Commission contends that by virtue of the original county court order it already has an easement varying from 100 to 110 feet in width, so that the Commission needs to acquire only 2.435 acres to widen the .right of way to 120 feet. The Commission maintains that the county court order, as far as these lands are concerned, was wholly unaffected by the chancery decree. This argument is disputed by the appellee, who insists that the effect of the chancery decree was to reduce the easement across her land to the 40-foot strip actually used for public travel. In this view the Commission must condemn a total of 6.423 acres to widen its right of way to 120 feet. The circuit court ruled for the appellee, and this appeal is from a judgment upon a verdict fixing the value of the 6.423 acres at $11,500.

The pivotal question is that of determining to what extent the chancery court modified the county court’s description of the right of way. The land now involved lies between Station 350 00 and Station 378 50.8, and the specific question is whether the chancery court reduced, or perhaps eliminated entirely, the state’s right of way between those stations.

The county court order contained a surveyor’s description of the centerline of the right of way, divided into numbered stations, and then set forth the width of the right of way by means of the following paragraph and appended note:

“The right of way widths conveyed each side of the hereinabove described centerline are as follows:

It will be seen that in the foregoing tabulation the stations are listed in ten groups or calls. In the first, second, seventh, and eighth calls the width of the right of way to the left of the centerline is given as a variable 70 feet, plus or minus, with the footnote explaining that these widths are to extend to the low water level of Lake Chicot. In the 1941 chancery suit the sole relief sought by the six plaintiffs was a correction of these four variable calls. The complaint alleged that in places the strip between the highway and the lake was more than 300 feet wide, that the landowners had intended to give an easement only 100 to 110 feet wide, and that the inclusion of excessive land in the county court order amounted to a constructive fraud upon the plaintiffs.

The decree found that the county court order should be corrected. After reciting .the surveyor’s description of the centerline the decree granted relief in the following paragraph, which is the focus of controversy in the case at bar:

“The right of way widths conveyed each side of the hereinabove described centerline are as follows:

same is vested in the State of Arkansas, for said road purposes, and that title to the remaining lands described in said county court order be and the same is hereby declared in the respective property owners, without regard to the provisions of said order of said County Court.”

It will be observed that the chancery decree repeated only the first eight of the ten calls in the county court order, omitting the last two calls that deal with Stations 350 00 to 378 50.8. This omission is the basis for the appellee’s argument, as her land lies within the omitted calls. She contends that the effect of these operative words in the decree, “that title to the remaining lands described in said county court order be and the same is hereby declared in the respective property owners,” was to completely destroy the state’s easement across the land in the two omitted calls, though she admits that in the years since 1941 the state has acquired a prescriptive right to the 40-foot strip actually used for public travel.

Cogent reasons compel us to reject the appellee’s argument. To begin with, the decree cannot be isolated from its context; it must be construed in the light of the complaint to which it was responsive.' That complaint related only to the variable widths in the first, second, seventh, and eighth calls. The land that lay along the stations in the ninth and tenth calls was not subject to a variable easement and thus was not affected in any way by the issue raised in the complaint; indeed, the appellee’s predecessor in title was not even a party to the suit. There is no reason to suppose that the chancellor meant to go beyond the issues framed by the pleadings and to adjudicate the rights of persons who were not represented in the case. That the chancellor did not so intend is further indicated by the fact that the preliminary recitals of the decree also refer only to the first eight calls, which suggests that the operative language of the decree was also limited to those calls.

Finally, the appellee’s construction of the decree would mean that the highway department relinquished without protest its entire easement for a distance of 2850.8 feet along the centerline of the highway, which apparently had already been paved, so that the state voluntarily assumed the role of a trespasser. We are not persuaded that such a patently impractical construction must be placed upon the words of the decree.

Reversed and remanded for a new trial upon all other issues.

      “*Note: In any event the Station numbers indicated and marked shall include right of way widths on the left extending to the low water level of Lake Chicot.”


author: Paul Ward, Associate Justice. George Rose Smith, J.,

text:
    Aetna Insurance Co., Inc. v. Warren, Admx.
    5-1961
    329 S. W. 2d 536
    Opinion delivered December 14, 1959.

      Dickson, Putman <& Millwee, for appellant.

      James R. Hale, Crouch, Jones & Blair, for appellee.
   Paul Ward, Associate Justice.

We are concerned on this appeal with the construction of certain language contained in a fire insurance policy issued by the appellant, Aetna Insurance Company, Inc., hereafter called “Aetna”, to the Bon Ton Cleaners, hereafter called “Cleaner”, one of the appellees herein.

On June 18,1951, Aetna issued to Cleaner a customer goods policy which insured for the account of whom it may concern “all kinds of lawful goods and articles accepted by the assured for cleaning, renovating, pressing, repairing or dyeing, being the property of its customers while contained on the premises occupied by the assured”, against loss from fire, etc. Upon the death of the owner of Cleaner the policy was endorsed to his widow who is also the administrator of his estate. The premium to be paid by Cleaner was based on gross receipts at the rate of 500 per $100.00. On July 21, 1957, a fire of unknown origin occurred on Cleaner’s premises and damaged or destroyed, among other things, certain articles belonging to Callie M. Harp and Sara Harp, her daughter.

Mrs. Harp and her daughter brought suit against Aetna to recover their damages. Upon trial and at the end of all of the testimony of both sides the trial court directed a verdict against Aetna for the value of the clothes, penalty and costs. Hence, this appeal.

It appears to us that there are two questions that must be considered and disposed of. One: When the court directed a verdict was it acting as a jury or was it passing solely on a matter of law; and, Two: Was the trial court’s action correct as a matter of law?

One. It is appellees’ position (as indicated by the argument in their brief) that since both sides asked for a directed verdict the trial court, acting according to the recognized rule, sat as a jury to try issues of fact. Such a rule has been adopted by this Court. See 208 Ark. 952, 188 S. W. 2d 507, and 217 Ark. 593, 232 S. W. 2d 655.

We have concluded, however, that because of the peculiar facts of this case the rule above mentioned does not apply. Here, after appellees had finished with their testimony and had rested, appellant moved the court for an instructed verdict. This motion was overruled at that time and appellant saved its exceptions. After this had transpired appellant announced that it also rested. Then appellees moved for an instructed verdict, whereupon the trial court directed the jury to render a verdict in favor of appellees, instructing one of the jurors to sign it. In the first place it seems apparent from the wording of the trial court’s judgment that it did not rely upon the rule above mentioned and did not intend to try issues of fact because no mention is made of appellant’s request for an instructed verdict. Moreover, a careful analysis of the cases cited above shows that the above mentioned rule is founded on the nature of an agreement between the parties themselves that the trial court shall sit as a jury and try issues of fact. It would seem necessary, therefore, that the trial court should have both requests for an instructed verdict before it at the same time. In this case, of course, appellant’s request had already been denied and disposed of by the trial court before appellees’ motion was made. It is not unusual, we think, for a defendant to request an instructed verdict at the close of the plaintiff’s testimony. After doing so, such defendant would have the choice of putting on its own testimony or to rest its case and go to the jury on the testimony developed by the plaintiff. It would seem only fair that the appellant should have this choice in the case under consideration. Therefore, if any question of fact which raises a jury question is presented in the case under consideration appellant should not be denied to have such question presented to the jury.

Two. After very careful consideration of the problem presented here and after careful reading of the briefs on both sides and also the record in the case we have come to the conclusion that a fact issue is presented. There are two clauses in the insurance policy which deserve special attention. The first one is Section 2 of the rider attached to the policy and is designated ‘ ‘ Customer Goods Policy”. This section purports to state what goods are covered and reads as follows: “All kinds of lawful goods and articles accepted by the assured for cleaning, renovating, pressing, repairing or dyeing”. The second provision is Section 5 of the said rider, under the heading of ‘ ‘ Special Conditions ’ ’, which reads: ‘ ‘ Goods held by the assured without instruction from the owners to hold on storage shall not be considered as being held on storage”.

Cleaner’s place of business was operated in one long building with no separate building or separate compartment of the building which was used exclusively for storage. However, the testimony shows that Cleaner did have certain racks set aside in the building where clothes were held in moth-proof bags for varying lengths of time, as distinguished from the place where they kept clothes which had been processed and which normally would be called for within two or three days. There is testimony in this ease to the effect that when Mrs. Harp brought her clothes to Cleaner on June 1st and June 15th that she instructed Cleaner to process the clothes, place them in moth-proof bags and hold until Fall. There is other testimony to the effect that Mrs. Harp’s instructions to Cleaner were that she merely told them to process the clothes and hold them until she called for them. Appellant’s Exhibit No. 2 is a ticket or receipt made out to Mrs. Harp, dated June 1, 1957, showing the articles of clothing left by her at Cleaner’s place of business. On this ticket appears this notation “M Proof, Store”. It appears conceded that this notation meant for Cleaner to mothproof and store. It is admitted that Cleaner paid a premium to appellant based on the gross receipts for processing clothes which apparently would ordinarily be delivered to the customer in two or three days, sometimes sooner and sometimes later. This being true, it stands to reason that appellant’s liability would be increased in proportion to the length of time the clothes were held in the building. Appellees introduced testimony by one of the local agents of the appellant company tending to show that he (the agent) knew that Cleaner was holding clothes for the length of time that they held Mrs. Harp’s clothes, and that he informed Cleaner such clothes were covered by the policy. However, on cross-examination he stated he told her that if clothing was brought in and processed and a charge of $3.50 was made for it and it went back out the only premium Aetna would receive would be based on that $3.50 charge.

It can be seen from the above that the vital question here is whether Mrs. Harp’s clothes were held for storage. If they were not so held then appellant is liable, but if they were so held appellant is not liable.

It, therefore, appears to us that this vital question, whether Mrs. Harp’s clothes were stored or not stored under the above quoted provisions of the policy and under the evidence as we have summarized it above is one that should be passed upon by a jury. If this were a case in which it could be said that fair minds could reach only one conclusion on the question of whether Mrs. Harp’s clothes were stored or not stored then the trial court would be right in treating the question as a matter of law. We are unable to say that the testimony in this case is that simple and clear and we are, therefore, constrained to conclude that this issue should have been submitted to a jury.

It follows from what we have said above that the trial court erred in finding that as a matter of law that Mrs. Harp was entitled to recover for the cost of her clothes.

There is an abundance of decisions by this Court holding that a jury question is presented where reasonable minds might reach different conclusions: Grand Lodge A.O.U.W. v. Banister, 80 Ark. 190, 96 S. W. 742; St. Louis I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438, 135 S. W. 338, D. F. Jones Const. Co. v. Lewis, 193 Ark. 130, 98 S. W. 2d 874; Smith v. Stuart C. Irby Co., 202 Ark. 736, 151 S. W. 2d 996; McGeorge Contracting Company v. Mizell, 216 Ark. 509, 226 S. W. 2d 566; and, Williams v. Cooper, 224 Ark. 317, 273 S. W. 2d 15.

It follows from the above that the judgment of the trial court must be and it is hereby reversed and remanded for further proceedings consistent with this, opinion.

Reversed and remanded.

Holt and George Rose Smith, JJ., dissent.

George Rose Smith, J.,

dissenting. I agree that the judgment must be reversed, but it seems to me that the undisputed evidence requires us to dismiss the appellees’ complaint. I can find in the record no substantial evidence upon which a jury might say that the appellees ’ clothing was not in storage at the time of the fire. The loss was-therefore excluded by this clause in the policy: “Goods. accepted for storage on which a process charge has been made or is to be made are covered only during process and transportation. ” It is undisputed that the processing of the appellees’ clothing had been completed when the garments were placed in mothproof bags.

At the outset I lay aside, as irrelevant, the testimony that the appellant’s general agent thought that the apparel in question was covered by the policy. In a number of cases, the most recent being Metropolitan Life Ins. Co. v. Stagg, 215 Ark. 456, 221 S. W. 2d 29, we have followed the familiar rule that the doctrine of waiver and estoppel cannot operate to extend the coverage of an insurance policy to a risk that is excluded by the specific language of the contract. In view of that rule no substantive effect can be attached to the fact that the appellant’s agent misinterpreted the language of the policy many years after it was issued, for the misconstruction was not an inducement contributing to the issuance of the policy.

The only pertinent evidence relates to the transaction by which Mrs. Harp left the clothing at the cleaner’s. It is true that on direct éxamination Mrs. Harp merely stated that “I only recall that I asked if I could leave them [the clothes] and get any article I wanted at any time. ’ ’ But on cross examination Mrs. Harp candidly admitted that she had probably told the cleaners to hold the clothing until fall. With like candor she stated without equivocation that her affidavit of loss, executed soon after the fire, was correct. That affidavit contains this question and answer: “Was article to be laundered, cleaned, pressed, altered, repaired or stored? Clean, put in M. P. bags and hold until fall. ’ ’ It will be remembered that the ticket made out at the time by the cleaning company’s clerk recited that the garments were to be mothproofed and stored.

Upon this uncontradicted evidence I think the question to be one of law and not of fact. The policy admittedly did not cover the clothing while it was in storage. Mrs. Harp unquestionably left the clothing with the cleaning company with instructions that it be cleaned, placed in mothproof bags, and held until fall. The fire occurred after the garments had been cleaned and put in mothproof bags. If a jury cau permissibly find that the clothing was not in storage, then just what was its status? The majority opinion leaves that question unanswered, and in doing so it seems to me that the majority have refused to give effect to the plain language of the contract.

■ Holt, J., joins in this dissent.


author: Paul Ward, Associate Justice.

text:
    McGill v. Robbins.
    5-1988
    329 S. W. 2d 540
    Opinion delivered December 14, 1959.
    T. W. Etheridge, Ruben K. King, Alexander City, Alabama, for appellant.

      Switzer & Switzer, for appellee.
   Paul Ward, Associate Justice.

We are concerned on this appeal with (a) a suit on a foreign judgment and (b) a garnishment of funds in the hands of a sheriff.

On August 16, 1958 appellant, McGill, obtained a judgment in the Circuit Court of Tallapoosa County, Alabama against appellee, Robert Lee Robbins, in the amount of $1,343.39 (less $125.00 later paid thereon). This judgment was obtained in a tort action involving an automobile collision. On or about February 2, 1959, appellant filed a verified complaint in the Circuit Court of Ashley County, Arkansas, against the said Robbins and B. A. Courson, the sheriff, in which the above facts were set forth and in which it was stated that B. A. Courson, the sheriff of Ashley County, Arkansas, has in his hands the sum of $1,500.00 belonging to Robbins. (It appears that said Robbins had deposited such sum of $1,500.00 with the sheriff in lieu of an appearance bond). The prayer in said complaint reads as follows: “Wherefore, plaintiff prays judgment in the sum of $1,210.39 with interest from the date of the aforesaid judgment of August 16, 1958, the date of this judgment, with interest thereon until paid at 6% and costs of this action”. Attached to the complaint was a duly certified and verified copy of the Alabama judgment.

On March 16, 1959, the Clerk of the Ashley County Circuit Court issued a WRIT OF GARNISHMENT BEFORE JUDGMENT commanding the sheriff, as garnishee, to appear in court and answer what goods, chattels, monies, credits and effect he may have in his hands or possession belonging to McGill. On the following day Robbins filed a motion to quash said Writ of Garnishment, setting forth several grounds therefor. The contentions with which we are here concerned are: (a) Garnishment cannot be issued before judgment except in actions in contract and this is a suit on a foreign tort judgment and not an action on a contract; and, (b) garnishment will not lie to seize money in custodia leg'is in the hands of the sheriff and cannot be had on any officer of a county or a state except after judgment.

On March 23, 1959 the trial court sustained Robbins’ motion to quash and accordingly vacated and quashed the Writ of Garnishment. From this Order McGill has appealed.

(a) Appellees are correct in stating that garnishment cannot be issued before judgment in a tort action. See: Allen v. Stracener, 214 Ark. 688, 217 S. W. 2d 620. We likewise agree with appellees that appellant did not comply with the Uniform Act on Foreign Judgments (Ark. Stats. Section 29-801, et seq.) whereby the Alabama judgment could be registered in this State. This matter is not decisive here so we refrain from discussing it more fully. Section 29-816 of the Uniform Act provides that: “The right of a judgment creditor to present an action to enforce his judgment instead of proceeding under this Act remains unimpaired”. Since appellant brought this action under the old procedure to obtain a judgment in this State based on the Alabama .judgment, it necessarily follows that the Writ of Garnishment in this instance was issued before judgment. However, we do not think this procedure was fatal to appellant, because we are of the opinion that this present- action is not a tort action but merely an action on a debt. What appears to be the general and uniform rule in this connection is stated in 30A Am. Jur. Page 821, Section 929, where, among other things, it is stated: “An action on a judgment is a suit of a civil nature. It is regarded as a new and independent action, and not for the same cause as the principal proceedings in which the judgment was obtained, even if its purpose is to revive the judgment. Technically a cause of action on a judgment is not the same as the original cause of action merged therein, thus, the cause of action on a judgment is different from that upon which the judgment was rendered”. We recognize the logic and soundness of that rule and therefore adopt it as our own. We must conclude, therefore, that appellant had a right to have the Writ of Garnishment issued upon the filing of his complaint and before a judgment thereon had been obtained.

(b) We now come to the consideration of a very interesting question — whether appellant could garnishee the sheriff who held $1,500.00 placed in his custody by appellant as bail money in lieu of an appearance bond. This question, we think, has been resolved adversely to appellees’ contention in this case by the decision in Green v. Robertson, 80 Ark. 1, 96 S. W. 138. In that case F. A. Garrett who was Clerk of the Chancery Court and also a Commissioner to sell certain lands under a foreclosure decree held a certain sum of money paid to bim by W. H. Schaer who was the purchaser of the foreclosed lands. Later Green commenced an action in a Justice of the Peace Court against one J. T. Reid on a promissory note and had a Writ of Garnishment issued against Garrett (the Commissioner) alleging that he had certain funds in his hands belonging to Reid. After this Reid made an assignment of his interest in the money held by Garrett to Robertson. The question then arose as to whether Green had a right to garnishee the funds in the hands of Garrett and consequently whether or not the assignment from Reid to Robertson was valid as against the garnishment. The trial court held: “That F. A. Garrett, as Commissioner, is not subject to the Writ of Garnishment”. Upon appeal this court after first stating that in the absence of a statute authorizing it, a fund in court is not subject to garnishment, then stated: “We have, however, a special statute in this State authorizing the attachment of funds in court”. Citing Kirby’s Digest, Section 358, which is the same as Ark. Stats. Section 31-118, and which reads as follows: “Where the property to be attached is a fund in court, the ^execution of the order of attachment shall be by leaving with the clerk of the court a copy thereof, with a notice specifying the fund; and where several orders of attachment are executed upon such fund on the same day, they shall be satisfied out of it ratably”. Based upon the above this court said: “The decree of the court is reversed, and the cause is remanded with directions to the court to enter an order commanding the commissioner to hold the said surplus subject to the garnishment”.

Our search of the authorities discloses that this opinion has never been reversed or modified by this court.

Appellees seek to sustain the trial court in quashing the Writ of Garnishment in this case by virtue of Ark. Stats. Sections 31-519, 31-520, 31-521. We do not agree with appellees in their interpretation and applications of these statutes, because we think they apply only to money and effects in possession of the State or some subdivision thereof and that they do not apply to money in custodia legis. The three sections above mentioned are Sections 1, 2, and 3 respectively of Act 44 of the Acts of 1945. The title to this Act reads as follows: “AN ACT TO PROVIDE FOR THE GARNISHMENT OF SALARIES, WAGES, AND CREDITS OWED BY THE STATE OF ARKANSAS TO VARIOUS INDIVIDUALS”. Section 1 of the Act (Section 31-519) reads as follows: “Any indebtedness, goods- or chattels, monies, credits or effects belonging to a defendant in a civil action and in the hands or possession of the State of Arkansas, any subdivision thereof, institution, department, special district or instrumentality of the State of Arkansas shall be subject to garnishment as is now provided by law”. (Emphasis Supplied). It seems clear, therefore, that said Act 44 has no application to funds held custodia legis.

We conclude from the above, therefore, that the trial court should have overruled appellees’ motion to quash the Writ of Garnishment. We point out, however, that any final action in this case on the Writ of Garnishment must be subject to the court’s final disposition of the $1,500.00 held by the sheriff. The cause is reversed with directions to proceed further consistent with this opinion.

Reversed.