author: Mchaffy, J. Hart, C. J.,

text:
    Spence v. Whittaker.
    Opinion delivered October 15, 1928.

      Block & Kirsch and Dudley & Dudley, for appellant.

      Ward & Ward and Cooley, Adams S Euhr, for appellee.
   Mchaffy, J.

The appellant and appellee were opposing candidates for the Democratic nomination for State Senator in the First Senatorial District, composed of Clay, G-reene and Craighead Counties, at the primary election on August 14, 1928. There were no other candidates for the nomination. The appellant received a majority of the votes cast, land was declared to be and duly certified as the nominee for senator from said district.

After the primary election the appellee filed suit, alleging that appellant had failed to file the pledge required by § 4 of act 308, Acts of 1913 (C. & M. Digest, § 3898), requiring that candidates for State or district offices shall file with the Secretary of State, 30 days before said primary election, a pledge in writing, stating that he is familiar with the requirements of the act, and will in good faith comply with its terms.

Appellant filed answer and demurrer. A special term of circuit court was called for October 1, 1928, and the finding and judgment of the court wias that appellant, having failed to file the pledge, was deprived of the nomination or the right to have his name on the ballot for the general election, and that there was no nominee for the party for State Senator, but that a vacancy existed.

Appellant filed his motion for a new trial, which was overruled, exceptions saved, and the case is here on appeal.

There were two suits brought; one filed on August 25, and thereafter, on September 12, a protest was filed before the Democratic State Central Committee, which was heard by the committee, and dismissed without prejudice ; and the last suit was filed on September 19. The suits were consolidated, and were both prosecuted for the same purpose.

The case was tried upon a stipulation which recited “that the pledge required of candidates for this and other offices, under the provisions of § 3898 of the Digest, was at no time filed by the appellant in the office of the Secretary of State.” That, as a matter of fact, appellant did, under date of June 7, 1928, mail to H. L. Lambert, then secretary of the Democratic State Central Committee, the pledge required to be filed by candidates in primary elections; that in the same letter to H. L. Lambert appellant did inclose the pledge executed and required under the provisions of § 3898 of the Digest; that H. L. Lambert did testify as follows with reference to the receipt of the letter and these pledges:

“I have looked up the correspondence between Hon. W. E. Spence, of Piggott, and myself regarding pledges. I find that a corrupt practice pledge was filed with me by Mr. Spence, and under date of June 7 he wrote me the following letter:

“ ‘Mr. H. L. Lambert, Secretary,

State Central Committee,

Little Rock, Ark.

“ ‘Dear sir: I am inclosing you herewith two pledges which I am filing with you as a candidate for State Senator from the First Senatorial District, and which I presume are to be filed with you. T do not know whether a fee is to be paid to your committee or to the county committee. Whichever it is, kindly let me know.

“ ‘Yours very truly, W. E. Spence.’

“In the rush of things just before the ticket closed, or possibly due to absence from the office, this did not come to my attention. My secretary filed the pledge which is required under the rules of the Democratic Party to support the nominees, and the pledge under the Corrupt Practice Act, which should have been filed with the Secretary of State-, was left attached to the letter. I did not know that this pledge had reached our office or I would have returned it to Mr. Spence and have requested him to file it with the Secretary of State. I regret very much that this did not come to my attention, since it is clear to me that Mr. Spence signed this pledge and filed it where he thought it should be filed.”

It is further .stipulated that, after the expiration of the time in which the pledge in question could be filed with the Secretary of State, appellee filed a protest with the Clay County Central Committee, at a meeting prior, to said primary election, protesting and objecting to the placing of the name of appellant on the ticket for the primary election, because of appellant’s failure to file the required pledge with the Secretary of State. That the minutes of the meeting of the Clay County Central Committee relating to the disposition of the protest filed by appellee is as follows:

“Mr. R. Whittaker,. candidate for State Senator, filed a protest with the committee, .seeking to prevent the name of W. E. Spence, also a candidate for State Senator for the First -Senatorial District of Arkansas, being placed on the official ballot as a candidate for State Senator, alleging that he had failed to comply with § 3898 of Crawford & Moses’ Digest, which requires any candidate- for -State or district offices to file with the Secretary of State a pledge in writing at least thirty days before the primary election. In answer to the protest, W. E. Spence stated that he had filed his pledge, as required by the primary law, with the Secretary of the State Democratic Central Committee, Mr. H. L. Lambert, -and that he had a letter from Mr. Lambert stating that he had received the pledge, but that the letter did not state the disposition of same.

“Due to the fact that the chairman and -secretary of the Democratic Central Committee have certified that W. E. Spence, E. Whittaker and Carl L. Hunter have complied with the rules of the Democratic Party, we recommend that their names he placed on the ticket as candidates for State Senator.

<£D. E. Stanley,

££W. S. Todd,

££E. E. Winton, Committee.”

It is further stipulated that the name of W. E. Spence was placed on the ticket of Clay County as a candidate for State Senator, and that said central committee thereafter certified that at such primary election appellant received 1,430 votes and appellee received 1,136 votes; that the names of the candidates for office of State Senator appeared only on the ticket in Clay County, under a system of rotation 'between the three counties composing the district, whereby said counties rotated in regular order in furnishing the candidate for said office, and by which he appeared upon the ticket at the primary election only in the county from which he came in the regular order of rotation.

That a formal protest was filed by appellee with the State Central Committee, prior to its meeting on September 12, 1928, but after the filing of appellee’s complaint in case No. 2050, on August 25, 1928; that in said protest appellee objected to the certification by the State Central Committee of appellant as the nominee for State Senator; that at said meeting of the State Central Committee appellant and appellee were each represented by counsel, and, upon a hearing, a motion was made ¡by a member of said committee that the matter be dismissed by the State Central Committee without prejudice to either side, which motion was duly carried.

It was further stipulated that appellant did file the required pledge with the county clerk of Clay County; that H. L. Lambert, the secretary of the State Central Committee, would testify, if present, that at the hearing before the State Central Committee on September 12, 1928, he (Lambert) reviewed the-correspondence between himself and appellant and between himself and appellee, and made a statement to the State Committee, then in session, that, had his secretary, or assistant in office, called his attention to the fact the appellant had filed a corrupt practice pledg-e with him, he would have sent or taken it to the Secretary of State, or returned it to appellant; and that Mr. Lambert had in his hands, along with the other correspondence, at the hearing on the 12th day of September, 1928, the corrupt practice pledge made out by Mr. Spence, intended for the Secretary of State, but that it was not in fact filed with him.

As an exhibit to the stipulation of facts appears the following certificate:

“This is to certify that W. E. Spence has filed the pledge required under the rules of the Democratic Party as a candidate for State Senator from the First District of Arkansas, in the Democratic primary to be held August 14, 1928, and has paid NO dollars, the fee required of a candidate for said office.

“H. L. Lambert (in ink, signed)

“H. L. Lambert, Secretary

“Democratic State Central Committee.”

The stipulation upon which the cause was heard was filed with the clerk at the hearing, and constituted all of the evidence offered :by either of the parties.

The appellant discusses a number of questions in his brief, but we have concluded that it is unnecessary to pass upon any of the issues in the case except the construction of the statute with reference to the Corrupt Practice Act. The section of the law involved reads as follows:

“Candidates for State or district offices shall file with the .Secretary of State, and candidates for county or township offices shall file with the county clerk of the county, and candidates for city or town offices shall file with the city clerk or town recorder, thirty days before said primary election, a pledge in writing, stating that he is familiar with the requirements of the act of April 2, 1913, and will in good faith comply with its terms” (§ 3898, C. ■& M, Digest).

The above section is a part of what is -known as the Corrupt Practice .Act. It was evidently the purpose of the Legislature, in passing' this act, to prevent all kinds of corrupt practices in the election and to secure to the people honest and fair elections. It was its intention to protect, the voters in the primary elections against fraud and corruption and wrongful conduct, and to insure the voter that his wishes expressed through his ballot should be given effect.

Statutes in some -States require certain things to be done by the candidate, and provide that he shall be ineligible or that his name shall not be placed on the ticket unless he complies with the requirements. There is no such provision in our statute. The sections of the Corrupt Practice Act intended to prevent fraud and corruption and wrongful conduct in the election all begin with the statement “that it shall be unlawful.” There is no such statement with reference to the duties prescribed in § 389*8. That section simply provides that, 30 days before the primary election, the candidate shall file his pledge in writing with the Secretary of State, showing that he is familiar' with the requirements of the act and will in good faith comply with its terms.

There is no charge against appellant in this case of any corrupt practice or any wrongful conduct in any way. It is simply contended that, because he failed to file the pledge with the Secretary of State in 30 days, his name should not go on the ticket. The central committee would have had the right to refuse to put his name on the ticket because of his failure to comply with this statute, but he explained to the committee the circumstances, and the committee put his name on the ticket to be voted for at the primary election. There is no dispute about the fact that he received a majority of the votes, but it is contended that he is not the legal nominee of the party and not entitled to have his name appear on the ballot at the election because he failed to file the pledge required.

The evidence -shows that on June 7, more than 30 days before the primary, the appellant mailed to H. L. Lambert, secretary of the Democratic -State Central Committee, the pledge to be filed by candidates in primary elections, and that in the same letter he inclosed the pledge to be filed with the secretary. He also inclosed the pledge executed and required under the provision of § 3-898 of Crawford & Moses ’ Digest, when he should have sent this pledge to the -Secretary of -State. But in his letter inclosing the pledge he stated that he was inclosing two pledges which he was filing with the secretary of the committee as a candidate for State Senator, and stated that he presumed they were to be filed with the secretary of the central committee.

We think that this clearly shows that it wias the intention of appellant to comply with the law. He thought he had complied with it, and, as testified to by the secretary of the central committee, it would probably have been filed by him, but in the rush of things just before the ticket closed, or due to the absence from the office of the secretary, the matter did not come to his attention.

If one should deliberately fail or refuse to file the pledge required by the law, it would be the duty of the committee to refuse to put his name on the ticket. But where, as in this case, the evidence shows that the candidate was guilty of no violation of the 'Corrupt Practice Act, that he intended in good faith to comply with the provisions of the law, and that no harm resulted, and he received a majority of the votes cast in the primary election, to hold that failure to file the pledge with the Secretary of -State, under the circumstances, disentitled him to have his name on the ticket, would be, in effect, to disfranchise a majority of the voters in the district.

It was certainly not the intention -of the Legislature to permit a majority of the voters to be disfranchised because some candidate, acting in perfect good faith, miade a mistake, and filed his pledge in the wrong place. And, whether the statute is directory or mandatory, in this case a very much greater wrong would he done to prevent appellant’s name from going on the ticket than to permit it to go on. In other words, no harm can he done hy putting his name on the ticket as the nominee when all the facts in the case show that he acted in good flaith and violated no provision of the Corrupt Practice Act, and the majority of the electors voted for him as the nominee.

Appellant contends that the trial court was correct, and bases his contention on §§ 3775 and 3776 of Crawford & Moses’ Digest. Section 3775 reads as follows:

‘ ‘ Should it he proved to the satisfaction of the trial judge, in a case instituted under §§ 3772, 3773, or a prosecution las contemplated by § 3774, that a successful candidate has been guilty of violating any provision of the Corrupt Practice Act, or any other violation of the laws regulating primary elections, the circuit court shall enter such finding as a part of the judgment, irrespective of the determination of the issues in the suit instituted under §§ 3772, 3773, or the verdict of the jury in a criminal prosecution; and the judgment to that effect shall operate to deprive the candidate of the nomination and right to have his name on the ballot, and the vacancy shall be filled by a special primary or otherwise, as may be determined by the party organization.”

Section 3776 reads as follows:

“Should a proceeding under §§ 3767-3771, or ia criminal prosecution under § 3774, be not determined finally until after the election, and the defendant in such proceeding is elected to the office as the nominee of the party, and it is determined that he was not entitled to the nomination, or the judgment contains a finding that he violated the laws, as provided in § 3774, then such judgment shall operate as an ouster from office, and the vacancy in it shall be filled as provided by law for filling vacancies in such office in case of death or resignation. ’ ’

If § .3898 contained a provision to the effect that a failure to file the pledge would deprive the candidate of the right to become the nominee of the party or of the right for his name to go on the ticket, then there could be no dispute about it. But it does not so provide, and we think that the failure of the' Legislature to provide that such failure would operate to deprive the candidate of the right to have his name on the ticket shows that it was not the intention of the Legislature that a person who acted in good faith and had violated no provisions of the Corrupt Practice Act, should be deprived of the nomination through a mistake such as has been made in this case.

“Until a comparatively recent date there was little, ’ if any, legislative regulation of the methods by which political parties nominated their candidates for office; the candidates were named by caucuses, conventions, or unofficial primary elections, as the several parties determined. However, the right of political parties to make nominations is not absolute; it may be abolished or circumscribed, or its exercise regulated, by the Legislature. This right of regulation is of course subject to constitutional limitations; and accordingly, if the Legislature grants to any convention, committee, or other body the right to make nominations, it cannot limit the right of such body to nominate as its candidate any person who is qualified for the office. And the fact that statutory regulations were not complied with in the nomination of a candidate does not invalidate his election.” 20 C. J. 104.

“The general tendency of these statutes is to put the rights of voters in party or primary elections under the protection of the law in the same manner that the rights of voters in elections of officers have been under its protection.” 20 C. J. 112.

“The dominant idea pervading these statutes is the absolute assurance to the citizen that his wish as to the conduct of the affairs of his party may be expressed through his ballot and thus given effect, whether it be in accord with the wishes of the leaders of his party or not; and that thus shall be put in effective operation in the primaries that fundamental principle of democracy which makes the will of an unfettered majority controlling. In other words, the scheme is to permit the voters to construct the organization from the bottom upward instead of permitting the leaders to construct it from the top downward.” People v. Kings County Democratic Gen. Committee, 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674.

When we hold in mind the purpose of the statute, that it was enacted to secure honesty and fairness in elections and to give effect to the wishes of the majority of the voters, it seems to us that any other construction of this statute, that is, to hold that, under the circumstances and facts in this case, the appellant would not be entitled to have his name go on the ticket, would defeat the very purpose of the act. It would deprive the candidate who received a majority of the votes of having his name on the ticket, when all the facts show that the election was fair and honest, free from fraud and corruption, and that the candidate himself acted in good faith.

The intention of the law is to assure fairness and honesty and the nomination of the man favored by a majority of the voters. If the Legislature had intended that a failure to file this pledge should deprive one of the right to have his name on the ticket when there was no question of any wrongful conduct or any attempt to violate or evade the law, it would have provided in plain language that this should operate as a disqualification. Since in the other sections of the statute the Legislature used the words “it shall be unlawful” and did not use those words or any similar words in this section or with reference to this section, we think it plain that they did not intend that the will of a majority should be defeated simply by the candidate making a mistake as to where his pledge should be filed.

The judgment of the circuit court is therefore reversed, and the cause dismissed.

Hart, C. J.,

(dissenting opinion). Section 3898 of Crawford & Moses ’ Digest provides in effect that candidates for State or district offices shall file with the Secretary of State, thirty days before said primary election, a pledge in writing stating that he is familiar with the requirements of the act and will in good faith comply with its terms. This is § 4 of our Uniform Primary Act which was passed by the Legislature of 1913. The act contains fourteen sections, and all its provisions are in form mandatory. It is apparent from the subject-matter of the act and the purposes sought to be accomplished by the framers thereof that it was intended that all officers intrusted with its enforcement should be held strictly to the provisions of the act. Nothing was left to the good intentions of the candidate or of the officers intrusted with the enforcement of the act. In the very nature of things any construction which tends towards confusion or uncertainty in the provisions of the act is likely to be hurtful in its effect. Public inconvenience, confusion to the electors and political parties and great injustice to candidates may all result from any other view than a mandatory interpretation of the act in accordance with its express terms. Where the language of an act is clear and unequivocal, there is no room for interpretation, and its provisions should be enforced. Any other course would tend to defeat its purpose and might lead to fraud and injustice in many instances. It is no answer, to.say that the candidates affected in this case were both men above reproach, and that no injustice had resulted. The provisions of an act must be tested by the object and purposes of its enactment and what evils might result from an enforcement of its provisions contrary to the intention of the framers of the act.

I am authorized to state that Justices Smith and Humphrevs concur in the view herein expressed.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Hord v. Manners.
    Opinion delivered October 22, 1928.

      . George M. Chapline, for appellant.

      J. E. Ray and M. F. Elms, for appellee.
   Hart, C. J.,

(after stating the facts). The judgment of the circuit court overruling the plea of res judicata of appellant was correct. Under our statute, an executor or administrator may establish his demand against his testator or intestate by presenting and proving the same to the satisfaction of the court. Crawford & Moses’ Digest, § 96; Free v. Maxwell, 138 Ark. 489, 212 S. W. 325; and Smith v. Mullen, 169 Ark. 944, 277 S. W. 44. After the probate court allowed the claim of the executor, two of the legatees under the will were duly granted an appeal to the circuit court, under § 2258 of Crawford & Moses’ Digest. The legatees filed a bond for costs, as r>rescribed in the section, but did not file a supersedeas bond, as provided in § 2259. Consequently the judgment of allowance in favor of the executor was not superseded. 'Section 2260 provides that an appeal may be taken without supersedeas. After the appeal had been granted by the probate court, the legatees filed an application in the probate court to require the executor to distribute the funds on hand. The order of distribution was made, and the executor distributed the amount which he admitted to be due to the legatees under the order of distribution made by the probate court. Appellees were paid, and signed receipts for their part under the order of distribution. It is plain that they should not be barred of their right of appeal from the judgment of allowance in favor of the executor because they did this. We do not think they should be barred for two reasons.

In the first place, appellees prosecuted their appeal to the circuit court from a judgment of allowance in favor of the executor, but did not file a supersedeas bond. They had the right to appeal without a supersedeas; but, while the appeal was pending, they had no right to have the allowance in favor of the executor distributed to them. The order of distribution properly recited the amount in the hands of the executor, and also showed the amount claimed to be due him by the estate; and, inasmuch as appellees prosecuted the appeal from the order of allowance in favor of the executor without a supersedeas, the receipt by them of the amount admitted to be due could in no sense affect their right of appeal. If they had a right to appeal without a supersedeas, they would certainly have the right to receive that portion of the estate which the executor admitted to be due them, and this is all they received under the order of distribution. Gate City Building & Loan, Assn. v. Frisby, 177 Ark. 252, 6 S. W. (2d) 537.

In the second place, when the executor answered the petition of appellees for the order of distribution, he reported to the probate court that there were several matters affecting the estate pending upon appeal in the courts, and for that reason he could not make a final order of distribution. It is true that he claimed in his account current that he had paid himself $1,500 allowed him by the probate court. This was in the application of the common-law rule that, if a creditor becomes exeeutor or 'administrator of Ms debtor’s estate, lie may retain so much of the assets in his hands as may pay his debt. 24 C. J. 436, par. 1193; and 11 R. C. L. 203, § 227. The order of distribution must be considered in connection with the report or account filed by the executor, and, when this is done, it is evident that the order of distribution was that the executor should distribute that part of the estate wMch he admitted was ready to be distributed. The approval of the account in the form in which it was presented could in no sense be an adjudication and settlement of his $1,500 claim, which was then pending in the circuit court upon appeal from the judgment of allowance made by the probate court in a proceeding instituted by the executor under the statute for that purpose.

It follows that the circuit court was right in overruling the plea of res judicata of appellant.

The case on the merits was tried by a jury on conflicting evidence. There was no error in the admission of testimony or in instructing the jury. There was a verdict and judgment for appellees, and no reversible error was committed by the trial court. Therefore the judgment will be affirmed.


text:
    Turner v. Adams.
    Opinion delivered October 22, 1928.

      J. D. Benson and Daily <& Woods, for appellant.

      Lirms A. Williams, for appellee.
   Hart, C. J.,

(after stating the facts). At the outset it may be stated that the present suit was commenced within thirty days after the publication of the passage of the assessment ordinance, and therefore constitutes a direct -attack upon the assessment of benefits filed with the council. Missouri Pacific Rd. Co. v. Waterworks Improvement District, 134 Ark. 315, 203 S. W. 696; Ingram v. Thames, 150 Ark. 443, 234 S. W. 629; Henry v. Board of Improvement, 170 Ark. 673, 280 S. W. 987; and Carney v. Walbe, 175 Ark. 746, 300 S. W. 413.

The original assessment was filed with the common council, land remained on file there without being acted upon for a little over ten days. The board of assessors was then informed by the city council that the assessment of benefits was insufficient to meet the estimated cost of the improvement in each of said improvement districts. Therefore the board of assessors requested and was granted permission to withdraw its assessment of benefits for the purpose of reconsidering the assessment. After due consideration the board decided not to change its assessment of benefits, and the members of the board of assessors resigned without again filing the assessment of benefits with the council. Their resignations were accepted. Before the assessment of benefits was acted upon by the council, it was lawful for the assessment of benefits to be withdrawn and reconsidered by ithe board of assessors. Thomas v. Street Improvement District No. 216, 158 Ark. 187, 249 S. W. 590.

From that decision and other decisions of this court it is plain that, until the assessment of benefits had been acted on by the city council, the board of assessors might be g’ranted permission to withdraw it for the purpose of equalizing the assessment of benefits, correcting errors in it, or for reconsideration of the assessment as a whole. This the board of assessors did, and concluded not to change its assessment. The resignation of the members of the board was accepted by the city council without requiring the board to again file the assessment of benefits. Hence there was no assessment of benefits for either district made by the original board of assessors.

A new board was appointed, and it proceeded to a discharge of its duties, and filed with the city council an assessment of benefits for each district which was practically double that of the first or original assessment. This it had the right to do, if it had proceeded upon a proper basis and had complied with the statute in making its assessment of benefits. The statute requires the board to assess the value of the benefits to accrue to each piece of property, and in doing so the board must consider the value, area, location of the property, the improvements thereon, its relation to other property, and every other element which might go to make up the sum total of benefits. The purpose is to determine the effect of a proposed improvement upon the market value of the real property, including the buildings on it. Kirst v. Street Improvement District No. 120, 86 Ark. 1, 109 6. W. 526.

The burden was upon appellees, who attacked the validity of the assessment as a whole, to prove that it was made upon the wrong basis. The chancery court found that 'appellees had met the burden of proof in this respect imposed upon them, and a decree was entered of record enjoining appellants from proceeding further in the collection of the same. It is the settled rule of this court that the findings of fact made by a chancellor will not be disturbed upon appeal unless they are clearly against the preponderance of the evidence. In the case at bar one of the members of the new board of assessors testified that the city attorney, in the presence of the city council, told them that it would be necessary to practically double the assessment of benefits in each district in order to construct the improvement. In other words, they were told that the cost of the improvement exceeded the original assessment of benefits made by the old board, and that it would be necessary to practically double the original assessment in order that the assessment of benefits might exceed the estimated cost of the improvements. This was tantamount to arbitrarily doubling the assessment for the purpose of constructing the improvement. This could not be done. As above stated, the new board might double the assessment of benefits if, in its opinion, this should be done after taking into consideration all the elements that should be considered in making an assessment of benefits in accordanee with the rule above announced. An assessment of benefits made upon a wrong basis is illegal and void, and may be set aside by a direct attack made by the property owners upon it in the time provided by statute. Kirst v. Street Improvement District No. 120, 86 Ark; 1, 109 S. W. 526; Lee Wilson Co. v. Road Improvement District, 127 Ark. 210, 192 S. W. 371; Sikes v. Douglas, 147 Ark. 469, 227 S. W. 988; and Desha Road Improvement District No. 2 v. Stroud, 153 Ark. 587, 241 S. W. 882.

This leaves each district without an assessment of benefits having been made, because the assessment as a whole has been set aside and held void as having not been made upon a proper basis A new assessment may be made by the board of assessors upon a proper basis; and, if the assessment of benefits so made shall be greater than the estimated cost of improvement, the construction of the improvement may be proceeded with. Otherwise, the plan of the proposed improvements must be abandoned.

It follows from what we have said that the decree of the chancellor was right, and must be affirmed.


author: Smith, J.

text:
    St. Louis-San Francisco Railway Company v. McClinton.
    Opinion delivered October 22, 1928.

      E. T. Miller, E. L. Wesibrooke, Jr., 'and E. L. Westbrooke, for appellant.

      Sam Costen, Wils Davis and Joe Simmons, for appellee.
   Smith, J.

This appeal is prosecuted to reverse a judgment recovered by appellee to compensate an injury sustained by him through the alleged negligence of the members of one of appellant’s switching crews;

Appellee was employed, at the time of his injury, by a compress company at West Memphis, Arkansas. The compress company has two rows of shed®, in which bales of cotton are stored, the larger being about 1,800' feet in length. The shorter row of sheds is parallel to the larger one. These rows are divided by partitions into sections, and the one at which appellee was working had eleven sections, and appellee had been unloading cotton out of railroad cars into section No. 9.

The appellant railroad company has switching tracks along both sides of the longer row of sheds, up' and down which tracks, cars are placed for loading and unloading. There are four removable platforms connecting the two rows of sheds, which, when in position, cross the switch-track which runs between the two rows of sheds. By the use of these platforms cotton unloaded into the shorter row of sheds is carried to the compress, and while these platforms are down or in place no switching is done or could be done on the switch-track between the two rows of sheds.

Appellee worked in section 9 until the noon hour, when work was suspended for lunch, thirty minutes being allowed for that purpose. Going to his lunch, appellee crossed the switch-track running in front of and parallel with the row of sheds where he had been at work, and went to the home of Gus Woods, where he ate his lunch. The railroad tracks and the compress sheds run nearly north and south, and appellee was working on the south end of the larger shed, and on his return to his place of work he climbed between two cars. These cars, with several others, were attached to a switch engine, which could not he seen by appellee because of a curve in the switch-track. Appellee went between the cars as a short way of returning to his work, and he testified that he had seen other employees of the compress company do the same thing. On behalf of the railroad company the testimony was to the effect that, when any one was seen crossing or attempting to cross between the cars, warning was given of the danger; but there was no testimony that appellee had been warned.

Appellee did not know there was an engine attached to the string of.cars between two of which he attempted to cross, land, as he did so, the cars came together and caught his foot between the drawhead and deadwood of a car, and injured him severely.

The jury returned a verdict for substantial damages, and this appeal has been duly prosecuted.

Respective counsel discuss the question whether appellee, at the time of his injury, was a mere trespasser, a licensee, or an invitee, for the purpose of determining the degree of care due appellee by the railroad company; but we have found it unnecessary to determine this question, for the reason that, in our opinion, the negligence of appellee is greater than that of the defendant railroiad company, and this fact prevents a recovery by him.

It is provided by § 8575, C. & M. Digest, that in all suits for personal injury caused by the running of trains in this State the contributory negligence of the person injured shall not prevent a recovery where the negligence of the person injured is of less degree than the negligence of the employees of the railroad company causing the injury, but the amount of recovery is to be diminished in proportion to such contributory negligence.

The case of St. Louis-San Francisco Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576, involved (the application of the statute quoted, and the court there refused to compare the negligence of the party injured with that of the railroad company, but it was there said:

“Each case mast, of coarse, be considered apon its own pecaliar facts, land the legal safficiency of the evidence on the qnestion of degree of negligence mast be tested, the same as in other cases, by the state of the testimony presented in a given case. In other words, it is ordinarily a qnestion of fact for the determination of the jnry, bat there may, as in other cases, be presented a qnestion for the decision of the coart as to the legal safficiency of the evidence.”

We mast therefore lassnme that the jnry accepted as trae the testimony offered in appellee’s behalf, with all the inferences reasonably dedacible therefrom, and we woald be reqaired to affirm this jndgment, as was done in the Horn case, supra, if, after so weighing the testimony, we were left in donbt as to whether appellee’s negligence was of a less degree than that of the operatives of 'the train. We are of the opinion, however, that there is no reasonable view of the testimony which woald sapport the finding that appellee’s negligence contri'bating to his injary was of a less degree than that of the railroad company.

In so holding we have in mind the decisions of this coart in which it wias held that it is the daty of carriers to exercise ordinary care in moving its cars to prevent injary to owners of freight and their employees rightfnlly engaged in loading or anloading cars. It has been said that appellee, before his lanch, had been engaged in anloading a ear, and that he was on his way, after eating his lanch, to continae that work, bat it mast be remembered that at the time of his injary appellee was not engaged in anloading a car. He was not at his place of employment, bat was injared while climbing between two oars. No practical lookont which a train crew coaid maintain woald snffice to prevent one from climbing between cars, and the andispated testimony shows that no member of the train crew saw appellant as he went between the cars, nor is there any testimony or inference therefrom which woald sapport the finding that the railroad company coaid have done anything which, would have averted appellee’s injury, except not to switch its cars, a right which it, of course, had. The undisputed testimony is that a lookout was being kept 'by a switchman on the top of moving cars, but this employee testified that he did not see appellee at all until after his injury. Appellee, had he looked, must have known that all the platforms were up, which fact was a warning that switching might be done, and he must necessarily have known there was peril in climbing between oars which might 'be moved.

There is a presumption of negligence arising out of the fact that appellee was injured by the operation of a train; but the undisputed testimony is such that it must necessarily appear that appellee’s negligence was greater than that of the operatives of the train, and, this being true, a recovery is not authorized by § 8575, C. & M. Digest.

It follows therefore that the judgment of the court below must be reversed, and, as the cause appears to have been fully developed, it will be dismissed.


text:
    Abbott v. State.
    Opinion delivered October 22, 1928.

      J. S. Townsend, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant seeks by certiorari to quash, the judgment of a justice of the peace imposing’ a fine on him, and also to obtain his release under a writ of habeas corpus from the custody of the officer who was seeking to enforce that judgment.

The judgment in question was rendered by M. Roundtree, a justice of the peace for Caddo Township, Clark County, and contains the recitals that on September 26, 1927, H. S. Nelson, a justice of the peace for Missouri Township, Clark County, filed with Roundtree a transcript of the proceeding previously pending before Nelson of the case of the State of Arkansas iagainst Arthur Abbott, and that cause was set for trial October 1, 1927. On October 1, 1927, by agreement, the cause was reset for trial on October 8, 1927, but on October 4 the cause was, on motion of defendant, continued, and reset for October 20, 1927. The judgment of Round-tree, as justice of the peace, further recites that: “Now on this October 20, 1927, comes the defendant, Arthur Abbott, in person and by his attorney, J. S. Townsend, and files his motion for change of venue, which is by the court overruled, and defendant refuses to plead further, whereupon a jury of ten good and lawful men were impaneled and sworn to try the case,” etc. The judgment further recites that the defendant was found guilty and fined $20, and that his attorney gave notice in open court of an appeal, and further, that on January 14,1928, a commitment issued for the fine and costs, and was placed in the hands of the constable of Caddo Township for service.

There appears in the transcript la judgment of the Clark Circuit Court, rendered at an adjourned day of the January, 19-28, term of the court, which appears to have been rendered upon a hearing of defendant's petition for -discharge upon his petition for habeas corpus, and the relief prayed was denied and the writ of certiorari was quashed. The judgment of the circuit court recites that appellant’s'appeal was dismissed, but the reason therefor does not appear from the judgment, and, as there is no bill of exceptions, we do not know the ground upon which the court dismissed the appeal, and we must therefore presume that the court’s action in dismissing the appeal was proper, and warranted by the facts upon which that action was taken.

The insistence is that the judgment of the justice of the peace was void because of the refusal to grant a second change of venue, and that, -as this fact appears from the face of the judgment itself, the justice of the peace was without jurisdiction to try the case, and appellant was entitled to have the judgment quashed on certiorari and to be released on habeas corpus.

Without deciding whether appellant was entitled to a second change of venue, we hold that the judgment of the circuit court must be affirmed.

In the case of Green v. State, 155 Ark. 45, 243 S. W. 950, the defendant was brought to trial in the municipal court of -Pine Bluff, and in apt time he filed a proper petition for a change of venue. The act creating the municipal court -provided that the defendant in a criminal ease pending in the municipal court ‘ ‘ shall have the right to change the venue in any case as is now provided by law in justice of the peace courts; and provided further, that the circuit court shall not have jurisdiction to try any defendant convicted of a misdemeanor in said court where ia change of venue has been denied by the judge of the municipal court.” The prayer for change -of venue was denied the defendant Green, and he was fined by the municipal judge, from which judgment an appeal was prosecuted to the circuit court. The defendant filed in the circuit court a plea to the jurisdiction -of the court, on the ground that jurisdiction was lost upon the filing of the petition for a change of venue, the plea being based upon the provisions of the statute from which we have quoted. The circuit court overruled the plea, and proceeded with the trial of defendant on the merits of the charge, which trial resulted in defendant’s conviction, and an appeal was duly prosecuted to this court.

It was contended by the State on the appeal to this court that defendant’s remedy was by certiorari, and not by appeal, but it was there said that a judgment void on its face may be attacked by certiorari in the court exercising superintending control, but that remedy is not exclusive, but is cumulative to the right of appeal which is conferred by the 'Constitution.

It was there also held that: “Under the statute in question, the filing of the petition for a change of venue in proper form transferred the jurisdiction from the municipal court to a justice of the peace, to whom the court should have -transferred the -papers in the case, and the circuit court should have quashed the judgment of the municipal court and remanded the cause to that court, with directions to transfer it to a justice of the peace, in accordance with the prayer of the petition for change of venue.”

But it will be observed that, while the filing of the petition for a change of venue from the municipal court deprived that court of jurisdiction to proceed further, it was so held because the statute creating the municipal court had so provided; otherwise, it would not have been so held.

If appellant here was entitled to a second change of venue (a point not decided), refusing his prayer therefor was an error which did not vacate the jurisdiction of the justice of the peace. Kinkead v. State, 45 Ark. 536. And if the court retained jurisdiction, the error of refusing a change of venue could not be corrected by certiorari nor entitle appellant, upon conviction, to his release on habeas corpus.

In the ease of Ex parte Byles, 93 Ark. 612, 126 S. W. 94, 37 L. R. A. (N. S.) 774, it was held that the validity of a judgment .of conviction for the violation of a valid statute can be tested only by direct appeal from the judgment, .and it has ¡been many times held that, if a petitioner for habeas corpus is in custody under process regular on its face, nothing will be inquired into save the jurisdiction of the court whence the process came. State v. Martineau, 149 Ark. 237, 232 S. W. 609, and cases there cited.

In the case of Ex parte Williams, 99 Ark. 475, 138 S. W. 985, the petitioner for habeas corpus prayed his release upon the ground that he had been denied the right of a jury trial by the judge of the municipal court of Fort Smith, and the chancellor ordered that the petitioner be discharged for that reason. Upon the appeal to this court it was held that the judgment of the chancellor discharging the prisoner from custody was erroneous, for the reason that, if it was error for the municipal court to refuse-to allow a jury trial, such error could be corrected on appeal, and the question could not be raised on habeas corpus. See also Mariannia v. Vincent, 68 Ark. 244, 58 S. W. 251; Ex parte Brandon, 49 Ark. 143, 4 S. W. 452; Sharum v. Meriwether, 156 Ark. 331, 246 S. W. 501.

It follows, from what we have said, that the judgment of the court below must be affirmed, and it is so ordered.


author: -Smith, J.

text:
    Buhler v. Perry County.
    Opinion delivered October 22, 1928.

      E. L. Garter, for appellant.

      Boyd Gy pert, for appellee.
   -Smith, J.

.Appellants own in severalty large tracts of cutover land in Perry County, and they filed separate petitions in the county court of that county praying a reduction of the assessments of valuation against said lands for taxation for State and county purposes.

It was shown at the trial from which this appeal comes that all property throughout the State was supposed to be assessed upon the basis of fifty per cent, of its market value, and that & valuation of $2.50 per acre had been assessed against appellants’ lands by the assessor and the board of equalization of Perry County, upon the assumption that the lands had a market value of $5 pe'r a'ore.

The county court denied the relief prayed, and an appeal was duly prosecuted to the circuit court, where the petitions were consolidated and heard together, and, after hearing testimony both for and against the petitions, the court found “that the lands owned by the petitioners have a fair market value of $3.50 per acre, and that the present valuation of $2.50 per acre as fixed by the assessor and board of equalization is excessive.” Upon the finding that the market value of the lands was $3.50 per acre, the court ordered that the lands be assessed for taxation at $1.75 per acre, and from this judgment there is an appeal and a cross-appeal.

The testimony was substantially the same on behalf of each petitioner as to the value of the land. That on behalf of appellant Buhler was to the effect that, in 1922, he purchased from the Pourche River Lumber Company 18,000 acres of cutover land, paying therefor $'2 per acre. No inoome was derived from the land, which lies on top of a mountain range, and the only value the land possessed was for grazing by cattle or for growing timber, and that about forty years would be required before a new crop of timber could be grown. That petitioner had endeavored to sell the land at $2 per acre, but had been unable to find a purchaser at that price, and that he would take that price for the entire tract. There was other testimony to the effect that the market value of the land did not exceed $2 per acre.

On the cross-appeal it is insisted on behalf of the county that the testimony does not show the value of any particular section or part of section of the land, but related to the value of the lands as a whole, and it is also insisted that the testimony does not show that the land was worth only $3.50 per acre as found by the court.

It is true, as insisted, that the statute (§ 9924, C. & M,. Digest) provides that each tract of land shall be respectively assessed by section, or the largest subdivision of a section of which the same is capable; but it is also true that the testimony is to the effect that all of the land was of the same character and of substantially the same value per acre. Petitioners are not therefore to be denied relief to which they are otherwise entitled because the testimony did not show the separate value of each tract of land.

The testimony on the party of the county was to the effect that there was some — a small quantity — of timber on the land, and that the lands were worth about $5 per acre.

We do not review the conflicting testimony as to the value of the land. It suffices to say that there was testimony which would have supported a greater reduction in the assessed valuation than that made, and other testimony which would support a finding that no reduction should have heen made.

The ease of Doniphan Lbr. Co. v. Cleburne County, 138 Ark. 449, 212 S. W. 308, involved the question here under review, and it was there said: “Unless the undisputed facts in the case establish that the findings and judgment of the circuit court are erroneous, this court cannot reverse on appeal. The case falls within the general rule that the findings of the trial court will not be disturbed by this court on appeal where the findings are sustained 'by sufficient legal evidence” ('Citing cases).

As the finding of the court below is sustained by sufficient legal evidence in the case of each petitioner, the judgment must be affirmed, and it is so ordered.-


author: Smith, J. Smith, J.,

text:
    Great American Insurance Company v. Stevens.
    Opinion delivered October 22, 1928.

      G. W. Norton and R. L. Bartels, for appellant.

      Mann & Harrelson, for appellee.
   Smith, J.

On February 15,1927, the home of appellee was damaged by fire. He had insurance on the property in the appellant insurance company for $2,500, and he also had policies of insurance on the same property in three other companies. It was stipulated at the trial from which this appeal comes that the total loss payable by the four companies was $8,000.

The policy issued 'by the ¡appellant insurance company contained a provision giving it the option to replace or restore the property damaged by fire in satisfaction of its liability in case of a fire, this option to be exercised within sixty days of the date of the damage by fire.

■Suit to enforce appellant’s liability under the policy issued by it was filed June 15,1927, in St. Francis County, the home of Stevens. The insurance company filed an answer, in which it alleged that, after the fire and before the institution of the suit in St. Francis County, the insurance company, being- at the time subject to legal process within the State of Tennessee, was duly served with a writ of attachment by garnishment in an action by the Shapleigh Hardware Company, as plaintiff, and A. L. Stevens et al. as defendants, the said suit in Tennessee being one to recover ¡an alleged debt due by Stevens to the hardware company in the sum of approximately $3,000, and that the legal effect of the said attachment by garnishment is to render the defendant insurance company liable to the plaintiff hardware company for whatever sum defendant Stevens owes the hardware company, provided the hardware company establishes its debt against -Stevens.. That, immediately ¡after the service of said garnishment, the defendant insurance company gave notice to Stevens and Ms attorney of the existence and nature of tMs suit, and requested them to make defense thereto, but this they declined to do.

By an amendment to the complaint and a reply to the answer, Stevens alleged that the dwelling damaged by fire was his homestead, and alleged that the insurance money representing the partial value of the homestead would not be liable for any debt which might be proved against Stevens by the hardware company, and further, that the debt .to the hardware company was contracted prior to 1925, and that the plaintiff in 1926 filed his petition in bankruptcy, and scheduled the debt due the hardware company, and received a complete discharge from liability on said indebtedness. It was denied that Stevens was a party to the Tennessee suit, as he had not entered his appearance in said cause, and it was alleged that the suit in Tennessee was begun about thirty days after the fire, and that by the terms of the insurance policy the defendant insurance company had sixty days from the date of the fire to replace the building, and, if the defendant had exercised this option, no ■liability would have accrued against it under the suit in Tennessee.

With the issues thus joined the cause was reached for trial in St. Francis County on November 23, 1927, at wMch time the defendant insurance company presented a motion for a continuance. In support of this motion the pendency of the Tennessee suit was shown. It was further shown that the insurance company had resisted the suit by alleging every defense made known to it by Stevens and his attorney, including the pleas of homestead and bankruptcy in Stevens’ behalf, but that, by reason of Stevens’ default in the Tennessee court, a decree pro cpwfesso had been entered against him there, and a motion had been filed by the hardware company and was then pending for a final judgment.

By way of response to the motion for a continuance, the plaintiff Stevens repeated the allegations of his reply to the answer. It was shown’ that the Tennessee suits were filed March. 19, 1927, and on the same day the service of a writ of garnishment was had on the insurance company, and that Stevens’ nonresidence in Tennessee was legal ground there for attachment, a fact of which we take judicial notice. Section 4110, C. & M. Digest. It was further shown thiat the hardware company had alleged in its suit in Tennessee that its claim against Stevens is not discharged under the bankruptcy proceedings because the debt was created by fraud and misrepresentation upon Stevens’ part by forging the names of certain guarantors.

In further opposition to the continuance, Stevens related the circumstances under which he had signed the names of the guarantors, the purport of his testimony being that he had committed no fraud.

The motion for a continuance was overruled, and the cause was submitted to the court without a jury, on the record herein summarized, with certain additional stipulations of counsel. Judgment was rendered against appellant for $2,000, its proportionate part of the loss, and this appeal has been duly prosecuted from that judgment.

It appears from what we have said that, at the time of the rendition of the judgment from which this appeal comes, a decree pro confesso had been taken in the Tennessee suit in accordance with the practice in that Gtate. This decree was not final, but it would become final unless cause was shown by Stevens why it should not. Section 4270, M. & V. Code of Tennessee; Lieberman v. Knight, 153 Tenn. 268, 283 S. W. 450; Taylor v. Sledge, 110 Tenn. 263, 75 S. W. 1074.

The insurance company, as garnishee, had alleged, in its answer in Stevens’ behalf in the Tennessee suit, the discharge in bankruptcy, but the creditor had replied that the discharge was void for the reason that the debt had been made through fraud. It is true that Stevens testified, in opposition to the motion for a continuance, that he had practiced no fraud in making the debt, but such testimony in the St. Francis Circuit Court could have no effect on the Tennessee suit.

As had been said, the insurance company as garnishee answered in Tennessee, and alleged that the sum due by it to Stevens was for damage by fire to Stevens’ homestead. But it was held by the Supreme Court of Tennessee, in the case of Carson v. Railway Company, 88 Tenn. 646, 13 S. W. 538, 8 L. R. A. 412, 17 Am. St. Rep. 921, that statutes exempting property from execution have no extraterritorial force.

This decision accords with that of the Supreme Court of the United 'States in the case of Chicago, R. I. & P. Ry. Co. v. Sturm, 174 U. S. 710, 19 S. Ct. 797, and also with the decision of this court in the case of Person v. Williams-Echols Dry Goods Co., 113 Ark. 467, 169 S. W. 223.

■ In the case last cited it was held by this court that a nonresident cannot claim the benefit of the exemption laws of his own State in the courts of this State, and that the situs of a debt for purposes of garnishment is not only the domicile of the debtor, but is in any State in which the garnishee may be found,' provided the law of that State permits the debtor to be garnished.

It was further held in the Person case, supra (to quote a syllabus), that: “A citizen and resident of this State may subject to the payment of his debt, by garnishment, the money due the debtor, a resident of another 'State, from .an insurance company which also does business in this State, for a loss under a fire insurance policy issued in that State upon the debtor’s homestead and household effects, all of which were exempt from seizure and sale for the payment of the debt in that State where the judgment, upon which this suit was brought, was obtained.”

See also the case of St. Louis S. W. Ry. Co. v. Vanderberg, 91 Ark. 252, 120 S. W. 993, where it was held that a garnishee sued in Missouri could not claim exemptions on behalf of a debtor residing in this State, the privilege being personal and available only by following the statutory provisions.

See also Hartford Fire Ins. Co. v. Citizens’ Bank, 166 Ark. 51, 166 S. W. 675, 39 A. L. R. 1458.

In regard to the allegation, in the reply to the insurance company’s answer, that the company might have defeated the garnishment in Tennessee by replacing the -damaged property, ;as it had the option to do under the policy of insurance, it may be said that the iagreed damage to the homestead property was several times the amount of the policy issued by the appellant insurance company. It would therefore be unreasonable to expect the insurance company to replace this loss in settlement of its liability. Moreover, the option to replace rested with the insurance company. The contract of insurance gave it the option to replace and restore, or to pay damages. It may be further said that the amount of damage had been agreed upon between the insured and the insurer, and the insurance company had so answered the garnishment in the Tennessee case. It is therefore no defense that the insurance company did not rebuild or restore the property.

We conclude therefore that the court should have -continued the cause as prayed, pending the suit in Tennessee, and that no judgment should be rendered against the appellant on its admitted liability under its policy until the pro confesso judgment in Tennessee has been set aside.

The judgment of the court below will therefore be reversed, and the cause remanded.

Smith, J.,

(on rehearing). Attention is called to the fact, in the petition for rehearing’, that other insurance companies beside the appellant, Great American Insurance Company, were garnished in Tennessee, and that the garnishment proceedings have impounded a sum largely in excess of the amount of the Tennessee judgment. This 'being true, the opinion will be modified to permit the rendition of judgment on the remand of the cause for so much of the admitted liability of the insuranee companies as is in excess oí the amount required to discharge appellee’s liability under the Tennessee judgment, if appellee elects to take such a judgment.


author: Humphreys, J.

text:
    Bank of Altus v. Burrow.
    Opinion delivered October 22, 1928.

      J. D. Benson, for appellant.

      G. C. Garter and Starbird $ Starbird, for appellee.
   Humphreys, J.

Appellant brought suit in the circuit court of Franklin County, Ozark District, against appellee, to recover $4,909.88 and interest thereon from the 4th day of January, 19'27, at the rate of 8 per cent, per annum, which’ amount was a balance alleged to be due on a $5,000 note executed by appellee to appellant on October 15, 1925.

Appellee filed an answer, in which he pleaded payment of the note, and an amendment thereto in which he pleaded the invalidity thereof, because executed to eover a shortage of his son, who had embezzled appellant’s funds, under a promise on the part of the officials of the bank that they would withhold the' evidence of the crime and abstain from prosecuting his son therefor.

Appellant filed a reply, denying payment of the note, or that it was executed in consideration of an agreement by the officers of the bank to withhold the evidence and not prosecute appellee’s son for said crime.

The cause was submitted upon the pleadings, the testimony introduced by the respective parties and instructions of the court, and resulted in a verdict for appellee, and the judgment dismissing appellant’s complaint, from which is this appeal.

The testimony was conflicting upon the issue of payment and whether the note was given to compound a felony, and the court submitted the issues of fact to the jury for determination on three declarations of law applicable to the case, according to his view. The instructions were severally objected to by appellant, but it did not preserve its objection in its motion for a new trial to instruction No. 3A. Appellant now argues that instruction No. 3A was erroneous, and that the judgment should be reversed on that account. As the ruling of the court in giving instruction No. 3A was not given as one of the grounds for a motion for a new trial, we cannot consider the alleged error contained therein. Prairie Creek Coal Mining Co. v. Kittrell, 106 Ark. 138, 153 S. W. 89; Patterson v. Rishe, 143 Ark. 376, 221 S. W. 468.

The giving of instruction No. 2A by the court on its own motion and the refusal to give instruction No. 1, requested by appellant, both over the objection of appellant, was properly preserved in the motion for a new trial.

Appellant first contends for a reversal of the judgment on the ground that the court erred in giving instruction No. 2A, which is as follows:

“You will find for the plaintiff the amount sued for, less any payments, if any, that you find have been made, which are not credited on the note, unless you find from the preponderance of the testimony that the note was signed by the defendant under an agreement with the bank officials that his son would not be prosecuted by the bank officials for a felony.”

It is argued that this instruction was vague, indefinite, and misleading, because it did not confine the felonies referred to therein to felonies growing out of misappropriation of appellant’s funds by appellee’s son. There is nothing in the evidence tending to reflect that any other felonies than those connected with the misappropriation of the bank’s funds were committed by appellee’s son. We do not think the jury could have been misled by the instruction. Even, however, if the note had been given for the purpose of compounding any felony, whether connected with the bank’s business or not, it would have been void, hence no prejudice could have resulted to appellant by giving the instruction. Appellant requested the court to give its instruction No. 1, which was a parallel instruction to instruction No. 2A given by the court, and that request was even more vague and uncertain that the one given by the court. Instead of using the word “felony” it used the word “crime,” which could include both misdemeanors and felonies, either growing out of the business of appellee’s son with the bank or out of some independent transaction disconnected with the bank’s business.

Instruction No. 1 requested by appellant is as follows:

“You are instructed that the mere fact, if you find it to be a fact, that the note sued on in this case was made by the defendant, N. B. Burrow, on account of a shortage to the plaintiff of Fred Burrow, that alone would not be a defense in this case, but- you must further find from a preponderance of the evidence in this case that the defendant, N. B. Burrow, signed the note in consideration of the plaintiff abstaining from any prosecution of Fred Burrow for a crime.”

Appellant’s further contention is that the judgment should be reversed because the verdict is not supported by sufficient evidence of a substantial nature. Appellee and his ,son both testified positively that the only consideration for giving the note was to compound the felony the son had committed in his capacity as cashier of appellant’s bank. The testimony introduced by appellant wias, in substance, an absolute denial that any of its officers promised to withhold the evidence of the crimes committed and to refrain from prosecuting appellee’s son as a consideration for the note. Testimony introduced by appellee responsive to this issue was of a substantial nature, and is sufficient to support the verdict.

No error appearing, the judgment is affirmed.


text:
    Thomas v. Owen.
    Opinion delivered October 22, 1928.

      Trimble ■& Trimble, for appellant.

      M. K. Moran, for appellee.
   Humphreys, J.

Appellee filed the following affidavit in the court of H. Monk, a justice of the peace in Caroline Township, in Lonoke County, omitting caption:

“I, Maggie Owen, do solemnly swear that I have reason to believe that I have a cotton planter on the farm of Joe Sims, either in barn or some outhouse on said farm. The planter is a Shawnee Avery Junior, and I hereby pray of H. Monk an order of delivery to be served by day to have the barns and outbuilding searched that I may find said planter. Maggie Owen.”

The justice of the peace thereupon issued the following order of delivery, omitting caption:

“To any constable of Lonoke County: You iare commanded to take from the possession of John Thomas and Joe Sims, or any one who has possession, one Shawnee Avery Junior Combination Planter, of the value of $25, and deliver the same to Mrs. Maggie Owen. You will also summon John Thomas and lany other person in whose possession the planter -may be found, and you will summon John Thomas and all other persons, to appear in my office on the 26th day of March, 1927, at 10 o’clock a. m., and you will make due returns of this Writ before me on the 26th diay of March, 1927. Given under my hand this 18th day of March, 1927. H. Monk, J. P.”

The cotton planter was found by the constable and delivered to appellee, pursuant to the order of delivery. The suit was transferred to the court of common pleas in said county, and John Thomas, one of the appellants, executed a forthcoming bond, and obtained the return of the cotton planter which had been delivered to appellee. The forthcoming bond is as follows, omitting caption and signatures:

“We undertake and are bound to the plaintiff, Maggie Owen, in the sum of fifty dollars, that the defendant, John Thomas, shall perform the judgment of the court in this action, or that the undersigned, John Thomas, will have the Avery Planter attached in this action, or its value, twenty-five dollars, forthcoming and subject to the order of the court for the satisfaction of such judgment. ’ ’

On the trial in the court of common pleas, and also in the circuit court, to which the case was appealed, all the irregularities in the pleadings were waived by the parties, and the cause was tried by agreement upon the issues of who was the owner of the cotton planter, its value, and the damage for detention of same, if any.

No objections were made or saved in the course of the trial by either party to the evidence admitted or the instructions given by the court.

An appeal has been duly prosecuted to this court from the verdict and consequent judgment in favor of appellee for the possession and return of the cotton planter, or its value, in the sum of $20, and $5 damage for detention of same.

Appellant contends for a reversal of the judgment on the sole ground that the affidavit filed by appellee before the justice of the peace did not contain the prerequisites necessary to obtain an order of delivery of personal property and was insufficient to sustain a cause of action in replevin within the jurisdiction of the justice of the peace, and that therefore the circuit court acquired no jurisdiction by the appeal. It is true that the affidavit was in the nature of an affidavit for a search warrant, and did not contain the prerequisites of an affidavit in replevin, in accordance with § 8640’ of Crawford & Moses’ Digest, and did not sufficiently state a cause in replevin, yet did serve the purpose in both instances. The cotton planter was seized on the order of delivery, based on said affidavit, and delivered to appellee, and in the trial of the cause all irregularities in the pleadings were waived by the parties. The issue in replevin was tried by agreement of the parties, and testimony was adduced by both parties responsive to the issue, without objections or exceptions by either to the evidence introduced or instructions given by the court. After a trial and verdict on the merits it was too late to object to the insufficiency of the affidavit upon either ground. Hawes v. Robinson, 44 Ark. 308; Waterman v. Irby, 76 Ark. 551, 89 S. W. 844; Climer v. Aylor, 123 Ark. 510, 185 S. W. 1097.

No error appearing, the judgment is affirmed.


text:
    Hodges v. Rachels.
    Opinion delivered October 22, 1928.

      Golden Blount, for appellant.

      Wm. H. Roth and John E. Miller, for appellee.
   Humphreys, J.

A judgment was obtained on December 10, 1927, by appellee against appellant, for an attorney’s fee of $150, before W. H. Bell, a justice of the peace in Gray Township, in White County. At the time the judgment was rendered, appellant prayed and was granted an appeal to the circuit court of said county by the justice of the peace. Appellant filed or caused the justice of the peace to file an abstract in the office of the circuit clerk on January 7, 1928, which was nine days before the circuit court convened in regular session. The circuit court convened in regular session on January 16, 1928. After the transcript was filed in the circuit court the case was set down for trial on January 30, 1928, at which time the attorney for appellant appeared and objected to a trial at that term of the court because the transcript had not been filed ten days before court convened, contending that the court was without jurisdiction to try the cause unless the transcript had been filed as much as ten days before circuit court convened in regular session. The court overruled appellant’s objection, and proceeded to try the cause. An exception was properly saved and preserved to the ruling of the court. The trial of the cause resulted in a judg-ment against appellant, from which he has duly prosecuted an appeal to this court.

The first contention of appellant for a reversal of the judgment is that the -court had no jurisdiction to try the cause because the transcript had not been filed and the appeal allowed by the circuit clerk ten days or more before the circuit court convened. The statute governing appeals from justices of the peace makes no such requirement where the appeal is allowed by the justice at the time of the rendition of the judgment ¡and ten days or more before the circuit court convenes. -Section 6525 of Crawford &■ Moses’ Digest governs under the facts in this case, and reads -as follows:

“All appeals allowed ten days before the first day of the term of the circuit court next after the appeal allowed shall'be determined at such-term, unless continued for cause.”

The appeal was allowed by the justice -of the peace on December 10, 19’27, more than ten days before January 16, 1928, the day circuit court convened in regular session. Under this statute the intervening time is not computed from the time of filing the transcript with the circuit clerk, but from the day of its appeal by the justice of the peace, in order that it shall stand for trial at the next succeeding term of the circuit court. There is no merit in appellant’s contention that the case did not stand for trial at the term of the circuit court beginning January 16, 1928.

Appellant makes the further contention that the judgment should be reversed for the alleged reasons that the verdict and judgment are not sustained by the evidence ; that counsel for appellee was permitted to ask him leading questions; and that the court refused to allow appellant to testify to the exact conversation and happenings between him and appellee relative to the transaction in hand. Appellant has not seen fit to abstract the testimony in the case, so the court cannot consider this contention. These are questions that arise out of the evidence which should have been abstracted. Iif order to consider them, the court would be compelled to explore the record, which cannot possibly ¡be done with due regard to a dispatch of the business before us.

No error appearing, the judgment is ¡affirmed.


author: Kirby, J.,

text:
    Harnwell v. Hollenberg Music Company.
    Opinion delivered October 1, 1928.

      C. P. Harnwell, for appellant.

      Frank B. Pittard, Kenneth, W. Coulter and John H. Quidor, for appellee.
   Kirby, J.,

(after stating the facts). This court on a motion for rehearing has concluded it should be sustained, and appellant’s contention that the trial court erred in refusing to quash the summons and to dismiss the cause as against her for want of jurisdiction upheld. The motion to make her a party was made upon the disclosure by the answer of C. P. Harnwell and Mary Bryan that the property belonged to her, and she was duly served with a summons, and no- error was committed in not granting the motion on that account; but the value of the property replevied was shown by the undisputed testimony to be in excess of $300, and therefore beyond the jurisdiction of the municipal court. The circuit court acquired no jurisdiction on appeal, and the motion to dismiss -should have been sustained. Act 463, Acts of 1921, § 2; Ware v. Shoemaker-Bale Auto Co., 177 Ark. 227, 6 S. W. (2d) 285.

Harnwell testified the value of the piano was something between $800 and $1,000 'and Hollenberg “thought his company should sell it for $400, possibly $450.’'’ Said “he would be willing to sell it for $350 rather than to refuse an -offer' — that if it wasn’t worth more than $200 he would be willing to take it as a cancellation of the debt. ’ ’ His statement that he would be willing to take it in -satisfaction of the debt to his company was without probative force as' against his statement, and the other testimony about the value of the piano is not in conflict therewith or contradictory thereof, since he had no’ interest in it beyond the amount of his debt, a sum less than $300, secured by the mortgage thereon. There is no substantial evidence to support the court’s finding that the value of the property replevied was under $300 and within the court’s jurisdiction, and the court erred in so holding.

Having reached this conclusion, the other questions need not be discussed, and the motion 'for rehearing will be granted, the judgment reversed, and the cause remanded, with directions to dismiss for want of jurisdiction. It is so ordered.

Hart, C. J., and McHaney, J., dissent.


author: Kirby, J.

text:
    Payne v. Hart.
    Opinion delivered October 22, 1928.

      Griffin Smith, for appellant.

      Daggett & Daggett, for appellee.
   Kirby, J.

This appeal is prosecuted from a decree compelling specific performance of a contract of purchase of land. The case was tried upon an agreed statement of facts, from which it appears that D. W. Dover was the owner and in possession of the 53.64 acres of land in Lee County, known as the Adams land, prior to the 24th day of July, 1908, described in the first item of his will. The said Dover died testate after said date, and a copy of the will was duly admitted to probate. J ohn E. Hart, appellee, and the devisee mentioned in the first item of the will, with his family has occupied the land since the death of the testator. On the 4th day of November, 1927, appellee entered into a written contract of sale and purchase of the lands with appellant. On December 1, 1927, Hart and’ wife, appellees, executed a deed conveying the lands, in accordance with the contract of sale, to appellant, with a covenant of general warranty, and tendered same to appellant, who refused to accept it and perform the contract of purchase, claiming that an examination of the title disclosed that appellees were not the owners of the lands in fee simple, but only took a life estate under the will of the said D. W. Dover.

Norma Hart is the wife of J. E. Hart, and they have one living child 23 years of age.

It was agreed that the only question for determination by the court was whether or not the fee-simple title held by Dover was devised to appellee by the will, and whether the deed executed by appellees and tendered to appellant was sufficient to convey him a good and merchantable title to the lands. The first item of the will reads:

‘ I will and bequeath to my nephew, J ohn E. Hart, his heirs forever, the 53-acre tract that he now lives on, being a part of what is now ( ) as the Adams land. Said land being entailed to the heirs of the said John E. Hart forever. Never to be mortgaged or sold.”

The court construed the will-to convey a fee-simple estate, and decreed a specific performance of the contract, from which this appeal is prosecuted.

The only question necessary for determination is the correctness of the holding that the clause in the will devised a fee-simple estate to appellee, John E. Hart.

The devise was made, ‘ ‘ to my nephew, John E. Hart, his heirs forever,” describing said tract of land upon which the devisee lived, and “said land being entailed to the heirs of the said John E. Hart forever. Never to be mortgaged or sold.” The purpose of construction of a will is to ascertain the intention of the testator from the language used as it appears from consideration of the entire instrument, and, when such intention is ascertained, it must prevail, if not contrary to some rule of law. The first paragraph of item one of the will, by express language, “to my nephew John E. Hart, Ms heirs forever,” clearly conveyed an absolute fee to the devisee, John E. Hart, and the interest thus given could not be cut down or diminished by the later conflicting and repugnant clause declaring the land “entailed to the heirs of the said John E. Hart forever. Never to be mortgaged or sold.” Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A. (N. S.) 1028, 11 Am. Cas. 343.

There is nothing in the language indicating’' an intention to give a life estate to the devisee and the heirs of Ms body, except the word “entailed,” which cannot have effect to limit the fee expressly given to said devisee and his heirs to an estate tail, the devisee taking a life estate only under the statute. Hardage v. Stroop, 58 Ark. 303, 24 S. W. 490; Willmans v. Robinson, 67 Ark. 517, 291 S. W. 818.

The sentence providing “never to be mortgaged or sold,” was an attempt to deprive the fee simple estate devised of its alienability, and is void for repugnancy. Fies v. Feist, 145 Ark. 351, 224 S. W. 633; Letzkus v. Nothwang, 170 Ark. 403, 279 S. W. 1006; Davis v. Sparks, 135 Ark. 413, 205 S. W. 803; Combs v. Combs, 172 Ark. 1173, 291 S. W. 818.

The chancellor correctly construed the will as creating a fee simple estate in the devisee, John E. Hart, who could convey a good and merchantable title to the lands by the deed tendered, and did not err in requiring specific performance of the contract of purchase by appellant.

The decree is affirmed.


text:
    Southwestern Gas & Electric Company v. Godfrey.
    Opinion delivered October 22, 1928.

      J. 1. Alley, W. H. Arnold, W. H. Arnold, Jr., and David G. Arnold, for appellant.

      A. F. Smith, W. A. Bates, Sam T. Poe, Tom Poe and McDonald Poe, for appellee.
   Kirby, J.

It is urged for reversal that the court erred in not sustaining the demurrer to the complaint of the parents of the deceased, the administrator only being authorized to sue for damages for his wrongful death, and that in no event could there be a recovery against the appellants jointly liable for the injury, if liable at all, separately and for different amounts. Under the statute the administrator alone was entitled to recover all damages resulting from the wrongful death of Victor Godfrey, both for the benefit of his estate and the next of kin. Section 1075, C. & M. Digest; Ashcraft v. Jerome Hardwood Lumber Co., 173 Ark. 135, 292 S. W. 386.

The right of the heirs and next of kin of the decedent to sue for damages for his wrongful death is dependent upon there being no personal representative of such decedent, and, since the complaint of the heirs and next of kin did not allege there was no personal representative of the deceased, and did allege that J. E. Godfrey was the administrator of his estate, it did not state a cause of action as to them, and was subject to the demurrer, which should have been sustained. .Section 1070, 1075, C. & M. Digest; Jenkins, Adm’r., v. Midland Valley R. R. Co., 134 Ark. 1, 203 S. W. 1; Davis v. Ry., 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 203 s. c., 55 Ark. 462, 18 S. W. 628; K. C. S. Ry. Co. v. Henrie, 87 Ark. 443, 112 S. W. 967. Since the suit was brought by the administrator or personal representative of the decedent, however, who had the right to recover all damages resulting from his wrongful death, no prejudice resulted from the court’s failure to sustain the demurrer, and the error was harmless.

The other assignment, that there could be no greater recovery than $4,000, the amount of the sum of damages assessed against Harry Wann, the other joint tort-feasor and appellant, under the verdict rendered, must be sustained. Only one act of negligence was alleged in the complaint, which consisted in the failure of appellants to guard properly, protect and insulate the electric wires carrying the current from the power plant of the appellant light company to the mill plant and the machinery of the other appellant, and in his failure to guard properly, protect and insulate the electric wire, machinery and equipment in the heading-mill plant. The jury returned two verdicts, finding for the plaintiff against the gas and electric company in the sum of $14,000, and for the plaintiff against Harry Wann in the sum of $4,000. Cyc. says: “Where, although concert is lacking, the separate and independent acts of negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it.” 38 Cyc. 488. The liability of the wrongdoers is not affected by the relative degree of negligence or of the care required, and if the negligence of both be a contributory cause, although one may owe to the person injured a higher degree of care, and even though there be different degrees of negligence by each, either or both alike are responsible. Damag’es must be assessed in a single sum, and cannot be apportioned by the jury among the defendants, since the sole inquiry is to the damages resulting from the injury, and not who ought to pay them. 38 Cyc. 490, 492; St. Louis S. W. R. Co. v. Kendall, 114 Ark. 224, 169 S. W. 822, L. R. A. 1915F, 9; Coleman v. Gulf Ref. Co. of La., 172 Ark. 428, 289 S. W. 2.

In Spears and Purifoy v. McKennon, 168 Ark. 357, 270 S. W. 524, a suit for damages for negligence in performing a surgical operation, the jury returned a verdict in the sum of $3,500, separately, against the physicians, and judgment was rendered for $7,000 against them, to be paid one-half by each. This court held that a judgment for the sum of both the separate verdicts could not be rendered, saying: “This suit was against defendants jointly, to recover damages against them as tort-feasors; there was only one operation and one damage, both appellants participated in it, and, according to the verdict, both were liable. Under the testimony they were liable as joint tort-feasors, if at all, and the verdict should be construed as a finding of joint and not separate liability. The only way this can be done is to construe the verdict as a joint finding agaiinst appellants for $3,500.”

In Wear-U-Well Shoe Co. v. Armstrong, 176 Ark. 592, 3 S. W. (2d) 698, the jury returned two verdicts, one against John Rule, the agent or salesman of the shoe company, for the sum of $750, and the other against the company for $1,750, and this court held that each of the tort-feasors, only one tort being committed and one damage resulting, was liable for the whole damage, and that there could be no greater recovery against both the joint tort-feasors than the lower sum assessed by the jury against one of them. So here, under our decisions, since the injury resulted from the joint or concurring negligence of the two appellants, the negligence of both contributing to it, their liability was not affected by the rela.tive degree of negligence and of the care required, each being liable for the whole damage resulting, and there could be no greater recovery against either or both the joint tort-feasors than the smaller amount assessed by the jury against one of them, the sum of $4,000.

We have carefully considered the authorities in the able brief of appellee supporting a different rule, but find no sufficient reason for not following the rule already adopted by our decisions. The court erred in rendering judgment for the entire damage resulting from the negligence of appellants for more than the smaller amount of the verdict against the appellant Harry Wann in the sum of $4,000. ■

The testimony is in decided conflict as to whether there was any conscious pain and suffering of the deceased after he came in contact with the defectively insulated wire, the preponderance of it probably being against such a finding, but there was some substantial testimony from which the jury might have found that such was the fact, and we cannot say the evidence is not sufficient to support the judgment. The "testimony also was slight as tending to show a disposition on the part of the deceased to contribute any great amount of his earnings to the support of his parents, but we cannot hold it insufficient, the jury having found otherwise.

. We do not regard it necessary, nor do we attempt, to separate the damages, resulting to the estate on account of the pain and suffering endured by the deceased and the pecuniary losses to his heirs and next of kin, since there were no debts or claims against the deceased or his estate for which his father and the next of kin were not liable to the payment, and since his heirs, and next of kin will be entitled to the whole amount recovered by the administrator for the estate and the next of kin.

There are other errors complained of, and it is insistently urged that the verdicts were excessive, but, under this court’s holding that only the smaller amount of damages assessed against the one defendant can be recovered from both of them, we do not find it necessary to go further into the question of the excessiveness of the verdict, nor to consider the other assignments, which are not urged in view of the conclusion reached.

The judgment against the appellant electric company will be modified in accordance with the opinion herein and reduced to the amount of the damages assessed against appellant Wann, $4,000, for which amount only both appellants are liable, and judgment will be entered here accordingly, and the case affirmed. It is so ordered.