author: Humpheuys, J.

text:
    Guardian Life Insurance Company v. Johnson.
    4-2837
    Opinion delivered February 27, 1933.

      James D. Head, for appellant.

      Pratt P. Bacon and Shaver, Shaver $ Williams, for appellee.
   Humpheuys, J.

Appellee brought suit against appellant in the circuit court of Miller County to recover $1,000 penalty and attorney’s fee for total disability benefits on two policies issued to him by appellant. It was alleged in the complaint that appellee suffered total disability on March 5, 1932, within the meaning of the disability clauses in said policies. The total disability clauses were defined in the policies to be “disability caused by # * # disease which wholly prevents the insured from engaging in any business or occupation or performing any work for compensation, gain, or profit.”

A petition in proper form was filed by appellant to remove the cause to the Federal court on account of diversity of citizenship and the amount involved, which was overruled by the trial court over appellant’s objection and exception.

A demurrer was also filed by appellant to the complaint on the ground that each policy provided for the payment of $50 a month on account of total disability, and that each month’s alleged default in payment constituted a separate and distinct cause of action which could not be joined in order to confer original jurisdiction upon the circuit court. The demurrer was overruled over the objection and exception of appellant.

Appellant also filed an answer denying that appellee had been totally disabled by disease within the meaning of the disability clauses in the policies.

The cause was submitted upon the pleadings, testimony and instructions of the court, resulting in a verdict against appellant for $1,000, and a consequent judgment for said amount, 12 per cent, statutory penalty, and an attorney’s fee of $150, from which is this appeal.

Appellant contends for a reversal of the judgment because the court denied its petition to remove the cause to the Federal court. It is argued that, in addition to the amount of $1,000 sued for, there was also involved the contingent loss to appellant of premiums amounting to $360 per annum for an indefinite length of time, as well as the validity of the policies, so that the future effect of the recovery sought would carry the amount in dispute beyond $3,000. It was ruled in the case of Elgin v. Marshall, 106 U. S. 578, 1 S. Ct. 484, that the collateral effect of a judgment is not the test of' jurisdiction, but that the amount involved in the suit is the test. The same jurisdictional test was applied in the cases of the New England Mortgage Security Company v. Gay, 145 U. S. 123, 12 S. Ct. 815, and the Mutual Life Insurance Company v. Wright, 276 U. S. 602, 48 S. Ct. 323. In the Gay case, supra, the court said: “When the jurisdiction of this court depends upon the amount in controversy, it is determined by the amount involved in the particular case, and not by any contingent loss either one of the parties may sustain by the probative effect of the judgment, however certain it may be that snch loss will occur.”

The same jurisdictional test was applied by this court in the recent case of Standard Life Insurance Company v. Robbs, 177 Ark. 275, 6 S. W. (2d) 520. It is true that in both the Wright and Eobbs casessupra, recovery was sought under, the death clause, instead of the total disability clause as in the instant case, but that does not change the principle that should be applied. In fact, under the death clause involved in those cases, the ultimate amount of recovery was certain; whereas, in the instant case, the ultimate amount that may be recovered is uncertain, being contingent upon'a continuation of total disability. The trial court correctly ruled that the amount involved in the instant case did not exceed $3,000.

Appellant also contends for a reversal of the judgment because the court overruled the demurrer to the complaint. It is, argued that appellee improperly joined separate and distinct causes of action on each installment or monthly payment in an attempt to increase the amount sufficiently to give the circuit court original jurisdiction of the cause of action. This is not an action to recover installments of $50 each as they became due, but was for past-due installments under two written instruments, and constituted a single cause of action. This court said in the case of Ft. Smith Paper Company v. Templeton, 113 Ark. 490, 168 S. W. 1092, that: “All of the separate installments due under the contract constitute a single cause of action, for the contract is not separable, as where the obligations are represented by different instruments of writing. It is true that an action may be maintained upon each installment as it becomes due, the same as upon different items of an account in the course of accrual; but, when the enforcement of the right of action is postponed until succeeding installments become due, a suit upon them all constitutes a single cause of action.” The court did not err in overruling appellants demurrer to appellee’s complaint,

The facts in this case are, in substance, as follows: On the 20th day of July, appellee, a hotel clerk and cotton buyer, took out two life insurance policies for $5,000 each, making1 representations in the application therefor that he was in good health. Each policy contained a disability clause in the language set out above. The policy provided that, in case of total disability caused by disease, appellant would pay appellee $100 a month during the period of such disability. The premiums on the.policies were either paid in cash or else the time for payment was extended beyond the month of August, 1930. Proof was filed with appellant on March 5, 1931, to the effect that appellee was unable to do any work which required him to stand on his feet for any length of time. The testimony is in slight conflict as to whether appellee was in good health at the time the policies were delivered. There is a dispute in the testimony as to whether appellee was totally disabled after the month of August, 1930, within the meaning of the total disability clauses in the policies The testimony introduced by appellee tended to show that, on and after that date, he was unable to do any work which required him to be upon his feet for any length of time, caused by a chronic case of sacroiliac joint inflammation and arthritis, and that the only remedy for the trouble or disease was to keep off his feet and to keep his body in a rigid position. In addition, it appeared from the evidence that, on account of the disease, appellee was compelled to wear day and night a specially constructed steel belt and use a specially built mattress to sleep on.

In the course of the trial, appellant offered testimony tending to show that the disability clauses related to general disability insurance, and not to disability preventing one from carrying on a particular occupation, which testimony was excluded over the objection and exception of appellant. The admission of certain other testimony of experts was objected and excepted to by appellant.

Appellant contends for a reversal of the judgment on the ground that the testimony tends to show only that appellee was unable to perform the business of a cotton buyer or hotel clerk; whereas, under the terms of the disability clauses in the policies, appellee must show by testimony that his disability prevented him from carrying on any kind of work for compensation, gain, or profit. In the first place, we think a fair interpretation of the testimony tends to show that appellee’s ailment prevented him from engaging in any kind of work in the due exercise of common care and prudence. The remedy for this ailment was to keep off his feet, hold his body in a rigid position, and lie down and rest. Just how one could do this and engage in any kind of labor or business for profit is hard to imagine. In the next place, we do do not think the disability clauses, as defined in the policies, mean that one must become helpless before he can claim the benefit from or under them. In the case of Ætna Life Insurance Company v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310, this court said, in construing a disability clause not materially different from the definition of the clauses in these policies: ‘ ‘ Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged. This court has held that provisions in insurance policies for indemnity in case the Insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform the substantial and material acts of his business or the execution of them in the usual and customary way.” The clause the court construed in the case referred to is as follows: ‘ ‘ That if the insured becomes totally and permanently disabled and is thereby prevented from performing any work, or conducting any business for compensation or profit.” In the very recent case of Missouri State Life Insurance Company v. Johnson, ante p. 519, this court reiterated the interpretation given such disability clauses in the case referred to, as well as other eases, in the following language: “That total disability, as used in contracts of this character, exists when the injury of the insured prevents him from doing all the substantial and material acts necessary to be done in the prosecution of his business, and that common care and prudence would require him, in his condition, not to do.” The trial court correctly instructed the jury as to the meaning of the total disability clauses in the policies.

Appellant also contends for a reversal of the judgment because the trial court refused to give its requested instructions Nos. 7, 8 and 11. These instructions were fully covered by instruction No. 1, requested by appellee and given by the court.

Appellant also contends for a reversal of the judgment because the trial court refused to give its requested instructions Nos. 14, 15 and 20. These instructions presented issues not involved because the undisputed evidence shows that the premiums had been paid in cash or the time for payment of them had been extended beyond the time appellee had become disabled. In other words, that the policies were in full force when disability occurred and proof was filed. Appellee was released from any obligation to pay premiums after becoming totally disabled. Ætna Life Insurance Company v. Phifer, 160 Ark. 98, 254 S. W. 335.

Appellant also contends for a reversal of the judgment because the trial court excluded its offered testimony tending to show that the disability clauses related to disabilities for all kinds of labor or business and not to disabilities preventing the pursuit of occupations. This testimony was not admissible because the clauses in question have received judicial interpretation by this court. Under that interpretation, there is no ambiguity as to their meaning.

Appellant also contends for a reversal of the judgment on account of the admission of the testimony of Ur. Dale relative to appellee’s case being chronic. He testified that he examined appellee on the 7th day of January, 1932, for the purpose of treating him, at which time he obtained a history of his case, and that, based npon the examination and history of the case, he regarded his ailment as chronic. The doctor qualified as an expert, and his opinion was admissible as expert testimony. Great Western Land Co. v. Barker, 164 Ark. 587, 262 S. W. 650.

Appellant also contends for a reversal of the judgment because its expert witness, Dr. Caldwell, was not permitted to testify that many persons not knowing that they were afflicted with appellee’s ailment, when enlightened by a physician, continued their manual labor, and that in his opinion, if compensation were in sight, some persons afflicted as appellee would exaggerate the extent of their pain and suffering. We do not think what others might or might not do, afflicted as appellee, had any relevancy to the issue of whether appellee was totally disabled, so the testimony of the doctor on this point was properly excluded.

Appellant also contends for a reversal of the .judgment on the ground that the policies were not delivered during the good health of appellee. No fraud was shown on the part of appellee in procuring the policies, so his statement that he was in good health in his applications for the policies was a representation only, and, if made in good faith, will not avoid the policies. Modern Woodmen of America v. Whitaker, 173 Ark. 921, 293 S. W. 1045; American National Insurance Co. v. Chavey, 185 Ark. 865, 50 S. W. (2d) 245. These policies themselves provide that, in the absence of fraud, all statements of the insured shall be deemed representations and not warranties. Under the provisions of the policies and the authority of the cases last cited, the court properly submitted this question to the jury, and the adverse finding of the jury on the disputed question of fact is binding upon appellant. Appellant argues that instructions 3 and 4 bearing upon this issue, given at its request, are in direct conflict with instruction 4 given at appellee’s request. We think not. Appellant’s requested instructions 3 and 4 were more favorable than it was entitled to under the facts, and were based on the theory that the statements were warranties, and should not have been'given. Appellee’s instruction No. 4 was based upon the theory that the statements were representations, and was a correct instruction, and announced the true rule of law applicable to the facts in this case.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    School District No. 28 v. E. H. Stafford Trust.
    4-2879
    Opinion delivered February 27, 1933.

      Cunningham >& Cunnvugham, for appellant.

      Moore, Gray & Burrow and G. M. Gibson, for appellee.
   Mehaffy, J.

The appellant, School District No. 28 of Lawrence County, purchased from Charles A. Wood, doing business as Wood School Supply Company, certain school furniture. Wood ordered the school furniture from the E. H. Stafford Manufacturing Company in Chicago, whose business was manufacturing school furniture.

On April 3, 1928, the school district issued its warrant, payable to Wood School Supply Company, for $655, the purchase price of the furniture. On April 23, 1928, the warrant was indorsed by Wood and delivered to the E. H. Stafford Manufacturing Company.

On May 8,1928, the warrant was presented for payment to the county treasurer of Lawrence County, and was not paid because the treasurer did not have sufficient funds on hand at the time it was presented, and the warrant was registered by the treasurer as No. 1.

On May 9, 1928, the E. H. Stafford Manufacturing Company sold the warrant to the E. H. Stafford Trust, a common-law trust. The warrant was duly indorsed to the order of E. H. Stafford Trust by E. H. Stafford Manufacturing Company.

The warrant was presented to the treasurer for payment at intervals, but it was never paid. There were many occasions, however, when there were sufficient funds in the treasury to the credit of the district for the payment of the warrant. The warrant was at all times, after the transfer by the manufacturing company, in the possession of the E. H. Stafford Trust.

On December 28, 1928, Wood, who had sold the warrant to the E. H. Stafford Manufacturing Company, represented to the school district and the county treasurer that he was still the owner of the warrant, and requested that a new warrant be issued for the amount with interest, stating that, if this were done, he would procure the old warrant, the one dated April 3, 1928, and return it to them. He gave a receipt to this effect.

At the time the new warrant was issued in December, 1928, Wood was not the owner of the warrant, but had sold and transferred it to the E. H. Stafford Manufacturing Company, who had in turn sold and transferred it to E. H. Stafford Trust.

Wood did not have possession of the warrant issued on April 3d at the time the new warrant was issued for $698.67, the amount of the original warrant with interest, and this last warrant was issued without any consideration, Wood simply agreeing that he would get possession of the original warrant and deliver it to the treasurer.

The -warrant issued December 28, 1928, was registered on the same day it was issued, as warrant No. 4, and was paid to J. M. Whitlow, to whom Wood had transferred it.

On August 29, 1930, E. H. Stafford Trust and E. H. Stafford, Mrs. Florence Stafford and Russell Stafford, trustees of the E. H. Stafford Trust, filed suit in the Lawrence Chancery Court against School District No. 28 of Lawrence County, Arkansas, W. Phillips, Arthur Jones and Jess Blackshear, directors of School District No. 28; Charles A. Wood, doing business under the trade name of Wood School Supply Company; C. W. Webb, treasurer of Lawrence County, Arkansas, and the American Surety Company of New York.

Pleadings were filed by the parties, and the court found and decreed that the appellees were the owners and holders, in due course of business, for a valuable consideration of the school warrant issued on April 3, 1928, the warrant sued on here, and that the warrant was payable out of the general school fund of School District No. 28; that the warrant was issued to Wood School Supply Company, which was the trade name of Charles A. Wood, for school furniture, and for value and in due course transferred by Wood School Supply Company to E. H. Stafford Manuf acturng Company, and by it for value, and in due course of business, transferred and delivered to E. H. Stafford Trust, the appellee.

The court further found that on May 8, 1928, said warrant was duly presented to C. W. Webb, county treas.-urer, and by him registered as warrant No. 1; that from the date of the registration of the warrant up until September 13, 1930, when suit was filed, payment of said school warrant was continuously demanded by appellees, and that, although there was sufficient funds on hand with the treasurer to pay said warrant, payment was by the treasurer refused, although payment was due as the first and prior claim out of the funds of said district, in the hands of the county treasurer, and should have been paid; that on or about December 28, 1928, Charles A. Wood, having theretofore transferred, delivered and assigned said warrant and not being the owner thereof, fraudulently procured the school district through its directors, and Webb, the treasurer, to mark the warrant canceled of date April 3, 1928, and to mark “canceled” upon the register of school warrants, the record of the registration of said warrant, all of which was without the knowledge, authority or consent of appellees, who were then the owners and holders of said warrant; that this action and conduct on their part was fraudulent, unlawful, void and of no effect, and did not in any way affect the validity of the warrant or appellees’ right to payment.

The court also held that the warrant should be reformed and corrected so as to show registration as warrant No. 1 under the date of May 8, 1928, and that all marks, erasures or cancellations and all notations relative to the cancellation should be in all respects canceled and held for naught, and entered judgment ag’ainst Wood, Webb and American Surety Company of New York in the sum of $655, the amount of the warrant.

The court further held that-O. T. Massey, the present treasurer, should pay the amount of said warrant out of any funds in his hands, or that hereafter come into his hands, belonging to said district, and issued mandamus directed to said treasurer, requiring him to make such payment.

The appellant contends for a reversal of the case, first, because he says the school warrant was not a negotiable instrument, and that there could therefore be no innocent holder. - •

The only case cited and relied on by appellants is the case of First National Bank of Waldron v. Whisenhunt, 94 Ark. 583, 127 S. W. 963. The court in-that case held that the directors were without power to make a valid contract for the purchase of charts, and the warrant, having been given in payment of that, was void. In other words, when a school district gives a warrant or order in payment of a thing they had no power to purchase, the warrant is void; and also, if it is void as beyond scope of their powers, it could not be ratified. The court further held that the warrants of school districts are not negotiable instruments in the sense of the law merchant, and that there could therefore be no innocent holder of a school warrant issued without power or contrary to law.

This question is not involved in the instant case. The school district had the power to purchase the school supplies, and to issue its warrant to pay for them.

The directors were expressly authorized by law to purchase supplies of the kind purchased by the appellant, for the district, and, since it had the authority to purchase the supplies, did purchase them, and gave the warrant signed by the directors in payment therefor, the warrant issued in payment for such supplies, is a valid obligation of the district.

This court, in discussing school warrants, said: “The school warrants were orders upon the county treasurer to pay out of the school funds in his hands the amounts specified; and, although the warrants are negotiable in form, and transferable by delivery, they are not negotiable instruments in the sense of the law merchant.” Dubard v. Nevin, 178 Ark. 436, 10 S. W. (2d) 875.

In the above case it was insisted that the writ of mandamus should not be issued against the county treasurer because the officers of the bank did not present the warrants to the treasurer for payment during the first three days they were in the hands of the bank for collection, for the reason that the officers of the bank knew that the treasurer would pay the warrants, and that this might result in hastening the insolvency of the bank, but it was held that, if this were true, it would not defeat the action. The holders of the warrants had, in good faith, sent them to’ the bank for collection; they could not be held liable in any sense for misconduct of their collecting agent.

School warrants do not have to be presented for collection like a check drawn on a bank. They are orders drawn on the county treasurer to pay out of the school funds, and the warrant in the instant ease was registered according to law, and the undisputed proof shows that, after it had been issued and delivered to the present holders, there were ample funds in the treasury belonging to the district to pay it.

There is no dispute about the purchase of the school supplies and the issuance of the warrant, and it therefore is immaterial whether the warrant was negotiable or not. The school supplies were purchased, received by the district and have not been paid for. This being true, the fact that the warrant was payable on demand, and therefore past due when it was transferred, would not deprive the holders of the warrant of the right to collect same from funds in the treasury belonging to the district.

Long after the supplies had been purchased, and after the warrant involved in this suit had been acquired by the appellees, Wood went to the directors of the district' and told them that the warrant had been misplaced and got them to issue another warrant for the amount and interest, although the evidence shows that the warrant was at the time in the possession of appellees, had been sold by Mr. Wood, and he knew it had not been misplaced.

The directors, without the return of warrant No. 1, issued another warrant to Wood, and secured the cancellation of the registration of the original warrant by the treasurer, and this was' done by the treasurer without the original warrant being presented, and Wood transferred this warrant to Whitlow, and it was paid to him.

The court held that the cancellation of the original warrant and the cancellation of the registration of such warrant was all without the knowledge, authority or consent of the appellees, who were then the owners and holders of said warrant, and was fraudulent, unlawful and void, and did not affect the validity of the warrant held by appellees, and that they were entitled to receive payment therefor out of the funds of the district in order of its registration as warrant No. 1; that said warrant should be reformed and corrected, and rendered judgment against Wood, Webb and the American Surety Company of New York, and ordered O. T. Massey, the present treasurer, to pay said warrant.

The question is purely one of fact, and the chancellor’s finding of facts will be upheld unless clearly against the preponderance of the testimony. Kelly Trust Co. v. Paving Imp. Dist. No. 47, 185 Ark. 397, 47 S. W. (2d) 369, Smith v. Thomas, 185 Ark. 613, 48 S. W. (2d) 561 Jolley v. Meek, 185 Ark. 393, 47 (2d) 43, Gravette Const. Co. v. Gregory 184 Ark. 1193, 42 S. W. (2d) 087, Greer v. Stilwell, 184 Ark. 1102, 44 S. W. (2d) 1082.

We do not deem it necessary to set out the evidence in detail. The finding of the chancellor is sustained by the evidence, and the decree is therefore affirmed.


author: McHaney, J.

text:
    Paving District No. 2 of Harrison v. Johnson.
    4-2890
    Opinion delivered February 27, 1933.

      Woods & Jones, for appellant.

      Cotton i& Murray, for appellee.
   McHaney, J.

Appellant district was organized in 1925. The properties of appellees were located in the district. The board of assessors assessed benefits against their respective properties as follows: Johnson, $2,430; G-reenhaw, $1,215, and Shaffer at $2,265. In 1929, acting-pursuant of an order of the board of commissioners, the board of assessors reassessed the benefits against the real property of the district, notice of which was duly published and said readjusted assessment approved by the city council. In such readjusted assessment the property of appellees was assessed as follows: Johnson, $4,430; G-reenhaw, $1,500, and Shaffer, $2,365. No action was taken by appellees regarding the increased assessment of benefits against their properties. Again, in April, 1931, pursuant to another order of the board of commissioners, the board of assessors again readjusted the assessment of benefits against the real property in the district, but no change was made at this time in the assessment of the benefits on the properties of appellees. Each of the ap-pellees took an appeal to the city council, in which they objected to the readjusted assessment of benefits against their respective properties, and prayed that such assessment be restored to the amount at which the properties had been originally assessed in 1925. The city council granted the prayer of appellees and restored such assessments of benefits against their respective properties to the amounts herein first above stated.

Thereupon, appellant filed this action against appel-lees in the chancery court, praying that the action of the city council, in reducing their assessments of benefits, be vacated, and that the readjusted assessment against their respective properties as made in 1929 and as approved in 1931 be reinstated against their respective properties, and have judgment for the taxes due on the readjusted basis. The court held that the city council was without authority to reduce said assessment of benefits, and that its action in attempting to do so is void and should be vacated. The court found, however, that no material improvements had been made on the respective properties of appellees subsequent to the original assessment of benefits, and that the action of the board of assessors in attempting to increase said assessments was void, and entered a decree restoring the assessment of, benefits against their respective properties to the amount of the original assessments made in 1925. Appellant’s complaint against each of the appellees was dismissed for want of equity.

We think the trial court correctly held that the board of assessors was without authority to reassess the benefits against the properties of appellees,” except there had been some material physical change in the» condition of the property since the original assessment which would increase or diminish their value. Section 5664 of Crawford & Moses’ Digest, authorizing a reassessment of benefits, was construed by this court in Street Improvement District No. 74 v. Goslee, 183 Ark. 539, 36 S. W. (2d) 960, in which it was specifically so held, and we are of the opinion that this case is ruled by that.

No material physical change in the property since the original assessment was made. No improvements of such a nature as to increase the value of the property have been made, nor have any improvements been destroyed so as to decrease the value.

It is true that this is a collateral attack on the action of the board of assessors, but, since the board was without power to make the readjusted assessment in this instance, its action is wholly void and open to collateral attack.

We find no error, and the decree is accordingly affirmed.


author: Butler, J.

text:
    Fine v. McGowan.
    4-2891
    Opinion delivered February 27, 1933.

      Rains $ Rains, for appellant.

      Starbird i& Starbird, for appellee.
   Butler, J.

This case involves the construction of the will of Nannie C. Carter, who was the owner of a farm containing 82 acres of land, an additional 80-acre tract, and certain personal property and life insurance. Mrs. Carter died, leaving surviving her husband, John Carter, and four daughters, Mrs. Daisy M. Fine (then Malone), the appellant, Dora E. Patton, Leila Fine and Mary J. McG-owan, the appellee. After providing for the payment of her debts and funeral expenses and directing that her executor convert into money all her personal property and collect the amount of her insurance, and devising to her granddaughter eighty acres of land not included in her farm, and certain other specific bequests, she devised to her husband, for his life or until his remarriage, the use, rents and profits of her farm, provided that on his death or remarriage the 82-acre farm be divided into four portions of 20% acres each in a certain specific manner. Three of these parcels she devised in fee simple on the termination of the particular estate devised to her husband unto Mary McGowan, Leila Fine and Dora E. Patton. The particular estate of the husband was devised by item 5 of the will, which is as follows:

“I give and bequeath unto my beloved husband, John Carter, one bed, ten quilts, two pillows, 1 dresser, 1 commode, 2 rocking chairs, and such kitchen and dining furniture and ware as he may choose out of such articles as I may leave at my death. I also give and devise unto my said husband, until his death or remarriage, the use, rents and profits of my farm in sections seven and eight in township nine of range twenty-nine west, in Crawford County, Arkansas, containing eighty-two acres, more or less.”

The remaining 20% acres was disposed of by item 8 of the will, which is as follows:

“I give, devise and bequeath unto my said daughter, Daisy M. Malone, the use, rents and profits of the residue and remainder in same after the death or remarriage of my said husband, John Carter, of the following described land in Crawford County, Arkansas, to-wit: The west twenty and one-half acres of the east forty-one acres of my farm in sections seven and eight, in township nine of range twenty-nine west, and I give and devise to my said executor, in trust for use of said Daisy M. Malone, and direct and empower him, my said executor, to invest one-fourth of all the rest, residue and remainder of my estate, after the specific legacies hereinbefore provided for, including therein the money arising from my insurance policies, in river-bottom land in this county as near as may be to said land above set apart for her use, and take title thereto of a life estate in said Daisy M. Malone, remainder over to the heirs of her body, if any there be, and, if not, then remainder over to her three sisters, Mary J. McG-owan, Leila V. Fine and Dora E. Patton, in equal shares.”

It was this item of the will that the trial court was called upon by the appellant to construe, it being appellant’s contention there, and she here insists that item 5 of the will created a life estate in John Carter and at his death the fee would vest in the appellant who was at the time of the execution of the will, Daisy M. Malone. Before the beginning of this litigation, John Carter, the husband of the testatrix, had died.

In support of the contention of appellant, counsel cite and rely upon a great number of our cases and particularly stress the cases of Hardage v. Stroope, 58 Ark. 302, 24 S. W. 490; Bell v. Gentry, 141 Ark. 484, 218 S. W. 194; and Pletner v. Southern Lbr. Co., 173 Ark. 277, 292 S. W. 370. We are of the opinion that the appellant mis.-coneeives the import of items 5 and 8 of the will and the effect of onr decisions which correctly apply well-known principles of law to the construction of the particular language of the instruments under consideration. In Har-dage v. Stroope, supra, which is a leading ease, the instrument was a deed, and the particular part construed was the habendum clause, which is as follows: “To have and to hold the said lands unto the said Tennessee M. Carroll for and during her natural life, then to the heirs of her body in fee simple; and if, at her death there are no heirs of her body to take the said land, then in that case to be divided and distributed according to the laws for descent and distribution in this State.”

In Bell v. Gentry, supra, there was the following devise: “I devise to my said executrix all the residue of my real estate as long as she shall remain unmarried and my widow, with remainder thereof on her decease or marriage to my said children and their bodily heirs in the following manner: (naming the children.)”

In Pletner v. Southern Lbr. Co., supra, the devise construed is as follows: “I wish my wife, Artemus P. Gillis, to have the benefit of the homestead, * * * with the remainder of my estate to the said Mary Elmira Godfrey and her bodily heirs, and should the said Mary Elmira Godfrey die leaving no bodily heirs, I wish that portion of my estate to be turned over to my nephew, John M. Gillis, and his children, of Perry County, Alabama, Marion, P. 0.”

In the first-named case the language of the habendum clause was held to convey to Mrs. Carroll an estate in fee by reason of the application of the rule in Shelley’s case. The court. there said: ‘ The intention of the deed in question was to convey the land in controversy to Mrs. Carroll for life, then to her lineal heirs, and, in default thereof, to her collateral heirs; in other words, to Mrs. Carroll for life, and, after her decease, to her heirs. The intention, that the heirs were to take only in the capacity of heirs is manifest. The deed comes within the rnle in Shelley’s case. The estate of inheritance vested in Mrs. Carroll, and she became seized of the land in fee simple.”

As a reason for this holding, the conrt said: “It is obvions that the deed to Mrs. Carroll created in her no estate in tail. Her grantor reserved no estate or interest, nor granted any remainder, after a certain line of heirs shall become extinct, but conveyed the land to her to hold during her life, and then to the heirs of her body in fee simple. No remainder vested in her children. ’ ’

In Bell v. Gentry, supra, it was contended that the children of the testator at the termination of the widow’s life estate took only a life estate with the remainder in fee to their children. In overruling this contention, the court properly held that the fee vested in the children, and said: “The will created a remainder and provided when it should vest, and that was on the decease or remarriage of the widow.”

In Pletner v. Southern Lbr. Co., supra, the court, in disposing of the contention that Mrs. Godfrey held a life estate only under the devise, said: “This court has often ruled that, where land is conveyed or devised to a person and the heirs of the body, children, or issue of such person, such conveyance or devise creates an estate tail in the grantee or devisee, which, under our statute (§ 1499, Crawford & Moses’ Digest) becomes an estate for life only in the grantee or devisee and a fee simple absolute in the person to whom the estate tail would first pass, according to the course of the common law, by virtue of such devise, grant or conveyance. But this familiar doctrine cannot have application here, for the reason that the estate is not devised to Mrs. Mary Elmira Godfrey and her bodily heirs, creating a life estate in her and a fee simple estate in her 'bodily heirs under the statute supra. The life estate, as we have seen, was previously devised to Mrs. Artemus F. Gillis, and the remainder of the estate, after such life estate, was devised to Mary Elmira Godfrey and her bodily heirs. If the testator had intended to vest only a life estate in Mrs. Mary Elmira Godfrey, to take effect immediately npon the death of Mrs. Gillis, he doubtless would have designated the estate to be thus cast on Mrs. Godfrey as a ‘life estate’ instead of as a ‘remainder.’ After he had carved out of the fee a life estate, and then vested the ‘remainder’ in Mrs. Godfrey, he evidently meant to devise to her what remained of the estate in fee simple, which was all of it. The fee took it all, and there was nothing left to devise. To construe the will so as to vest the life estate in Mrs. Gillis and a life estate also in Mrs. Elmira Godfrey would be to make these clauses of the will repugnant and inconsistent. This could not have been the intention of the testator, and such construction must therefore be avoided in order to effectuate his purpose. Therefore, construing all the provisions of the will, it occurs to us that the testator intended to vest in Mrs. Gillis a life estate at his death, and at that time to vest in Mrs. Godfrey an estate in remainder (using the latter term in its technical sense) and, by so doing, to dispose of his entire estate.”

Item 8 of the will under construction in the instant case, correctly interpreted, manifests a single intention, and the concluding language, “remainder over to the heirs of her body, if any there be, and if not, the remainder over to her three sisters, (naming them) in equal shares,” is referable to the 20y2 acres carved out of the farm as well as to the real estate purchased by the executor out of the proceeds of the personal property. Hence its effect, with the direction as to the investment of the proceeds of the personal property in land eliminated, would be as if it read as follows: “I give, devise and bequeath unto my said daughter, Daisy M. Malone, the use, rents and profits of the residue and remainder in same after the death or remarriage of my said husband, John C. Carter, of the following described lands in Crawford County, Arkansas, to-wit: The west twenty and one-half acres of the east 41 acres of my farm in sections 7 and 8, township 9 north, range 29 west, remainder over to the heirs of her body, if any there be, and, if not, the remainder over to her three sisters, Mary J. McGowan, Leila V. Fine and Dora E. Patton, in equal shares.”

Thus interpreted, the language of item 8 of the will is unlike to the language of the habendum clause in the case of Hardage v. Stroope and of the devises in the cases of Bell v. Gentry and Pletner v. Southern Lumber Co., supra.

After the determination of the particular estate in John Carter, if the will had devised the remainder to Daisy M. Malone and to the heirs of her body, etc., then the devise would have been similar in nature to the conveyance and devises above set out, the cases relied upon would be in point, and the- principles upon which they were determined applicable here. But such is not the case. The testatrix here carved two particular estates out of the fee, one to John Carter, her husband, and at its termination, to Daisy M. Malone, her daughter, “with remainder over to the heirs of her body, etc. ’ ’ Under the holding in the cases cited, this would not create an estate in fee in Daisy M. Malone, but in the heirs of her body, if any, and if not, in her three sisters.

In construing wills the cardinal doctrine is that, when the intention of the testator has been ascertained by consideration and comparison of the will in its entirety, such intention must prevail and be enforced unless contrary to some well-recognized rule of law. Technical words used in a will are generally construed according to their technical meaning. It is apparent that for some reason, best known to the testatrix, she was unwilling to devise the fee in the parcel of land to the appellant. This is to be inferred by the express language used and by the fact that, with the same particularity and in no uncertain terms, she conveyed the fee in the other three parcels to her other three daughters. She did not convey to the appellant to hold during her lifetime and then to the heirs of her body in fee simple as was done in the Stroope case, but, in plain language, provided that at appellant’s death the remainder should vest in her heirs, if any, and if not, in her three sisters, the other daughters of the testatrix. The testatrix used the language to create a life estate in the appellant, as the court suggested the testator might have done in the Pletner case if a life estate had been intended. It must be assumed that the testatrix used the term “remainder” in its technical sense and to mean that, at the termination of the particular estate in Daisy M. Malone, it should vest in the remaindermen in fee. “Whether vested or contingent, it is essential to a remainder * * * and is an imperative rule of law, that it should take effect immediately on the termination of the prior estate, the particular estate and remainder together forming one continuous ownership. * * * From the doctrine above stated, that the particular estate and the remainder form together, when united, but one estate of the extent or duration of the two, it follows that, while ever so many remainders in succession may be carved out of a fee simple if each is less than a fee, no remainder can be limited after a fee; for, when a fee has once been created, there can be nothing left by way of remainder to give away.” 2 Washburn on Real Property, p. 504.

The particular estate and the remainder were never united in the appellant, and therefore the fee did not vest in her, but remained dormant during her life tenancy to become vested at her death in the remaindermen. We are of the opinion that there is nothing in the cases cited by appellant in conflict with the conclusion we have reached, but, on the contrary, that they support our view. It follows that the decree of the chancellor is correct, and it is therefore affirmed.

McHaney, J., dissents.


author: Humphreys, J.

text:
    Drake v. Kitchens.
    4-2995
    Opinion delivered March 6, 1933.

      John G. Sheffield, Peter A. Deisch and Moore, Dag-gett & Burke, for appellant.

      Jo M. Walker, Edwin Bevens and W. G. Dinning, for appellee.
   Humphreys, J.

On petition of appellant, a writ of certiorari was issued out of this court to bring up the record in a habeas corpus proceeding by appellant against appellee in the chancery court of Phillips County, on the trial of which the writ of habeas corpus was denied.

It was alleged in appellant’s petition for a writ of habeas corpus that he was held and confined by appellee, sheriff, in the county jail of said county under an invalid commitment issued by Leo J. Mundt, claiming to be the judge of the municipal court of Helena, Arkansas.

In the response filed to the petition by appellee, he admitted that he was holding appellant in said jail under a commitment for robbery issued by Leo J. Mundt, judge of the municipal court of Helena, but denied that the commitment was invalid.

The cause was submitted upon the petition, response, and an agreed statement of facts, which is as follows:

“It is hereby stipulated and agreed that the following facts shall be taken as true and shall be used as the testimony on which the court may base its findings.

“First, that a vacancy existed in the office of municipal judge of the city of Helena, Arkansas, on the 30th day of December, 1932.

“Second, a commission was issued by the Governor of the State of Arkansas to one Charles W. Straub purporting to appoint Charles W. Straub the municipal judge of the city of Helena, Arkansas. The said commission issued on the 31st day of December, 1932.

“Third, that the city council of the city of Helena, Arkansas, refused to be bound by such appointment, and on the 3'lst day of December, 1932, the said city council of the city of Helena, Arkansas, met in special session duly and legally called and held and on the said date and at such meeting duly and regularly appointed and elected Leo J. Mundt as municipal judge of the said city of Helena, Arkansas.

“Fourth, thereafter and immediately following the election and appointment of the said Leo J. Mundt as municipal judge by the said city council of the said city of Helena, Arkansas, the said Leo J. Mundt took, and has ever since that time held, physical possession of the said office. The said Leo J. Mundt has uninterruptedly, since his appointment, regularly held the said court at the time and place designated by law. He has complete and exclusive charge of all papers, records and dockets pertaining to the said court, all by order of the city council of the city of Helena, Arkansas. The regularly and duly elected city clerk of the city of Helena, Arkansas, has been acting as the clerk of said municipal court, obeying only the orders of the said Leo J. Mundt; this by the order of the said city council; that no docket entries, nor orders have ever been made by the said clerk of the municipal court except such as have been made by the said Leo J. Mundt.

“That the said C. W. Straub undertook on five occasions to hold the said court. On such occasions he acted without the records of the said court, except warrants that had been issued by himself in county cases, having no dockets nor any papers nor other records pertaining to the said court. No judgments or other docket entries have been made on the order of C. W. Straub by the clerk of the municipal court. This was by order of the mayor and city council of the city of Helena, Arkansas.

“That on the 2d day of January the county court ordered and directed E. Gr. Howard, clerk of the municipal court to deliver over to C. W. Straub all dockets and records in civil, county and State cases, and the said order was duly served on R. Gr. Howard, and he refused to obey said order of the county court and refused to deliver possession of said court records to C. W. Straub as therein directed.”

It was not alleged, and the agreed statement of facts does not reflect, that the process of commitment was issued out of a court that had no jurisdiction over the crime charged or that the process was void for any other reason than that the judge who presided over the court and signed the commitment was not entitled to hold the office.

The general rule announced in 29 C. J. page 40, § 32, is as follows:

“If the court qr office is of recognized legal existence and the officer is at least a de facto officer and not a mere trespasser, his legal title to that office cannot be questioned in a habeas corpus proceeding.”

This court said in the case of Ex parte Andreiv Jackson, 45 Ark. 158 (quoting syllabus three) that:

“"Where one is held in custody for crime upon void process of commitment or without any process, a chancellor may discharge him upon habeas corpus; but, if the process be valid, and the prisoner not entitled to bail, the chancellor cannot go behind the process to determine whether there was error in the proceedings.”

This court also said in the case of Keith v. State, 49 Ark. 439, 5 S. W. 880, that the right to office cannot be questioned collaterally.

Neither one of the claimants to the office of municipal judge are parties to the proceeding, and, in order to try the title to the office, both should be parties in a proper proceeding for that purpose.

This proceeding is clearly a collateral attack upon the judgment of a de facto, if not a de jure, official and cannot be maintained.

The decree denying the writ of habeas corpus is affirmed.


author: McHaNey, J.

text:
    Raley v. Grayson.
    4-2759
    Opinion delivered December 5, 1932.

      F. G. Taylor, for appellant.

      E. L. Holloway, for appellee.
   McHaNey, J.

On the 10th day of January, 1925, J. T. Grayson and his son, H. P. Grayson, executed and delivered their promissory note to C. ¡Bauschlicher in the sum of $225 for money borrowed by H. P. Grayson from the latter, with interest at 10 per cent, from date, payable annually, and due one year after date. J. T. Grayson died before the maturity date of the note, and early in 1929 said note was placed in the hands of Mr. C. 0. Raley for collection. After trying’ to collect the note from the heirs without success, he proceeded to take out letters of administration in his own name, probated the claim and allowed it, and took the necessary statutory steps in order to sell certain land owned by J. T. Grayson at the time of his death, there being no personal property out of which to pay same. Thereafter, on August 17, 1929, the land was sold by the administrator to the creditor. Thereafter the appellees filed exceptions to the procedure and sale, objected to the appointment of Raley as administrator, asked that his letters of administration be revoked, and that all of his proceedings in the premises be declared* void. The probate court overruled his exceptions, and an appeal was prosecuted to the circuit court, with the result that the court held that the administration was void and that the sale of the land and all proceedings had and done by the administrator were likewise void. The administrator has appealed.

We think the court correctly so held. Mr. Bau-schlicher testified as follows: “After Mr. Grayson’s— J. T. Grayson’s — death, I told them it was all right with me that they should take charge of the place and the personal property of Mr. Grayson. I didn’t want no letters taken out. I tried to collect the money from Perry. I agreed to let the heirs take control and manage the property, without administrator.” This clearly shows an agreement that the heirs might handle the estate of their father without administration. The proof conclusively shows that the heirs were all of age, and that Bauschlicher was the only creditor of the estate. In such cases § 1, Crawford & Moses’ Digest, is controlling. It reads as follows: “When all the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, and to manage, control and dispose of such estate without any administration being had thereon in all cases where the creditors of such estate consent or agree for them to do so, * * *; and in every such case, after they have taken such control and management of the estate, no letter of administration shall be granted thereon, or, if granted, the same shall, on their application, be revoked.”

Mr. Bauschlicher’s own testimony shows that he agreed for the heirs “to manage, control and dispose of such estate without any administration being had thereon,” and, he being the only creditor, had the right to make the binding agreement to this effect, and the statute is very clear that thereafter no letter of administration shall be granted, and, if granted, shall be revoked upon petition of the heirs.

The circuit court correctly revoked the letters of administration, and canceled as void all proceedings of the administrator, and the .judgment must accordingly be affirmed. It is so ordered.

Kibby, J., dissents.

      See Adamson v. Parker, 74 Ark. 168 (Rep.).


author: Smith, J.

text:
    Jefferson Bank of St. Louis, Missouri v. Little Red River Levee District of White County.
    4-2736
    Opinion delivered January 9, 1933.

      Culbert L. Pearce, for appellant.

      Brundidge & Neelly, for appellee.
   Smith, J.

Little Jied Biver Levee District No. 1 of White County (hereinafter referred to as the district) was organized on April 7,1913, by the order of the county court of White County, under the general law providing for the creation of levee improvement districts. Sections 6811 et seg., Crawford & Moses’ Digest. To expedite the construction,work, bonds were issued and sold pursuant to the authority conferred by law, and a resolution was passed by the board of directors distributing the payment of betterments over a period of twenty-five years from 1913 to 1938, inclusive.

Tbe appellant bank brought this suit, and for its cause of action alleged that it was tbe owner of six of these bonds, each in tbe sum of $500 ; that two of tbe bonds bad matured January 1, 1929, two on January 1, 1930, and tbe other two on January 1, 1931, and that neither these bonds nor the interest thereon had been paid. It was alleged that the district, to secure the payment of these and other bonds, had executed a pledge in writing of all revenues derived from taxes levied upon the real estate within the district, which pledge had been delivered to the Mercantile Trust Company, of St. Louis, Missouri, as trustee, and that it was the duty of the trustee under the pledge to take appropriate action to see that the betterment assessments were collected and the bonds paid from the proceeds of the collections, but that the said trustee had declined to act unless the plaintiff indemnified it against costs, expenses and attorney’s fees in a sum designated by the trustee, which offer plaintiff declined and brought suit in its own name.

The right of the plaintiff to sue is questioned; but we think it had that right. The trustee was made a party defendant, and the plaintiff, as a creditor, had the right to demand the payment of its debt in the manner provided by law. As an incident to the enforcement of its demand for the payment of its debt, it had the right to require the officers of the district to apply the taxes of the district to the uses and purposes for which they had been collected. The complaint alleged there had been waste and mismanagement in the affairs of the district; that the taxes had not been collected with diligence, and that excessive and unauthorized fees had been paid to the officers of the district. It was prayed that a receiver be appointed to take over the affairs of the district; that its officers be required to account for its assets, and that an acceleration of the collection of betterments be ordered to the end that the maturing bonds and the interest thereon might be paid.

The act under which the district was created and the bonds issued contained no provision for the appointment of a receiver for the district upon its default in meeting its obligations, and the court properly refused to appoint a receiver for the district. The court can and will make such orders to the directors of the district as are necessary to require them to perform their duties under the law. Paving Dist. No. 5 v. Fernandez, 142 Ark. 21, 217 S. W. 795; Martin v. Hargrove, 149 Ark. 383, 232 S. W. 596; South Miller County Highway Dist. v. Dorsey, 174 Ark. 553, 297 S. W. 833; Sloan’s Improvement Districts in Arkansas, § 477; Guardian Savings & Trust Co. v. Road Imp. Dist. No. 7, Poinsett County, 267 U. S 1, 45 S. Ct. 201.

It is definitely settled that an improvement district may be required to accelerate the collection of the better-ments assessed in the district, and that this may be done by increasing the per cent, of the betterments to be collected in a particular year, provided the total assessments ordered to be collected shall never exceed the total amount of betterments assessed in the district, and the total assessments against any particular property shall never exceed'the betterments assessed against that piece of property. There is, at all times and under all circumstances, a constitutional inhibition against collecting upon any property any sum in excess of the betterments assessed against it. Griffin v. Little Red River Levee Dist., 157 Ark. 590, 249 S. W. 16; Chicago Mill & Lbr. Co. v. Drainage Dist. No. 17, 172 Ark. 1059, 291 S. W. 810; Arhansas-Louisiana Highway Imp. Dist. v. Pickens, 169 Ark. 603, 276 S. W. 355.

The court declined to order an acceleration of the collection of the betterment assessments, and it is earnestly insisted that this was error. But it does not appear to be so. The complaint alleged that the per cent, of the betterments ordered to be collected each year, made at the time of the bond issue, would suffice to pay the maturing bonds and the interest thereon if the collections were made and were not diverted to meet certain overhead and operating expenses. The testimony shows that for some years the district had been operated as a one-man affair; this person being the secretary and treasurer of the district. Elections of directors were not held „ as required by law to fill vacancies in the office of directors as the terms of such officers expired. The secretary and treasurer of the district, who was also the collector of taxes for the district, made no report of his collections, and had given no bond as required by law.

A loss of the district’s funds had been sustained through the closing of the bank in which they had been deposited, and the plaintiff sought to charge the amount thereof against the treasurer.

The secretary and treasurer was ordered to file a report of all moneys collected and disbursed during his incumbency, extending from May 15, 1916, to December 14, 1932. This report has not been filed and acted upon.

The records of the district show that at a meeting of its directors in 1921 it was ordered that the secretary and treasurer be allowed a salary of $40 per month “from June 15, 1916, until otherwise ordered,” and that officer appears to have paid his salary from time to time as follows: Instead of drawing a warrant upon himself as treasurer, as he should have done, he marked the taxes paid on so much of his land lying in the district as equaled the amount of his salary.

•Section 6845, Crawford & Moses ’ Digest, of the General Levee District Act, supra, provides that the board of directors shall, at their annual meeting on the first Monday in May, or as soon thereafter as practicable, elect a treasurer for the district, whose term of office shall continue until the first Monday in the following May, or until his successor is elected and qualified, and that such treasurer, upon giving bond, shall receive such compensation as from time to time may be fixed by the board of directors. This statute contemplates that the compensation of the treasurer shall be paid from time to time during each year of his election, and it should have been paid by warrants drawn upon the treasurer. It was a gross irregularity for it to have been otherwise paid. But the secretary was also the treasurer, and, instead of drawing his salary warrant upon himself as treasurer, he marked his taxes paid to the extent of his salary. Having marked these taxes paid, he stands charged with the amount thereof, and thus he paid his salary, instead of drawing it in the manner contemplated by law, and with that money paying his taxes, as he had the right to do.

The procedure is subject to the severest criticism, but the directors of the district appear to have acquiesced in that action, and it does not appear equitable to require the officer to sustain this loss, as no profit resulted to him from the irregularity, nor did the district sustain any loss. A different method of bookkeeping should have been employed, but, had this been done, the same result would have been reached.

The court ordered the directors holding over as such to call an election for the purpose of electing three directors, to serve for one, two and three years, respectively, and that these directors elect a secretary and treasurer and require a statutory bond to be executed by him.

Under the facts stated, an acceleration of the collection of betterments may not be required; and we do not reverse the decree because of the failure of the court to order this done. The money to be derived under the audit now in progress may suffice to meet these obligations.

There appears, however, to be error in the decree in allowing the secretary and treasurer credit for the deposit which was lost upon the failure of the bank in which it had been made. It is insisted that the treasurer was “simply an officer of a quasi public corporation,” and that he is liable for the loss of this money in the event only that his negligence had contributed to the loss; and it was not so contended.

We are of the opinion that the treasurer is responsible for this money, although he was not guilty of negligence or bad faith in depositing it in the bank which failed. He was a public officer and did not comply with tlie provisions of § 1 of act 182 of the Acts of 1927, page 634, entitled, “An act requiring the commissioners and treasurers of all improvement districts in this State to require depositories of the funds of such improvement districts to give surety bond for the full amount deposited.” Epstein v. Kansas City Life Ins. Co., ante p. 451; Huffstuttler v. State use White County, 183 Ark. 993, 39 S. W. (2d) 721.

The account of the treasurer will therefore be charged with the amount of this deposit, and, as his account is being audited in the court below, the cause will be remanded with directions to disallow this credit, but the court will allow a credit as was originally done on account of salary.


author: Kikby, J.,

text:
    James v. Helmich.
    4-2930
    Opinion delivered February 20, 1933.

      Fred A. Snodgress, Guy Fulk, Jr., and Shields M. Goodwin, for appellant.

      Ernest Briner, for appellee.
   Kikby, J.,

(after stating the facts). Appellants insist that they are entitled to recover in this cause under the provisions of the statute, § 10,507, Crawford & Moses’ Digest, their names being omitted from the will, as though the testator had died intestate, and the contention must be sustained. Rowe v. Allison, 87 Ark. 206, 112 S. W. 395.

Under the statute and its construction, appellants are entitled to inherit as though the testator had died intestate, in which event each would be entitled to one-half of the estate, since one was the adopted child and the other sole and only heir at law and legal representative of the other adopted child, and both were living on April 23, 1924, when the will was executed, and neither was mentioned or referred to therein. The rights of legally adopted children are the same as the rights of those born in wedlock. 24 E. C. L. 84.

Neither is there any merit in the objection that the suit should have been instituted in the chancery court instead of the probate court as expressly provided in said statute, § 10,507, Crawford & Moses’ Digest, as construed in Rowe v. Allison, supra. There is no contention that fraud had been perpetrated on appellants in the administration of the estate, it being conceded that the administration of the estate was free from fraud, and it is undisputed that the executor or the church had no knowledge of the adoption of the appellants by the testator until shortly before this suit was filed in 1931.

It is next contended that the claim of appellants to the estate is barred 'because no appeal was taken by them from the order approving the final settlement of the executor. It is stipulated that appellants had no knowledge of the death of the testator until more than two years after the settlement had been approved, when it was too late, of course, to take an appeal from the order of approval. The will was probated in, common form without notice having been given, and there was no effort made during the administration of the estate of Troeger, which began on April 27, 1925, and was concluded on March 26, 1928, upon the approval of the final settlement and distribution of the executor, to obtain jurisdiction over appellants or any other persons who might have been interested in the probate of the will under the provisions of the statute, §§ 10,522 to 10,525, Crawford & Moses’ Digest. The order of approval and confirmation of the final settlement of the executor were conclusive only of the matters embraced in the settlement, the court finding only that the assets of' the estate had been reported and administered in the proceeding of which appellants had had no notice, either actual or constructive, and it did not operate to bar appellants from asserting their claim to the estate distributed to the trustees of the church upon their learning of the death of their foster parent and the improper distribution of the funds of the estate. Beckett v. Williamson, 92 Ark. 230, 122 S. W. 633. See also Scott v. McNeal, 154 U. S. 34, 30 L. ed. 896. The order of the probate court distributing that part of the estate to the church instead of the children surviving the testator, whose adoption was unknown at the time of the administration, was void as against them.

Since there is no special statute of limitations providing when or the period within which pretermitted children must bring suit to recover their share in the estate, they had 5 years in which to do so under the provisions of the statute, § 6960, Crawford & Moses’ Digest. See also Hill v. Wade, 155 Ark. 490, 244 S. W. 743. The money was not paid by the executor to the church until March 2, 1928, and the rights of appellants could not have arisen until the wrongful distribution of such money, and the statute began to run against them on the said date of its payment, and they were not barred by the 5-year statute of limitations, this suit having been instituted in 1931. Neither were they barred by laches, having brought the suit within the time allowed.

The court erred in not holding the appellants entitled to judgment for their claim, and the judgment must be reversed, and the cause remanded with directions to enter judgment in favor of the appellants, and for their costs. It is so ordered.


text:
    Castellaw v. Taylor.
    4-2877
    Opinion delivered February 27, 1933.

      C. A. Holland, for appellant.

      R. W. Robins, for appellee.
   Smith, J.

There appears to be no substantial conflict in the testimony heard in the court below in the decision of this case in that court. The facts were as follows: Castellaw Brothers are merchants at Quitman, Arkansas, and are also engaged in buying cotton, which they sold at Conway, a city thirty-five miles distant from their place of business. The transaction out of which this litigation arose was similar to a number of others, and may be briefly related.

On November 20, 1930, Castellaw Brothers sent a truck, carrying six bales of cotton, from Quitman to be sold at Conway. An agent of Anderson Clayton Cotton Company at Conway bought the cotton, and gave the truck driver a price ticket, which the latter carried, with the cotton, to the compress at Conway, where the cotton was delivered and weighed and a compress receipt issued therefor. The driver took the price ticket and the compress receipt to the Faulkner County Bank & Trust Company in Conway, and that bank paid for the cotton. The driver of the truck had the option to receive either money or a check from the bank, but, pursuant to the direction of his employers, he received a cashier’s check for $319.96, the price of the cotton. Upon his return to Quitman, the truck driver delivered the check to his employers, who indorsed the check and deposited it for collection for their account with a bank at Quitman. "When the bank at Conway had paid for enough, cotton in this manner to load a railroad car, the cotton would be shipped to Anderson Clayton Cotton Company, with draft covering all the cotton in the car attached to the bill of lading. This draft was not for any particular cotton, but covered all the cotton in the car.

The owners of the cotton were not required to await the cashing of the draft accompanying the bill of lading, but had the option to receive cash or a cashier’s check, and, as has been said, the six bales here involved were paid for with a cashier’s check. The bank at Quitman forwarded the check to its Little Bock correspondent for collection, but before the collection had been completed in the usual manner the Conway bank closed its doors. The Little Bock bank returned the check to the bank at Quitman, and that bank charged the check back to the account of Castellaw Brothers. This check was filed with the Deputy Bank Commissioner, who was winding up the affairs of the bank at Conway, as a preferred claim. The chancellor denied the claim of preference, and allowed it as a general claim against the bank, from which order is this appeal.

The case of Taylor v. Dermott Grocery & Commission Co., 185 Ark. 7, 45 S. W. (2d) 23, is decisive of this case. The headnote in that case reads as follows: “The payee of a depositor’s check, indorsing it and accepting a casbier’s check from the drawee bank which was not paid on account of the failure of the bank, held not entitled to preference under Acts 1927, No. 107.”

In the case cited, the bank honored the check of a depositor, but, instead of paying in money, payment was made with a cashier’s check. Here the Conway bank honored the price ticket and the compress receipt just as it would have done a check pursuant to a prior understanding with Anderson Clayton Company to that effect. It did not pay in money, as it would have done if requested, but paid with a cashier’s check. This check was not deposited with the Conway bank, but upon its acceptance the payee became a mere creditor of the bank, the amount of the indebtedness being evidenced by the check. As was said in the Taylor v. Dermott Gro. & Com. Co. case, supra: “No new funds were deposited in the bank, but the bank simply shifted the liability from one creditor, Townsend, to another creditor, appellee.”

So here there was no accession to the funds of the bank, which charged the amount of the cashier’s check, which it had issued to Castellaw Brothers, to the account of Anderson Clayton Cotton Company.

The decree of the court below, holding that Castel-law Brothers were creditors only, is correct, and it is therefore affirmed.


text:
    Pine Woods Lumber Company, Ltd., v. Cheatham.
    4-2878
    Opinion delivered February 27, 1933.

      A. L. Burford and B. E. Carter, for appellant.

      McKdy & Smith, for appellee.
   Humphreys, J.

This is an appeal from a judgment of $1,'250 obtained by appellee against appellant in the circuit court of Columbia County for an injury received through the negligence of a fellow-servant. A reversal of the judgment is sought upon the ground that the undisputed testimony reflects that both appellee and his fellow^servant were employees at the time of the injury of J. M. Deckard and not employees of appellant.

Appellant introduced three witnesses, J. M. Deckard, J. C. Donnegan, its foreman and logging superintendent, and D. Gr. Tyler, its bookkeeper, who testified concerning the kind of contract existing between appellant and J. M. Deckard at the time appellee received his injury. J. M. Deckard testified that appellant was the owner of certain timber, which he agreed to cut and haul for it from the land to its logging road for $4 per thousand, he to furnish the teams, equipment and men necessary to do the work; that he cut and sawed the trees into logs of lengths directed by appellant’s woods foreman ; that he employed and discharged his own men and paid them without instruction, direction or supervision of any of appellant’s employees, and, at the time appel-lee was injured, both appellee and the driver who caused the injury were his employees and on his payroll; that his employees traded at appellant’s commissary, and that what they bought was charged to him and paid for by him and deducted from the wages of said employees when he made up his payroll; that when he made up and presented his payroll, the company would issue him a check for the total amount, and that he would cash the check and take the money to Mr. Tyler, appellant’s bookkeeper, and ask him to put each employee’s wages in an envelope and hand it to him when he called for it; that Mr.- Tyler used appellant’s pay envelopes in doing this because he had no others; that appellant had no teams in Arkansas; that he requested Mr. Tyler to procure insurance for him on employees and deducted premiums from amounts due him on settlements; that, when appellee was injured, he made the proofs to the insurance company and directed him to go to Tyler and collect same, which he did.

Deckard was corroborated in all essential particulars by the testimony of J. C. Donnegan, the woods foreman and log superintendent of appellant, who made the contract with Mr. Deckard. The testimony of Deckard was also corroborated by that of D. Gf. Tyler, who was appellant’s bookkeeper. Tyler stated that they settled with Deckard once or twice, a month, and, in doing so, figured up what was coming to him on the basis of $4 per thousand on scale showing how many feet he put on the track, and deducted therefrom his feed bills, any advances he might have received, and his payroll check; that he handled two of the payrolls upon which appellee’s name appeared and that he was paid at Deckard’s request; that the payrolls showed that they were Deckard’s payrolls.

It was admitted by appellee and one of his co-employees, who testified in his behalf, that Deckard1 employed and directed them in their work, and that no other employee of appellant gave them any directions or instructions in the performance of their work. They both claimed to be employees of appellant because they were handed their wages by appellant’s bookkeeper in appellant’s pay envelopes and because appellee received his insurance money from appellant’s bookkeeper, and that on one occasion appellee asked Deckard to get his wages, and that Deckard asked him to give him an order for same.

We do not think these circumstances in themselves sufficient to warrant the court in submitting the question to the jury of whether appellee and the fellow-servant who caused his injury were in the employment of appellant, or in the employment of Deckard as an independent contractor. The first two circumstances were satisfactorily explained as matters of convenience, and the third circumstance was so slight and unimportant that it cannot be regarded as sufficient substantial testimony to support a verdict.

The testimony, in all essential parts, reflected, without substantial dispute, that Deckard was an independent contractor and that appellee and his felloe-servant, who was responsible for Ms injury, were in tbe employment of Deckard and not appellant.

Tbe court erred, under tbe evidence adduced,- in not instructing á verdict for appellant, so tbe judgment is reversed, and tbe cause is remanded for a new trial.


author: Mehaeft, J.

text:
    Kirk v. Bonner.
    4-2889
    Opinion delivered February 27, 1933.

      O. E. Pike, for appellant.

      G. N. Carpenter, for appellee.
   Mehaeft, J.

On December 30, 1930, tbe appellant filed snit in the circuit court of Arkansas County against tbe appellee, alleging that she and tbe appellee entered into an. agreement on October 5, 1925, by which she rented to the appellee certain property in DeWitt, Arkansas, for rental of $20 per month; that appellee took possession of said property, bnt had paid nothing on the rent except $50. It was alleged that 10 days’ notice was given, ihnt that appellee refused to deliver possession, and refused to pay the rent due, and she asked judgment, for rent in the sum of $350, and in the sum of $40 as damages for unlawfully detaining the property. The appellant filed affidavit and gave bond required in suits of unlawful detainer.

At the time of filing the suit, she filed a written stipulation signed by W. H. Bonner, appellee, wherein he agreed to waive issuance of summons, and entered his appearance in the court.

Thereafter judgment was entered for the sum of $350 with interest, and also for possession of the property.

On July 1, 1932, an execution was levied and notice of sale published by the sheriff, and proof of publication filed and report of sale made.

On July 25, 1932, the appellee filed a complaint and petition to vacate the judgment rendered at the January term, 1931. In this motion he alleged that there was no such person as Mrs. Fern Kirk, and denied that any process of any kind was ever served in the original suit. He also alleged grounds for defense to the original suit.

On October 10, 1932, Mrs. Fern Kirk filed motion to dismiss the complaint and petition filed by appellee, and alleged that appellee had not set out any of the statutory grounds necessary to vacate a judgment after the term at which it was rendered.

The court heard testimony and found that the entry of appearance of Bonner was not obtained by fraud, and that Carpenter was attorney but not employed by Bonner in this particular case, but held that the stipulation signed by Bonner and filed with the papers was not sufficient to constitute service as required by law, and that the service should be quashed, and the judgment vacated. From this order, appellant prosecutes this appeal.

Appellee first contends that the appeal is not properly before this court because the motion for new trial was not filed in proper time. The record as to motion for new trial does not state the date on which it was filed. The indorsement, however, on the motion itself shows that it was filed on October 17. The case was tried on October 11, and appellants attorney states that, at the time the judgment was entered on October 11, he was granted permission to file the motion for a new trial, and was given 60 days in which to file bill of exceptions. He discovered immediately that the judge had failed to note on his docket the filing of a motion for a new trial, overruling the same, and giving 60 days in which to file bill of exceptions. When appellant’s attorney discovered that the record did not show the filing of the motion, he immediately asked the clerk to send the docket sheet to the circuit judge requesting him to make proper entries, and at the same time filed the motion for new trial, dating it on the same day that it should have been presented and overruled; that the circuit judge held the request until several days later when he again opened court at DeWitt, and at that time overruled the motion for new trial.

Whether all these things are true, it is impossible to tell from the record, but the record does show that the court acted on a motion for new trial and overruled the same without stating that it was not filed in time. From the record we are unable to say that it was not filed within the time fixed by statute, or allowed by the court. It is immaterial when it was overruled, so that it was overruled during the same term of court.

In addition to this, we think error appears on the face of the record, justifying a reversal of the case.

It is next contended by the appellee that there was no service, and that the stipulation ■ entering appearance of Bonner was not sufficient to give jurisdiction to the court.

The first case relied on by appellant as supporting this contention is Clary v. Morehouse, 3 Ark. 261. The court there, after stating how suits were instituted in the circuit courts, stated: “The requisitions of the statute do not appear to have been observed or complied with, for, as before remarked, no writ was ever issued, nor was there any voluntary appearance to the proceeding on the part of either of the defendants. * * *”

“The indorsement on the declaration purported to have been signed by Clary and Webb, being nothing more than a simple agreement by which they acknowledge service of the declaration and waive the necessity of any process issuing thereon, could not be regarded by the court for any purpose; nor could it in any manner subject them to the same legal consequences as if they had failed to appear in the action upon the service of a valid writ requiring such appearance; because the law does not regard such acts or agreements of the parties to a suit, not made in the presence of the court or entered on the records, as possessing in themselves such absolute verity as the official acts of the accredited officer of the court, etc.”

In the next case cited by appellant, Ex parte Gibson, 10 Ark. 572, the court said: “We are aware that the former decisions of this court with regard to constructive notice, and in some other cases, have not given entire satisfaction to the bar. Without being understood as expressing any opinion as to whether in some instances the rule may not have been extended too far in cases of constructive notice, we think in the case before us the rule heretofore adopted by this court should not be changed.”

The instrument relied on as giving the court jurisdiction in the above case was as follows: “I, Abraham Clark, do acknowledge due and legal service of the within writ, and promise to enter my appearance at the next term of the Scott Circuit Court, this 17th October, 1839.”

The above statement was indorsed on the back of summons and signed by Clark. It will be observed that there was merely a promise to enter his appearance, and not a signed statement entering his appearance.

The instrument relied on in the instant case, as entering the appearance of Bonner, gave the style of the court, the parties plaintiff and defendant, and the number of the case. The caption was, “Entry of Appearance and Waiver of Summons,” and continued as follows:

‘ ‘ On this day the third day of December, 1930, comes the above-named defendant, W. H. Bonner, and hereby agrees to enter his appearance in the above-styled action, whether filed on this day or to be filed later, and the said W. H. Bonner, does hereby enter his appearance in the above-styled actions and waives the issuance of summons herein.

“ (Signed) W. H. Bonner.

“Piled in my office Dec. 3, 1930, P. E. Stephenson, Clerk. ’ ’

This was unlike the instruments signed in the cases cited by appellee. This was an actual entering of the appearance. This suit was prepared by Senator Basco, before his death, who was a lawyer engaged in practice at DeWitt, Arkansas. Senator Basco died before this suit was brought, but the stenographer who worked for him testified at length. She testified that Mr. Bonner came to the office several times; that he was advised about the suit, and was told what the amount of the rent was; he knew who was bringing the suit, and, according to the testimony of the stenographer, which is undisputed, he agreed to sign a stipulation waiving summons, and entering his appearance in order to save costs. She was asked if Mr. Bonner knew what the case was about and answered:

“Yes, sir, we explained, it to Mm in the letter we wrote him; also in a conversation in our office. We took this waiver of service and filed it along with the complaint, same as we did the sheriffs summons.”

She also testified that Mr. Rasco had prepared a waiver of service, and entry of appearance,. and Mr.. Bonner did not sign this instrument, but took it to Mr. Carpenter, and came back with the instrument above quoted, which had been prepared by Mr. Carpenter, and Mr. Bonner signed it in Mr. Rasco’s office. It, according to the secretary’s testimony, and the summons were filed with the complaint. '

Another case cited by appellee is Nunn v. Sturges, 22 Ark. 389. In that case the court said:

“Everything upon the face of the transcript of the judgment shows that it was obtained in a different proceeding from any suit that is conducted according to the observances of our courts or the practice of the common law. And, as the court was evidently one of superior or general jurisdiction, one that must be taken, in the absence of proof to the contrary, to have had jurisdiction of the subject-matter of the suit, we must take it for granted that it would not have proceeded to render judgment without first obtaining jurisdiction of the person of the debtor, the action appearing to be a personal action. It also appears that the court considered the indorsement equivalent to personal service, and to a confession of judgment, in open court, and we must presume that the court acted according to law. Besides, to us the plain meaning of the indorsement is that Nunn thereby entered his appearance to the action begun by the petition, waiving the formality of citation, that is, waiving and in fact acknowledging the notice, the alleged want of which is the subject of Nunn’s second plea.” '

The plain meaning of the instrument signed by Bonner is that he waived the service of the summons, and entered his appearance in the circuit court. He did this, evidently, for the purpose of saving costs. If the instrument does not mean this, it is meaningless, and he had a right to enter his appearance, and, when he did so, the court had jurisdiction to render a judgment against him.

There is some conflict in authorities as to whether one may enter his appearance before process has been issued, but we know of no reason why one may not sign and permit to be filed, an instrument entering his appearance in the suit. He knew who the plaintiff was, he knew what court the suit was in, and he knew he was defendant, and knew he was being sued for rent, because the instrument prepared by Mr. Carpenter, who represents him, gave the style of the court and the names of the plaintiff and defendant, and was prepared by Mr. Carpenter, his attorney, at his request.

“Although no process has issued against a party, it seems that, if such party has a right to save or an interest to protect, he may enter an appearance.” 4 C. J. 1324.

“On the foregoing statement it is evident that the Alabama court accepted and treated the aforesaid agreement as an appearance in said cause then pending, and based its subsequent decree against the defendants personally thereon; and the question for decision by this court is whether its judgment is and was valid and jurisdictional. We think it was manifestly so. The meaning of the phrase, ‘We hereby enter our appearance to said cause,’ means just what it says, and an appearance in a pending cause signifies an appearance for every purpose in said cause. Otherwise it would be meaningless. It was prepared, as its language and terms fully import, for use in that suit, and the defendant is conclusively bound thereby.” Mutual National Bank of New Orleans v. Moore, 50 La. Ann. 1332, 24 So. 304.

Any action of a defendant which amounts to an intention to enter his appearance and be in court is a voluntary appearance. A voluntary appearance may be by formal writing as in this case, or it may be by informal parol action, but in either case, if it is manifestly the intention by the formal writing to enter his appearance, he will he held bound by his act. Stephens v. Ringling, 102 S. C. 333, 86 So. 683.

Having entered his appearance, it- was appellee’s duty in that suit to interpose all the defenses he had. The court found in its judgment that. W. H. Bonner had entered his appearance in form and manner as prescribed. by statute. See Chapman & Dewey Lbr. Co. v. Bryan, 183 Ark. 119, 35 S. W. (2d) 80; Galloway v. LeCroy, 169 Ark. 833, 277 S. W. 45; Purse Bros. v. Watkins, 171 Ark. 464, 284 S. W. 533; Soloman v. Carroll, 175 Ark. 86, 298 S. W. 483; Purnell v. Nichol, 173 Ark. 496, 292 S. W. 666.

The statement signed by the defendant in the instant case did not purport to be an agreement to enter his appearance sometime thereafter, but it was an actual entry of appearance, just as much so as if he had filed an answer.

It is next contended by the appellee that Bonner did not have knowledge that a suit had been filed against him. Mr. Bonner testified that when he signed the entry of appearance the plaintiff’s name in the instrument was Mrs. Fern Kirkpatrick. The evidence, without dispute, shows that she was known both as Mrs. Kirkpatrick and Mrs. Kirk. He admitted that he signed it in Mr. Rasco’s office. He admits that he was told in Mr. Rasco’s office that the suit was for about two years ’ rent, $290, and that he, Bonner, told them that it should be a little more than that. The appellee also admitted that he went to Mr. Rasco’s office several times to see about the matter, and knew that suit was going to be filed, and knew the party plaintiff.

The purpose of a name is to designate a person, and this purpose is accomplished when the name is that by which she is known or called. Nat. Life & Acc. Ins. Co. v. Scaffold, (Ala.) 144 So. 816.

Mr. Carpenter, according to Bonner, fixed up the papers for him to take to Mr. Rasco, and he did take them, and signed them in Mr. Rasco’s office.

The court found that the entry of appearance was drawn by Mr. Carpenter; that it was signed by Mr. Bonner at Mr. Basco’s office, and left at Mr. fiasco's office with knowledge that it was an entry of appearance to the suit in the circuit court; that no fraud was perpetrated by Mr. Basco in securing the entry of appearance.

Our conclusion is that the appellee had entered his appearance, and that the court had jurisdiction, not only of the subject-matter, but of the person.

The case is therefore reversed, and remanded with directions to dismiss appellee’s motion and petition.