text:
    Nobles v. State.
    Crim. 3893.
    Opinion delivered July 2, 1934.

      B. S. Wilson, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Johnson, C. J.

Appellant was indicted by the Crawford County Grand Jury as follows:

“The grand jury of Crawford County, in the name and by the authority of the State of Arkansas, accuse George Fain and Skip Nobles of the crime of robbery committed as follows, to-wit: The said George Fain and Skip Nobles, in the county and State aforesaid, on the 13th day of January, A. D. 1934, wilfully, unlawfully, feloniously, forcibly and of their malice aforethought, did make an assault upon one Albert Rich and wilfully, unlawfully, forcibly, feloniously and against his will did rob, take and steal $25, gold, silver and paper money of the United States of America, of the value of $25, and the personal property of the said Albert Rich, and against the peace and dignity of the State of Arkansas.”

Upon trial to a jury, appellant was convicted as charged in the indictment, and was sentenced to three years in the State penitentiary, and this appeal is prosecuted to reverse this judgment of conviction.

Prior to trial and conviction, appellant brought into question the legal sufficiency of the indictment by demurrer, and after conviction the same question was raised by motion in arrest of judgment. The demurrer and motion in arrest of judgment being overruled, appellant saved exceptions, and this is the first question presented for consideration.

We think the indictment was sufficient when measured by the rule announced by us in Green v. State, 185 Ark. 1098, 51 S. W. (2d) 511, wherein we determined that an indictment for robbery which alleged that the defendant violently and forcibly against its will and by intimidation did rob, take and carry away a certain sum of money, was sufficient to- charge robbery under-the' statutes of this State.

It is next insisted that the trial court erred in permitting a witness, Mrs. Reed, to detail a certain conversation between witness and one George Fain which occurred the day following the commission of the alleged offense. This testimony was to the effect that George Fain told Avitness that he had had some trouble with his brother and wanted to go away until it quieted down. This testimony, although immaterial, was not prejudicial to appellant, and Ave cannot reverse because of it. Castevens v. State, 79 Ark. 453, 96 S. W. 150.

Appellant next urges that the verdict of the jury and the judgment of the court were contrary to the law and the evidence. This contention is grounded upon the proposition that the evidence upon behalf of the State does not sIioaa'- that the alleged offense was committed Avithin three years prior to the returning of the indictment. The evidence upon behalf of the State shows that the alleged offense Avas committed on the 12th or 13th day of January, and no question was raised as to the year in which it occurred. It must be remembered that venue need not be established beyond a reasonable doubt, but may be proved by a preponderance of the testimony. Cuzic v. State, 152 Ark. 230, 237 S. W. 1094. Even so, in the matter of the time when the offense was committed, this may likewise be established by a preponderance of the evidence. Section 577, 16 C. J. 771. Viewed in this light, the jury was fully warranted in finding that the 12th or 13th day of January, as detailed by State witnesses, was the 12th or 13th day of the last January preceding the trial which would have been within the requisite time.

Appellant also complains that the court erred in refusing to give his requested instructions Nos. 4, 5 and 6. The instructions given by the trial court fully covered all issues of fact presented by the evidence, and we cannot say that the court erred in refusing to give additional instructions on the same issues. Moreover, these requested instructions were fully covered by instructions given by the court.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Fain v. State.
    Crim. 3892.
    Opinion delivered July 2, 1934.

      Rains Rains, for appellant.

      Hal L. Nomvood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Johnson, C. J.

This is a companion case to Nobles v. State, ante p. 472, decided on this date. The indictment is identical to that in the Nobles case; therefore need not be here set out. Upon trial to a jury, appellant was convicted as charged in the indictment, and was sentenced to three years in the State penitentiary, and this appeal is prosecuted to reverse this judgment'of conviction.

Appellant’s first contention that the indictment is not sufficient in law has been decided against his contention in the case of Nobles v. State, decided on this date, and need not be further considered.

The contention that there was a variance between the indictment and the proof in reference to the stolen money being coinage of the United States is without merit. Criglow v. State, 183 Ark 407, 36 S. W. (2d) 400.

Next it is urged that the proof did not show that the offense was committed within the bar of the three-year statute of limitations. Albert Bich, the aggrieved party, testified, in effect, that he was robbed about the 14th of January, this year, meaning, of course, 1934. This was amply sufficient to establish the time when the offense was committed. Nobles v. State, supra.

Neither is reversible error made to appear because of the examination of Pete Fain by the prosecuting attorney in reference to a statement theretofore made by the witness. The record does not disclose that the trial court acted upon the contention here presented, therefore we are not allowed to determine this question.

We have carefully considered appellant’s objections in reference to the instructions requested, given and refused by the trial court, but do not find reversible error therein.

Appellant’s last contention is that the court permitted one of the jurors to separate from the other members of the panel, and, while so separated, make a statement as to the mental status of the other members of the jury panel. Just how appellant’s rights were prejudiced by the actions of this juror is not pointed out. This does not reflect prejudicial error. Bieard v. State, ante p. 217; Fuller v. State, 171 Ark. 730, 286 S. W. 809.

No reversible error appearing, the judgment is affirmed.


author: Smith, J.

text:
    American National Insurance Company v. Westerfield.
    4-3516
    Opinion delivered July 2, 1934.

      Coleman Riddick, for appellant.

      W. L. Jean, for appellee.
   Smith, J.

On December 1, 1927, appellant insurance company delivered to the city of Little Rock its group policy of insurance covering the lives of the members of the Little Rock police and fire departments, with certain disability benefits accruing while the policy was kept in force by the payment of the annual premium required by the policy.

Appellee was and for many years had been a member of the city’s fire department, and was the captain of one of the fire companies. Proper payments of premiums was alleged, and does not appear to be questioned. Appellee alleged that, while so employed and while entitled to the benefits of the group policy, he became totally and permanently disabled, and he brought this suit to recover the disability benefits which he was entitled to receive under the policy.

The policy contained the following conditions upon which the disability benefits might be demanded:

“1. That due proof is furnished the company that the said person has suffered subsequent to the date hereof for a period of at least six months either (a) total disability, (b) entire and irrecoverable loss of sight of both eyes, (c) loss of use.of both hands, or of both feet, or one hand and one foot. * * *
‘ ‘ 3. That, if proof of total disability is furnished, the said total disability must be shown to be such as to justify the presumption that it would continue throughout the entire subsequent life of the said person and during that time wholly prevent the said person from pursuing any occupation for wag’es, compensation, or profit.
“4. That the company, prior to the granting of the benefit, shall be permitted to make such examination of the person as may in reason be required to convince that the conditions necessary for the granting of the benefit have been fulfilled. ”

Appellee alleged his total disability and that he had made the proof thereof which the policy required. The suit was defended upon the grounds (1) that the insured was not totally and permanently disabled, and (2), if so, that sufficient proof thereof had not been made to confer the right to sue.

At the trial from which this appeal comes the question of disability was submitted under instructions conforming to numerous previous decisions of this court on that ’subject, and the testimony, to which further reference will be made, was sufficient to support the finding that appellee was totally and permanently disabled.

The sei’ious question in the ease is whether the testimony shows sufficient compliance with the provisions in regard to notice set out above. Paragraph 3 on this subject, above quoted, requires that proof of total disability be furnished such as to justify the presumption that the disability exists and will continue throughout the life of the insured, and during that time wholly prevent him from pursuing any occupation for wages, compensation or profit. Effect must be given to this provision, because the parties have so contracted. But this does not mean that the insurer must in fact be convinced. On the contrary, the proof is sufficient if it justifies the presumption of disability to an intelligent judgment, reasonably and fairly exercised. Missouri State Life Ins. Co. v. King, 186 Ark. 983, 57 S. W. (2d) 405; § 507, chapter Insurance, 14 R. O. L., page 1337.

The question was also raised and was submitted to the jury whether proof of disability was made within a reasonable time. This question was considered in the recent case of American National Ins. Co. v. Chastain, 188 Ark. 466, 65 S. W. (2d) 899, which was a suit upon a similar — if not, indeed, the identical — policy sued on herein. The appellant here was the appellant there, and it was there contended, as it is here contended, that proof was not made within the time required by the policy. It was there pointed out that no time was specified in which proof was required to be made. An instruction was requested in that case to the effect that there could be no recovery unless the proof was made within a reasonable time, which was modified to provide “that due proof should be made of the disability by appellee before he could recover. ’ ’ It was there held that: ‘ ‘ The court was within the law in modifying the instruction and in refusing to give it in the form requested by appellant. ” In so holding we quoted from the case of Sovereign Woodmen of the World v. Meek, 185 Ark. 419, 47 S. W. (2d) 567, as follows: “Under a benefit certificate providing for a recovery if insured should suffer bodily injury and furnish satisfactory proof of total disability, that the right to recover depended upon insured’s total disability during the life of the certificate, and not upon the receipt of the proof of total disability, no time being fixed in the policy for making such proof.”

However, in this case the question of the reasonableness of the time within which the notice and proof of disability should be furnished appears to be unimportant, for the reason that the insurer suggested and requested a postponement of the suit for an additional period of six months for the purpose of ascertaining, after that lapse of time, whether the disability from which the insured was then admittedly suffering was in fact .permanent.

Now, upon the question whether the suit was prematurely brought for the reason that proof had not first been furnished sufficient to justify the presumption that the insured was totally and permanently disabled, it may be said that the testimony upon that issue was to the following effect: The city clerk, the custodian of the policy sued on, testified that on December 16, 1932, he made written application to the insurer for proper blanks for making proof of insured’s disability. These blanks were duly furnished. One of these was the “claimant’s statement, ’ ’ which was filled out and dated December 29th and signed by the insured. This statement recited that the disability began June 25, 1932, and was occasioned by a ruptured appendix, for which an operation was performed 9-13-31, and a second 10-27-31. The name and address of the surgeon performing the operations was given, and the statement was made that the insured was unable to perform labor and was totally and permanently disabled.

A statement was made, as paid of the proof, by the attending surgeon, which was duly verified, to the effect that, following the appendix operation, a rectal abscess came on immediately after the abdominal wound closed, resulting in a disability which the surgeon stated was “permanent and total at this time.”

The city clerk, as the custodian of the city’s records and of its payrolls, made the “employer’s statement,” which was attested by the chief of the fire department. This statement showed the insured’s retirement from the fire department because of his disability. These proofs were transmitted by registered mail to the insurer.

These “proofs” were not regarded as sufficient, and the request was made that the insured submit himself to an examination by a surgeon selected by the insurer. This request was complied with and the examination made, and it is insisted that the report thereof left the permanency of the insured’s disability in doubt, and for this reason a postponement of the suit for six months was suggested by the insurer. This doctor testified at the trial that the insured was totally disabled at the time of his examination, but it was his opinion that, if the fistula was cured, as it might be by one or more operations, the insured might do light work, but that he could not thereafter do heavy work, even though the operations were successful. It was the opinion of another doctor who also examined the insured that one or more successful operations would probably entirely restore the insured so that he would not be disabled, and that he thought these operations could be. successfully performed. It may be said that a third operation was performed on the insured’ after his proof had been submitted, which did not relieve his condition, and the opinion was expressed by three, physicians who testified on behalf of the insured that an incurable condition existed which rendered the insure'd totally and permanently disabled. These conflicts of opinion, which are always found where experts express opinions, were resolved in the insured’s favor by the verdict of the jury for the amount of the disability benefits provided for in the policy sued on.

It is insisted that the court erred in allowing a penalty and an attorney’s fee, and that the fee allowed was excessive, and that error was committed in awarding judgment for interest. The insistence is that the insured had not denied liability, but had asked for additional proof, which the insured refused to furnish. This proof appears, however, to have been the same proof covered by the blanks originally furnished for that purpose, which had previously been filled and returned. Besides, as has been said, the insured had submitted himself to an examination at the hands of a surgeon selected by the insurer, and the jury was, therefore, warranted in finding that there had been no failure to furnish proof and that the suit had not been prematurely brought.

Interest appears to have been calculated from a date about sixty days later than the date on which the proof was submitted, which the court evidently found was a reasonable and sufficient time for payment. The policy itself provided that the benefits should be payable “upon receipt of the individual certificate and of due proof of the occurrence of the events upon which the payment of the benefit is contingent. ’ ’ It appears, therefore, that interest was properly allowed. The penalty is fixed and allowed by the statute.

The attorney’s fee was fixed at $300. The sum recovered under the policy was $2,000. The attorney’s fee does not appear to be excessive when compared with other fees in such cases which have been approved by this court.

There appears to be no error, and the judgment will be affirmed. It is so ordered.


author: Humphreys, J.

text:
    Bradley Lumber Company of Arkansas v. Henry.
    4-3518
    Opinion delivered July 2, 1934.

      D. A. Bradham, Clary & Ball and C. C. Ilollensworih, for petitioner.

      C. T. Sims, W. F. Norrell, B. W. Wilson, N. H. Sadler, Aubert Martin and J. R. Wilson, for respondent.
   Humphreys, J.

This is an application or petition to this court for a writ of prohibition directed to the Hon. Patrick Henry, judge of the circuit court of Drew County, not to proceed, upon the service obtained, with the trial of two separate causes of action for damages on account of personal injuries instituted in the circuit court of said county by Willie Beard and Mrs. Lucy Leonard against Bradley Lumber Company of Arkansas. The service in each ease was obtained by delivering a copy of each summons upon Leo Jackson as agent in charge or manager of Bradley Camp, a place of business owned and operated by Bradley Lumber Company of Arkansas in Drew County, under authority of § 1152 of Crawford & Moses’ Digest. That section of Crawford & Moses ’ Digest provides that suits may be brought against a corporation in any county in the State in which it maintains a branch office or other place of business by service of a summons upon the agent, servant, or employee in charge of said office or place of business.

The petitioner herein or defendant in each of said suits appeared in said court for the sole purpose of quashing the service on the grounds that it maintained no place of business in Drew County within the meaning of § 1152 of Crawford & Moses’ Digest and that the summons was not served upon its agent, servant, or employee, in charge of any such 'business.

The motion to quash the service was submitted to the court upon testimony introduced by the parties to the suits and was overruled over petitioner’s objection and exception, and this petition for a writ of prohibition followed.

Petitioner states in its brief that it is entitled to the writ unless there is some substantial evidence in the record to support the finding* of the circuit court to the effect that it maintained a branch office or place of business in Drew County which was in charge of and managed by Leo Jackson.

The construction placed upon § 1152 of Crawford & Moses’ Digest by this court is that service of process is good and sufficient if served upon an agent, servant, or employee of a corporation in charge of a well defined line, of business carried on by the corporation in the county where the suit is brought. Terry Dairy Company v. Parker, 144 Ark. 401, 223 S. W. 6; Cooper v. Burel, 129 Ark. 261, 195 S. W. 356; Ft. Smith Lumber Company v. Shackelford, 115 Ark. 272, 171 S. W. 99.

The record reflects that the main office or place of business of petitioner was at Warren, the county seat of Bradley County, where it carried on a large lumber and logging business. It also reflects, by the admission of Joe L. Heaves, vice-president and manager or superintendent of all the outside business conducted by said company, that it maintained a branch office and business at Camp Bradley in Drew County until the............day of ........................, 1932; at which time, it moved the branch office or business conducted in Drew County to its main office or place of business in Warren. At the particular time referred to, petitioner moved the commissary from Bradley Camp in Drew County to Warren and ceased to cut logs in Drew County and haul them to the mill at Warren, and discharged some of the employees at that point. Everything else was left intact and the rest of the business was conducted as it had been for years. About twenty employees and their families remained at the camp and paid rent on the houses in which they lived, some eighteen or twenty of them. It continued to operate its light and water plants at that point for the use of its employees. It continued each working day to operate its two engines or trains for the purpose of transporting its employees to points in other counties to cut and load logs for use at the mill in Warren. When the engines came in over night, they were cooled off, repaired if necessary, and supplied with water for use the next day. They were housed and looked after by hostlers over night. Orders for supplies were solicited by an agent from Warren and brought from Warren to the camp and delivered to the employees. A little office attached to the building formerly used for the commissary remained furnished as before with a safe which contained records, an adding machine, chairs, and a desk. This office was used by Leo Jackson and others for clerical work such as making up time lists, logging statements, reports, etc., to be sent in to the main office or place of business at Warren. A telephone connected with the main place of business in Warren was used by Leo Jackson and others. Joe L. Reaves, in the capacity of manager or supervisor, visited the camp every ten days or two weeks, and in his absence Leo Jackson acted as his assistant and carried out his orders. Leo Jackson lived in one of the houses at the camp and was on the ground or else out where they were sawing log’s in Bradley County practically all the time. The employees regarded and treated him as the boss. The deputy sheriff who served the summons on him was directed to him when he inquired from an employee for the manager. Before serving the summons on him, he asked him whether he was the manager of the business in Drew County, and he replied that he was. Other circumstances appearing in the record indicate that he was the manager of a substantial part of the petitioner’s business in Drew County at the time the summons were served upon him. We think there is ample evidence in the record to sustain the circuit court in overruling the motion to quash the summons.

The writ is therefore denied.


author: Mehaffy, J.

text:
    Sovereign Camp Woodmen of the World v. Kropp.
    4-3520
    Opinion delivered July 2, 1934.

      Rainey T. Wells and Hill, Fitzhugh Brizzolara, for appellant.

      A. M. Dobbs, for appellee.
   Mehaffy, J.

This suit was brought by the appellee against the appellant in the Sebastian Circuit Court on an insurance policy issued to appellee’s father, E. C. Dunbar. The original certificate or policy was issued March 18, 1899, and various certificates had been issued to him in lieu of the original policy. It is admitted that all assessments and dues from that time up to January, 1933, were paid. The suit was for $1,000, less some charges, and complaint was in the usual form. The appellant answered, admitted issuing the certificate on the date mentioned and that the dues and assessments were all paid except the assessment or dues which were clue the last day of January, 1933. Appellant defended on the grounds that the dues due in January were not paid until February 16, and that Dunbar was at that time not in good health but suffering from tuberculosis. He died on May 7, 1933. The certificate or policy of insurance was introduced in evidence and also a letter from the appellant association dated May 31, 1933, stating that a check had been sent to Mrs. Kropp for $1.60, being a refund of the January and February installments, and she was advised that the financial secretary at Fort Smith, Arkansas, had been instructed to return any amounts paid for subsequent installments. Mr. Dunbar applied for admittance in the Woodmen of the World Sanitarium in the latter part of March, 1933.

A. M. Waldron, captain of the uniform rank of the Woodmen of the World, testified that he was a member and knew Dunbar. He testified that B. H. Smith, financial secretary of the Local Camp of the Woodmen of the World, keeps the records of the payments of assessments and collects the same from the members. Witness called at Smith’s office to ascertain whether or not Dunbar was in good standing, and Smith told him that he was. Smith had been secretary for about four years. This witness went with Mr. Kropp to the office of Smith, the secretary, to interview him with reference to hospitalization of Ed Dunbar. Mr. Smith said that Dunbar had a policy, and the best of his recollection is that his assessments were paid; he said he was in good standing. Smith gave Mr. Kropp an application for hospitalization. It was about the 12th or 15th of the month. The application was made by Dunbar the latter part of March.

Dr. Riley testified that he examined Dunbar March 15, 1933, in Booneville, Arkansas, and that he had very advanced tuberculosis in his lungs. That there was no question in his mind but that Dunbar was suffering from active tuberculosis.

B. H. Smith, the financial secretary, testified and introduced the card record which is the final record of the membership standing. This record is kept by Smith, and he testified that the January assessments were paid on the 16th of February; that the February report shows that Ed C. Dunbar was suspended for nonpayment of January dues. The March report was sent in for February dues on March 13. It shows that Dunbar was remitted for by the secretary for the months of January and February. He further testified that Dunbar was suspended February 1, but that the reports did not leave his office until the 13th and did not get to the home office until the 16th. That he stood suspended as of January 31st. On February 16th he was under suspension. He also testified that he did not tell Mr. Kropp or Mr. Waldron that Dunbar was in good standing because he said that is up to the home office. He did not know that Dunbar had tuberculosis at the time payments were made. It was admitted that the payments were returned. He said that Dunbar’s sister made the payment, and he asked her why she did not come in sooner, and she said Ed had been sick. Mr. Kropp made the payment in March. Witness had been financial secretary for sis years. It is the duty of the secretary under the by-laws to remit to the Sovereign Camp on or before the 5th day of every month the funds in his hands, and accompanying the remittances he must forward a detailed statement of the standing of members in the camp on blanks furnished for that purpose. He mailed the February report on March 13. A provision of the by-laws provides that if the remittances from the secretary are not received on or before the 15th day of the month the camp and all its members shall stand suspended. Witness said that he did not get any information that the camp was suspended. The report did not reach the home office until February 20th. Witness further testified that at different times in the past he had maintained Ed Dunbar in good standing by the payment of the dues himself. He said that prior to this date, February 20th, he had reported Dunbar suspended, but said he could not tell without going to his records. Prior to this time he had loaned Dunbar money to pay his dues. He loaned him about $25 and Dunbar assigned to him another insurance policy, and after Dunbar died he got his money. The secretary of the association at Omaha, Nebraska, is supposed to mail out a notice of the suspension. The evidence does not show that Dunbar ever received this notice. The secretary further testified that he mailed the notice to him before he was suspended, around the 5th of February. He testified that he paid the dues for him, that there was no enmity between them, and that he did not fail to make the payment because he was mad at him; he did not consider that he had a chance to get his money. He also testified that Waldron called him up and asked him if Dunbar’s dues were paid, and he thinks, he told Waldron that Dunbar was entitled to hospitalization. Whenever members failed to pay before secretary sent in his report, he sent them in as suspended unless he wanted to stand personally responsible for the payment of their dues. The question of Dunbar being admitted to the hospital came up after February 16, after the- secretary’s report went in. Certain receipts were handed him, and he said there were other amounts included, that Dunbar had other policies, that his record shows that the January assessment was not paid. Before that time Dunbar had made the payments in the regular course at witness’ office; witness had not paid any of the later assessments in 1932.

Dr. J. E. Little testified that he was at Dunbar’s home on the 15th or 16th of February; that Dunbar had a cold and was very sick. He was in his office then at different times up to the 14th of March. He had a cough, and witness found trouble with his lung’s; thinks he had tuberculosis but does not know. He died in the tuberculosis sanitorium at Booneville. Witness did not find that he had tuberculosis; he just had a bad cold. He said some people take tuberculosis quickly, and from his examination in March he thinks perhaps Dunbar had consumption, but he examined him in February and found no indication of it.

Here several provisions of the constitution and bylaws -were introduced.

John T. Yates testified by deposition about the issuance of the original policy and the changes made and identified the constitution and by-laws. He said that Dunbar failed to pay the January, 1933, installment to the financial secretary of the Local Camp on or before January 31st as required by the provisions of the beneficiary’s certificate and constitution and by-laws. That he obtained this information from the regular monthly report which he received from B. H. Smith, financial secretary of the Local Camp. Then he testified about refunding the payments. He also testified that Dunbar did not pay the increases and therefore his policy was chargeable with $385.11. He then introduced several letters.

Appellant contends that the court erred in refusing to direct a verdict for it because Dunbar failed to pay his January assessment and thereby became suspended. The by-laws provide that, if one fails to make payments on or before the last day of the month, he shall become suspended and his certificate shall be void, etc. It also provides however, that, if the person suspended is in good health, he may make a new contract or, if he is suspended for the nonpayment of installment, if in good health, he may within three months from the date of his suspension again become a member of the association by the payment of current installment assessment and all installments which should have been paid to maintain him as a member. It is contended first, that he did not make the January payment until the 16th of February, and at that time he was not in good health but had tuberculosis. The only evidence tending to show that he failed to make the January payment is the testimony of Smith, secretary of the Local Camp, and he testified that he thought Dunbar was entitled to hospitalization, although he knew that, if he was suspended or not in good standing, he was not entitled to hospitalization. His testimony, we think, was such that the jury would have been justified in finding that the January dues had been paid. The burden was upon the appellant to establish the fact that the dues had not been paid by a preponderance of the evidence. “While the burden is on the plaintiff in an action on a benefit certificate to show insured’s good standing at the time of his death, still, as the certificate is proof of good standing at the time of its issuance and raises a presumption that such good standing continued, it follows that when the certificate is introduced, the burden is on the association to prove loss of good standing. * * * And generally, in an action on a policy or mutual benefit certificate, the issue of the policy or certificate of insurance, and the insured’s death being shown by plaintiff, the burden is on the company to show nonpayment of premiums or dues or other matters going to avoid the policy.” Cooley’s Briefs on Insurance, vol. 4, 3863-3864; United Order of Good Samaritans v. Reavis, 186 Ark. 1143, 57 S. W. (2d) 1052; Supreme Council American Legion of Honor v. Haas, 116 Ill. App. 587; Ry. Passenger & Freight Conductor’s Mutual Aid & Benefit Ass’n v. Thompson, 91 Ill. App. 580; United Brotherhood of Carpenters & Joiners of America v. Fortin, 107 Ill. App. 306; Sleight v. Sup. Council of Mystic Toilers, 133 Iowa 379, 107 N. W. 183; Kidder v. Sup. Commandery, United Order of Golden Cross, 192 Mass. 326, 78 N. E. 469; Hood v. Sov. Camp Woodmen of the World, 188 Ark. 1048, 69 S. W. (2d) 880.

It is next contended by appellant that there is no question of estoppel in the case, and for that reason it especially objected to instruction No. 1 given at the request of plaintiff because of that portion of the instruction with reference to the acts of the local secretary constituting an estoppel. It is argued that the by-laws do not permit the local camp or officers to waive any of the provisions of the contract and that the acts of the local secretary could not operate as an estoppel. The by-laws, however, provide that, unless the local secretary makes his report by the 15th of the month, the camp and all of its members are suspended. The undisputed evidence shows that the local secretary frequently made his report after the time provided for by the by-laws and no action was ever taken. It thereby waived the right to suspend the members or the local camp because of a failure to comply with this by-law.

The fact that the local secretary did not make his report on time was necessarily known to the Sovereign Camp. This court quoted with approval, the following: “Forfeitures are so odious in law that they will be enforced only where there is the clearest evidence that such was the intention of the parties. If the practice of the company and its course of dealings with the insured, and others known to the insured have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted on, the company will not be allowed to set up such a forfeiture, as against one in whom their conduct has induced such belief. * * * The clerk, through a period of years, had adopted the method set forth in the original opinion, which was clearly calculated to induce the belief on the part of Newsom that his dues had been paid according to the method adopted by the local clerk for collecting the dues and reporting the same, and that the society had accepted such payments and would therefore not insist upon a forfeiture because of the failure of the clerk to comply, in this respect, with its laws and constitution.” Sov. Camp W. O. W. v. Pearson, 155 Ark. 328, 244 S. W. 344.

The evidence in this case shows that Dunbar had paid his assessments regularly for thirty-four years, and the only evidence that he failed to pay his January dues on time is the testimony of the secretary of the local camp, contradicted by some of his own statements, especially when he stated that he was entitled to hospitalization, when he would not have been if he had not been in good standing, and this evidence given after Dunbar himself had died and could not testify. Moreover, the secretary admits that he had been in the habit of paying his dues, although he said he did not do it in the later part of 1932. We think it is wholly immaterial in this case whether there was a waiver or estoppel or whether Dunbar was in good health, because, the jury would have been justified in finding that the appellant had failed to show by a preponderance of the evidence that the January dues had not been paid.

It is next contended by the appellant that the court erred in allowing the provision of the constitution in regard to incontestability to be read to the jury. The appellant itself introduced the constitution and bylaws, and in construing them it was perfectly proper to consider the whole of the constitution and by-laws and construe all of its provisions together. Moreover, ■ the parties agreed in the trial that the constitution and by-laws were considered as having been introduced in evidence with the agreement that either side might offer such parts as it desired. There was no error in permitting this section to be read to the jury.

It is contended that there were errors in the instructions, but the instructions, when considered as a whole, constitute a correct statement of the law, and it would serve no useful purpose to discuss them at length. Each side requested instructions, which were given by the court, on practically every feature of the case.

We find no error, and the judgment is affirmed.


text:
    Brewer v. State.
    Crim. 3890.
    Opinion delivered July 2, 1934.

      Edw. Gordon, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy and Robert F. Smith, Assistants, for appellee.
   Mehaffy, J.

The prosecuting attorney of the fifth district filed information against appellant, Edgar Brewer, January 29, 1934, charging him with the offense of gross immorality. The case was tried on March 6, 1934, before the court sitting as a jury, and appellant was convicted of the offense of gross immorality and was removed from office. The following is a copy of the information filed:

“In the Conway County Circuit Court, Honorable A. B. Priddy, Circuit Judge.
“State of Arkansas, Plaintiff, v. Edgar Brewer, Defendant.
‘ ‘ Comes Audrey Strait, prosecuting attorney, within and for Conway County, Arkansas, and, upon his oath and information, charges Edg’ar Brewer with the offense of gross immorality, and for cause says:
“That Edgar Brewer is the duly elected, qualified and acting county assessor within and for Conway County, Arkansas, and maintains! an office for the conduct of the affairs of his office in the courthouse situated in Morrilton, Conway County, Arkansas; that he served in said capacity during the year of 1933, and at the present time is conducting said office of tax assessor.
“That during the summer and fall of the year 1933, and particularly during the month of December, 193'3, Edgar Brewer was guilty of gross immorality; that, taking advantage of the fact that he was a county official and used and occupied an office upon the first main floor of the county courthouse, he enticed, persuaded, encouraged and procured one Rosebud Jackson, a minor female child, to enter his office at various and sundry times for the purpose of immorality and of making a lewd and obscene exhibition of his person, and of making indecent and immoral assaults upon her, the said Rosebud Jackson.
“That defendant, although guilty of gross immorality, continues to use, occupy and retain the office of tax assessor and continues to use and occupy the office assigned to him as tax assessor of Conway County.
“That defendant, Edgar Brewer, is not a fit person, morally, to fill the said office of tax assessor, and that his presence in said office and his continuing to hold said office is not conducive to morality, law enforcement and to the respect of the citizenship of Conway County, Arkansas, and that, upon a hearing of the charges preferred herein, the said Edgar Brewer, as tax assessor, should be removed from the office as tax assessor, and a vacancy declared by the proper order of this court.
“Wherefore, the State of Arkansas prays that, upon this information, the circuit court designate a day certain for the introduction of proof relative to the guilt of defendant, Edgar Brewer, as to gross immorality, and that an order of the Conway County Circuit Court issue herein ordering the removal of the said Edgar Brewer from office as tax assessor, or, in the alternative, suspending him from office as tax assessor until the charges heretofore preferred against him be disposed of at the March, 1934, term of Conway County Circuit Court.
“(Signed) Audrey Strait, “Prosecuting Attorney within and for “'Conway County, Arkansas.
■ ‘ ‘ Subscribed and sworn to before me this the 29th day of January, 1934.
“Cleo Cheek, Circuit Clerk.”

Notice was served on appellant on January 29, 1934. The appellant filed motion to require plaintiff to make information more definite and certain.

Defendant also filed a demurrer, and, after argument of counsel on motion to make more definite and certain, the court held that certain parts of the information were too general and should be stricken out, and the prosecuting attorney then, on his own motion, struck out that portion of the information which stated that Brewer was under bond upon a charge of carnal abuse, awaiting the action of the grand Jury, etc. Appellant filed a demurrer which was by the court overruled, and he then filed a motion for continuance, on account of the absence of certain witnesses. The prosecuting attorney admitted that, if the witnesses were present, they would testify as claimed by the appellant, and the motion to continue was overruled. The appellant then asked that he be given a trial by jury, and this request was overruled. The appellant refused to waive a trial by jury, demanded a, trial by jury, which was overruled, and the appellant at that time saved his exceptions. After hearing the evidence, the court entered an order removing Brewer from the office of tax assessor and declared said office vacant. Appellant filed a motion for new trial, which was overruled, and the case is here on appeal.

It would serve no useful purpose to set out the testimony at length. The appellant does not contend that the evidence is insufficient to justify a conviction if the procedure was proper. He first contends that the charge against him could not be tried except upon presentment or indictment. Section 27 of article 7 of the Constitution read's as follows: “The circuit court shall have jurisdiction upon information, presentment, or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance in office. ’ ’ This action by the circuit court was upon information, and the charge was gross immorality. The appellant cites and relies on Haskins v. State, 47 Ark. 243, 1 S. W. 242. The court in that case, in construing § 27 of art. 7 of the Constitution, said: “These provisions are, to some extent, in apparent conflict, and it is the office of construction to reconcile them, giving effect to each, so far as may be done, and carrying out the intentions of the constitutional convention which framed the whole instrument. Two interpretations are possible: 1. That when the alleged cause of removal is a matter not cognizable by a grand jury, e. g., incompetency, drunkenness, immorality, etc., then the State’s attorney may proceed upon his own motion, by information filed under oath. But, if it is for an indictable offense, the proceeding must be by indictment. 2. That when the object is to punish an offender by the infliction of the penalties which the law denounces against crime, the prosecution must originate in the grand jury room; but that an information for removal is not of this character, the consequence of a conviction extending only to a removal from office, and the primary object being, not punishment, but the protection of the public against inefficient and worthless officers.”

This court has said: “There are no statutes making ‘ineompetency,’ ‘corruption’ and ‘gross immorality,’ as such, indictable offenses. Therefore the Legislature must have intended by the use of these terms that, when any one holding a public office was indicted for any ‘criminal conduct amounting to a felony, ’ or for any offense which showed him to be corrupt or dishonest, or for any felony or misdemeanor which showed him to be ‘grossly immoral, ’ and which, if proved, in the eyes of the law would render him incompetent to hold office, he should be suspended. In other words, the Legislature did not intend that an officer should perform the functions of his office while he was under presentment or indictment for any criminal conduct which, if proved, amounted to a felony, or that showed that the accused was grossly immoral or corrupt. This is the wise public policy which the Legislature manifestly intended to conserve.” Jones v. State, 104 Ark. 261, 149 S. W. 56.

Appellant next calls attention to the case of McClain v. Sorrels, 152 Ark. 321, 238 S. W. 72. The court in that case said: “The case of Haskins v. State, supra, construed the provision of the Constitution to mean that, ‘when an alleged cause of removal from office is a matter not cognizable by a grand jury, e. g., incompetency, drunkenness, immorality, etc., then the State’s attorney may proceed upon his own motion, by information filed under oath; but if it is for an indictable offense, the proceeding must be by indictment. ’ It results from this interpretation of the Constitution that, in case the removal is to be accomplished under an indictment for an offense involving one of the grounds for removal stated in the Constitution, the offense set forth in the indictment must be one which necessarily includes the grounds for removal, otherwise the removal would be accomplished without giving the accused the benefit of a trial upon the issue as to the existence of the grounds for removal. In the Haskins case, supra, the charge against 'the sheriff was for permitting prisoners to go at large, which necessarily constituted official misconduct, and .the court held that the charge must he brought hy the grand jury, and not hy information filed hy the .prosecuting attorney. The converse of that rule is equally true, and, if the charge does not involve one of the grounds of. removal stated, then the removal must he sought on information containing the accusation of facts that constitute grounds for removal. ’ ’

It will he observed that the court expressly stated that, if the charge does not involve one of the grounds of removal stated, then the removal must be sought on information containing the accusation of facts .that constitute grounds for removal. As we have already shown, this court has held that immorality is not an indictable offense, and therefore the removal for gross immorality must he sought on information and not on indictment. It is also true that one might he guilty of gross immorality and guilty of many crimes for which he might be indicted, hut the mere fact that he was guilty of a crime in addition to the act of gross immorality would he no reason why he could not he removed upon information. If that provision in the Constitution authorizing the circuit court to remove on information does not mean that one can be removed on information for gross immorality, it does not mean anything, and we think there is no question hut that the court had jurisdiction to remove the appellant on information.

It is next contended hy appellant that he was entitled to a trial by jury. Appellant calls attention to a great many cases which we do not review because we think they have no application to the facts in this case. The right to trial hy jury does not apply to proceedings to oust one from public office. “There is some conflict in authority with respect to whether a proceeding for the removal of a public officer is of a civil or criminal nature. * * * Nevertheless, hy the most approved opinion, it is regarded as an executive function, and an action for that purpose is a civil and not a criminal proceeding. It is also considered as remedial rather than penal in character, because the purpose is not to punish the officer, but to improve the public service.” 22 R. C. L. 573.

“It is true that conviction of any of these officers under an indictment for malfeasance, misfeasance or neglect of official duty, by virtue of § 3, art. 9, Const., operates a removal from office; but that does not prevent their summary removal for these or other causes coming under the head of gross immorality, without indictment or criminal prosecution. McDonald v. Guthrie, 43 W. Va. 595, 27 S. E. 844, chapter 48, Acts 1897, provides that, ‘upon satisfactory proof of the charges made in writing, the court having jurisdiction shall remove any such officer from the discharge of the duties of his office.’ This provision wholly excludes the idea of a jury trial, and plainly imposes on the court, in the person of the judge thereof, the duty of investigating the matter, hearing the evidence, and, if satisfied of the truth of the charge, removing the incumbent.” Moore v. Strickling, 46 W. Va. 515, 33 S. E. 274, 50 L. R. A. 279.

Section 3 of article 15 of the Constitution reads as follows: “The Governor, upon the joint address of two-thirds of the members elected to the houses of the General Assembly, for good cause, may remove the Auditor, Treasurer, Secretary of State, Attorney General, judges of the supreme and circuit courts, chancellors and prosecuting attorneys.” It will, of course, not be contended that the Governor would have to call a jury, but he acts just as the circuit judge acted in this case. The reason that no jury is necessary is that the object is not the punishment of the officer, but the protection of the public against inefficient and worthless officers.

It therefore appears that the circuit court, without the intervention of a jury, had a right to try the case and to enter judgment removing appellant from office.

"We find no prejudicial error, and the judgment is affirmed.


author: Butler, J.

text:
    United States Fidelity & Guaranty Company v. Coughlan.
    4-3521
    Opinion delivered July 2, 1934.

      William M. Hall and Hill, Fitshugh ■<& Brissolara, for appellant.

      George F. Youmans and George W. Dodd, for appellee Horan.

      Joseph B. Broivn, James B. McDonough and Robert M. Zeppenfeld, for appellee Coughlan.
   Butler, J.

This is the second appeal of this case on the merits. In the decree first rendered by the court, it assumed jurisdiction of an action to surcharge and falsify the settlement of John H. Vaughan, executor, but held that it had no jurisdiction to surcharge and falsify the accounts of John H. Vaughan as guardian of Mrs. Edmondson or of Mrs. Frances A. Vaughan (now Sabine), executrix and guardian in succession, on the ground that these settlements were pending and undisposed of in the probate court. This court, with some modification, affirmed that part of the decree affecting the settlement of John H. Vaughan and reversed the remainder with direction to the court ‘ ‘ to proceed without remanding the cause to the probate court to adjudge and settle the accounts of Mrs. Vaughan’s own administration.” On remand, the evidence taken in the first proceeding was considered with but little additional evidence being offered.

The salient facts developed from the evidence are stated in U. S. F. & G. Co. v. Edmondson, 187 Ark. 257, 59 S. W. (2d) 488, and no further additional facts need be stated except that on remand it developed that Mrs. Edmondson had died during the proceedings and the branch of the case affecting her proceeded under the name of Mary E. Coughlan, a sister of Mrs. Edmondson, and the executrix and sole beneficiary under the last will and testament of Mrs. Edmondson. This will had been duly probated and was introduced in evidence in the court below. There was some additional evidence relating to certain repairs on the property of the Edmondson estate which appeared as credits claimed in the settlements. This testimony was merely cumulative of testimony taken at the first proceeding, and was to the effect that the repairs were necessary to preserve the property and that the charges therefor were reasonable.

On consideration of all of the evidence adduced explanatory of the items of debit and credit on the settlement and a restatement of the same as made by the master, the court found that the Vaughans should be charged with further sums, denied certain credit items claimed, found the balance due by the Vaughans on their respective accounts as executors and guardians, and that the U. S. F. & G. Company, their surety, was liable therefor.

This decree did not wholly satisfy any of the parties interested, namely, Dr. P. F. Horan, residuary legatee, Mrs. Mary E. Coughlan, 'beneficiary under the will of Mrs. Edmondson, and U. S. F. & G. Company, surety on the bonds of John H. and Frances A. Vaughan, and each excepted to certain findings of the court below and have prosecuted their several appeals.

There are four accounts affected in this proceeding: that of John H. Vaughan as executor, of the said Vaughan as guardian, and the two accounts of Mrs. Vaughan in the same capacities. Among other items of credit disallowed was the sum of $2,898.97, commissions of John H. Vaughan as executor. The court reduced this claim to the sum of $988.88 for which credit was allowed. On this item the appellant U. S. F. & G. Company contends that the sum claimed was allowed by the probate court and construes our decision cited supra as conclusive of the correctness of the item as claimed. Without discussing in detail the various items of commission and expense claimed or setting out the order of the probate court, we do not think that a fair construction of said order sustains the contention made, nor does our decision in the former appeal conclude the trial court from determining the proper amount to be allowed, as in that respect the judgment of the probate court made no definite finding of the exact amount due as commissions. We are also of the opinion that, when all the circumstances of the case are considered, the trial court reached a just conclusion, and that the compensation allowed was reasonable for the services performed.

The court allowed Mrs. Vaughan 10 per cent, of the net income of the estate while administered by her as fees for her services as executrix, and disallowed both the credits claimed in the accounts of John'TI. Vaughan and Mrs. Vaughan as commission for services as guardian.

It is contended that the credits claimed as executrix fees were those allowed by law, and that the court erred in fixing any less sum. The case of Tiner v. Christian, 27 Ark. 306, is cited as authority for this position. In this case, however, Mrs. Vaughan was administratrix with the will annexed which fixed her compensation at “ten per cent, of the income of the estate,” by which expression “net income” was meant. James v. Echols, 183 Ark. 826, 39 S. W. (2d) 290. Any additional sum was discretionary under-the terms of the will with the court to “make allowance of such amount as will compensate my said trustee for executing this trust.” Under the evidence the court was justified in finding that the ten per cent, allowed by the will was ample compensation for the duties performed by Mrs. Vaughan.

On the question of allowances of compensation as guardian, this court has held: ‘ ‘ Commissions are allowed to a guardian for the performance of duties imposed by law; but for neglect of those duties, for mismanagement of the property * * * the law does not award compensation.” Reed v. Ryburn, 23 Ark. 47. See also Stacy v. Edwards, 178 Ark. 911, 12 S. W. (2d) 901. The court found that neither John H. Vaughan nor Frances A. Vaughan is entitled to commission as guardian for the reason that the affairs of the guardianship were grossly mismanaged by both of them. This finding of fact appears to have been sustained by the evidence, and therefore, under the authority cited, the court properly refused them compensation.

Appellant, Mary E. Coughlan, complains of the action of the court in charging the item of inheritance tax to the account of Mrs. Vaughan as guardian, the effect of which was to make such tax payable out of the half of the estate taken by Mrs. Edmondson as her dower and relieving that portion acquired by the residuary legatee. Under the provision of § 10,217, Crawford & Moses’ Digest, estates of dower are subject to the payment of this tax, whereas property held for charitable uses is exempt from its'payment, and the evidence establishes the estate of the residuary legatee was held for such uses. The court did not err in the particular claimed.

The remaining exceptions to the findings and decree of the court depend entirely on disputed questions of fact. It would serve no useful purpose to review the accounts and the testimony relating to the findings challenged, since we find that the conclusion reached by the court below is not against the preponderance of the evidence.

On the whole, it appears that the trial court has endeavored to do substantial justice to all of the parties in interest, and, as no reversible error appears, the decree is affirmed.


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    McGuire v. State.
    Crim. 3888.
    Opinion delivered July 2, 1934.

      8am Robinson, for appellant.

      Hal L. Nonoood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Butler, J.

The appellant was tried in the Pulaski County Circuit Court on a charge of murder in .the first degree for the killing of W. G. Carter. The trial resulted in a verdict of guilty as charged, whereupon the court sentenced him to be electrocuted.

On appeal it is not contended that the evidence adduced was insufficient to justify the verdict. The evidence introduced on the part of the appellee is to the following effect: W. G. Carter and G. G. Barham were operating a filling station in Little Rock. At about 7:00 o ’clock on the evening qf January 8,1934, appellant, Bill McGuire, came into the filling station and stated that he had intended holding up the place, but. as they had been so nice to him he had changed his mind. He then walked from the station and stopped a short distance away. Barham saw him return and approach a window through which he discharged a firearm, the shot from which struck Carter in the back, and he died early the next morning as a result of the wound.

One Arthur Lindsey testified that McGuire visited him on January 4th; that he stayed all night, and after he had left the next day witness discovered his Winchester rifle was missing. No one else except McGuire was at witness’ house at the time the gun disappeared. This weapon was found some time after the killing in a small water course near the scene of the killing and was subsequently identified by witness as the one taken from his home during McGuire’s visit to him. On examining the premises where the killing occurred, a discharged rifle cartridge was found which fitted this rifle.

Two other witnesses stated that they had seen McGuire on the night of January 8 in the vicinity of the crime and that he was carrying a Winchester rifle. McGuire was arrested at his home in Little Eock at about 10:30 o ’clock on the night of the homicide, and, when arrested, was in bed. He had on his underwear which the officers discovered was wet and the clothes which he had taken off were also wet. This evidence was accepted by the jury as true and is ample to sustain the verdict.

McGuire not having employed counsel, the court appointed a lawyer to conduct his defense. One of the grounds upon which the request for reversal is based is that the court was negligent in the appointment of the attorney for the reason that he was a young and inexperienced practitioner and known to be such by the court; that he did not have sufficient ability and experience to fairly represent the defendant, and that therefore, defendant was denied a fair and impartial trial such as the law contemplates.

Our attention is called to the case of People v. Blevins, 251 Ill. 381, 96 N. E. 214, where a judgment of the trial court, based on a verdict of guilty of murder was reversed because the trial judge, under a statute similar to our own, appointed two lawyers to represent the defendant who had not been engaged in the practice longer than two years and were inexperienced in the trial of criminal cases. At the time, of their appointment these lawyers protested that they were inexperienced and were overmatched by the array of able and experienced counsel for the State. It appears that there were four eminent lawyers representing the prosecution. From the opinion of the court in that ease it would seem that the rules of evidence and procedure of that State were grossly violated, and from the record 'before the Supreme Court it concluded that the lawyers appointed by the court were totally unsuited to properly present the case of the defendant or to protect his rights during the progress of the trial. For that reason and because of the court’s knowledge of the inexperience of the lawyers as gained by their protest, the Supreme Court concluded that the trial court had abused its discretion, and that the judgment should be reversed.

This question is before us for the first time. A case might be supposed where a trial court would be so negligent and arbitrary in the appointment of counsel where the defendant is unable to procure any himself, and their conduct of the trial might show such lack of ability as to warrant a reversal of the case because of manifest miscarriage of justice. The record before us, however, presents no such case. The only reason stated to show the lack of ability of counsel appointed by the court is that he had been engaged in the practice not more than thirteen months, but the extent and nature of the practice in which he was engaged during that time is not shown nor his skill in the conduct of matters intrusted to his charge. It is altogether possible that this lawyer might have had much more experience in the defense of those charged with the commission of crime and would be able to conduct the defense more skillfully than one who had been admitted to the practice for a much longer time. Indeed, an examination of the record discloses that the defense was conducted in a creditable manner, and no more errors appear than is usual in the conduct of trials of that nature. It is seldom — and almost impossible — to make a record in a murder case without some error appearing, and that the errors appearing in this case were not more grave and prejudicial than those which have been called to our attention is a matter for which the trial lawyer is to be congratulated.

The only error complained of in the conduct of the trial was the admission of improper testimony. This testimony is found in that given by the officer Barrett. He had described the arrest and stated that the clothing of the defendant was wet at the time. In this connection he was asked, “what did he say about his clothes being wet?” The answer was, “He said he had been in a stream of water — he had been hiding out because he said he was an escaped convict from the penitentiary.” There was no objection interposed to this answer, no request that it be stricken, and no instruction given to the jury to disregard it. This waived the error. “It therefore appears to be the settled rule of this court that, although in capital cases exceptions would not have to be saved, objection must be made at the time before this court will be authorized to review it, and, as to the admissibility of the testimony complained of, no objection was made at the time.” Howell v. State, 180 Ark. 241, 22 S. W. (2d) 47.

Moreover, there could have been no prejudice to the defendant, for he elected to take the stand and the same evidence was brought out on his cross-examination. It is well established in this State that, when a defendant in a criminal case takes the witness stand, he is subject to the same rules of cross-examination as any other witness and can be asked about former convictions for the purpose of testing his credibility. Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41; Shinn v. State, 150 Ark. 215, 234 S. W. 636; Bieard v. State, ante p. 217.

Counsel who prepared the brief for the appellant in this case and who orally argued the case did not represent the defendant in the trial below. In his excellent brief and oral argument he has called attention to a number of matters extraneous ..to the record which, he contends, cast grave doubt on the guilt of the defendant and also which tend to establish the fact that his mind, on the night of the alleged homicide, was in such condition as to prevent him from forming a specific intent to take human life. These matters have been presented in a most persuasive way, but are such as should be addressed to the Governor and not to us.

We have examined the record with care and have reached the conclusion that the trial was fairly conducted, and that no prejudicial error was committed. The judgment is therefore correct, and must be affirmed.


text:
    Wagley v. Roberts.
    4-3527
    Opinion delivered July 9, 1934.

      M. A. Hathcoat, for appellant.

      Cotton id> Murray and J. Loyd Shouse, for appellee.
   Johnson, C. J.

Appellant, J. M. Wagley, presented to appellee, John Roberts, administrator of the estate of Dr. J. L. Sims, deceased, his verified demand against said estate for the sum of $1,215.99, same being evidenced • by a note purporting to have been signed and executed by Dr. Sims. Appellee in bis representative capacity denied the claim upon presentation, and thereafter said demand was presented to the probate court of Boone County for allowance. The claim was allowed by the probate court and classified. Appellee appealed from this probate court allowance to the circuit court, where a trial was had to a jury, which resulted in a verdict and judgment in favor of appellee, and this appeal is therefrom.

Appellee defended against allowance of the demand upon two grounds, namely; first, that the note was not signed and executed by the deceased, and, secondly, that on the date of the. purported execution of the note Dr. Sims was incompetent. Either defense interposed, if established by testimony, would be all sufficient to deny the allowance of the demand. The testimony on the issue of the signing and executing the note was, to the effect that Dr. Sims, on the date of the purported execution, was 80 years of age and very feeble in body and mind, and that the note did not appear to bear the true signature of Dr. Sims. This was the effect of the testimony of Mrs. Roberts and Dr. George Kirby, children of deceased. In addition to the testimony just referred to, the admitted signatures were introduced in evidence for comparison with the signature of the note attached to the claim.

The court instructed the jury as follows: “You should find' for the plaintiff, Wagley, unless you find from a fair preponderance of the evidence that the note sued on is not genuine, and that Dr. Sims didn’t receive the money indicated by the note. ’ ’

Appellant requested the court to give the following instruction: “The note itself as introduced is evidence of its genuineness and of the indebtedness therein mentioned, and the burden rests upon the defendant, John Roberts, administrator, to show by a fair preponderance of the testimony that the signature to the note is not genuine, and that he- is not indebted to the said J. M. Wagley; and unless these facts are shown by a fair preponderance of the testimony, you. will find for the plaintiff, J. M. Wagley.”

This presents the first alleged reversible error. The instruction given by the trial court was more favorable to appellant than he was entitled to under the law. It placed the burden of proof upon appellee to show by a fair preponderance of the testimony that the signature was not genuine and that Dr. Sims did not receive the money indicated by the note. A preponderance of the testimony is the true test under the law in this State and should have been the test here applied.

It is the established doctrine in this State that one can not complain of an instruction more favorable to him than he was entitled to under the proof or the law. Southern Cotton Oil Co. v. Spotts, 77 Ark. 458, 92 S. W. 249; Gurdon & Fort Smith Ry. Co. v. Calhoun, 86 Ark. 76, 109 S. W. 1017; Hamiter v. Brown, 88 Ark. 97, 113 S. W. 1014; Jones v. Dyer, 92 Ark. 460, 123 S. W. 757; St. L. I. M. & S. Ry. Co. v. Hutchinson, 101 Ark. 424, 142 S. W. 527.

Next, appellant urges that the court erred in refusing to give his requested instructions heretofore quoted. This instruction is fully covered by the one given by the court, and trial courts should not give instructions which are covered by instructions already given. Furlow v. United Oil Mills, 104 Ark. 489, 149 S. W. 69.

It is next insisted that reversible error was committed in allowing the cross-examination of witness Jackson in reference to the comparison of certain signatures. This cross-examination was entirely proper as tending to test the knowledge of the witness in reference to signatures generally and the true signature of Dr. Sims in particular.

No reversible error appearing, the judgment is affirmed.


text:
    State Life Insurance Company v. Goodrum.
    4-3519
    Opinion delivered July 9, 1934.

      Chas. A. Walls, for appellant.

      Trimble, Trimble McCrary, for appellee.
   Johnson, C. J.

The sole question here presented for determination is the applicability of an affirmative plea of res judicata in bar of appellee’s alleged cause of action. The facts are not in material dispute and may be summarized as follows:

On December 18, 1920, appellant issued its policy of life insurance by the terms of which it agreed to pay to designated beneficiaries $2,500 in the event of the death of the insured, Thomas T. Goodrum. On April 18, 1921, appellant issued a second and additional policy of life insurance identical in all respects to the one issued on December 18,1920, except as to the date of issuance. The insured died on April 9, 1933, at which time both policies, as heretofore described, were in full force and effect. After the death of the insured, proof of loss under each separate policy was made and liability was denied by the insurer under both contracts. Thereafter, on August 7, 1933, a suit was instituted by the beneficiary in succession upon the policy or contract of date December 18,1920, in the Lonoke Circuit Court, and upon trial thereof on September 6, 1933, judgment was rendered in favor of the beneficiary and against the insurer for the face value of the policy plus penalty, attorney’s fees and costs. Thereafter, this judgment was paid and satisfied in full of record. On September 7, 1933, the suit here under consideration was instituted in the Lonoke Circuit Court upon the policy or contract of insurance dated April 18, 1921, and the defense interposed and urged below and insisted upon here was the plea of res judicata. This plea of res judicata is bottomed upon the proceedings had and done under the prior judgment of September 6, 1933. Appellant’s contention is that appellee was required, under the law, to prosecute and maintain in one law action all demands which he had or held against appellant, and that, since appellee failed so to do, the present action is barred by the previous one. The argument is that the death of the insured is the basis of the cause of action, and that the maintenance of two suits upon separate policies of insurance is the splitting of his one cause of action and should not be tolerated by the courts. If we could agree that the insured’s death is the basis of the cause of action, appellant’s contention would be correct, but such is not the fact. The basis and foundation of these suits were the respective contracts of insurance upon the life of the insured. The only reason why any liability existed in favor of the beneficiary and against the insured is by reason of the contract which so provides. All the rights and liabilities of the parties are measured by the terms of the contracts. Therefore, it certainly appears that the basis of the suit is the contracts of insurance and not the death of the insured. The death of the insured was the condition named in the contract of insurance upon which liability attached as against the insurer and is not the basis of such liability. Smith v. Mutual Life Ins. Co. of New York, 188 Ark. 1111, 69 S. W. (2d) 874.

The general rule in reference to the question under consideration is stated in 34 O. J., par. 1246, p. 836, thus: “The rule against splitting causes of action does not require a plaintiff who has distinct and disconnected causes of action against the same defendant, each of which by itself would authorize independent relief, to join them in a single suit, although they existed at the same time and might permissibly be so joined, etc.”

Section 30, Subject Actions, 1 R>. C. L., 351, states the general rule as follows: “With respect to separate and independent contracts, separate actions anay be brought at the pleasure of the party, subject only to the power of the courts to direct them to be consolidated in proper cases.”

Appellant cites Berry v. Linton, 1 Ark. 252; Blakeney v. Ferguson, 18 Ark. 347; Wassell v. Trapnall, 19 Ark. 677, and many other cases as supporting the contention here presented.

Berry v. Linton decided only that separate causes of action could not be joined for the purpose of conferring jurisdiction. Blakeney v. Ferguson decided that a liability on an injunction bond could not be split but that one action must suffice. This doctrine is predicated squarely upon the theory of one bond, one liability and one action for its recovery. This will suffice to show the material distinctions between cases cited and their application to the case under consideration.

Moreover, it has ever been the rule in this State that separate causes of action can not be joined in one action except when authorized by the code. Clements v. Lumpkin, 34 Ark. 508; Riley v. Norman, 39 Ark. 158; Waldo v. Thweatt, 64 Ark. 126, 40 S. W. 782; Hill v. Dade, 68 Ark. 409, 59 S. W. 39; K. C. S. Ry. Co. v. Tonn, 102 Ark. 20, 143 S. W. 577.

Separate causes of action may be joined in one complaint only in the instances prescribed by § 1076, Crawford & Moses’ Digest. Even after joining of separate cause of action as authorized by § 1076, cited supra, % 1077 authorizes the striking of any separate cause of action by plaintiff prior to final submission to the jury. Thus it appears from our statutes on civil procedure that it is discretionary with plaintiff, and that he may elect, whether or not separate causes of action accruing to him under separate contracts shall be joined in one complaint and in one action. It is true that, after separate suits are filed on separate and distinct contracts, the courts are authorized, by §§ 1080 and 1081 of Crawford & Moses’ Digest, to consolidate certain causes for trial purposes, but when such order of consolidation is effected, it in no wise changes the rule in reference to separate causes of action, and, even after such order of consolidation, the causes of action remain separate and distinct. New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S. W. (2d) 520.

It follows that by the execution and delivery, by appellant to the insured, of the two separate policies of insurance two separate and distinct causes of action were thereby created, and, under the authorities cited supra, when liability accrues such separate causes of action may be instituted, prosecuted and maintained separately at the election of plaintiff or until consolidation is effected as provided by law.

The judgment appealed from conforming to the views here expressed, the same is in all things affirmed.


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    Standard Lumber Company v. Henry.
    4-3493
    Opinion delivered July 9, 1934.

      A. F. Triplett, for appellant.

      Barber vB Henry and Louis Tarlowski, for appellees.
   Johnson, C. J.

This controversy arises over the alleged superior rights of an attaching creditor of an insolvent foreign corporation and the receiver of said foreign corporation appointed by the courts of this State.

On May 11, 1933, appellant, a creditor of the National Surety Company caused writs of garnishment to be served on E. W. Oifenhauser & Company of Texarkana, Arkansas, and the People’s Trust Company of Little Rock; and on May 15, 1933, caused a writ of garnishment to be served on Taylor & Company. Each of said garnishees answered the writs by admitting indebtedness or liability to a certain extent in favor of the National Surety Company. On May 16, 1933, appellee, E. A. Henry, was appointed ancillary receiver of and for the National Surety Company by the courts of this State. Thereafter, appellee, as such receiver, filed his intervention in appellant’s action pending in the Pulaski Chancery Court in which the receiver asserted a paramount right or claim to the funds in the possession of all said garnishees, and, upon trial thereof, the chancery court determined that the receiver’s rights were superior and paramount to appellant’s garnishments, and this appeal is therefrom.

The receiver’s asserted superior rights must be tested by the laws of this State. The applicable insolvency laws of this State are §§ 5885 to 5893', inclusive, Crawford & Moses’ Digest. Section 5886 provides: “The receiver shall intervene in every case in which the property of such insolvent debtor has, within ten days before the filing of such petition, been attached, and, upon such receiver’s motion, every such attachment shall be dissolved and the attached property shall be turned over to such receiver upon the payment by the receiver of all costs which, shall have, accrued in the attachment suit.”

Appellant contends that the cited sections of Crawford & Moses’ Digest have no application to the facts in this case because: First, said sections apply only to residents of the State of Arkansas and can not be invoked by or extended to foreign corporations. This contention is made, not because the statute excludes such foreign corporations, but because they do not expressly designate them as «a class to be benefited thereby. "We perceive no good reason why the statutes cited supra should not apply to an insolvent foreign corporation which comes within its purview as effectually as to a domestic corporation. If the insolvent foreign corporation has property and creditors in this State, just why it should not be administered by the courts of this State is not pointed out in briefs. The cited statutes do not exclude foreign corporations by its terms, and we believe upon logic and reason that the insolvency laws in this State do apply to insolvent foreign corporations to the extent of administering such property as may be found within the boundaries of this State for the benefit of creditors in this State. In Franklin v. Mann, 185 Ark. 993, 50 S. W. (2d) 606, it was contended that certain insurance laws in this State were applicable to resident insurance companies only and not to foreign corporations, but, after citing § 11 of art. 12 of the Constitution of 1874, we specifically decided that the. Legislature had the intent and purpose of protecting all persons interested in insolvent insurance companies and that the insurance laws were applicable to such foreign corporations.

Neither can we agree that as a sequence of this view the assets of a foreign corporation in the hands of a State receiver must pass from this State to the State of the domicile of the foreign corporation for administration and distribution. It is well settled by authority that a foreign receivership can not divest the possessions and control of property situated in this State as against the rights of the citizen creditors of this State. No rule of comity is breached by enforcing our own laws in preference to the laws of other States. Choctaw C. & M. Co. v. Williams-Echols Dry Goods Co., 75 Ark. 365, 87 S. W. 632, and authorities there cited.

It is next urged that the insolvency statutes do not apply 'because, as it is said, the National Surety Company did not invoke the aid of the courts of this State in the appointment of the receiver. The nature and kind of proceedings which invoked jurisdiction in the appointment of the receiver is not before us for determination. It suffices to say, we must presume that the receiver was rightfully appointed by the court which effected it, and especially is this true in a collateral attack on such appointment as this appears to be. The view here expressed in no wise conflicts with the holding of this court in Walker v. McMillan, 187 Ark. 586, 61 S. W. (2d) 455, but is in full accord with it.

Next, it is insisted that § 5886, Crawford & Moses’ Digest, sufra, does not provide for the dissolution of garnishment proceedings, but applies only to attachments. This is the letter of the statute. We are cited McGuire v. Barnhill, 89 Ark. 209, 115 S. W. 1144, as supporting this contention. If a garnishment proceeding were the same thing as an execution, then the case referred to would be decisive, but such is not the fact.

The question here presented is, does attachment as used in the statute include garnishments ? Practically, if not all, the courts agree that garnishment is a mode of attachment. Rood on Garnishment, § 192, and authorities therein cited. 12 R. C. L., § 2, p. 775, defines garnishment as follows: “Garnishment has very properly been defined as an attachment by means of which money or property of a debtor in the hands of third parties, etc. ”

We conclude, therefore, that garnishment proceedings are included in the word “attachment” as appears in the statute.

It follows from what we have said that the trial court was correct in holding that our insolvency statutes were applicable to the facts of this case, and that the rights of the receiver were superior and paramount to those asserted by the creditor under the garnishment proceedings.

The net result of our view is that the assets of the foreign corporation were rightfully determined as belonging to the State receivership for administration and distribution by the court of this State, and, after paying costs of administration in this State, so much of the balance as may be necessary should be distributed to creditors in this State pro rata or according to law or the rules and usages of equity courts, and any balance remaining should be paid to the domiciliary receivership.

The decree appealed from, conforming to the views here expressed, should in all things be affirmed.

Butler, J., concurs.


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    Eveland v. State use of Fossett.
    4-3513
    Opinion delivered July 9, 1934.

      Partloic >& Rhine and W. A. Jackson, for appellant.

      Adrian Coleman and Jeff Bratton, for appellee.
   Smith, J.

This suit was brought in the name of the State for the use and benefit of Birdie Fossett, to affiliate a bastard child of which she alleges appellant was the father. It was adjudged both in the county court and in the circuit court on appeal that appellant was the father of the bastard child, and he was required by the judgment of the circuit court, pronounced upon the verdict of a jury, to make monthly payments provided for by the statute under which the proceeding was had.

An appeal has been duly prosecuted from that judgment, and for its reversal it is insisted that the court erred in admitting certain testimony, and in excluding certain other testimony. These are assignments of error which can be reviewed only upon a motion for a new trial filed in the cause below calling the attention of the court to the errors complained of.

It has been several times decided that, although a bastardy proceeding is in the name of the State, it is of a civil nature. Wimberly v. State, 90 Ark. 514, 119 S. W. 668; Belford v. State, 96 Ark. 274, 131 S. W. 953; Chambers v. State, 45 Ark. 56; Pearce v. State, 55 Ark. 387, 18 S. W. 380.

It was held in the case of Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673, which was an appeal from a misdemeanor conviction, that where the offense charged is a misdemeanor, we are not required, as in felony cases, to explore the record to see whether error was committed, but are only required to consider the assignments of error properly presented under the rules of the court.

It was held in the very recent case of State v. Neil, ante p. 324, 71 S. W. (2d) 700, that a motion for a new trial is essential to a review of alleged errors not apparent on the face of the record. The improper admission or exclusion of testimony is not an error apparent on the face of the record, but is one which must be brought upon and into the record by a proper bill of exceptions after a motion for a new trial has been filed calling the attention of the court to the alleged error.

If there was a motion for a new trial, it has not been abstracted, and the alleged error has not been called to our attention as the rules of this court require, and it is not, therefore, properly presented for our consideration.

As no other assignments of error are suggested, the judgment must he affirmed, and it is so ordered.


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    Perrymore v. State.
    Crim. 3898.
    Opinion delivered July 9, 1934.

      Evans \S Evans, Sid White, Ray Blair and Robert J. White, for appellant.

      Eal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

Appellant was the duly elected and acting sheriff of Logan County, and as such was the legal custodian of the prisoners confined in the jails of that county. He was indicted for permitting two of these prisoners to escape. One of these prisoners was named Richard Warren Holly, the other was named Ed Kle-ier, and both were under indictment for the commission of a felony. Appellant was suspended temporarily from his office upon the return of the indictment against him, and upon his conviction, his removal from office was made permanent, and he has prosecuted this appeal to reverse that judgment.

The authority and the duty of a sheriff in regard to the custody and control of prisoners confined to his keeping was thoroughly considered in the case of Houpt v. State, 100 Ark. 409, 140 S. W. 294, and the responsibility of a sheriff for the escape of a prisoner was so fully stated that the subject need not again be reviewed. It was there pointed out that it had been held in the case of Martin v. State, 32 Ark. 124, that permitting a prisoner to escape through the negligence of his custodian was not a statutory offense, but only one at common law, yet an indictment would lie for its commission, and a person convicted therefor was subject to removal from office, although the offense was only a misdemeanor and punishable as such under chapter 22, 772-773, of Gantt’s Digest, which appear as §§ 1432-1433, Crawford & Moses’ Digest.

A question arose — which we find it unnecessary to decide — whether the indictment charged a common-law offense or a violation of the statute (§§ 2574-2584, Crawford & Moses’ Digest), for the reason that the trial court construed the indictment as charging only a misdemeanor.

The theory upon which the case was tried is indicated by the questions which the court permitted the prosecuting attorney to ask the jurors in qualifying them for service. For instance, a juror was asked: “Q. If Bryan Godfrey, the deputy sheriff, permitted him (the prisoner) to escape, and Mont (appellant) knew or should have known about it, and the court tells you it would be your duty, would you convict?”

Logan County has two judicial districts, with a jail in each, one being located at Paris, the county seat, the other at Booneville, the town in which the courthouse and county jail for the Southern District of the county are located. The sheriff resides in Paris, and ordinarily visits Booneville when the circuit court is not in session at that place only about once each week. Bryan Godfrey, the person referred to in the question of the prosecuting attorney above quoted, resides in Booneville, and represents the sheriff there, and had charge of the jail at that place. There was testimony to the effect that Godfrey allowed Kleier, one of the prisoners referred to in the indictment, much freedom of action, but whether enough to constitute an escape under the law as declared in the Houpt case, supra, we need not decide, as he is not a party to this proceeding. It was the theory of the prosecution that the sheriff himself was criminally responsible for the acts of his deputy; in fact, the court read § 2581, Crawford & Moses’ Digest, as a part of one of the instructions given in the case, this being done over appellant’s objection and exception. This section reads as follows: “If any officer, or his under officer or deputy, having the lawful custody of any prisoner, for any cause whatever, shall voluntarily suffer or permit or connive at the escape of such prisoner from his custody, or permit him to go at large, he shall upon conviction be punished in the same manner as if convicted of aiding or assisting' such prisoner to escape.”

The theory upon which the charge was defended is indicated by an instruction numbered á which was requested by appellant but was refused by the court. This instruction reads as follows: “If the jury should believe from the testimony that deputy sheriff and jailer, Bryan Godfrey, was guilty of a crime in connection with the escape of Holly and Kleier, or either of them, this will not be sufficient to authorize the jury to convict Mont Perrymore, unless the defendant, Perrymore, knew of and participated in, or consented to such criminal conduct, if any, on the part of the said Godfrey in connection with such escape. ” '

It is our opinion, for reasons hereinafter stated, that this instruction was a correct declaration of law, and the refusal to give it was an error calling for the reversal of the judgment.

The most serious question in the case is whether, under the law as thus announced, there was any competent or sufficient testimony to support the verdict, and we have reached the conclusion, after giving the testimony tending to support the verdict its highest probative value, that there was not.

There appears to be no testimony that Holly, one of the prisoners who escaped, was accorded such freedom of action as to constitute an escape. The testimony relates to the liberty of movement accorded Kleier, but all this testimony relates to the conduct of Godfrey, and it was not shown that the sheriff himself had authorized, or had consented to, or was aware of the fact, that Kleier was not kept properly confined. The only relevant testimony tending to show any knowledge of or any participation in Godfrey’s conduct was given by appellant himself, who testified that the presiding judge had told him Godfrey was not sufficiently careful in his surveillance of Kleier. The undisputed testimony shows, however, that, immediately upon hearing the judge express this opinion, appellant directed Godfrey to confine Kleier in the jail, and he did so except that on certain occasions he took Kleier out of the jail to get coal and build fires, but Godfrey testified that this was done in his presence. On the night of the escape Kleier was not confined in a cell, but was locked up in what was called the “runaround,” the area around and within the walls of the jail surrounding the cells. There was a lock to the door affording entrance to this run-around. Godfrey did not regard this as an unsafe thing to do, as Kleier had been twice tried upon the charge for which he was in jail, and there had been a mistrial in each case. This liberty was accorded that night because Kleier had been given salts and the commode was in the run-around. We are not required to decide whether this liberty would constitute an escape, as Godfrey was not on trial. In any event there is no testimony whatever to the effect that appellant knew of, or consented to, or connived at, the-extension of even this liberty.

We have reached the conclusion that the negligence, if any, resulting in the escape of the prisoners was the sole act of Godfrey, and not that of appellant. We have also concluded that the judgment must not only be reversed, but, inasmuch as the case appears to have been fully developed, the cause should be dismissed.

The case of State of Alabama v. Kolb, 201 Ala. 439, 78 So. 817, considers the liability of an officer for the acts of his deputy, and is exhaustively annotated in 1 A. L. K. 218, from pages 218 to 264. On the liability of sheriffs, constables, and marshals, for the acts of their deputies, the annotator, at page 236, says: “The general rule has long since been settled that sheriffs and other officers performing similar duties are liable civilly but not criminally for the acts and omissions of their deputies when acting officially or under color of the office. This general rule, which is recognized in and constitutes the basis of most of the decisions dealing with this phase of the question, is expressly stated in Rogers v. Marshal, (1863) 1 Wall. (U. S.) 644, 17 L. Ed. 714” A large number of cases are there cited which support the text just quoted.

Our own case of Edgin v. Talley, 169 Ark. 662, 276 S. W. 591, was a suit against a sheriff for a wrongful arrest made by his deputy, which was aggravated by an assault made by the deputy upon the person arrested, and we there held the sheriff was liable for the act of the deputy committed under the color of his office. We said: “The general rule is that for all civil purposes the acts of a deputy sheriff or constable are those of his principal. Hence a sheriff or constable is liable for the act, default, tort, or other misconduct done or committed by his deputy, colore officii

But, unlike that case, this is not an action to enforce a civil liability. This is a criminal prosecution, and we have no statute imposing criminal liability on an officer for the act of his deputy which he did not authorize, or connive at, or consent to, or otherwise aid or abet in its commission.

It follows, from what we have said, that the judgment must be reversed, and the cause will be dismissed.


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    School District No. 12 of Grant County v. School District No. 37 of Sheridan.
    4-3572
    Opinion delivered July 9, 1934.

      Isaac McClellan and 8. J. Reed, for appellant.

      D. M. Halbert, for appellee.
   Humphreys, J.

This is an appeal from a judgment of the circuit court of Grant County dissolving School District No. 12 and annexing the territory contained therein to Special School District No. 37.

A petition for the purpose of consolidating the districts was filed with the county examiner in September, .1933. The county judge, J. W. Lybrand, who was a member of the board of directors of said District No. 37, certified his disqualification to hear and try the cause to the Governor on October 9, 1933; and on the 6th day of November, 1933, T. Nathan Nall, an attorney at Sheridan, was appointed and commissioned as special county judge of said county to hear and determine the cause. On application, a writ of' prohibition was granted by Hon. Thomas E. Toler, judge of the circuit court, preventing the special county judge from trying the cause for the reason that proper notice had not been given of the date set for hearing and that the petition had been filed with the county examiner instead of with the county clerk.

On January 1,1934, a new petition for the consolidation of said districts was filed with the county clerk, and on May 10, 1934, the special county judge, assuming to act under his appointment and commission to hear and determine the petition filed in September, 1933, heard the new petition filed on January 1, 1934, which trial resulted in a judgment dissolving District No. 12 and annexing the. territory contained therein to Special School District No. 37.

The board of directors of District No. 12 duly appealed the case to the circuit court. The circuit court affirmed the judgment of the county court, and said board, has appealed from the judgment of affirmance to this court.

There is no authority in the law for a special county judge appointed and commissioned to try a particular cause of action to hear and determine a separate and independent cause of action filed after his appointment. There was no connection between the first and the last petitions filed except that they were both filed for the same purpose. The first was filed with the county examiner and the last was filed with the county clerk. The special judge was prohibited by the circuit court from hearing and determining the first petition. The special county judge was not appointed and commissioned to try the petition filed January 1, 1934. He had no authority to try the cause, and, he being without jurisdiction to do so, the circuit court acquired no jurisdiction to try it on appeal.

On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to the circuit court to remand the cause of action to the county court.