text:
    Partridge v. Boon.
    Opinion delivered November 10, 1930.

      B. J. Williams and S. S. Hargraves, for appellant.

      G. W. Norton and Daggett Daggett, for appellee.
   Smith, J.

On February 10, 1928, Mrs. Fannie R. Partridge filed her fifth and final settlement as guardian of her daughter, Sadie Partridge. After including numerous charges and credits the settlement showed the “Present amount now due by guardian to her ward, value of estate, as per this report, $12,542.74. ’ ’ Included in the assets was a note, secured by a first mortgage on land, in the sum of $5,099.38, and, after taking credit therefor, a net balance of $7,443.36 was shown to be due the ward.

Attached to the settlement, as a part of it, was the following writing: “I, -Sadie Partridge, former ward of my mother, Mrs. Fannie It. Partridge, have this day received of Mrs. Partridge one note, of the value of $5,099.38, which is secured by first mortgage on the Kendrick lands, or a part thereof, signed by Mrs. Louise Pope, which I accept and credit my guardian with said amount as shown in her report. I have also checked over all items listed in her report. I find them correct, and I join in and with her in asking the approval of said report by this court. (Signed) Sadie Partridge.”

This settlement was filed in the office of the clerk of the probate court on February 10, 1928, and on March 26, 1928, the judge of the probate court indorsed upon it the following notation: “Passed for publication.” Publication of notice of the filing of the settlement was duly made, and on April 23, 1928, the judge indorsed thereon the notation: “Examined and approved April 23, 1928. (Signed) Homer Folbre, Judge.”

Without further order or action by the probate court, the' clerk thereof entered an order containing the recital that the 'guardian had -filed final settlement account ‘ ‘ showing all funds accounted for, * * * and at the same time is filed the final receipt of the minor, iSadie Partridge, showing all funds as having been turned over to her by her guardian, and same is hereby approved and the guardian is discharged from further liability. ’ ’

It is obvious that this order was a misprision on the part of the -clerk, resulting from a very superficial reading of the guardian’s settlement, as the settlement did not disclose that a final receipt had been filed showing that all funds had been turned over to the ward, but recited only the ward’s receipt for the note, and expressly recited that there was a balance due the ward of $7,443.36.

The term of the court at which this order was entered expired, and on February 11, 1929, when the term of office of the judge who had made the order had also expired, a mmc pro tunc order was entered by his successor in the office of probate judge. This order reads as follows:

‘ ‘ On this the 11th day of February, 1929, this matter coming on to be heard upon the petition off 'Sadie Partridge, a minor, and it appearing to the court that a judgment on the final report was entered by the clerk, and the said judgment was in error as the said judgment states that the final receipt of the minor, Sadie Partridge, all funds as having been turned over to her ¡by the guardian, the fact being and the fifth and final report showing that the ward accepted the note of Mrs. Louise Pope in the amount of $4,099.38, leaving due and owing her (by the guardian the sum of $7,443.36.

“It is ordered that this judgment be entered superseding and setting* aside the judgment entered by the clerk, and it is further ordered that there was due and owing to the minor from the guardian as of February 9, 1928, the sum of $7,443.36.

“Now this order is entered mmc pro tunc, or now for then. ’ ’

On October 26, 1929, R. M. Boon, who was a surety on the bond of the guardian, .filed a petition for a writ of certiorari, in which it was' prayed that the nunc pro tunc order be canceled, and upon hearing the petition the circuit court granted the relief prayed and that order was quashed, and this appeal is from that judgment.

The action of the circuit court quashing the nunc pro tunc order is defended upon the grounds that it was made without notice to petitioner, the surety on the bond; that the judgment of the court of April 23, 1928,, became final on the lapse of the term and could not thereafter be modified or vacated; and that the mmc pro tunc order did not speak the truth as to what was actually done by the court on April 23, 1928, but substituted a judgment entirely different from that actually rendered.

We do not think any of these contentions can be sustained. No notice was given the surety that the nunc pro tunc order would foe applied for; fout none was required. Notice was given to the 'guardian and her attorney, and they appear to have conceded .the error which the nunc pro tunc order cured. This was fout a step' in the settlement of this guardianship, df which notice to the surety was not required. 2-8 C. J., chapter Guardian and Ward, § 498, page 1294; Beakley v. Cunningham, 112 Ark. 71, 165 S. W. 259 ; Jones v. Graham, 36 Ark. 383 ; Crowley v. Mellon, 52 Ark. 1, 11 S. W. 876.

The nunc pro time order was made within a year of the date of the order which it corrected -and at a time when an appeal therefrom might have (been prosecuted, and.had that ¡been necessary, and no notice to the surety o-f the appeal would have been required. Section 2258, C. & M. Digest.

It is true the term of court at which the original order was entered had expired when the nunc pro tunc order was made, fout § 6290, O. & M. Digest confers upon the court in which a final order has (been made power, after the expiration of the term, to vacate such order for misprision of the clerk—this being among the causes there named for the exercise of this power.

The case of Butt v. Saxon, 181 Ark. 81, 25 S. W. (2d) 8, is in point. In that case a sale of land had been made to Saxon, which was erroneously reported to have been made to Dickinson, and the clerk of the chancery court wrote up an order to that effect, which order was corrected at a subsequent term of the court to reflect that Saxon, and not Dickinson, was the purchaser, and it was held that § 6290, O. & M. Digest, conferred that power upon the court.

It is true, as many cases have held, that nunc pro tunc orders cannot foe used to correct errors appearing in previous orders, and that their only purpose is to correctly reflect and record the action which was taken by the court, and -not to make it recite what it did not recite but ought to have recited. This rule, so well established that no citation of authority is required, did not prevent the making of the order which was quashed upon certiorari. The original order of the probate court was to approve the settlement as filed, 'but the entry in the records of the probate court as made by the clerk thereof did not correctly reflect that order. The order entered found no authority in the judgment rendered, which merely approved the settlement as filed. The order of the court did not purport to find that the settlement recited that the guardian had complied with § 5069, C. & M. Digest, by exhibiting the receipt of the ward .for all the property. On the contrary, the settlement which the court approved expressly recited that a portion only of the assets had been paid over and that a balance remained unpaid. It was therefore a misprision on the part of the clerk to enter an order which could have been written only by one ignorant of the recitals which the settlement contained and which the court had approved. No authority whatever existed for the- order which the clerk entered, as it did not conform to the order which the court made. It was therefore proper to correct his erroneous order by an order entered nunc pro tunc, and no notice thereof to the surety on the guardian’s bond was required. He became a party to such orders as the court might make in settling the guardian’s accounts when he signed the bond, as surety, required by the statute to enable the guardian to1 enter upon the discharge of her duties as such. It has never been deemed necessary,, in acting upon the settlements of guardians, to require the presence of the sureties upon the guardian’s bond, by service of notice upon them that such settlements are about to be acted upon. Planters’ Mutual Ins. Ass’n v. Harris, 96 Ark. 229, 131 S. W. 949.

The testimony of Judge Folbre and that of the deputy clerk who actually entered of record the original order was heard by the court below, and has been carefully examined by us, and, without setting out this testimony, we announce our conclusion to' be that nothing appears in this testimony to indicate that Judge Folbre made any order except that hereinabove quoted—that of approving the settlement as filed. 'This order of Judge Folbre’s is not susceptible of the construction which the order, as entered of record by the clerk, placed upon it, and the order as entered should therefore be corrected to conform to the order made, and this the nunc pro tunc order did.

The judgment of the court below, quashing the nunc pro tunc order, will therefore be reversed, and the petition for certiorari will be dismissed, and this judgment will be certified back to the probate court.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Shorten v. Brotherhood of Railroad Trainmen.
    Opinion delivered November 10, 1930.

      Peter A. Deisch, for appellant.

      Sheffield $ Coates, for appellee.
   Humphreys, J.

This suit was instituted in the chancery court of Phillips County by appellant against appellee to recover twelve hundred dollars, the alleged value of a certificate olf insurance against total disability on account of ill health, issued by appellant to appellee on the 30th day of March, 1907, upon the alleged ground that said certificate of insurance was fraudulently canceled and declared void by appellee on December 12,1924.

Appellee filed an answer admitting the issuance of the certificate of insurance but interposing as defenses to the suit res judicata and fraud on the part of appellant in securing a reinstatement of said certificate in 1918 after forfeiture thereof for failure to pay monthly dues thereon.

The cause was submitted to the court upon the pleadings and testimony which resulted in a finding of the law and facts against appellant and a dismissal of his complaint for the want of equity, from which is this appeal.

The record reflects that on April 2, 1925, appellant brought suit against appellee in the circuit court of said county to recover $1,800 on the certificate of insurance for his total disability on account of ill health. Appellee filed an answer in that case setting up, among other defenses, that on December 12, 1924, it had canceled the certificate olf insurance and declared same void because in obtaining a reinstatement of. the certificate which had been forfeited in 1918 for failure to pay monthly dues thereon, appellant had obtained same upon false and fraudulent warranties concerning his health. After the pleadings had been made up in that case appellant, on his own motion, took a nonsuit with prejudice.

Appellant contends for a reversal of the decree upon the alleged ground that the trial court erroneously sustained appellee’s plea of res judicata, arguing that the plea was not applicable or appropriate for the reason that a totally different cause of action was set out in appellant’s complaint in the chancery court from that which was alleged and set out in the complaint in which he took a nonsuit with prejudice. The main issue joined in the instant case was whether it properly canceled the certificate of insurance on the 12th day of December, 1924, or whether it did so arbitrarily and without cause. This was the identical issue tendered by appellee in its answer to the suit which appellant brought in the circuit court of said county, and which was dismissed at his request with prejudice. It is true that an issue was tendered by appellant in his circuit court suit as to whether his disability was total and permanent under the terms of the certificate of insurance when read in connection with the constitution and by-laws of appellee, but it also involved the issue as to whether the certificate of insurance had been rightfully canceled which was the main issue involved in the instant suit. It was ruled by this court in the case of Robertson v. Evans, 180 Ark. 420, 21 S. W. (2d) 610, that:

“The test in determining- the plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit.”

It was also ruled by this court in the case of Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S. W. (2d) 327, that:

“The dismissal of a suit with prejudice is as conclusive of the rights of the parties as ilf the suit had been prosecuted to a final adjudication adverse to the plaintiff.”

We think the trial court correctly sustained appellee’s plea of res judicata.

In view of the fact that the plea of res judicata was correctly sustained, it becomes unnecessary to set out in this opinion the testimony relating to the defense of fraud in procuring the reinstatement of the certificate of insurance in 1918 after same had been forfeited for the nonpayment of monthly dues, or to determine that question.

No error appearing, the decree is affirmed.


text:
    State v. Delinquent Lands.
    Opinion delivered November 10, 1930.

      Hal L. Norwood, Attorney General, and J. A. Tellier, for appellant.

      S. V. Neely, S. H. Mann, C. W. Norton, M. B. Nor-fleet, Mann <& McCulloch, Streett & Burnside and Bose, Hemingway, Cantrell <& Loughborough, for appellee.
   Humphreys, J.

The purpose of this appeal is to ascertain whether the chancery court of St. Francis County correctly construed act number 296 of the Acts of the General Assembly of 1929, as an act Ifor the confirmation of the State’s tax titles. The decree appealed from followed the trial court’s interpretation of the act by providing that the respective forfeitures or sales to the State of the several tracts of land described in the complaint for the taxes for the respective years shown opposite each tract shall be confirmed against, any “informality or any irregularity’ ’ connected with such sale or forfeiture to the State.

Appellant contends Ifor a reversal of the decree because the court refused to vest an absolute title in it to the forfeited lands described in the complaint. It is argued that said act No. 296, upon which the action is based, expressly authorizes the investiture of an absolute title in the State to all lands forfeited and sold to. it for the nonpayment of taxes. The language of the act does not sustain the argument. According to the language used the act only purports to deal with tax titles acquired by the State through sales for the nonpayment of taxes which contain “informalities or irregularities” for which the sales might be avoided or set aside. The notice to interested parties provided in § 3 of the act is by publication describing the lands and calling on all persons who can set up any right to the lands so forfeited in consequence of any “informality or any irregularity” connected with such sale to show cause at the first term of court thereafter why the “sale” made to the State should not be confirmed. Certainly the intent was not to make the decree broader than the constructive notice to interested parties of the institution of the suit. The breadth and scope of the decree in favor of the State isi limited in § 9 of the act in specific language to a confirmation of the “sale” to the State. It is also provided1 in § 9 of the act that the decree of confirmation in favor of the State shall be a bar against any and all persons who may thereafter claim said lands in consequence of “any informality or illegality” in the forfeiture proceedings for the nonpayment of taxes. It is manifest from the character of the decree provided by the act that the Legislature did not intend for the confirmation to be a bar against claimants of the land upon other grounds.

Again, the purpose and intent of said act number 296 is reflected by the fact that it follows very closely the provisions of §§ 8379-8393 of Crawford & Moses’ Digest for the confirmation of tax titles in proceedings by individuals. By comparison of said act 296 with those sections of the Digest it will be seen that there is no material difference between them. The sections of the Digest referred to have been construed by this court as a method of procedure for perfecting such title as the purchaser at tax sales would have received if the sale had been regular, and that a decree under the provisions of said sections would not have the effect of confirming the title in the purchaser. Updegraff v. Marked Tree Lumber Co., 83 Ark. 154, 103 S. W. 696. In view of the similarity between said act number 296 and the sections of the statute relating to the confirmation of individual tax titles, this court’s construction of the intent of those sections of the statute referred to is the appropriate and fitting construction as to the intent and purpose of the Legislature in the passage of said act number 296.

Our conclusion is that said act number 296 is an act providing a method by which the State may validate its tax.titles by curing the “informalities and irregularities” contained in the forfeiture proceedings. This interpretation or construction of the statute necessarily eliminates all other issues in the case.

No error appearing, the decree is affirmed. .

Kirby and Mehaffy, J J., dissent.


author: Kirby, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Abel.
    Opinion delivered November 10, 1930.

      Thomas S. Bushes and George B. Pugh, for appellant.

      B. F. Sandlin and Strait, Gaviness S George, for appellee.
   Kirby, J.

Appellant insists for reversal that appellee at the time he was injured was assisting in maintaining the tracks of appellant, and ■ therefore engaged in interstate commerce, and that the law governing the liability of appellant for injuries to him was necessarily the Federal Employers’ Liability Act.

It is undisputed that appellee was a member of the tamping gang, his special duty being to keep in repair and operate the engines used for tamping the ties in the maintenance of the track and roadbed. The machine was not operating satisfactorily before the workmen quit for dinner and appellee went down for the purpose of repairing and adjusting it and was so engaged when struck by the train. He said he had already made the proper adjustments for the machine and was at the time cleaning it off with the compressed aid from the hose attached. This work was in the line of his duty and he was necessarily, under the circumstances of this case, engaged in interstate commerce, and the law governing' the liability of appellant to him for the injuries inflicted is the Federal Employers’ Liability Act. Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, 33 S. Ct. 648 ; Seaboard Air Line Ry. v. Kenney, 240 U. S. 489, 36 S. Ct. 458.

Appellee was an experienced workman; he knew the location of the machine to be repaired relative to the track and the embankment or side of the cut, that trains were frequently passing over the track, and that the rules required him to rely upon his own watchfulness and keep out of the way, proceeded with his work of making the repairs, leaving the engine running and the air pump working- both making a great deal of noise, without looking toward the direction of the approaching train, according to his own statement, which he could have seen for almost a half mile, and stepped back on the track between his machine and the track where the passing train struck and injured him.

The testimony is in conflict as to whether the engineer and fireman on the approaching train were keeping a constant lookout as required by the statute and whether the signals were given notifying of the train’s approach before striking him. Since appellee was employed in interstate commerce at the time, the liability of appellant company for his injury is controlled by the Federal Employers ’ Liability Act, and the court erred in not so directing the jury in accordance with appellant’s requested instruction No. 2, and also in its instruction to the jury allowing the liability to be determined under the State Lookout Statute. C. & O. Ry. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495.

According to the undisputed testimony, appellee’s own statement of the occurrence of the injury, he neglected to take proper care for his own safety and assumed the risk incident upon the performance of the work without relying upon his own watchfulness to keep in the clear as the rules of the company required, and they were entitled to expect of their employees.

For the errors designated, the judgment must be reversed, and the cause, appearing to have been fully developed, will be dismissed. It is so ordered.


author: Ejkby, J.,

text:
    Fitzgerald v. Gates.
    Opinion delivered November 10, 1930.

      ■ Cravens & Cravens, for appellant.

      Sal L. Norwood, Attorney General, Walter L. Pope, Assistant, David A. Gates and Sam Borex, for appellee.
   Ejkby, J.,

(after stating’ the facts). In MerGim'i'ts’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S. W. (2d) 406, the court construing’ the act under consideration, held that act 65 of 1929, § 67, providing for a privilege tax of 4 per cent, repealed § 6 of act 62 of the same session of the General Assembly, providing for a 3 per cent. tax. It was said there that the forceful argument that the statute would be burdensome on small operators of motor buses could not be considered by the court for the reason that it would be an invasion by the judiciary of the province of the legislative department of the State, and, “when acting within constitutional limits in the passage of a statute upon a given subject, the Legislature is ■the sole judge of the wisdom, expediency and necessity of its enactment, and its action is not the subject of review by the court. ’ ’ The court expressly declined to pass upon the question, it not being properly raised, “as to whether the amount of tax was so great as to be excessive, arbitrary and discriminatory and confiscatory in its nature.”

This complaint does not allege that the tax provided for by § 67 of the said act is arbitrary, unreasonable, oppressive and confiscatory, but only that “as applied to this plaintiff’s business,” it is so and would confiscate his property and deprive him thereof without due process of law. It was also alleged the amount appellant had realized from his business during the period and the amount of expenses he had been compelled to pay in its operation, showing a loss of a substantial sum, which would be further increased if he were compelled to pay the tax in the amount of $681.88. It was not alleged that the amount paid out for operating expenses of the business was not unreasonable nor more than was reasonably required for the operation thereof. In other words, appellant contends that the act “as applied to his business” is arbitrary, unreasonable, oppressive and confiscatory, and therefore invalid. He alleges, however, not that the general business required by the act to pay the tax, but only that his business, was carried on at a loss, without consideration of the amount of the tax required to be paid, showing the revenues received and the expenses paid in the operation thereof. It is no longer questioned that the State has the power to levy such a privilege tax. Merchants’ Transfer & Warehouse Co. v. Gates, supra ; Cyclopedia Automobile Law, p. 6, and cases there cited ; Hester v. R. R. Com., 172 Ark. 90, 287 S. W. 763 ; Gruber v. Commonwealth, 140 Va. 312, 125 S. E. 427 ; Checker Taxi Co. v. Collins, 320 Ill. 605, 151 N. E. 675. .In 26 R. C. L. 238, it is. said:

“An excise is, however, to be judged by its effect upon persons or corporations generally, and is not to be considered unreasonable because it is prohibitive upon certain financially weak persons or corporations. Only those excise laws whose general operation is confiscatory and oppressive are unconstitutional. See also Ohio Tax Cases, 232 U. S. 576, 34 S. Ct. 372, 58 U. S. (L. ed.) .738.
“Whether a license tax is prohibitory is primarily a legislative question. ‘All presumptions and intendments are in favor of the validity of the tax;—in other words, the mere amount of the tax does not prove its invalidity.’ The reasonableness of an occupation tax does not depend on whether or not a hardship results in an isolated case, but instead upon the general operation of the tax in the class to which it applies. The amount of the tax is not to be measured by the profits of the business taxed, and the mere fact that the particular person taxed conducted his business at a loss does not of itself make a tax unreasonable.” Cooley, Taxation (4th ed.) 3433. See also Wright v. Hirsch, 153 Ga. 229, 116 S. E. 795 ; Western Union Tel. Co. v. Decatur, 16 Ala. App. 679, 81 So. 199 ; N. C. & St. L. v. Attalla, 118 Ala. 364, 24 So. 450 ; N. C. & St. L. v. Ala. City, 134 Ala. 414, 32 So. 731 ; Veazie Bank v. Fenno, 8 Wall. 533, 19 L. ed. 482 ; Merchants’ Transfer & Warehouse Co. v. Gates, supra.

In the case of Fiscal Court v. F. & A. Cox Co., 117 S. W. 296, 132 Ky. 738, 21 L. R. A. (N. S.) 83, relied upon by appellant, the order of the Fiscal Court of Owen County imposing a license by authority of the statutes was held void chiefly because the classification made by it in levying the tax was manifestly unequal and unreasonable—an unjust discrimination between the subdivisions so made. It should not be regarded as cf great weight in support of the contention made that the statute providing the tax should be declared unreasonable and arbitrary because it appears to be oppressive and confiscatory, imposing a hardship in an isolated case.

No error was committed in sustaining the demurrer and dismissing the complaint for want of equity, and the decree is accordingly affirmed.


author: Mehaeey, J.

text:
    B. H. & M. Oil Company v. Graves.
    Opinion delivered November 10, 1930.

      Marsh, McKay $ Marlin, for appellant.
    . H. G. Wade, for appellee.
   Mehaeey, J.

This suit was brought in the Union Chancery Court by Mrs. Bettie Graves against her husband, Buchanan Graves, Jr., the B. H. So M. Oil Company and others to impound a sufficient portion of the proceeds of future runs of oil accruing to the one-twenty-fourth interest formerly owned by her husband in the property described in her complaint, to the end that her inchoate right of dower in said property may be protected. Buchanan Graves, Sr., is the owner of the west half of southeast quarter and the southeast quarter of the southwest quarter of section 3, township 16 south, range 15 west, in Union County, Arkansas. In 1922 Buchanan Graves, Sr., and his wife, Jinnie Graves, executed an oil and gas lease covering said lands to W. G. Sanford and Crawford and Sabastian, who went upon the land and drilled a number of commercial oil wells in 1922 and 1923, and said wells are still producing large quantities of oil and will continue to do so for some time to come. On February 1, 1924, Buchanan Graves, Sr., and Jinnie Graves, his wife, conveyed by warranty deed a one-twenty-fourth undivided interest in and to all the oil and gas and other minerals under the above described land to Buchanan Graves, Jr. Appellee and Buchanan Graves, Jr., were married in October, 1926. On January 7, 1927, Buchanan Graves, Jr., conveyed as a single person to the B. H. So M. Oil Company the same property that Buchanan Graves, Sr., had conveyed to him. Bettie Graves was the wife of Buchanan Graves, Jr., at the time he conveyed said property as a single person, and she is still his wife. The land has no value except the oil and gas, and is being depleted rapidly and will in a few years become entirely depleted and valueless. Appellee is 26 years old, in good health and lives in Calhoun County on a farm. Her husband is 32 years old, and it is alleged that he is addicted to strong drink; that he often becomes intoxicated and is vicious. He lives at Smack-over, and they have been separated since May 1, 1929. Buchanan Graves, Jr., does not own any interest in land and never has except as above described. Appellant filed a demurrer which the court overruled, appellant declined to plead further, and the court rendered a decreé in favor of appellee,- ordering appellant to pay into the registry of the court one-third of the proceeds of the royalties accruing to it from the filing of the complaint and to continue to pay into the registry of the court one-third of the royalties accruing thereafter, which sums are to be impounded for the protection-of appellee’s inchoate right of dower. Appellant prosecutes this appeal to reverse said decree, and appellee prosecutes a cross-appeal alleging that she is entitled to have one-half impounded instead of one-third.

Appellant states that the case of Tatum v. Tatum, 174 Ark. 110, 295 S. W. 720, does not support the contention of appellee in this case, because in the Tatum case the plaintiff’s husband was the owner of the land and refused to execute the deed and relinquish her dower. We said in the Tatum case, quoting from an earlier case, “The old books are full of intimations that dower was a favorite of the common law. In Lily’s Abr. 666 (Chilton’s Probate Court Law and Prac.'372), it is said that dower is favored in law to a high degree and is held sacred only next, to life and liberty,” and immediately after quoting the above, we said: “After a careful consideration of the whole matter, the majority of us are of the opinion that the inchoate right of dower is more nearly like the interest of a contingent remainderman,' who may be protected by impounding the funds in cases like this as was done in the case of Watson v. Wolf-Goldman Realty Co., 95 Ark. 18, 128 S. W. 581 ; Ann. Cas. 1912A, 540.” It is settled by the decision in the Tatum case that the wife’s inchoate right of dower may be protected by impounding the proceeds of the sale as was done in that case. Numerous authorities’ were cited and reviewed in that case, and it is not necessary to cite them and comment on them here. The decision in the Tatum case settles this case unless it may be distinguished, because in the Tatum case the husband was the owner of the land and in this case he is not. We think, however, the same principle applies because it is settled by the decisions of this court that the rights granted to a lessee are not a mere license but an interest and easement in the land itself. If the interest involved here or the property owned by the husband is an interest in land, then the same rule applies as was applied in the Tatum case, and under our decisions the property of the husband in this case was an interest in the land. State ex rel. Atty. Gen. v. Ark. Fuel Oil Co., 179 Ark. 848, 18 S. W. 906 ; Standard Oil Co. of La. v. Oil Well Salvage Co., 170 Ark. 729, 281 S. W. 360 ; Stewart v. Robinson, 289 Fed. 689 ; Smith v. McCulloch, 285 Fed. 689 ; Rich v. Donaghey, 71 Okla. 204, 177 Pac. 76 ; Barnsdall v. Gas Co., 225 Pa. 238, 74 Atl. 207 ; Blair v. Clear Creek Oil & Gas Co., 148 Ark. 310, 230 S. W. 286.

The record in this case shows conclusively that the land is practically worthless except for the gas and oil. Therefore, if the husband is permitted to sell the oil and gas, he can thereby deprive the wife of all the value of the land. Where agricultural land or any ordinary land is sold, and the wife does not sign the deed, she still has her dower in the land and she cannot maintain a suit for it because there is no possibility of it getting away or being put beyond her reach, but in the instant case, the only value the land has is the gas and oil, and if that is permitted to be disposed of by the husband without protecting the inchoate dower right of the wife, she would thereby be deprived of the entire value of the land against her will. The decision in the Tatum case is controlling here, and the chancellor’s decree impounding a part of the proceeds is correct.

The appellee prosecutes a cross-appeal and contends that there should be one-half of the money impounded instead of one-third. The statute provides that if one dies without children, the widow shall be endowed with one-half of the real estate against collateral heirs, but only one-third against creditors. Section 3526, Crawford & Moses’ Digest. It is also provided that where a husband owns land and the wife is adjudged insane, he may be permitted to sell the land by depositing in court one-third of the purchase price. Section 3563, Crawford & Moses’ Digest. Construing the two sections of the digest together, we have reached the conclusion that only one-third should be deposited. She is in no event entitled to more than one-third against creditors, and we therefore think the chancellor’s finding and requiring a deposit of one-third is correct.

The decree is therefore affirmed both on appeal and cross-appeal.

Smith and Kirby, JJ., dissent.


author: Mehaffy, J.

text:
    Franzen v. Juhl.
    Opinion delivered November 10, 1930.

      Ingram $ Moher, for appellant.

      John W. Moncrief and A. G. Meehcm, for appellee.
   Mehaffy, J.

Suit was begun by appellant in the Arkansas Chancery Court, Northern District, against appellees to foreclose a mortgage on the northwest quarter of section 21, township 3 south, range 5 west, in Arkansas County. On March 2, 1925, there was a decree for $13,-988.24 and for the foreclosure of the mortgage and sale of above-described land. On April 24, 1929, the appellee, Fred H. L. Juhl, was adjudged a bankrupt, and the above-described property was included in his schedule. The appellant, A. W. Franzen, filed an intervention in the district court of the United States. The court granted the prayer of appellant and ordered the trustee in bankruptcy to deliver possession of above-described property to the commissioner named in the decree of the Arkansas County Chancery Court for the purpose of selling same under the terms of said decree. On July 24, 1929, the commissioner sold said land to appellant for $6,000, after having advertised the same as provided in the decree. At the next term of court, appellees filed the following exceptions to the report of sale and the confirmation.

“Comes the above-named defendants and for their exceptions to the sale, the report of sale and the confirmation of sale in the above-styled cause of action state:

“That on the 2d day of March, 1925, a decree was rendered in the above-styled cause by the terms of which judgment was given against said defendants in the sum of thirteen thousand, nine hundred eighty-eight and 24/100 dollars ($13,988.24). That thereafter, and before any sale was had under said decree, the plaintiff promised and agreed to dismiss said foreclosure proceedings under which said decree was rendered and vacate said decree in the event of the payment of a certain part of the indebtedness evidenced by said decree. That the defendants arranged to pay and did pay to the plaintiff the amount of money necessary to comply with this arrangement, and upon the payment of the same were assured by the plaintiff and his representatives that said decree would be vacated and have believed since said time that said decree was vacated. That since the time of the making of payment upon said decree as referred to the defendants have made other large payments upon said indebtedness.
“That without notice to the defendants the plaintiff had the lands described in the mortgage foreclosed in said decree advertised for sale and sold during the month of July, 1929. That this sale was made by Duce Pike as commissioner. That no credit is shown upon the decree originally entered nor is any order made vacating the same. That the sale of said lands as made in this proceeding was in complete violation of the agreement made by the plaintiff with the defendants whereby a payment of several thousand dollars was obtained by the plaintiff from the defendants. That said payment and subsequent payments were never indorsed upon said decree, and that when said sale was made by the commissioner the same was advertised to be sold for the full amount of the decree without crediting said payments.
“That such advertisement and such sale, if otherwise valid, should be set aside because of the grave injustice done to these defendants by the misrepresentation of the correct indebtedness owing upon said lands.
“Wherefore, defendants pray that the sale referred to be set aside and the decree referred to be vacated;
“As alternative relief defendants pray that the said sale be set aside and the credits to which these defendants are properly entitled be made upon said decree prior to any advertisement or resale of same;
“That the costs of the sale heretofore erroneously held be chargeable against the plaintiff and not chargeable as costs of this action; for all other relief proper in law and equity. ’

Thereupon the appellant filed motion to strike the exceptions as follows:

“Comes now the plaintiff and moves the court to strike the exceptions to the report of sale filed by the defendant, Fred Juhl, and for cause says:

“That, after the decree of foreclosure herein and before the sale by the commissioner, the defendant, Fred Juhl, was adjudged a bankrupt by the United States District Court, for the Western Division of the Eastern District of Arkansas, and has never been discharged.
“That E. H. Noble was elected or appointed as trustee in said bankruptcy proceedings, and duly qualified as such and was such trustee at the time said Juhl filed said exceptions.
‘ ‘ That he intervened in said bankruptcy matter and set up his decree of foreclosure and prayed said court for an order permitting said sale, which prayer said court granted.
“Plaintiff says that said Juhl had no right or interest in said land, and, if so, same passed to said trustee.
“Wherefore, plaintiff prays that said exceptions be stricken from the files and said report be confirmed and for all other relief.”

On the same day the appellees filed the following response:

“That he was adjudged a bankrupt on the .................. day of................................................, 1929, and further states that he has never been discharged from said bankruptcy.
“That the lands involved in the foreclosure proceedings of which this motion is part of the pleadings, is land upon which this defendant is now living and has lived for several years. That said land is impressed with the right of homestead in this defendant, and that as such he is entitled to and has an interest which did not pass to the trustee appointed in said bankruptcy proceedings'.
“Wherefore, this defendant prays that the motion to which this response is offered be overruled.”

The court overruled appellant’s motion to strike exceptions and the appellees filed the following amendment to exceptions:

“On or about March 26, 1925, the following letter was received by F. H. L. Juhl:
‘“Mr. F. H. L. Juhl,
“ ‘Stuttgart, Arkansas.
‘ ‘ ‘ Bear Sir: In connection with the foreclosure suit against you instituted by A. W. Franzen at the last term of court; this is to advise you that when the $3,000 is applied to your credit out of the loan of $6,500 being made to your father, Hy. Juhl, together with the payment of note for $404 on which judgment was taken and all taxes due for the year 1925, payable on or before April 10, 19'25, and all costs such as abstracter’s bill and examination of title, the recording charges and $500. paid to Power Mfg. Co., then the suit above mentioned will be dismissed without prejudice. I am,
“ ‘Yours very truly,
“ ‘A. W. Franzen,
“ ‘By C. Gr. Rodgers.’
“That the said Rodgers, the signer of the above letter, was agent and representative of A. W. Franzen at the time at which said letter was written.
“That on March 25, 1925, the sum of three thousand dollars ($3,000) was paid to A. W. Franzen out of a loan made to Henry Juhl father of Fred Juhl and at the same time taxes upon the F. H. Juhl land for the year were paid in the sum of four hundred fifty-two and 71/100 dollars ($452.71) and the sum of five hundred ($500) dollars was paid to' Power Manufacturing Company. Also at the same time a judgment of four hundred forty-four and ’24/100' dollars ($444.24) was paid to the said A. W. Franzen.

“Also sometime during the year 1927 C. A. Franzen, representative of A. W. Franzen, contracted with F. H. L. Juhl as follows:

“ ‘Mr. F. H. Juhl,
“ ‘'Stuttgart, Arkansas.
“ ‘Dear 'Sir: If you will pay over to me one-fourth of all the proceeds of your 1927 rice crop and one-fourth of all of the proceeds of the rice crops grown in subsequent years, each of said crops to be not less than one hundred acres, to apply on the principal of the decree of $10,000 and out of the other three-fourths and all other crops keep up the interest payments and all taxes and improvements, I am willing- to carry the decree covering the northwest quarter of section 21, township 3 south, range 5 west, for a period of five years at an interest rate of six per cent, per annum, payable annually on the amounts due on the principal from year to year.
“ ‘ (Signed) C. A. Franzen.
“ ‘Accepted, Fred H. L. Juhl.’
‘ ‘ That, since the time of the taking of the decree in' the above-styled cause of action, continuous dealings have been eng;ag’ed in between F. H. L. Juhl and A. W. Franzen, and that during- this period of time the said F. IT. L. Juhl has paid to A. W. Franzen many thousands of dollars, part of which should have been credited against the amount set forth in the judgment and other parts of which were applied against current advances made to the said F. H. L. Juhl.
“That on April 23, 1925,.F. H. L. Juhl paid the sum of $500.

. On March 31,1927, paid $281.28.

December '24, 1926, paid $181.59.

November 10, 1926, paid $565.41.

•February 11, 192iS, paid $1,314.23.

March 12, 1926, paid $1,622.65.

March 12, 1926, paid $811.17.

March 12, 1926, paid $139.71.

“The above mentioned payments represent only a small part of the moneys paid by the said F. H. L. Juhl to A. W. Franzen since the taking of said decree.
‘ ‘That the moneys paid by the said F. H. L. Juhl to A. W. Franzen during the period of time elapsing between the decree and the sale of said land were paid out of the proceeds of rice crops and these remittances to A. "W. Franzen were applied by him, at his discretion, against current obligations or against the obligation set forth in the decree. That the said F. H. L. Juhl has no records from which a correct determination of the use to which said funds were placed can be determined, and the said A. W. Franzen and his representatives are the only persons from whom exact information as to the amount'paid and the application of it can he obtained.
“That the agreement contained in the second letter herein quoted provided that no sale would be held under said decree for a period of five, years from the date of said letter in the event one-fourth of the rice crops were annually paid to A. W. Franzen. That this condition has also been met by the said F. H. L. Juhl.
“Wherefore, petitioner prays that the said sale be set aside, and the said foreclosure proceedings herein be dismissed and the decree under which said sale was held be' dismissed.
“That the plaintiff.be required to furnish full and complete information showing the amount of all remittances received by him from Fred H. L. Juhl or for the account of Fred H. L. Juhl out of the one-fourth of the rice crop raised upon the lands sought to be foreclosed in this proceeding. That the plaintiff be required to pay all costs herein expended.”

On March 30, 1930, the. court sustained the amended exceptions and set aside the sale and also the foreclosure decree.

This appeal is prosecuted to reverse the orders and decree of the chancery court. It is insisted that the decree should be reversed because the title to the property was in the trustee in bankruptcy. It is true that appellee, when he filed his petition in bankruptcy, included this property in his schedule but on the petition of appellant the district court of the United States made an order directing the trustee in bankruptcy to deliver possession of said property to the commissioner named in the decree for the purpose of selling same under the terms of the decree, and possession was accordingly delivered and the property sold by the commissioner under the terms of the decree. The price for which it sold was less than half the amount in the decree.

There is no question of fraud involved, and the mortgage was a valid lien. The only interest the trustee in bankruptcy could possibly have would be whatever value there was of the property in excess of the valid lien in favor of the mortgagee. It is not disputed that the lien exceeded the amount for which the property could be sold.. Therefore the trustee had no interest. The United States District Court doubtless ascertained the facts before making the order. “The trustee takes title to property of the bankrupt which is mortgaged or otherwise incumbered, subject of course to the lien thereon.” 7 C. J. p. 116, et seq. The Arkansas Chancery Court having obtained possession of the property more than four months before the petition in bankruptcy, its jurisdiction was not affected by subsequent proceedings in bankruptcy. 7 C. J. p. 33.

It is next contended that the decree could not be vacated after the term of court at which it was rendered. The section of the digest cited has no application here. If the parties made a valid agreement, it could be enforced or carried out by the court. The record shows without dispute that the appellee was insolvent; that the appellant could collect nothing from appellee except the value of the property mortgaged; that appellee procured a sum of money from his father which he paid to appellant under the agreement, and that he paid to appellant other large sums of money. None of this money could have been collected by appellant without the agreement. Moreover, the appellee did not ask to be relieved from the payment of the debt, but it was agreed that the cause should be dismissed without prejudice. This would permit another suit to'be brought by appellant. This agreement between the parties was one they had a right to enter into, and is therefore binding on the parties. Pfeifer v. Mo. State Life Ins. Co., 177 Ark. 1013, 8 S. W. (2d) 505.

The decree of the chancery court is affirmed.


author: McHaney, J.

text:
    Brown v. Girard Fire & Marine Insurance Company.
    Opinion delivered November 10, 1930.

      John L. Bledsoe, for appellant.

      Verne McMillen, for appellee.
   McHaney, J.

Appellant sued appellee on a policy of fire insurance for a loss sustained by him.. Appellee defended on the ground that the policy had been canceled. Wells and Bates were the general agents for appellee at Pocahontas. Mr. Bates, testified that on instructions from appellee he had canceled the policy and had notified appellant thereof, both by letter and in person about three'weeks prior to the fire which destroyed appellant’s building. The case was submitted to a jury on instructions from the court, which are not complained of, which resulted in a verdict and judgment for appellee.

During the course of the argument to the jury, counsel for appellee used this language: “If you find against the defendant it will be the same as finding against J. D. Wells and F. E. Bates, it 'will be the same as finding against your neighbors.” On objection being made by counsel for appellant the court said: ‘£ Gentlemen of the jury, what the attorneys may say is not evidence in the case. You get your evidence from the lips of the witnesses and the law from the instructions given you by the court. You should not consider any statement made by attorneys for either party which are not borne out by the record. In arriving at your verdict you will base your verdict on the testimony given by the witnesses and the law as given by the court and upon .that alone.”

This is the only assignment of error for a reversal of the case. We do not think this was improper argument, nor do we think it was prejudicial to the appellant. What counsel evidently meant by the statement was that a verdict for appellant would necessarily imply that the testimony of Mr. Bates was untrue. We think this was a legitimate argument based upon the testimony as the appellant denied that he had received the written notice of the cancellation or the check in payment of the unearned premium which Mr. Bates testified had been sent him. Appellant also denied that Mr. Bates had verbally notified him of the cancellation in Pocahontas a short time after writing the letter notifying- him of the cancellation, and the remarks of counsel were made with the view and hope that the jury would believe Mr. Bates instead of appellant. Moreover, conceding the argument to be improper, we are of the opinion that the remarks of the court in response to the objection cured any harmful effect it may have had. Ark. Short Leaf Lbr. Co. v. Wilkerson, 154 Ark. 455.

Affirmed.


text:
    Crowe v. Wells River Savings Bank.
    Opinion delivered November 10, 1930.

      Ingram & Moher, for appellant.

      Joseph Morrison and J. G. Kincamnon, for appellee.
   McHaney, J.

This is a suit by appellee as mortgagee of the land to enforce the right of redemption from a sale under a decree of the chancery court of March 7, 1927, foreclosing the lien of the Northern Road Improvement District for delinquent road taxes for the year 1925 on the west half of southeast quarter 35-2 south 5. Prior to this time, to-wit, on 'September 26, 1926, there was a sale of this same land for the road taxes for 1924 at which the district became the purchaser. Title remained in the district by virtue of this sale until March 3, 1930, when it was redeemed by appellee. The land again forfeited in 1925 for the nonpayment of taxes for the year 1924 on the assessment of benefits and was sold on April 15,1927, to the district under the decree of March 7,1927, as above stated. It is this last forfeiture and sale from which redemption is sought by this suit. The chancery court entered a decree permitting the redemption of the land.

Without going into the statutes fixing the period of redemption and determining whether the period of redemption had expired, we have reached the conclusion that the district was without power to maintain an action for the delinquent taxes of 3925, and that the decree of March 7, 1927, based thereon is void, and that the sale of April 15, 1927, is likewise void. The district acquired the title to the land by virtue of the previous sale of September 26,1926, subject to the right of redemption, and title was, therefore, in the district at the time the last suit was brought and the decree rendered. At the time the 1925 taxes became delinquent, the district was the owner of the property, subject to the right of redemption for the period prescribed by law, and when redemption was made from that sale on March 3, 1930, the district should have required all subsequent installments of taxes on betterments, which were then due, to be paid. Appellants’ title to the land is dependent upon the sale of April 15,1927, for the taxes of 1925, as they purchased from the district on March 29, 1929. They acquired no better title than the district had by reason of such sale. In Robinson v. Indiana & Arkansas Lumber & Mfg. Co., 128 Ark. 550, 194 S. W. 870, this court held that while the title to land rested in the St. Francis Levee District by virtue of a sale for delinquent taxes to the district, at which it became the purchaser, the land was not subject to taxation for State and county purposes. This case was followed in Kelley Trust Co. v. Lundell Land & Lbr. Co., 159 Ark. 218, 251 S. W. 680. See also Miller v. Henry, 105 Ark. 261, 150 S. W. 700. It seems to us that it necessarily follows that, if land is exempt from general taxation while the title rests in an improvement district, it is also exempt from sale for the taxes of the improvement district while.it holds the title. Appellants contend that the decree of foreclosure of March 7, 1927, condemning the land to be sold for the 1925 assessment is conclusive. We think not. While the decree is valid on its face, yet it now appears that the land was not subject to sale for taxes because at the time the title was in the district. Therefore, the chancery court was without power to condemn the land for sale. Appellants also say that this is a suit to redeem which necessarily recognizes the validity of the sale. While in form it is a suit to redeem, we think we may treat it as a tender of the amount of taxes and penalties due—in 1925, because when appellee redeemed from the 1926 sale for the 1924 taxes, he was due to pay the district' all taxes on assessments then delinquent.

The decree of the chancery court is correct, and it is therefore affirmed.

Kirby, J., dissents.


author: 'Butler, J.

text:
    Stobaugh v. County Board of Education.
    Opinion delivered November 10, 1930.

      Opie Rogers, for appellant.

      Edward Gordon, for appellee.
   'Butler, J.

The county board of education of Van Burén‘County, proceeding under the authority of act No. 144 of the Acts of 1927, without any petition being circulated or filed, gave notice to the residents and patrons of Common School District No. 3 of a proposal to dissolve that district and annex its territory to Formosa Special School District, and of the hearing on such proposal to be held upon a certain day. This notice was given in the time and manner prescribed by the act, and no question of4its sufficiency is here raised. On the day fixed for hearing a number df residents and patrons of said school district appeared and from an order of the board dissolving District No. 3 and attaching it to the Special School District aforesaid an appeal was taken to the circuit court where on a trial the order of the county board of education was sustained. The case is here on appeal from that judgment.

Act No. 144, supra, as expressed by its title, was “An act to establish a minimum leng'th of school term and for other purposes.” Section 1 of that act provides: “The county board of education of any county shall have the discretionary power to dissolve any school district whose length of school term shall not be one hundred twenty days in any school year, or whose average daily attendance does not exceed fifteen pupils, and attach the territory so dissolved to adjacent school district or districts ; provided that, if the limit of school tax shall have been levied and the proceeds therefrom together with the available State funds are not sufficient to maintain such a length of school term, and that the children so affected are too isolated to be deprived of school advantages by such dissolution, the county board can abolish only by petition of a majority of the qualified electors.”

At the trial on appeal to the circuit court it was shown that a 120 days’ term of school had never been had in any school year, and that the last term was only from seventy to ninety days in length taught by one teacher at a salary of $90 per month, and that after the teacher’s salary had been paid there remained only $50 in the treasury. The last term of school began in November, 1928, and ended in March, 1929. This proceeding was begun on the '28th day of September following and it was shown that the total revenue for the fiscal year last preceding-, from all sources, amounted to $451.93 which might be increased by $27.80 from taxes on lands located in said district, but which were erroneously assessed in other districts; that the district had voted the limit of 18 mills and this tax was included in the total revenue aforesaid. There was no contention that the district was so isolated that with dissolution of said district the children would be deprived of school advantages. On the contrary, the undisputed evidence was to the effect that a graveled pike road led through District No. 3 into Formosa Special School District, and by its schoolhonse, so that the children could be conveniently transported to and from school after the annexation. Appellant argues that for the proper construction of the act it is necessary to substitute in the proviso clause the conjunction “or” in the place of “and” used (by the lawmakers and thus make the proviso read, “provided that if the limit of school tax shall have been levied and the proceeds therefrom together with the available State funds are not sufficient to maintain such a length olf school term, or that the children so affected are too isolated to be deprived of school advantages by such dissolution, the county board can abolish only by petition of a majority of the qualified electors.”

We are unable to appreciate the force of appellant’s argument that it is necessary to make the substitution “in order to make sense at all.” It is clear to us, stated in simple language, that the Legislature meant that the county board might, if it deemed wise, dissolve any school district which maintained a school term of less than 120 days in any school year or where the average daily attendance did not exceed fifteen pupils, and that this might be done without any petition except where the school district had done all it could to maintain a 120 days’ term of school and was unable to do so because of insufficient funds; and, in that case if the children of that district would be deprived of school advantages because of the isolation of the territory if the district should be dissolved, then such district could only be dissolved where a majority of the qualified electors wanted such action taken and petitioned for it. We think the language of the act precise and dear and susceptible of no other reasonable construction. Therefore, as no 120 days’ school had been held within the last school year or for any year preceding so far as was known by the witnesses and the children had convenient access to the school after consolidation of the districts, the order of the county board cannot be said to have been an abuse of discretion, and the judgment of the circuit court upholding- such order must he affirmed.

It is argued that, as it ajjpears from the evidence that a first grade teacher could be had at a salary which would enable a 120 days’ term to be held with the revenue on hand, the county board had no authority to dissolve only by petition. We think this contention cannot be supported by any construction of the act. Moreover, a sufficient answer would be that, although they could have had a 120 days ’ term, they never did.

The judgment is in all things correct, and it is therefore affirmed.


author: Hart, C. J.,

text:
    George v. Hefley.
    Opinion delivered November 17, 1930.

      W. P. Strait, for appellant. •

      Dean, Moore <S Brasil, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellant contend that the redemption by the minor of the land from tax sale in 1920 was unauthorized, and that the court erred in allowing minor to redeem. It is their contention that the minor could not redeem under the statute until after he became of age. We do not agree with counsel in this contention. In the case of Carroll v. Johnson, 41 Ark. 59, it was held that a minor can redeem his land from tax sale at any time during his minority and for two years afterwards, whether the purchase be by the State or by an individual. The court said that a purchaser at a tax sale takes a defeasible title, and that, if the land belonged to a minor, it is subject to redemption at any time during his minority and for two years after he attains his majority. The court had under consideration § 5197 of Gantt’s Digest, which contains a saving clause that minors and other persons mentioned in the statute may redeem from a tax sale at any time within two years from and after the expiration of such disability.

Counsel for the appellant insist that the holding in this case does not apply because the redemption in the 'present case falls under § 10096 of Crawford & Moses’ Digest, which was passed by the Legislature of 1883. It will be noted that this section contains a saving clause in favor of minors and other persons and provides that, where their lands have been sold for taxes, they may be redeemed within two years from and after the expiration of such disability. The court has frequently construed this statute to give minors the right to redeem from and after the sale until the expiration of two years after they have reached their majority. The court has said that the minor’s right to redeem commences from and after the sale, and that the right to redeem continues until two years after he should come of age. Bender v. Bean, 52 Ark. 132, 12 S. W. 241 ; Seger v. Spurlock, 59 Ark. 147, 26 S. W. 819 ; Moore v. Irby, 69 Ark. 102, 61 S. W. 371 ; and Crowley v. Spradlin, 77 Ark. 190, 91 S. W. 550.

Later decisions of the court have recognized that the statute does not suspend the right of redemption during the minority of the owner, but that it may be exercised as well before as after the removal of the disability of minority. Hisey v. Sloan, 180 Ark. 797, 22 S. W. (2d) 1005, and oases cited.

It is also insisted that tbe right of the minor to redeem may only be exercised by suit brought in the chancery court. We do not agree with counsel in this contention. The statutory right to redeem from tax sales is self-executing and requires no judicial proceedings to make it effective. It may be exercised in the manner pointed out ¡by statute as a matter of right by the owner of the property, and it is available in all cases, not only where the sale was defective, but where it was perfectly regular and valid. The right of redemption is given by the statute, and it is intended to afford the owner the opportunity to save his property from a tax sale by complying with the provisions of the statute relating to his right to redeem. Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241 ; Cook v. Jones, 80 Ark. 43, 96 S. W. 620 ; and Nelson v. Peirce, 119 Ark. 291, 177 S. W. 899.

It follows that the decree of the chancery court was correct, and it will be affirmed.


author: Hart, C. J.

text:
    Tucker v. Meroney.
    Opinion delivered November 17, 1930.

      B. W. Wilson and Dcmaher <S Danaher, for appellant.

      A. J. Johnson, for appellee.
   Hart, C. J.

This appeal is prosecuted by J. G-. Tucker to reverse a judgment dismissing his complaint in a contested election case.

J. Gr. Tucker and T. M. Meroney were rival candidates for the nomination of sheriff of Lincoln County in the Democratic primary election held on the 12th day of August, 1930'. The Democratic 'Central 'Committee duly canvassed the returns, and found that T. M. Meroney had received 932 votes and that J. Gr. Tucker had received 924 votes. The committee declared that T. M. Meroney had received a majority of the votes cast at the election, and the certificate of nomination was issued to him. The record shows that the collector did not file with the county clerk a list of poll taxpayers, duly authenticated by his affidavit as required by § 3740 of Crawford & Moses ’ Digest, and this fact is conceded by the contestant. The record also shows that 36 votes were cast in the manner provided in § 3777 of the Digest by persons who have attained the age of twenty-one years since the time of assessing taxes next preceding the election, and that of these votes twenty-six were cast for Tucker and ten for Meroney.

It is the contention of counsel for appellant that these were the only legal votes cast, and that, inasmuch as a majority of them were cast for Tucker, he should have been declared the nominee, and that the certificate of nomination should have been issued to him. We do not agree with contestant in this contention. The official returns of the election are quasi records, and are prima facie correct. The burden is upon the contestant to show by affirmative proof that they do not speak the truth. Powell v. Holman, 50 Ark. 85, 6 S. W. 505 ; Webb v. Bowden, 124 Ark. 244, 187 S. W. 461 ; and Craig v. Sims, 160 Ark. 269, 255 S. W. 1.

These returns may be impeached by any competent evidence showing that they are not true. In Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314, it was held that the requirement of § 3777 of the Digest that no person offering to vote in a primary election shall be allowed to. vote unless his name appears in the printed list of poll tax payers, required by § 3740, or unless he exhibits a poll tax receipt, or establishes that he has attained his majority since the last assessing time, is mandatory, and that its provisions must be substantially complied with. Bearing in mind that the official returns are quasi records and stand with all the force of presumptive regularity as held in the cases cited above until overcome by competent evidence, it will be readily seen that the contestant has not made out his case. All the ballots cast by the voters and returned by the proper officers are presumptively legal, and their verity is not impeached by showing that contestant received a majority of the votes cast by persons ‘who had become of age since the last assessing time. In order to succeed, he must prove that he received a majority of all the legal ballots cast at the election.

The next contention is that 203 illegal votes were cast at the election, and that, if they are thrown out, the contestant would have a majority of the legal votes cast at the election. The basis of this contention is that 203 votes were cast at the election by persons who had been assessed for poll taxes since the regular assessing time by the assessor under provisions of act 172 of the Acts of 1929 (Acts of 1929, Vol. 2, p. 841), and that such votes are illegal because these voters did not proceed as directed by § 3738 of the Digest by applying to the county clerk to have their names included in the list of voters of the collector as additions of omitted names. Appellant cannot prevail in this contention for two reasons. If it should be said that the act of 1929 referred to is inconsistent with and repugnant to § 3738 of the Digest, then § 3738 is repealed by implication and the '203 votes are legal because the names were added by the compliance of the assessor with the provisions of said act 172 of the Acts of 1929.

On the other hand, if it be said that the provisions of act 172 are not inconsistent with or repugnant to the provisions of § 3738 of the Digest, then both provisions stand and are supplementary to each other. Two methods would be provided for placing the names of the voters, omitted by the assessor in his regular period of time for assessing persons and property on the list to be authenticated by the collector under the provisions of § 3740 of the Digest. Under the act of 1929 above referred to, it became the duty of the assessor to place the names of omitted persons on the list to be furnished the collector; and under § 3748, if the assessor failed to perform this duty, the voter himself, under the provisions of § 3738, might still go before the county clerk and have his name placed on the list to be given to the collector.

Hence there is no evidence in the record that tends to impeach the returns -of the election and the certificate of nomination issued to appellee. Therefore the judgment will be affirmed.


author: Smith, J. Hart, C. J.,

text:
    Grand Lodge, A. O. U. W. v. Adair.
    Opinion delivered November 17, 1930.

      A. J. Demers, Bru,ce T. Bullion and Duty d Duty, for appellants.

      Martin d Martin, for appellee.
   Smith, J.

On October 13, 1930, Fred Adair filed a suit in the Phillips Chancery Court against the Grand Lodge Ancient Order of United Workmen of Arkansas, hereinafter referred to as the A. O. U. W. or as the Order, and its executive officers and board of directors, the allegations of which are to the following effect.

The A. O. U. W. is a fraternal benefit society, which has for many years conducted a life insurance business, in addition to its fraternal work. The insurance branch of its business is solvent, and if all of its assets derived therefrom were properly accounted for a large surplus fund would be on hand.

The Order, by its Constitution and By-laws, is managed and controlled by the Grand Lodge of said organization, the members of the Grand Lodge being elected by the subordinate lodges and certain officers designated by the Constitution and articles of incorporation. When the Grand Lodge is not in session, the governing body is the board of directors, a body composed of seven members, who have the general management and control of all business matters. The members of this board, with their official titles, were named, and they were made parties to the suit in their official capacity.

On August 30, 1930, the board of directors of the A. O. U. W. contracted with the National Standard Life Insurance Company, hereinafter referred to as the Insurance 'Company, to sell all the insurance assets belonging to the Order, and a copy of this contract is attached to the complaint as an exhibit thereto and made a part thereof. This contract has been approved by the Insurance Commissioner of the State of Arkansas, his approval thereof being indorsed on the contract. A copy of the resolution of the board of directors authorizing the sale was attached to the complaint and made a part thereof.

Plaintiff is one of the members carrying insurance in the Order, and alleged that no notice of the proposed sale was given to him or to any other member, and that no action had been taken by the Grand Lodge authorizing the sale. The board of directors were without authority to sell the assets of the Order in bulk, their only authority being to manage the affairs of the Order in carrying out the purposes for which it was organized.

It was further alleged that the board of directors had delivered to the Insurance Company all the assets of the insurance branch of the Order, and that the Insurance Company has moved a portion thereof out of the State of Arkansas, and are preparing to deliver all the books and records of the Order to the Insurance Company. That by the contract of sale the Order has abandoned its business as an insurance organization, and there is no one in authority to take charge of its assets.

Wherefore, it was prayed that a receiver be appointed to take charge of the books and records now in the hands of the board of directors and “that said receiver be authorized and directed to institute such suit or suits as may be necessary looking toward the recovery of all assets of the Ancient Order of United Workmen in its insurance branch, to the end that this plaintiff and all other parties in interest may be fully protected,” and for all other proper relief.

The sales contract, made an exhibit to the complaint, hereinabove referred to, which was designated as a reinsurance contract, contains the following recitals: The A. O. U. W. was organized and chartered and is being-operated under the fraternal benefit laws of the State of Arkansas. The Insurance Company was organized and chartered and is transacting- business as a legal reserve life insurance company under the laws of the State of Texas.

The Insurance Department of the State of Arkansas has ascertained and declared that there is a deficiency in the reserve funds of the A. O. U. W., and has directed that immediate steps be taken to protect the interests of the policyholders.

The board of directors of the A. O. U. W. has resolved and determined that it is to the best interests-of the certificate holders to reinsure the business and the policies held by its members. It was agreed that the Insurance Company should “take over and reinsure such policies or membership certificates,” with the option “to exchange their certificate or policies for any form of life policies issued 'by the National Standard,” and in consideration of this obligation it was further agreed that “The A. O. U. W. shall turn over to the National Standard the original applications and all records pertaining to the certificate or policyholders, together with all books, records, supplies, stationery, furniture, fixtures, apparatus, appurtenances and every item of value and property belonging to and used in the conduct and management of the insurance business of the A. O. U. W. ”

Upon presenting this complaint to the chancery court, an order was made in which three citizens were named as receivers, who were directed to take into their custody the books and records in the hands of the board of directors and that they (the receivers) “shall make and file in the office of the clerk of said court, a complete inventory of all property that may come into their hands as such receivers, with all reasonable dispatch.” It was further ordered: “That said defendants and each of them do deliver to said receivers the said property and every part thereof,” and that the receivers make report of their proceedings under this order, with such recommendations touching the further disposition of the property as they may think best to subserve the welfare of all parties in interest.

Upon being' advised that this order had been made, the defendants gave notice that they would present a motion for the dissolution of the receivership, and this was done. A demurrer to the complaint was also filed, in which it was alleged “that the complaint does not state facts sufficient to constitute a cause of action against the defendants, within the jurisdiction of this court.”

The demurrer was overruled, as was also the motion to dissolve the receivership, whereupon this proceeding wa-s instituted to prohibit the chancery court from further proceeding, upon the ground that it was without jurisdiction to do so. A response has been filed on behalf of the court, in which jurisdiction is asserted.

It is conceded that the A. O. U. W. is a fraternal benefit association and, as such, within the purview of act 462 of the Acts of 1917 (Volume 2, Acts 1917, page 2087), which is entitled “An Act pertaining to the regulation and incorporation of Fraternal Beneficiary Associations, Societies or Orders, and other matters pertaining thereto, and repealing all laws and parts of laws in conflict therewith,” which act appears as § 6068 et seq. O. & M. Digest.

Section 24 of this act appears as §§ 6110 and 6111 C. & M. Digest, and reads as follows:

“'Section 61101. The insurance department, or any person he may appoint, shall have the power of visitation and examination into the affairs of any domestic society. He may employ assistants for the purpose of such examination, and he, or any person he may appoint, shall have free access to all the books, papers and documents that relate to the business of the society and may summon and qualify as witness under oath and examine its officers, agents and employees or other persons in relation to the affairs, transactions and .condition of the society. The expense of such examination shall be paid by the society examined, upon statement furnished by the insurance department, and the examination shall be made at least once in three years.
“Section 6111. "Whenever after examination the insurance department is satisfied that any domestic society has failed to comply with any provisions of this act, or is exceeding its power, or is not carrying out its contracts in good faith, or is transacting business fraudulently; or whenever any domestic society, after the existence of one year or more, shall have a membership of less than 400 (or shall determine to discontinue business), the insurance department may present the facts relating thereto to the Attorney General, who shall, if he deem the circumstances warrant, commence an action in quo warranto in a court of competent jurisdiction, and such court shall thereupon notify the officers of such society of a hearing*, and if it shall then appear that such society should be closed, said society shall be enjoined from carrying on any further business, and some person shall be appointed receiver of such society, and shall proceed at once to take possession of the books, papers, moneys and other assets of the society, and shall forthwith, under the direction of the court, proceed to close the affairs of the society and to distribute its funds to those-entitled thereto. No such proceedings shall be commenced by the Attorney General against any such society until after notice has been duly served on the chief executive officers of the society and a reasonable opportunity given to it, on a date to be named in said notice, to show cause why such proceedings should not be commenced.”

•Section 25 of the act appears as § 6112, C. & M. Digest, which reads as follows:

‘ ‘-Section 6112. No application for injunction against, or proceedings for the dissolution of, or the appointment of a receiver for, any such domestic society or branch thereof shall be entertained by any court in this State unless the same is made by the Attorney General.”

It will be observed that the complaint, the allegations of which have been fully set out, contains no charge that either the Insurance Department or the Attorney General of the State has failed or refused to perform any of the duties imposed by the act from which we have quoted. On the contrary, it affirmatively appears, from the recitals in the exhibit to the complaint, that the Insurance Department has discharged the duty imposed by § 6110, C. & M. Digest. The examination there provided for was made, and, as a result of this examination, it was found and declared that “there is a deficiency in the reserve and funds of the Ancient Order of United Workmen,” and it was ordered and directed by the Insurance Department “that immediate steps be taken to protect the interests of the membership or the policyholders of the society.” It, therefore, affirmatively appears that it was the discharge of the duty imposed upon the Insurance Department which precipitated the sale to the Insurance Company.

It is insisted that this sale was unauthorized and therefore void. But this contention is answered when § 3 of act 493 of the Acts of 1921 is consulted (General Acts 1921, page 472). That section reads as follows: “Section 3. Any stock, mutual or assessment insurance company or association organized under the laws of this State may consolidate or merge with any insurance company or association authorized to transact business in this ’State; and any such domestic insurance company or association may reinsure in any insurance company or association authorized to transact business in this State any single risk or part of any single risk or risks which it may assume; hut no insurance company or association shall have the power to reinsure its entire outstanding business or any part of its risks, other than a single risk, or to merge or consolidate with another company or association, until the contract therefor, duly authorized by the boards of directors or members, shall be submitted to the Insurance Commissioner and be by him approved as protecting fully the interests of all policyholders. And the Insurance Commissioner shall have full power to make such investigation as he deems necessary of the affairs of both companies interested in such reinsurance agreement or merger before approving or disapproving same; provided, this section does not apply to farmers’ mutuals.”

There is no conflict between ■§ 6088, C. & M. Digest and the act of 1921, as the former relates to mergers and consolidations of two fraternal benevolent associations, which did not occur here. If there were a conflict, the act of 1921 would govern, as it is the last enactment.

The writ of prohibition is prayed upon the ground that the action can be mantained only by the Attorney General, and the question presented for decision is, therefore, whether this action may be maintained by one whose only interest is that of a beneficial member holding- a policy of insurance. The decision of this question involves the consideration and construction of the sections of the Act of 1917 above quoted.

It may be first said that the act of 1917, supra, is not a novelty in legislation. It is said in the brief of counsel for petitioners that this is the act which is commonly known as the New York Conference Bill, and that it has been enacted by the 'Legislatures of thirty-seven states, and that its purpose is to secure uniform legislation in the supervision and control of fraternal benefit societies, such as the A. O. U. W.

The constitutionality of the act is not questioned, but it has uniformly been held constitutional in all the cases where the question was raised, upon the theory that it was a valid exercise of the rigrht of the states to determine the powers relating to the government of corporations, and the method of administering and closing them.

We have had two cases, in both of which the constitutionality of the act was assumed, without any discussion of that question. State v. Knights of Pythias, 157 Ark. 266, 247 S. W. 1068 ; Knights of Pythias v. Reinberger, 168 Ark. 77, 269 S. W. 41.

The first of these two cases was a suit brought by the Attorney General, under the authority of § 6111, O. & M. Digest, to wind up the affairs of a fraternal benevolent association, and while the relief prayed was hot granted, his authority to bring the suit was expressly >recognized, and the relief prayed was only denied because the testimony did not' establish the allegations of his bill.

Our act of 1917 is similar to, and, in many respects, identical with, the legislation of other states relating to these fraternal benevolent associations, and this attempted uniform legislation has had uniform construction by the courts which have construed it, at least so far as the question here involved is concerned.

This construction is to the effect that, where the duty of examination and supervision is imposed upon a department of g-overnment, with directions to report the result of the examination to the Attorney General, upon which official the duty is imposed to take such action as may be necessary, under the report, to protect the membership of the Order, an exclusive remedy is provided, and an individual member has no authority, in his own name, to ask for a receivership.

We have not heretofore been called upon to decide this exact question, but we have recognized the principle which other courts have applied. We have here a legislative scheme, which numerous other states have also adopted, for the government of associations of the kind of the A. O. U. W., and a remedy provided whereby the greatest protection may be afforded the membership of such associations. A special department and a State official are clothed with special duties and powers to in-yoke the aid of courts of general jurisdiction in the discharge of these duties. In the case of Wallace v. Hill, 135 Ark. 353, 205 S. W. 699, 701, it was said: “It is a well established rule that has been often adhered to by this court that where a court exercising general jurisdiction under the Constitution has been given special statutory jurisdiction in certain matters, and the manner in which such jurisdiction is to be exercised is pointed out by the statute, the record of such court must show the jurisdictional facts. The statute in such cases must be strictly pursued, and the jurisdiction must be made to appear in the mode pointed out by the statute. No presumption as to jurisdiction in such cases will be indulged (citing cases).”

That principle is applicable here. The plaintiff here has not attempted to invoke the aid of this regulatory statute, 'but has proceeded in defiance of it.

In construing a very similar statute the Supreme Court of Minnesota, in the ease of Baird v. Modern Samaritan, 162 Minn. 274, 202 N. W. 498, 499, said: “Thereunder members with grievances may no doubt appeal to the Insurance Commissioner for redress. Should he refuse, they still have the opportunity under § 3482 to convince the Attorney General of his duty to proceed. Unless dissatisfied members of a fraternal insurance association are able to induce either the Insurance Commissioner or the Attorney General to move to rectify the conduct of the association or its governing body as to its business or methods, we think they can have no redress through the courts. Good reasons readily suggest themselves for the enactment of § 3482. In associations of this sort every one insured is a member. If any dissatisfied or disgruntled member on his own motion may drag the association and its governing body into court as to the conduct of its business or methods of procedure, its usefulness will be seriously impaired and its very existence endangered. The mere fact that an action is brought affects the standing of such an association without regard to whether or not any basis exists for so doing.”

We are not required to go to this extent to award the writ of prohibition here prayed, nor are we called upon, under the allegations of the complaint before us, to say what remedy an individual member might have upon a showing made that the officials of the State had failed or refused to perform their duties. We have here a case where the duty imposed by law has been performed by the Insurance Department, and action has been taken under his approval to protect plaintiff and other certificate or policyholders.

The cases on the subject are too numerous to review, but they are uniform in their holding.

The case of Lowery v. State Life Ins. Co., 153 Ind. 100, 54 N. E. 442, was one in which a policyholder sought to secure an injunction against certain contracts, and numerous acts of wrongdoing were alleged. The question of jurisdiction was not raised, but the Supreme Court of Indiana said it was one which raised itself, and it was there held (to quote a headnote in that case) that “Under act February 10, 1899 (Acts 1899, p. 30), § 17, declaring that no order, judgment, or decree interfering with the prosecution of the business of an insurance company organized under the act shall be made except on application of the Attorney General, the court has no jurisdiction of the subject-matter of a suit brought by another than the Attorney General to enjoin such a company doing certain business.”

See also: 32 C. J., ch. Insurance, § 20, p. 989; Vol. 5, Joyce on Insurance (2d Ed.), § 3598, p. 5946; Supreme Sitting of the Order of Iron Hall v. Baker, 134 Ind. 293, 33 N. E. 1128, 20 L. R. A. 210, and cases cited in annotater’s note; Howe v. Deuel, 43 Barb. (N. Y.) 504 ; Attorney General v. Continental Life Ins. Co., 53 How. Prac. (N. Y.) 16 ; McGarry v. Lentz (D. C.) 9 F. (2d) 680, and Id. (C. C. A.) 13 F. (2d) 51 ; Cummings v. Supreme Council, Royal Arcanum (D. C.) 247 F. 992 ; Grimes v. Central Life Ins. Co., 172 Ky. 18, 188 S. W. 901 ; Young v. Equitable Life, 49 Misc. Rep. 347, 99 N. Y. S. 446 ; Greef v. Equitable Life, 160 N. Y. 19, 54 N. E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659 ; Uhlmann v. New York Life Ins. Co., 109 N. Y. 660, 17 N. E. 363.

The only cases cited by counsel for respondent upon the exclusiveness of the remedy provided by the Act of 1917 are those of Bastian v. Modern Woodmen of America, 166 Ill. 595, 46 N. E. 1090, and Treat v. Pennsylvania Mut. Life Ins. Co., 199 Pa. 326, 49 Atl. 84, 85 Am. St. Rep. 788.

The first of these cases was a suit to enjoin the removal of the principal office of an association from one city to another, a state of case to which such an act as that of 1917 would not apply.

The other case involved the construction by the Supreme Court of Pennsylvania of an act passed by the General Assembly of that (State in 1873 in which it was held that the act required the Attorney General to be made a party in suits brought under the act only where the suit is “instituted for the purpose of closing up the affairs of any company,” but that “such is not the purpose of this bill,” which had been dismissed by the trial court because the Attorney General was not a party.

It appears, therefore, that neither of these cases is out of line with what appears to ibe the universal holding of the courts.

Respondent insists that the Act of 1917 has no application to this case, for the reason that the A. O. U. W. has, by selling its assets, gone out of the insurance business, but that they are not ashing that the Order be closed and its assets distributed.

Whatever the purpose of the lawsuit may be, its effect is obvious. It must, of necessity, end the contract of sale, and thereby terminate the contract of reinsurance and leave the policyholders without the insurance which the contract gives them.

The insistence is that it is desired only to recover the assets of the Order, and that many suits will have to be brought in the name of the receiver to recover these assets. Whether so intended or not, the suit can be nothing else except one to close the insurance branch of the Order and wind it up. The Insurance 'Company is a business corporation, and not an eleemosynary institution, and if it is to be expected to assume the obligations of the A. O. U. W., it should have its assets for that purpose, and its contract entitles it to them. The order already made by the chancery court, if permitted to stand, renders this contract impossible of performance, for it directs the receivers to take charge of the books and records, all of which are, of course, essential to the performance of the contract of sale. In the discharge of their duties the receivers will take over the assets, for just what purpose the court’s order does not make clear, except that a report thereof will be made to the court, “with such recommendations touching the further disposition of the property in their hands as they may think best to subserve the welfare of all parties in interest.”

This order of the court annuls the reinsurance contract made pursuant to the examination of the Insurance Commissioner, which contract was approved by him, and will necessarily wind up the association, whether that is. the purpose of the suit or not.

If it be said that the association has, by the sale of its assets, discontinued business, it may be answered that § 6111, C. & M. Digest, still applies, for discontinuing business is one of the grounds which the statute requires the Insurance Commissioner to report to the Attorney General, upon which the latter may proceed to close the affairs of the society and to distribute its funds to those entitled thereto; but, as we have shown, this is to be done at the suit of the Attorney General, and not upon a suit by a member of the association. What occurred here is that the Ar. O. U. W. has, pursuant to the direction of the Insurance Department and under authority of law, made a contract of reinsurance, which cannot be annulled at the suit of a policyholder who has ignored the instrumentalities provided by law to protect the large interests involved.

We conclude, therefore, that the chancery court is without jurisdiction to proceed, and the writ of prohibition will be awarded and the order appointing the receivers will be vacated.

Hart, C. J.,

(concurring-). According to my view, the allegation of the complaint that the contract of sale of all the insurance assets of the defendant company with the approval of the insurance commissioner of the State of Arkansas indorsed on the back thereof, when read in connection with the charges of fraudulent conduct on the part of the officers of the company, is equivalent to an averment in pleading of the refusal of the officers, whose duty it was to bring suits like this to act in the matter; and thus gave the plaintiff, as a member of the company, the right to (bring the suit under the principles of law decided in Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380, and Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579. It seems to me that the suit is merely one for the appointment of a receiver, and it has been well said that there is neither in law nor in equity any such thing as a plain receivership action.

As I read the complaint filed in the chancery court upon which the application for a receiver is based, the plaintiff seeks the appointment, not as an aid to some equitable ground of relief, but as an independent right. •Such suit cannot be mantained where the basis of equity jurisdiction alone is the appointment of a receiver, but there must be equity jurisdiction independent of the application therefor. In short, the appointment of a receiver by a court- of equity, except perhaps in rare cases arising out of insanity or infancy, is ancillary to some? other action having some definite equitable grounds of relief in view. 34 Cyc. ch. 30 ; 23 R. C. L. p. 11 ; High on Receivers (4th ed.) § 5, p. 9; Tardy’s Smith on Receivers (2d ed.) vol. 1, § 5, p. 58; District No. 21, United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546 ; and Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 43 S. Ct. 454, 456, 67 L. ed. 763.

As stated by Mr. Justice Brandéis in the case last cited: “Whether the debtor be ail individual or a corporation, the appointment of a receiver is merely an ancillary and incidental remedy. A receivership is not final relief. The appointment determines no substantive right, nor is it a step in the determination of such a right. It is a means of preserving property which may ultimately be applied toward the satisfaction of substantive rights.”

Under the allegations of the complaint, no rights between the parties are sought to be settled. The contract of sale is not asked to be set aside; and no relief is even asked against the alleged fraudulent acts of the officers, sanctioned and approved by the insurance department. It seems to me that the appointment of a receiver is not ancillary to any ultimate relief between the parties, but that the appointment is the sole object to be accomplished, and no ground of equitable relief otherwise is stated in the complaint. Therefore, I think that the chancery court proceeded without jurisdiction and that the writ of prohibition should be granted.

Mehaeey, J., dissents.