author: Hart, C. J.,

text:
    Wilson v. Nugent.
    Opinion delivered October 17, 1927.
    1. Contracts — nature of instrument. — An instrument may be both a receipt and a contract.
    2. Evidence — varying written contract by parol. — Where a writing, though in the form of a receipt, embodies the elements of a contract, it is, as to the contractual part, subject to the same rules as any other contract, and is not open to a variation or contradiction by parol evidence.
    3. Evidence — varying receipt by parol. — Where a writing constituted both a receipt and a contract, it could be contradicted or explained by parol evidence in its character of a receipt.
    4. Evidence — varying written contract by parol. — Where a written instrument constituted both a receipt and a contract, its contractual part cannot be varied or contradicted by parol evidence.
    5. Reformation of instruments — sufficiency of evidence. — A written contract will not be reformed for a mistake in its terms, where the evidence of such mistake is not clear, convincing and decisive.
    6. Attorney and client — waiver of breach of contract. — Where defendant attorney contracted with plaintiff to assist him in settling the affairs of an oil corporation, and agreed to a division of fees received, and the latter breached the contract by permitting a letter to be circulated contrary to the interest of the parties, but defendant attorney continued to recognize plaintiff as associate counsel, held that defendant waived the breach.
    7. None® — pacts putting upon an inquiry. — Notice of facts and circumstances which would put a man of ordinary intelligence on inquiry is equivalent to all the facts that a reasonable inquiry would disclose where there is a duty to make the inquiry.
    8. Attorney and client — waiver op breach of contract. — Where a breach of a contract for the employment of an attorney was waived by defendant, the effect of such waiver is not avoided by reason of the fact that defendant considered that it was to his best interest not to insist upon the breach.
    9. Attorney and client — waiver op breach op contract. — Where ■attorneys had agreed,to a division of fees for settling the affairs of an oil corporation, plaintiff attorney will be held to have waived his right to urge a breach of such contract by defendant attorney, because of latter’s having placed money which plaintiff alleged was in payment of their fee into another fund, where plaintiff acquiesced in such action.
    10. Attorney and client — breach of contract. — Where defendant attorney had employed plaintiff to assist him in settling an oil corporation’s affairs and had agreed to a division of fees, but plaintiff breached the contract, held that plaintiff was not entitled to a division of fees received by defendant after actual discharge ■from the proceedings, although his previous breach ■of contract had been waived.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.
    STATEMENT OE PACTS.
    Anthony P. Nugent brought this suit in equity against Albert L. Wilson and others to recover the sum of $10,000, alleged to be due him in the settlement of attorney’s fees between said Nugent and Wilson. The complaint alleges that Nugent and Wilson were associate counsel for the Oil Fields Corporation and that the amount involved in this lawsuit grew out of their - management of the litigation and affairs of said corporation; that said account is based on a written contract between the parties, and that the -account itself is long, complicated, intricate and involved. The prayer of the complaint is- that a master be appointed to state an account between Nugent and Wilson, and that the former have judgment upon the final hearing of the case in the sum of $10,000, and such other sums as the court may find he may be entitled to under the contract.
    Wilson denied that anything was due Nugent under the contract, and also asked that the contract be reformed ao as to express the mutual agreement- of the parties in making it which had not been fully stated in the written contract.
    The present suit is based upon a contract between Nugent and Wilson, which reads as follows:
    “$750. November' 8, 1924. "
    “Received of Anthony P.-Nugent, of Kansas City, Missouri, the sum of seven hundred and fifty dollars as an advance to the defense fund mentioned in my circular letter of August 1, 1924, to the shareholders of the Oil Fields Corporation, which amount I hereby agree to refund to him out of the first money that shall be contributed by the said shareholders to said fund, from this date, and, as further consideration for said advance to defense fund, and as compensation for the services of said Anthony P. Nugent and of the law firm of Hutchins, Abbott, Allday & Murphy, of El Dorado, Arkansas, in assisting me in all litigation involving the said Oil Fields Corporation and the recovery of its property, I hereby agree to divide the compensation justly receivable by me, one-third to said Anthony P. Nugent, one-third to said Hutchins, Abbott, AJlday & Murphy, and one-third to himself. I further agree to keep an accurate record of all contributions to said defense fund and to account to the contributors for the same, and that said records shall be open to the inspection of said assistant at any time.
    (Signed) “Albert L. Wilson.”
    The present suit is ona among several others that grew out of the management of the affairs of the Oil Fields Corporation, which was organized for the purpose of dealing in oil and gas leases and exploring lands for the purpose of discovering oil and gas. Albert L. Wilson was a director and also was attorney for said Oil Fields Corporation. As attorney for said corporation he was to receive a salary of $12,000 per annum, payable in monthly installments of $1,000 at the end of each month. Said corporation was organized for the purpose of dealing in oil and gas leases, in the State of Arkansas, and its business was chiefly confined to Ouachita and Union counties. Finally its affairs became involved to such an extent that a receiver for its property was appointed by the chancery court of Ouachita County, Arkansas. Bankruptcy proceedings were also instituted against the corporation in the Federal court at Texarkana, Arkansas. Something like ten thousand persons were interested in the oil and gas leases of the corporation, and consequently were interested in its affairs. These persons were scattered all over the country, and it cost about $760 - to communicate with them by letter. After the receivership and bankruptcy proceedings were instituted, it became necessary for Albert L. Wilson, as attorney for the corporation, to communicate with those interested in the property and affairs of the corporation, and to secure what he called a “defense fund” for the purpose of preserving the property o.f said corporation and of relieving its affairs and property from the Federal bankruptcy court and receivership proceedings in the State chancery court.
    Wilson did not have any money, and applied to R. M. Hutchins, of the firm of Hutchins, Abbott, Allday & Murphy, to assist him as attorneys in said bankruptcy and receivership proceedings, and also to advance him such a sum of money as might be necessary to communicate with those interested in the affairs and property of the corporation. Hutchins was unable to furnish financial assistance, but secured Anthony P. Nugent to advance the sum of $750 as a part of the defense fund above referred to. The agreement which is the basis of this suit resulted from the negotiations, between Wilson, Hutchins and Nugent. Nugent advanced the sum of $750 provided in said contract, and this amount was refunded to him by Wilson after he had secured that amount by contributions from those interested as stockholders of the Oil Fields Corporation. In December and January following the execution of the contract, Wilson called upon Nugent to advance the cost of another circular letter. This Nugent failed to do, on the ground that he did not have the money at that time.
    In February, 1925, Paul L. Flanery went to the office of Anthony P. Nugent and got him to write a letter which reads as follows:
    “Anthony P. Nugent,
    Attorney at Law,
    1102 Commerce Bldg.,
    Kansas City, Mo.
    “February 1, 1925.
    “To whom it may concern:
    “This will introduce Mr. Paul L. Flanery, of the Flanery Petroleum Company, a client of mine, who owns fifteen hundred shares in the Oil Fields Corporation, which is a consolidation of the Robert Edmonds, Richard Rader and Business Men’s Royalty Syndicates.
    “Mr. Flanery came to me with a plan which he will explain to you, whereby he and his associates owning these shares could protect their holdings in the above named syndicates. They believe that our side of the fight is right.
    “I believe that Mr. Flanery has solved a problem whereby his associates,' by being represented as one, will in time win their case. We all realize that we can do more as a unit consisting of the different shareholders than by fighting separately.
    “You know I am familiar with the standing of the Oil Fields Corporation, and, as it has assets which are at the present time very substantial and a production that is earning a good revenue each month, I see no reason why, when we win our case, we shall not be able to save the original investment and make it a g’oing concern.
    . “Any further information will be gladly furnished upon written request.
    “Yours very respectfully,
    “Anthony P. Nugent.”

      This letter was signed by Nugent and left on Ms desk, with directions to his stenographer not to deliver it to Flanery until he had secured its approval by Wilson and his other associates in the management of the Oil Fields Corporation at Bl Dorado, Arkansas. Flanery went to the office of Nugent, and secured said letter, with the signature of Nugent, from the latter’s secretary, without his knowledge or consent.
    Wilson refused to approve the employment of Flanery as indicated in the letter, and Nugent.at once took steps to secure the letter from Flanery. He was not able to secure the letter for some time, and, in the meantime, Flanery had used it to read to stockholders of the Oil Fields Corporation to urge them to agree to his proposal. This caused some of the stockholders of the Oil Fields Corporation to lose confidence in Wilson, and caused him trouble and expense in overcoming the impression made by Flanery. Wilson continued to recognize Nugent as his associate counsel with regard to the affairs of said Oil Fields Corporation by signing his, name to various pleadings of said corporation, the last of which was filed on the 22d day of June, 1925, and by consulting about the pending litigation.
    Other evidence will be stated and discussed under appropriate headings in the opinion.
    On the 4th day of October, 1926, the chancellor rendered a final decree in the case. The chancellor found that the written contract between the parties of the date of November 8, 1924, was. plain, complete and unambiguous when read in connection with the circular letter mentioned in it; that said contract provides that Nugent should receive one-third of the compensation received by Wilson from the litigation involving the Oil Fields Corporation and the recovery of its property then in the hands of the receiver; that the compensation received by Wilson as salary was $1,000 per month; that Nugent was entitled to one-third of this amount from November 8, 1924, the date of the contract, until June 22, 1925, the date of his. discharge from the proceedings. The chan-eery court further found that a fee of $5,000 which had been allowed Wilson by the Ouachita Chancery court in the receivership case was not additional compensation, but that it was properly deposited by Wilson in the defense fund of said corporation, and that Nugent was not entitled to any part of it. The court found that the letter signed by Nugent of the date of February 1,1925, amounted to a breach of the contract, whether it was delivered by him to Flanery or not; that its contents and the use by Flanery was of such a nature as to justify Wilson in discharging* Nugent, and that Wilson was estopped from pleading a breach of the contract prior to June 22, 1925, because he recognized Nugent as his associate counsel up to that time. It was therefore decreed that Nugent should receive from Wilson the sum of $2,488.87, which represented one-third of Wilson’s compensation from November 8, 1924, until June 22, 1925. To reverse that decree Wilson has duly prosecuted an appeal to this court.

      Albert L. Wilson, for appellant.

      Mahony, Yocum & Saye, for appellee.
   Hart, C. J.,

(after stating the facts). It is earnestly insisted that the chancery, court erred in holding the written instrument of November 8,1924,'signed by Albert L. Wilson, to be a contract instead of a receipt merely. The same instrument may be a receipt and a contract. Where a writing, though in form of a receipt, embodies the elements of a contract, it is in its nature subject to the same rules as any other contract and is not open to variation or contradiction by parol evidence. 22 C. J. 1138 and cases cited; Seitz v. Brewers’ Refrigerating Machine Co., 141 U. S. 510, 12 S. Ct. 46, 35 L. ed. 837; and Huckins Hotels v. Smith, 151 Ark. 167, 235 S. W. 787. This is in application of the well-settled rule that, when a written instrument contains such terms as import a complete obligation, which is definite and unambiguous, it is conclusively presumed that the whole agreement of the parties, and the extent and manner of their undertaking, were reduced to writing. In' such cases the instrument is in the nature of a contract and cannot be varied or contradicted by parol evidence, in the absence of fraud or mistake.

In the application of these principles to the writing under consideration, it may be said that Wilson might have contradicted the receipt feature of the instrument by parol evidence that the payment of $750 was not made in whole or in part. However, the contract feature of the instrument was complete in itself, and contained definite terms and bound the parties to mutual agreements. In this respect the instrument was contractual in its nature and stands upon the footing of other written contracts, and cannot be varied or contradicted by parol evidence. Hence it was not proper to show that one of the terms of the contract was that Wilson should deduct his living expenses before Nugent should receive one-third of his compensation. This would simply have had the effect of varying or altering the terms of the contract, which the parties had reduced to writing and which had been signed by the party sought to be charged.

It is insisted by Wilson, however, that the contract should be reformed so as to show that he was entitled to deduct his living expenses from the salary due him by the corporation before Nugent and the firm of Hutch-ins, Abbott, Allday & Murphy were entitled to receive anything. In this connection it may be stated that the Hutchins firm has been settled with by compromise and their rights are not involved in this appeal.

It is well settled in this State that evidence justifying the reformation of á written instrument must be clear, convincing and decisive. Welch v. Welch, 132 Ark. 227, 200 S. W. 139, and cases cited; and Meador v. Weathers, 167 Ark. 264, 267 S. W. 787. Tested by this rule, the chancellor was correct in holding that the written contract should not be reformed. While the testimony of Wilson made out a case for himself, it was contradicted by the testimony of Nugent and of two members of the Hutchins firm. Hence we are of the opinion that the court did not err in refusing to reform the contract.

The court held that the letter of February 1, 1925, signed by Nugent and delivered by his secretary to Flanery, constituted a breach of the contract, but that Wilson waived the breach by recognizing the contract as still in force after the letter had been written. In so far as Wilson is concerned, we are only required to deal with the latter phase of the question. It is a well settled principle of law, that, where one party, with knowledge of a breach of a contract by the other, recognizes the contract as, still in force, he will be held to have waived a breach thereof. Alfred Bennett Lumber Co. v. Walnut Lake Cypress Co., 105 Ark. 421, 151 S.W. 275; Clear Creek Oil & Gas Co. v. Brunk, 160 Ark. 574, 225 S. W. 7; Friar v. Baldridge, 91 Ark. 137, 120 S. W. 989. Tested by this well-settled principle of law, we are of the opinion that the facts in the record warranted the chancery court in holding that Wilson waived the breach of the contract committed by Nugent by allowing the letter just referred to to be delivered to Flanery. After this letter had been delivered to Flanery and used by him to the injury of Wilson and the other stockholders of the Oil Fields Corporation, Wilson allowed Nugent to continue as associate counsel in the management of the affairs of said corporation and recognized him as such associate counsel. This he did by writing him letters concerning the conduct of the litigation then in progress, by consulting him about the conduct and management of that litigation and the other affairs of the corporation, and by signing his name to pleadings, in the pending litigation. ■

Wilson seeks to escape responsibility for so doing on two grounds. In the first place, he insists that he had no knowledge that Nugent had committed this breach of the contract at the time he wrote him the letters and consulted him about the management of the litigation and the other affairs of the Oil Fields Corporation. It is a well-settled principle of law that notice of facts and circumstances which would put a man of ordinary intelligence on inquiry is equivalent to knowledge of all the facts that a reasonable inquiry would disclose where there is a duty to make the inquiry. In short, where one has sufficient information, to lead him to a fact, he shall he deemed cognizant of it. Waller v. Dansby, 145 Ark. 306, 224 S. W. 615; Jordan v. Bank of Morrilton, 168 Ark. 117, 269 S. W. 53; Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S. W. 836; and Richards v. Billingslea, 170 Ark. 1100, 282 S. W. 985.

Wilson admits, in his own testimony, that he had suspicioned the loyalty and good faith of Nugent before the letter in question was written, and that, shortly after it was written, he had knowledge of its contents, and believed that Nugent was acting in bad faith towards himself and the other stockholders of the Oil Fields Corporation. Wilson then could have ascertained by inquiry from Nugent the circumstances under which Flanery secured Nugent’s signature to the letter and his bad faith in taking the letter away from Nugent’s office during the latter’s absence. If will be remembered that Nugent testified that he had told Flanery that the letter should not be delivered to him until he had received the sanction of Wilson and the Hutchins firm to use the letter. If Wilson then had doubted the good faith of Nugent and the truth of his statement in regard to the letter, he could have found out all about the matter by inquiry from the Hutchins firm and other sources at his command. Whether he believed Nugent guilty of bad faith or not in the matter, he knew the result of his action, for the letter was written and secured by Flanery, and he should have then declared the contract to be at an end, and his subsequent conduct in writing to Nugent about the conduct of the litigation of the Oil Fields Corporation and his recognition of him as associate counsel by consulting about the manner and conduct of the litigation will be deemed in law a waiver of such breach of the contract.

Another ground relied upon by Wilson to relieve him from a waiver of the breach of the contract is that he feared, if he discharged Nugent at that time, it would injuriously affect himself and other stockholders, in the conduct of the litigation then pending in the State and Federal courts. This constitutes no excuse. It will he remembered that Wilson was out of money, and that the employment of Nugent was largely due to the fact that he advanced sufficient money to notify the stockholders aúd persons interested in the oil and gas leases of the Oil Fields Corporation about the existing condition of its affairs. Wilson regarded this of such importance that he was willing to give Nugent one-thircl of his salary as attorney for such corporation in order to secure such advancement and to have his assistance otherwise as counsel in the case. He could not play fast and loose in the matter. He could not wait until the litigation had proceeded to a successful termination and then discharge Nugent and claim that the discharge should take effect as of a date several months prior to his actual discharge. If he thought it best to overlook what he considered a breach of the contract on the part of Nugent, he had a rig*ht to do so, and it did not make any difference what his motive was in doing so. The important thing is that he considered it best for his own interest to continue to recognize Nugent as his associate counsel, and this he had a right to do, if he thought it was to his best interest to do so, no matter what his reasons were. Therefore the chancellor was right in holding, under the facts and circumstances presented by the record] that, under the contract entered into between Wilson and Nugent, the latter was entitled to one-third of the salary received by Wilson from November 8, 1924, to June 22, 1925.

On the cross-appeal the decision of the chancellor was correct. The record shows that, during the progress of the receivership proceedings, Wilson was allowed a fee of $5,000, and Nugent claims that he should be allowed one-third of that fee under the terms of the contract. The record shows that, at the time Wilson received this fee, he insisted that it should be put in the defense fund as his contribution thereto, and he actually placed the sum in that fund, which the parties had agreed should be used to pay the living expenses of Wilson as well as the costs of the pending litigation. Nugent allowed Wilson to do this, and, under the principles of law above announced, will be deemed to have agreed to the course pursued by Wilson in the matter. If he deemed such course of conduct on the part of Wilson to have been a breach of the contract, he should have objected at the time. He could not stand by and acquiesce in his action in the premises and afterwards claim that it was a breach of the contract and that he was entitled to one-third of the fee.

Again, it is insisted by counsel for Nugent that he should be allowed an additional fee because other amounts were earned and will be allowed to Wilson, and that, under the terms of the contract, Nugent was entitled to one-third of the entire compensation. On this branch of the case we think the chancellor was right in not allowing Nugent to share such extra compensation. As we have already seen, the chancellor held that the Flanery letter constituted a breach of contract on the part of Nugent. Such holding of the chancellor was correct. It is true that Nugent explained that the letter had been secured by Flanery during his absence and against his explicit directions in the matter. He says that he did not intend for Flanery to obtain possession of the letter until he had secured the consent of Wilson for Flanery to use the letter. This did not make any difference as to the'result. By his own fault or carelessness in the matter, Nugent allowed Flanery to obtain posses.sion of the letter and to use it injuriously to the interest of Wilson, and thereby cause some of the-stockholders of the Oil Fields Corporation to lose confidence in his management of its affairs,. The record shows that the affairs of the corporation had become very complicated and were very much involved in litigation, which resulted in a disagreement among the stockholders about the conduct and management of the affairs of the corporation. The stockholders were numerous, and resided in various ■States, and it required a circular letter to bring to their attention any matter involving their judgment. It was necessary for them to contribute such sums of money as might be necessary for the conduct of the litigation, and this they would not he likely to do if they lost confidence in either the integrity or good judgment of Wilson in managing the affairs of the corporation and directing the course of the litigation.

The result of our views is that Nugent is not entitled to maintain his cross-appeal, and that the decree of the chancery court should he affirmed. It is so ordered.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Ingram v. Raiford.
    Opinion delivered October 17, 1927.
    1. Judges — burden op proving disqualification. — A party alleging that a special judge was! disqualified to preside in the cause, has the burden oí proving such fact by evidence clearly showing that the ground of disqualification exists.
    2. Appeal and error — abandonment op appeal. — Where a party to a decree in partition excepted to the confirmation of sale and prayed an appeal, hut later moved the court to dismiss the appeal with prejudice, such party could not thereafter complain of the decree.
    3. Judges — disqualification of judge — waiver. — Objection to the qualification of a special chancellor elected to try a suit cannot be raised for the first time by exceptions to the report of sale by the commissioner.
    4. Partition — jurisdiction to order sale. — In an ¡action for par- ■ ■tition the chancery court has jurisdiction to order a sale of the property necessary to an equitable division thereof, upon evidence other than and wholly independent otf a report of commissioners. ' .
    5. Judgment — modification after term of court. — After expiration of the term of court at which a decree is rendered, the court rendering it cannot sat it aside or modify it except in the manner and for the causes specified in Crawford & Moses’ Dig.-, § § 6290-6296, or by bill of review under the chancery practice1.
    6. Judgment — reís judicata. — A" decree overruling an exception to a report to a commissioner’s sale in partition proceedings on the ground that the party excepting was a minor,- having an interest in the property and for whom no guardian was appointed, held res judicata on a subsequent motion based on the same ground.

      7. Appeal and error — presumption prom absence op evidence.— Where a decree is based in part on oral testimony not before the Supreme Court, that court will assume that the trial court found every fact which might have been found on oral testimony essential to the decree.
    8. ■ Inpants — procedure to set aside decree. — While infants are special wards of the chancery court, and, if their minority is disclosed 'on the face of the récord, such courts are alert to see that their rights are protected, still in enforcing their rights they must follow the statutory procedure in order to set aside a decree.
    Appeal from Union Chancery Court, Hirst Division; John E. Harris, Special Chancellor;
    affirmed.

      Allyn Smith, for appellant.

      GaughmiS Sifford, Powell, Smead & Knox and G. E. Wright, for appellee Felsenthal.
   Wood, J.

In February, 1923, J. W. Raiford et al. filed a petition in the Union Chancery Court against B. R. MeClannahan et al. for the partition of certain lands described in the petition. The action was between the claimants under the will of J. L. Prim and the heirs of his wife, Fannie Primm. Most of the defendants named in the petition were nonresidents, among whom was Charlie'Ingram. Affidavit for warning order against the nonresident defendant was made on April 28, 1923, and warning order was issued by the clerk on May 9, 1923. On June 30, 1924, the attorneys for the defendant, Clan-nahan, and those claiming to be the attorneys for the other defendants, among them R. H. Ingram and Charlie Ingram, filed a motion suggesting the disqualification of the regular chancellor. On the same day the regular judge certified his disqualification, and, as the record recites, “the clerk of said court called an election .for the purpose of electing a special judge to hear said cause, and, said election being duly had.in the manner prescribed 'bjr law, John E. Harris was duly elected as special judge, and took the oath of office and duly qualified as provided by law.” The record further recites: “Thereupon it was mutually agreed by and between the parties litigant that the said John E. Harris should preside as special judge in said cause,” and the record of the decree further recites that the cause was submitted and judgment in partition rendered on that day by John E. Harris, special chancellor. The decree concludes with the recital that the court retains jurisdiction for the purpose. of receiving the reports of the master, the receiver and the commissioners appointed to make partition of the lands. Thereafter, on January 27,1925, the chancery court, through its special chancellor, John E. Harris, entered what is designated “a supplemental decree,” in which it is recited “that all the parties to the cause received due notice of said hearing and were represented by their respective counsel. ’ ’

The court, after finding that all of the defendants, including R. H. Ingram and Charlie Ingram, were tenants in common of an undivided interest in the lands, leases, money and other property, which were the subject of the controversy, and that the respective interests of the defendants were not the subject of litigation in the case, modified its former, decree of June 30, 1924, so as to adjudge that all of the defendants were owners of an undivided one-half interest in the property as tenants in common and were entitled to receive their proportion of the funds, and directed the receiver to pay the same over to their attorneys, Marsh & Marlin. The supplemental decree further recites: “The court finds from the evidence adduced at the trial of said cause and by admission of all the parties hereto in open court, that the lands herein involved and particularly described in the original decree are iiót susceptible of partition in kind among the parties litigant, and that it would be impracticable and inequitable to make such partition; and it is therefore ordered, adjudged and decreed that said lands be sold at public outcry to the highest and best bidder, on a credit of three months, after the same has been advertised for a period of thirty days by four weekly insertions in some paper,” etc. The court then appointed the receiver as commissioner to make the sale.

The following decrees were entered prior to the. decree from which these appeals come, to-wit: Decree of partition in the canse was rendered June 30, 1924, and a supplemental decree at a subsequent term January 27, 1925, and then another decree on May 5,1925. From the last decree an appeal was taken to this court, and by the decision of this court it was adjudicated “that the several interests of all parties in the lands involved were correctly ascertained and determined in the original decree of June 30, 1924.” See Ingrams. Wood, 172 Ark. 226, 288 S. W. 393.

In the meantime the land was sold by the commissioner, and the special chancellor, on October 22, 1925, entered a decree confirming* the sale, but later, on January 9, 1926, that decree was set aside on the ground that court was being held on the same day in another county by the regular chancellor, and the court thereupon entered the following order: “Whereupon the court caused to be called all attorneys representing any parties in interest in this cause who appear of record in this court, and it is agreed in open court by all of ■said attorneys that said sale may and shall be set aside and held for naught, and it appearing that Yerta Rowe, one of the heirs and parties in interest in this, cause, has died since the institution of this suit, and is survived by a minor or infant, to-wit, Yerta Rowe, a minor, it is by the court considered, ordered, adjudged and decreed that Alvin Stevens be and he is hereby appointed guardian ad litem for said Verta Rowe, a minor, and that he be and he is hereby appointed administrator ad hoc of the estate of Yerta Rowe, deceased, and this cause is ordered to proceed as to the interest of the said Yerta Rowe in the name of Alvin Stevens, guardian ad Utem of Yerta Rowe, a minor.” The decree then recites: “And it appearing to the court, from testimony heretofore taken and from the nature of this cause, and the number of parties involved, that it is impossible to partition the property in kind among the parties, in interest without great damage and detriment thereto.” The court'thereupon reappointed E. W. McGrough special commissioner, and directed him to make sale of the property on certain terms therein specified in the decree.

At the March term, 1926, of the First Division of the Union Chancery Court, E. W. McGrOugh, who had been appointed to sell the property, made his report, showing that he had sold the same according to the former orders and decrees of the court, and that the same was purchased by I. Felsentha-1 for the sum of $21,500, he being the highest and best bidder. On the 6th day of March, 1926, certain of the plaintiffs in the original action, among them Elmer Rowe, Jr., as the only surviving heir of Yerdie Raifprd, by his next friend, E. C. Dunn, through their attorneys, J. R. Wilson and E. L. Compere, filed what they designated a petition to set aside sale, which operated as and should have been designated as exceptions to the report of the commissioner. On the same day C. Gr. Taylor, a substitute for the original plaintiff, Gr. A. Dunn, through his attorneys, Joiner & Stevens, adopted the exceptions that had been filed by the other plaintiffs, and, on the same day, Charlie Ingram, through her attorneys, Bailey & Bailey, filed her petition or exceptions to the report of commissioner making sale, asking* that the same be set aside. In her petition she set up that all the proceedings in the cause, after the suggestion of the disqualification of the regular chancellor, and all orders and decrees made by the Hon. J. E. Harris, special chancellor, were void, for the reason that, prior to his election as. special chancellor, he had been, and at that time was, acting as the attorney' ad litem for all nonresident defendants in the case, and was then still so acting for such defendants as had not answered for themselves. She alleged that the commissioner who made the sale had never been by proper order appointed as one of the commissioners to make partition of the property; that the commissioners appointed to make partition were'M. C. Wade, Berry Davis and J. C. Kin-ard. She alleged that she was at all times, up to October 9, 1925, a minor, being under eighteen years of age, and that no guardian of any sort or^ character had ever appeared'for her in this cause, and on the date last above mentioned she became eighteen years of age, and here and now, within the time allowed by law, disaffirmed and rejected all things heretofore done in her behalf in this cause. She prayed the court would refuse to confirm and ratify the sale, that the same be set aside and annulled, and for such other relief as the court might deem just and proper. '

The court, on the same day, overruled all exceptions to the commissioner’s report of sale, ratified and confirmed the report of sale, and directed the commissioner to make a deed to the purchaser, I. Felsenthal, “to which order, findings and judgment of the court the exceptors and each of them saved their separate and several exceptions, and prayed an appeal to the Supreme Court, which is granted.” On the same day the commissioner presented and acknowledged in open court the deed which he ^had executed to Felsenthal, and which the court duly approved.

On June 7, 1926, the plaintiffs, who had previously filed exceptions to the report of sale’ including Elmer Rowe, Jr., a minor, the only surviving heir of Verda Raiford Rowe, by his next friend, E. C. Dunn, filed their motion, praying the court to dismiss with prejudice the further prosecution of their appeal and with • prejudice to any further action on their exceptions to the sale. The court thereupon entered an order in which was contained the following recital, to-wit:

“It appearing that the parties have stipulated that the appeal herein will not be prosecuted, and the court being well and sufficiently advised in the premises, doth grant the motion. It is therefore oi’dered, considered, adjudged and decreed by the court that the petition of E. C.'Dunn, Mrs. Nettie Gantt, Will Raiford, BenRaiford, Mrs. Lulu Dunn Robinson, Yerta Rowe, a minor, the only surviving heir of Yerta Rowe, deceased, by E. C. Dunn, her'next friend, seeking to set aside the sale of the property in the above styled cause, be dismissed with prejudice, and that the prayer for appeal to the Supreme Court be dismissed with, prejudice to the further prosecution of said appeal, and with prejudice to the further prosecution of any further claim on the part of the petitioners in the above styled cause, and with prejudice to any further action on the exceptions to the sale filed by the petitioners herein. It is so ordered.”

Some time during the latter part of the year 1926 or the first part of the year 1927 (the date is nowhere shown in the record) what purported to be a motion was filed in the Union Chancery Court in the case of Raiford et al. v. McClannahan. et al., by Charlie Ingram, through her attorney, Allyn Smith, in which she set up, in. substance, that all the proceedings had in the action between the parties for a partition resulting in a judgment against her were null and void, because she was a minor when the action was begun and the judgment in partition rendered; that she had no notice of the action, and that no guardian ad litem was appointed to defend for her, and that no answer was ever filed setting forth her interest in the lands sought to be partitioned; that the judgment was rendered largely by consent. She set up that she was eighteen years old at the time of the filing of this motion, and prayed the court to set aside and vacate the judgment in partition. The motion was duly verified, and in an addendum thereto Charlie Ingram called' upon'all the parties, plaintiffs and defendants, to take notice that the motion would be presented to the Union Chancery Court at its first sitting.

About this time what purported to be a motion was also filed in the above styled cause by R. H. Ingram, Polk Ingram, Emma Ingram, Pauline Ingram, Ruby Ingram McMullen, Jim McMullen and Mattie J. Ingram, in which it is alleged that the decree in partition in the above styled cause was rendered by John E. Harris as special chancellor, and that said' Harris, at the time of his election. was the attorney ad Utem for nonresident defendants, duly appointed by the clérk of the chancery court on the 9th day of May, 1923, and that, by reason of his being-such attorney for the nonresident defendants, he was disqualified from sitting as special chancellor to try the cause. They prayed for a mmc pro tunc order to be entered of record showing- that the clerk of the chancery court of Union County, First Division, had appointed John E. Harris as attorney for the nonresident defendants.’

A motion purporting to be a motion in the above styled case was also made by Elmer F. Rowe, Sr., guardian of Elmer F. Rowe, Jr., through his attorney, Allyn Smith, to set aside the sale made in the suit for partition, on the alleged ground that the special chancellor, John E. Harris, was disqualified by reason of his being-attorney ad litem for nonresident defendants, and also on the ground that Yerda Rowe, one of the plaintiffs in the action, had died in the month of February, 1925, and that the action had not been properly revived, and that the rights of her minor son, Elmer F. Rowe, Jr., had not been properly .represented and protected; also that the sale under the partition decree was, by a receiver, without appraisement and report of commissioners in partition, as provided by statute. On these motions the chancery court on April 18, 1927, entered an order reviving the cause in the name of Elmer F. Rowe, Jr., by his guardian, Elmer F. Rowe, Sr. The court thereupon found that E. C. Dunn, as the next friend of Elmer F. Rowe, Jr., had, on March 6, 1926, filed a'petition to set aside this sale, which petition had been denied by the chancery court and an appeal taken therefrom, and that the court was without jurisdiction, and therefore dismissed the motion of Elmer F. Rowe, Jr., to set aside the sale, from which Elmer F. Rowe, Jr., by his guardian, Elmer F. Rowe, Sr., prayed and was granted an appeal. The court also found that Polk Ingram, Pauline Ingram, Ruby Ingram McMullen, Jim McMullen, R. H. Ingram and Mattie Ingram could not maintain their motion to set aside the judgment and sale herein, nor their motion to have the clerk enter a nunc pro tunc order showing that he had appointed the Hon. John E. Harris as attorney ad litem for the nonresident defendants. The court thereupon dismissed their motion without prejudice. The court further dismissed the motion of Charlie Ingram to vacate the original judgment and the decree confirming the sale, on the ground that this action was pending likewise in the Supreme Court. From these orders an appeal was prayed and granted.

First. The first question presented by the appellants is that John E. Harris, the special chancellor who tried the original cause in partition, and who made all of the subsequent orders and rendered the subsequent decrees in the cause, was disqualified to sit in the cause for the reason that, prior to his election as special chancellor, he was acting as attorney ad litem for the nonresident defendants. The record shows that the election was held for a special chancellor as prescribed by law, and that John E. Harris was duly elected and duly qualified as provided by law. Conceding, without deciding, that an attorney for nonresident defendants in a cause would be disqualified from' sitting as a judge therein, suffice it to say there is no sufficient competent testimony in this record to show that John E. Harris was duly appointed as the attorney for the nonresident defendants. As to the evidence necessary to establish the disqualification of a judge who is duly elected to preside in a cause, Corpus Juris lays down the following rules:

“Unless it is where the affidavit filed is considered conclusive, there is no presumption that a judge is dis,qualified, the" burden being on the party asserting it to present facts showing such disqualification. The evidence must clearly show that a ground exists. "A prima facie case only is not sufficient.” 33 Corpus Juris 1017, *190.

And in Ruling Case Law it is said: “If the facts alleged are not admitted by the judge, or are denied by the'adverse party, it is the duty of the party objecting to .lay before the judge the proof of their truth for his determination. ’ ’

Many cases are cited in notes to these texts. 15 R. C. L. 539, § 27.

Now the statute provides that an attorney for nonresident defendants- constructively summoned, and who have not appeared, shall he appointed by the clerk of the court in which the action is' brought. C. & M. Dig., § 6261. The only testimony in the record on this issue was adduced on a motion for mmc pro tunc entry to have the clerk of the court make an order on the record showing that he had appointed John E. Harris attorney for the nonresident defendants. The statute does not require the clerk of the court to enter upon the court records the order appointing the attorney for the nonresidents. While such record entry would be satisfactory evidence of his appointment, yet it is not required by the statute, and therefore no such nunc pro tunc entry could be made; and the evidence taken upon such motion would not be competent as primary evidence to prove that John E. Harris was appointed attorney for the nonresident defendants in the action. But, even if the mover who suggested the disqualification of John E. Harris had made the proof on their motion to disqualify, which they adduced on the motion for nunc pro tunc order, still the evidence would hardly be sufficient to meet the requirements of the law as to the burden of proof on the issue of the disqualification of the special chancellor.

On the motion for nunc pro tunc entry the only testimony adduced tending’ to prove that John E. Harris was appointed attorney for the nonresidents were the printed words “John E. Harris, attorney for the nonresident defendants.” These words appeared, at the bottom of a newspaper clipping showing the warning order in the case as published, pasted on the publisher’s affidavit of publication. It is unnecessary to set forth ad of the testimony of the clerk concerning this. He was asked if he had not made the appointment on the same paper that was sent to the publisher, and stated that he did not do that, that the recorder never puts it on the sheet that goes to the publisher, that “I might have put it on a duplicate sheet.” On direct examination he stated that he was sure he had made an appointment of John E. Harris as attorney ad litem for the nonresident defendants, from the paper of proof of publication which was handed him, but, on cross-examination, he stated he did not know of his own knowledge whether he rna.de such appointment or not; he could not tell unless he had his files. All he was basing’ his opinion on was the fact that the name John E. Harris appeared on the proof of publication by the publisher. He had no personal recollection of it. The concluding question asked him on this issue is as follows: “Is it your custom in some instances to indorse the name of the attorney appointed on the paper sent the publisher?” and he answered: “No, not on that paper,”

John E. Harris testified that, as a matter of fact, he did not know whether he was appointed attorney for the nonresident defendants or not; he wrote a letter to the parties named as nonresident defendants in the cause, and slated in the letter that he had been appointed as attorney ad litem for all nonresident defendants. As to whether he was ever appointed or not, he did not know. He got his information that he had been appointed from Tom Campbell, an attorney in Little Rock, who was the attorney for some of the plaintiffs.

The above testimony, even if competent, we regard as too indefinite and uncertain to sustain the contention that John E. Harris was disqualified to sit as the special judge in this cause. This applies to the other appellants as well as to Charlie Ingram, but, as to the other appellants, they are precluded from raising- the issue for still oth< r reasons. Elmer F. Rowe, Jr., through his guardian, Elmer F. Rowe, Sr., cannot raise it because the record shows that he was a party to the decree of March 6,1926, by his. next friend, E. C. Dunn, in which the court refused to set aside the decree in partition, overruled all exceptions to the report of the sale made by the commissioner, and confirmed and approved such sale. After excepting and praying an appeal from that decree, the record shows that afterwards, on June 7, 1926, he, through his next friend, Dunn, prayed the court to dismiss his appeal with prejudice, which was done. Although the trial court erroneously found that that case was in the Supreme Court, nevertheless the court was correct in holding’ that his motion setting up the disqualification of John E. Harris could not avail, hut for a different reason, to-wit, that he had abandoned his appeal in a decree rendered at a former term of the court, in which he might have set up, as an exception to the report of the sale, the disqualification of the judge to sit in the cause. He, as well as the other movers also, are likewise precluded from raising the issutí because none of them had raised this issue in the original action for partition or in any of the former proceedings prior to the filing of exceptions to the report of the sale of the .commissioner appointed to make the sale in partition. It was too late for them to raise it then. The law is well settled in this State that the disqualification of a judge must be raised in limine. Parties cannot wait until a judge acts in a cause and then set up his disqualification.

The true rationale of the doctrine is not that the parties to the action, by failure to suggest the disqualification, have, by consent, conferred' upon him jurisdiction to try the cause, but rather that, by allowing him to proceed to try the cause, they have estopped themselves from raising the question of his disqualification. As we said in Washington Fire Ins. Co. v. Hogan, 139 Ark. 130-135, 213 S. W. 78 (5 A. L. R. 1585), “having taken their chances of a favorable judgment at the hands of a judge who, they knew, was personally disqualified, they cannot, after adverse decision, avail themselves of facts which they knew before the judgment was rendered to get rid of it.’’ See also Pettigrew v. Washington County, 43 Ark. 33; Morrow v. Watts, 80 Ark. 57, 95 S. W. 988.

Second. One of the grounds urged for reversal is “that the chancery court had no jurisdiction to order the sale in partition because the commissioners appointed to make partition in the original decree for partition did not report that the land was so situated that it could not be partitioned, nor were the commissioners ordered to make the sale; that the procedure prescribed by §§ 8111 .to 8119, inclusive, of Crawford & Moses’ Digest, must be followed in order to give the chancery court jurisdiction to make the sale, ’ ’ which was pot done. This court has decided in several eases directly contrary to this contention. Moore v. Wiley, 77 Ark. 317, 91 S. W. 184, 113 Am. St. Rep. 151; Glasscock v. Glasscock, 98 Ark. 151, 135 S. W. 835; McGehee v. Oxner, 150 Ark. 618, 234 S. W. 989.

In McGehee v. Oxner, supra, we said: “Chancery courts may order a sale of property, if necessary to effect an equitable division thereof among the owners, upon evidence other than, and wholly independent of, a report of commissioners.” The decree in partition recites: “And it appearing to the court, from testimony heretofore taken and from the nature of this cause and the number of parties, involved, that it is impossible to partition the property in kind among the parties in interest without great damage and detriment thereto,” etc. The court, after such finding, proceeded to appoint a commissioner to make the sale. This procedure was authorized under the above decisions. Moreover, the decree directing the sale of the land for partition was entered January 6, 1926, by the First Division of the' Union Chancery Court, which was at the December term of the chancery court. The December term of the First Division of the Union Chancery Court expired according to law February 28, 1926.

It is thoroughly established by our decisions that, after the expiration of the term of court at which a decree is rendered, the court rendering it cannot set it aside or modify it except in the manner and for the causes specified in the statute or by bill of review under the chancery practice. See Turner v. Vaughan, 33 Ark. 454; Johnson v. Campbell, 52 Ark. 316, 12 S. W. 578; Terry v. Logue, 97 Ark. 314, 133 S. W. 1135; Robinson v. Citizens’ Bank, 135 Ark. 308, 204 S. W. 615.

The procedure for vacating or modifying a judgment or final order of a court after the expiration of the term is prescribed by §§ 6290 to 6296, inclusive. The exceptions filed to the report of the commissioner making sale, and the petitions seeking to set aside the sale of the commissioner, which operate as exceptions to such sale, do not follow the procedure set forth in the above statute, nor can any of these motions or' exceptions be converted into á bill of review. It is expressly held in Johnson v. Campbell and Terry v. Logue, above, that a petition to vacate presented by way of objection to the confirmation of report of sale is not the proper practice and that such petitions or exceptions should be rejected.

Third. It is last contended by the appellant, Charlie Ingram, that the decree of June 30, 1924, and the subsequent decrees of January 27,1926, May 5, 1925, January 9,1926, and-March 6,1926, are all void-as to her, because, at the time the original decree of June 30, 1924, was entered, Charlie Ingram was a minor, and that no defense was made for her by guardian, as required by §§ 1113 and 1114 of Crawford & Moses’ Digest. It appears from the record that Charlie Ingram became of legal age on October 1, 1924. This appears from the response and intervention of Charlie Ingram to the petition of I. Felsenthal for a writ of assistance directed against B. H. Ingram to obtain possession of the property, and also from the testimony of her father taken in that cause. In the decrees rendered- after June 30, 1924, she made herself a party and set up her minority through her attorneys, Bailey, Nichols & Bailey. After the decree that finally reached this court on appeal, which was affirmed November 23, 1926, a motion for rehearing and to recall the opinión of this court and permit the record to be amended was filed by her attorneys of record, Bailey & Bailey and Allyn Smith. Attention again was called in this motion to the fact that she was a minor when the decree of June 30, 1924, was rendered. ■ . ■

This court, in Ingram v. Wood, supra, speaking of the decree of June 30,1924j said: “It follows from what has been said that the original decree which fixed the interest of tlie several parties in the lands involved became final and binding upon appellants and appellees herein with the lapse of the term of the court on the first Monday in September,. 1924. The only method by which the decree could have been modified or set aside after the lapse of the term at which same was rendered, except for fraud in the procurement of the same, is the method provided in § 6290 of Crawford & Moses’ Digest. ’ ’ The court in that decision affirmed the decree of the chancery court of May 5,1925, which adjudged that the interest of the parties to the litig-ation, including Charlie Ingram, “had been correctly ascertained and determined in the original decree of date June 30, 1924.” Counsel for Charlie Ingram say of the decree of May 5, 1925, “it is more than possible, and we think, on the face of the record, the court at that time made a proper decree, as there seems to have been no evidence before it ‘other than the bare assertion of counsel in their motion that Charlie Ingram was a minor, and it did not appear that such attorneys were without authority to appear for her.” But now they say: “A different state of facts appears. The demurrer of Charlie Ingram,’ filed in April, 1927, admits that she was a minor at those times and admits that the attorneys who appeared for her on these occasions Avere not her authorized attorneys.”

Now, in her exceptions to the report of the commissioner making the sale, she alleged that at all times up to October 9,1925, she was a minor under eighteen years of age, and that no guardian of any sort or character had eA^er appeared for her in this cause. She set up the same facts in her response or intervention in the action by I. Felsenthal for a writ of assistance. The decree of the trial court, in sustaining the demurrer of Felsenthal to the intervention, among other things recites: “I. Felsenthal, as purchaser, files, his demurrer on the ground that the matters pleaded in said response cannot properly be raised in this suit, but will require a separate action; that, as shown by the records of the court in this cause, the matters pleaded in said response have already been adjudicated against the claim of Charlie Ingram, and that the said Charlie Ingram has appealed to the Supreme Court and the matter is there pending.”

The trial court was clearly correct in holding that the decree of March 6, 1926, was res judicata. The same issues of her minority, and that no defense was made for her in the former decrees by a regular guardian, or a guardian ad litem, were presented in her exceptions to the commissioner’s report of sale, and seeking to set the sale aside. These exceptions were disposed of, finally, in the decree of March 6, 1926. This decree was rendered twelve days before the decree awarding the writ of assistance to I. Felsenthal of March 18, 1926. Therefore the pleadings and evidence in the writ of assistance proceeding could not have been in evidence in the proceedings resulting in the decree of March 6, 1926. The record does not show that Charlie Ingram proved or offered to prove the allegations of her exceptions to the report of the commissioner, alleging her minority at the time of the institution of the original action, and that no defense had been made for her by a guardian ad litem. It devolved upon Charlie Ingram to make good the allegations, of her exceptions by proof of same. The decree of March 6, 1926, as amended (mmc pro time) recites as follows: “All parties announcing ready for trial, this cause is submitted upon the original record in this case, the original decree and order of sale, the report of the commissioner filed herein, and exceptions of E. C. Dunn et al., and the motion of Charlie Ingram, and upon the testimony of ivitnesses taken in open court,” etc. None of this oral testimony is brought into the record as the statute requires, and, under familiar rules often announced by this court, we would have to assume that the court found every fact that might have been found on oral testimony essential to the correctness of the decree. After sustaining the demurrer of Felsenthal to Charlie Ingram’s intervention or response to his petition for writ of assistance, the court by decree correctly awarded him such writ, because he set' up in his petition that lie was the purchaser and had the commissioner 's deed to the land nnder orders, made for a sale of the land by a former decree of the court, which, at the time of the filing of the petition for the writ of assistance, had not been superseded or reversed on appeal. Such showing1 made by the petitioner entitled him to the writ of assistance, since the answer to this petition showed the matter set forth in such answer had been already adjudicated by a former decree of the court.

In Northern Road Imp. Dist. v. Meyerman, 169 Ark. 383, 275 S. W. 762, we held, quoting syllabus: “A purchaser at a judicial sale -becomes a party to the proceedings, and is entitled to such assistance from the court as is necessary to make the orders and decrees of thé court effective.” In Smith v. Murphy, 141 Ark. 410, 216 S. W. 719, we said: “The purchaser at a judicial sale has a clear right to the possession .of the property sold as against all parties to the proceeding in which the sale is made, and this right the court will summarily enforce by writ of assistance or in some other appropriate manner,” quoting from Am. & Eng. Enc. of Law (2d ed.) vol. 17, p. 1014. See also Bright v. Pennywit, 21 Ark. 130.

In answer to the suggestion of the learned counsel for Charlie Ingram that the judgment against her is void, and that this court should so hold, we have to say that we do not feel warranted in so holding from the record now before us. In the caption of her motion, or exceptions to the report of the commissioner asking to have the same set aside, she sets out the numerous plaintiffs and defendants that were parties to the action in which the decree of partition (June 30, 1924) was rendered. At the conclusion of her motion she adds, what she designates as “ a notice to all parties that she has filed suit, ’ ’ etc. By the decree of this c'ourt in the case of Ingram v. Wood, above, it is shown that the interest of all the parties named had been «adjudicated and determined by the decree of the Union Chancery Court, May 25, 1925. That decree was final as to all the pa’rties in the original action, except Charlie Ingram, who, to be sure, under the law, liad a right, if she were an infant when tbe decree was rendered, to bave tbe same set.aside-if no defense was made for ber by natural guardian or a guardian ad litem; but tbe decree so rendered against ber was not void, but only voidable. Martin v. Gwynn, 90 Ark. 44, 117 S. W. 754; Hare v. Ft. S. W. Ry. Co., 104 Ark. 187, 148 S. W. 1038. All tbe parties whom she named in her motion or exceptions to tbe sale are interested, and would be affected if tbe sale were set aside on tbe hearing of ber exceptions. She could not and did not bring these parties into court by simply calling upon them in ber motion to take “notice that she bad filed suit.” These parties, whose rights bad been adjudicated, were then out of court, and, to bring them in, she would have to do so by the notice tbe statute requires. True it is that infants are the special wards of courts of chancery, and, where their minority is disclosed on the face of tbe record, these courts are ever alert to see that all their rights are protected at eveiy step of tbe proceedings; but where, as here, Charlie Ingram was named as ¿ party defendant and was represented by counsel' of record, in all tbe long litigation, through the numerous orders and decrees resulting in the final decree of May 25, 1925, in which, as it appears on its face, her rights and the rights of all other- parties by that litigation were finally adjudicated and determined, then, in order to set aside the decree of the chanceiy court in which such rights were adjudicated and determined, she must follow the method prescribed in C. & M. Dig., § 6292, supra, which calls for a separate action to be instituted by the - aggrieved party. It is so held in many cases. See, in addition to those cited above, Ryan v. Fielder, 99 Ark. 374, 138 S. W. 973. In that case, among other things, speaking of a judgment that was rendered where the infant was not represented by a guardian, we said: “But, if a judgment is rendered against an infant without such defense, it is only voidable under our decisions, and it may be vacated or modified after the expiration of the term of court in which it was rendered, where the condition of such defendant does not appear in the record nor the error in the proceedings. The proceedings to vacate the judgment for this cause must be by complaint, verified by affidavit setting forth the judgment, or order, the ground to vacate or modify it, and it will not be vacated until it is adjudicated that there is a valid defense to the action in which the judgment was rendered, the 'court first deciding upon the grounds to vacate before trying the validity of the defense.”

We are convinced, after a painstaking analysis of this voluminous and complicated record, that none of Charlie Ingram’s exceptions and motions seeking to set aside the original decree in this cause were tantamount to a separate action instituted by her to vacate the original decree in this cause or the subsequent decree of May 5, 1925. On the record she has made we could not grant her the relief she seeks without doing violence to the statutory law, and without also doing injustice to the other parties, whose rights were finally adjudicated by the decrees which she now seeks to set aside. They are equally entitled -to have their rights protected, by insisting that the statutory method for vacating decrees be complied with.

Our conclusion upon the whole case is that the decree of the chancery court is in all things correct, and it is accordingly affirmed.


author: Smith, J.

text:
    Berkau v. City of Little Rock.
    Opinion delivered October 17, 1927.
    1. Municipal corporations — ordinance to prevent injury and annoyance. — Under Crawford & Moses’ Dig., § Y529, conferring on municipal corporations power to prevent injury and annoyance within the limits of corporation from anything dangerous, offensive or unhealthy, an ordinance "*to accomplish such results may he limited in operation to a portion of the municipality where the exercise of the power is deemed necessary.
    2. Municipal corporations — regulations of hanging .op signs.— An ordinance prohibiting the hanging of signs within a designated area, other than all-steel electric signs, not exceeding 400 pounds dn weight and skeletonized, held not invalid as a restraint of trade, on the ground that it was necessary to give a monopoly of sign-hanging- business to the defendant’s competitor.
    3. Municipal corporations — regulation of hanging of signs.— A city has power to pass an ordinance prohibiting the hanging of signs within a designated area, except electric signs of all-steel construction not exceeding 400 pounds in weight and skeletonized, meaning the hollow sign with steel sides and glass letters.
    Appeal from Pulaski Circuit Court, First Division; Abner McGehee, Judge;
    affirmed.

      John D. Shackleford, for appellant.

      Pat L. Robinson, for appellee.
   Smith, J.

-This appeal questions the validity of ordinance No. 3999 of the city of Little Bock, for the violation of which appellant was convicted. Section 1 of this ordinance reads as follows:

“Section 1. That it shall be unlawful for any person to erect, construct, maintain or hang- from any building or any other support, any sign other than electric signs of all steel construction, and shall conform to the requirements of that section of ordinance No. 2799, regulating street electric signs hanging or extending over sidewalks of the city of Little Bock, as follows(certain streets constituting the principal business section of the city). Other sections of the ordinance provide for the issuance of permits to hang signs, and for their subsequent inspection.

The section of ordinance No. 2799 referred to reads as follows:

“Electric signs. — Electric signs hanging and extending over any sidewalk, street or alley shall not exceed 400 pounds in weight, and shall be skeletonized. Fee for permit $1 and fee for inspection of construction and erection $3.”

Appellant admits that he violated the ordinance by hanging a sign- which did not conform to the ordinance, and he does not question the right of the city to pass an ordinance properly regulating the hanging of signs, hut he does insist that the ordinance is void for the reason that it is arbitrary and discriminatory, and was passed for the purpose of giving a competitor a monopoly of the sign-hanging business.

Section 7529, C. & M. Digest, confers upon municipal corporations of the State the power to prevent injury and anoyance within the limits of the corporation from anything dangerous, offensive or unhealthy, and we see no reason why an ordinance to accomplish this result may not be limited in its operation to that portion of the municipality where the exercise of this power is deemed necessary, and to that portion only. ■ Zoning' ordinances were upheld by this court in the case of Herring v. Stannus, 169 Ark. 244, 275 S. W. 321, and Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883, and such legislation has been held not to offend against the Constitution of the United States. St. Louis Poster Advertising Co. v. City of St. Louis, 249 U. S. 269, 39 S. Ct. 274, 63 L. ed. 599. See also, on the general subject of the police power to enact regulations of this kind, the following cases: Block v. Hirsh, 256 U. S. 135, 156, 161, 41 S. Ct. 458, 65 L. ed. 865, 16 A. L. R. 165; Levy v. Siegel, 258 U. S. 252, 247, 42 S. Ct. 289, 66 L. ed. 595; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 420, 43 S. Ct. 158, 67 L. ed. 322, 28 A. L. R. 132; Ambler Realty Co. v. Euclid, 297 Fed. 307, 315.

As to the contention that the ordinance is void as a restraint of trade, in that it was passed to give certain sign hangers a monopoly of the business, it suffices to say that we find nothing in the language of the ordinance to support this contention. The ordinance does not require a patented sign. It does prohibit the hanging of any sign within the designated area ‘ ‘ other than electric signs of all-steel construction,” which conform to requirements of ordinance 2799, and the requirements of that ordinance are that ‘ ‘ electric signs hanging and extending over any sidewalk, street or alley shall not exceed 400 pounds in weight, and shall be skeletonized.”

We see nothing in this ordinance which is calculated to give any one a monopoly of the sign-hanging business, and there is no reason why one man might not comply with it as well as another.

Other sections of ordinance 3999 show the purpose of the ordinance is to eliminate wooden, cloth and other signs regarded as dangerous in the business district of the city, and to prohibit the hanging of any sign over any street, sidewalk or alley in the business district which exceeds 400 pounds in weight and is not skeletonized. The ordinance does not define the word ‘[skeletonized,” but the testimony shows it means a hollow sign, with steel sides,and glass letters, and we are of the opinion that the city had power to pass such an ordinance:

The ordinance requires a permit from the city to erect a sign, and the semi-annual inspection thereof after its erection. Appellant as well as all others would be entitled to this permit, if the sign which he proposes to hang .complied with the ordinance, and he might, by appropriate action, compel the issuance of the permit, if it were denied, but that question is not presented here, as appellant admits that the sign which he hung in the restricted area-did not conf orm to the ordinance.

The judgment of the court convicting appellant of a violation of the ordinance must therefore be affirmed, and it is so ordered.


text:
    Jonesboro, Lake City & Eastern Railroad Company v. Gunn.
    Opinion delivered October 17, 1927.
    1. Executors and administrators — authority op administrator.— An administrator, -whose letters of administration have been issued by the clerk of the probate court in vacation and never approved by the 'probate court in term time, can maintain an action for damages for pain and suffering endured by deceased as the result of a fatal accident.
    2. Railroads — cause of death question for jury. — In an action by an. administratrix against a railroad company for pain and suffering- endured by deceased, evidence held to raise a question for the jury on the issue whether deceased was struck by the train or fell against it after the engine had passed her.

      3. Death — damages for pain and suffering. — Where deceased’s arms and legs were broken, and a severe blow was inflicted above her hip and she suffered 8 hours’ pain and suffering following a fatal accident, held that $4,000 damages was not excessive.
    Appeal from Mississippi Circuit Court, Chickasawba District; G. E. Keck, Judge;
    affirmed.

      Eugene Sloan, for appellant.

      Nelson & Crcwford, for appellee.
   Smith, J.

Appellee brought this suit as the administrator of the estate .of Caroline Ashbranner, to recover damages to compensate the pain and suffering endured by his intestate, which resulted from her being struck by one of the passenger trains of the appellant railroad company.

The deceased was a widow, seventy years old at the time of her death, and had no relatives, except some nephews and nieces, and the suit was brought to recover only for the pain and suffering.

The suit was tried upon the theory that a proper lookout had not been kept, and that, had this been done, the presence of the deceased on the track and the peril of her position would have been discovered in time to have avoided the injury. There was a verdict and judgment in favor of appellee in the sum of four thousand dollars, from which is this appeal.

It is first insisted, for the reversal of the judgment of the court below, that the capacity of the plaintiff as administrator to sue was not shown, for the reason that the letters of administration had been issued by the clerk of the probate court in vacation, and had never been approved by the probate court in term time, although several terms of the court had intervened between the date of the issuance of the letters and the trial of the case.

In the case of St. Louis-San Francisco R. R. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910, the facts in regard to the letters of administration were identical with those in the instant case, and we there held that the administrator had the right to maintain the suit, although the action of the clerk in vacation had not been approved by the court in term time. "We there said:

“It is next insisted that the record shows that Eunice Pearson was appointed administratrix of the estate of J. L. Pearson, deceased, by the clerk in vacation, and that there can he no recovery because the record does not show that the vacation appointment was confirmed by the probate court when it next convened. Our statute provides that it shall he the duty of the courts of probate in term time, or the clerks thereof in vacation, subject to the confirmation or rejection of the court, to grant letters testamentary and of administration. Crawford & Moses’ Digest, § 4. Letters of administration granted in vacation are not, under the terms of the statute, limited in point of time, so as to continue only to the succeeding term and then expire, unless confirmed by the court. They are subject to the confirmation or rejection of the count, and it is the duty of the court to pass upon them; but they are valid until they are rejected.” (Citing- authorities).

Appellant insists that, under the undisputed evidence, a verdict should have been directed in its favor, for the reason that the testimony of the engineer and fireman, which is not disputed, makes a case of non-liability.

It may be conceded that, under the testimony of the engineer and fireman, no liability was shown, but we do not think the testimony of these witnesses was so undisputed that we must say it was arbitrary for the jury not to accept it as true.

Deceased, at the time of her death, was returning to her home from a visit to a neighbor, about 3:30 in the afternoon. She reached the railroad track, and witnesses who saw her just before she was injured testified that she was walking between the rails. She had walked down the track, which at that place runs through her field, a distance of about two hundred yards, and the track ahead was straight for a distance of about'a mile and a half. The train consisted of three cars and the engine, and the engineer testified that, just before he had rounded the curve, he had whistled for a crossing, and had rung the hell, and, when he came upon the straight track, he saw the deceased a quarter of a mile ahead, and' he whistled for her,- and, when she did not leave the track, he whistled again when about three hundred yards away, and deceased stepped, off the track and was standing in the clear, about three feet from the end of the ties, as the train passed her. .The engineer testified that he had been on this run about fifteen years, and knew deceased, and recognized her as he passed; that, after the engine had passed her, he looked back, and saw her falling into the train, which was running only about twenty miles per hour. He stopped the train in about its length, and backed it up the track until the baggage car was opposite deceased, who was then lying-on the ground, and the train crew picked the deceased up and put her in the baggage car. She was carried to Manila, the next station in the .direction the train .was going, and was later carried to the home of one of her nephews, where she died about midnight. The testimony of the fireman is to substantially the same effect.

The testimony shows the deceased received the following injuries: Her leg was broken above the knee, her upper arm was broken, and she received a blow just above the hip. From time to time she spat up blood, and suffered much pain. A niece, of deceased’s, who was with her when she died, testified that there were intermittent periods of consciousness and unconsciousness.

Witnesses on behalf of appellee testified deceased was walking between the rails, and the whistle was not sounded, and the bell was not rung, but that they did not see the injury, because the train intervened between them and deceased. That they observed the train stop in the field without having rung the bell or blown the whistle, and that fact .attracted their attention, and they went over to the train, and observed that the grass and weeds along its side were crumpled and mashed down for the distance of about sixty feet, as if some one had been dragged over them. Appellant attempts to explain this circumstance by asserting that certain passengers, as well as members of the train crew, gut off the train, and might' have mashed down the weeds and grass.

The duty of the operatives of the train to keep a lookout has been defined in numerous decisions, and it is conceded that the instructions in .the case correctly declared the law. It will therefore be unnecessary to discuss the law of the case.

One of the instructions given at the request of appellant told the jury that, if the engine passed deceased without striking her, and she later fell into the train after reaching a place of safety, there was no liability against the railroad company, and to return a verdict in its favor.

It is the insistence of appellant that the undisputed testimony shows that the engine did not strike deceased, and that she was injured in the manner testified to by the engineer and fireman, and that the court should therefore have directed a verdict for the defendant. The correctness of this insistence is the principal question in the case.

The testimony is not undisputed, and we think in its entirety, with the inferences fairly deducible therefrom, is legally sufficient to support the finding made, that a proper lookout was not kept, and that the presence and peril of deceased could and would have been discovered, had the lookout been kept, in time to avoid injuring her.

There is no question but that deceased’s presence on the track would have been discovered had a lookout been kept. Indeed, the engineer testified that he did see her, and several witnesses testified that no warning signals were given. There was testimony that the beam of the engine was about two feet above the rails, and that the deceased, who was a small woman, was struck and badly bruised above the hip, the bruised place being about the height of the beam. We are also of the opinion that the mashed condition of the grass and weeds warranted the inference that the deceased was dragged by the train, rather than that she had fallen into it. At any rate, we are unable to say that the verdict of the jury was not supported by sufficient testimony, and the finding of liability is therefore affirmed.

It is finally insisted that the verdict of the jury, which was for $4,000, is excessive, inasmuch as the plaintiff sued to recover only for the conscious pain and suffering. There is no fixed rule by which damages to compensate pain and- suffering can be measured, and we can only determine what appears to be fair and reasonable under the circumstances of. each case, and much must be left to the determination of the jury, where it does not appear that the verdict was the result of passion or prejudice.

The deceased’s arms and legs were broken, and she received a blow 'just above the hip, and, as a result of these injuries, she spat up blood, especially when she was moved in the bed. The testimony shows the "deceased lived something over eight hours after her injury, and that she was conscious most of the time, although there were periods of unconsciousness. The deceased groaned and complained of her suffering. Under these circumstances we do not think the verdict is so excessive that it must be reduced by us, and it' is therefore affirmed.


author: Smith., J.

text:
    Mahaffey v. Mahaffey.
    Opinion delivered October 17, 1927.
    1. Wills — testamentary capacity. — In a contest of a will on the ground that the testator did not possess testamentary capacity, evidence held to sustain a finding in favor of the will, notwithstanding testator was more than 80 years old, was very feeble, and at times had delusions.
    2. Wills — admissibility of evidence. — In a will contest on the ground of testamentary incapacity, it was not "error to admit a letter written for testator by contestant’s wife, which indicated the testator’s intelligent appreciation of his affairs, where it was shown that testator could not read or write, and that the letter was written for him in response to a letter from eontestee.
    Appeal from Randolph Circuit Court; John G. Ashley, Judge;
    affirmed.

      John L. Bleclsoe, J. W. Meeks, for appellant.

      Walter L. Pope, for appellee.
   Smith., J.

This appeal involves the question of the testamentary capacity of J. E. Mahaffey to make a will, and from a verdict and judgment sustaining’ the will the contestants have appealed, and, for a reversal of the judgment, insist that the undisputed testimony shows the lack of testamentary capacity, and that error was committed in permitting the introduction of a certain letter over the objection of the contestants. No complaint is made of the instructions under which the case was submitted to the jury.

J. E. Mahaffey, the testator, was married three times, and:the contestants here are the children; by'his first marriage, and the contestee is the only child of his second marriage. The third wife bdre testator no children. Under tlie terms- of the will the testator devised to the children of his first wife one hundred dollars each. To L. E. Mahaffey, the child by the second wife, there was devised a certain farm, and to the..third wife there was devised'another farm-for life,-with-'the -rem'ai-nder to L. E. ¡Mahaffey:" >'¡ v>dj h d Urn /<! ;i

The testimony shows that the money with which the farm was purchased which was devised to L. E. Mehaffey' was derived from the sale of property owned by his mother. . cah-ilu t If , \ m'/ V.

The testator-h^dj^oyppieidy liy^d p^r.jQhio, and the first wife’s'children continued to live in that State, but the d'esfeték’^e’híóNed1 fd thi§r'!S'tateffáfídr‘re’sided! líé'r'e at ’rh w.,a;'!U;\rf M‘¡":*

, .*»:• ,.op ÍS to the effect that’ the testator ivas m.#re than.-eightyf-years pjduhn?l'.-tfi# hi-S health, ymsippor,, ariduhis.jneni^liby/had declined-.un-til ibe had then&infbof a'jmer.e*.ohild,'’and^enter-tainédí'the^delnsi'OU'thatsh'cwasdieih'g^pU'rs'üdd-'by-’peT'Sons IfhPpvérd-hfidída^óiiB^dcÍPdHMpPT’kBukTidbMicpt There bore date one day after the date of the will, m which th'e'1wfitter''féféí,'í',‘edí :to'ithe'iD’odr,‘c'©hdii>i.dil'df'{ti§i-fa{her’s health, and the delusion under whiohUVé'^abo-fedpU- .v/>’

¡; ObiMinff effepiptestee’ thqd^j^paoft^,?^ toftlie effect #xcep t; that ¿he rwM wjOTí Ipebfe,, ¡a^d ^jfejpeff tad ,-j /$$$%’ f during which he had delusions. The contestee testified hJa^t-Jie ^9(S ajLQjt present, when tj^e yálfwftn-íPyep'ared;, and did mphknpw its.provi^ions ¡antif nf^er; hipffaffierts' death; apd tlmt-the wifi Tpg$ left i# tjipiPjassespiqn.el.ithe.sprivpn.er who.prepared,it?,?/ .:■» ;. .,■;.> ;j.,j ..¡ü Mo-r// vffi.-mNff

i[-.,,.{. A.'.P'a'feoribing!líwi.:tiies:S;.;tp tfeei will testified, (ffnff.lm iieín'ember,eGl;the.’'ci'rc9ms;tnnqes,of itgf e^ecutipn,, ancl, tlrat he taí'hedrWith• the testator.,pn.that ¡oeeasipny ¡andfdbÚPg that day,; and jfcb# h-,e johserypd,. nothing p^rpajg wiffirfhe testator,-, except ,that,]ie. appe.ar§d' to/he Ne-yyifeebleffrqni his.- iadynpced,a,ge.i):>iQthpr,1p¥j.ti3Leppepitestified, that -tjiey had; noticed/nothing, ab.o uf-the, de^ntopj tp jndigate £$$$}? of.mentaíliitjn.excqptppidydlieuííOhteaess/.Qfi-Ql’d.jageM-'f^.,!;

,-r.v.Á¡physician wl^o had.Jqtnwn thG^qs-tatorffpr twenty - pne.years,, and who ha;d.;pres.9(cib.odfi.pA’-.hihiifinr-seypral occasions, testified that h(£rf.;M.ahaffey:'vyasipuff^ring;;fior!3 cystitis due to old age, and that he had talked with Mr. Mahaffey on many occasions, and regarded him as a rational man, although a feeble one. This witness further testified that Mr. Mahaffey, who lived in the country, always came to see hint when in.,fq)vn, either professionally or socially, and that Mr! Mahaffey paid him a social visit on the day the will wáá executed, aiidthát he did not observe, anything wrong with his-mind at that time. .The wilhwas dated:February 38, 1923, and the-testator died on October 17, 1925.• - ■ ' ;

Under this testimony we' cannot say that the verdict of the jury upholding, the will1 is. not supported by sufficient, testimony.', • ,s ...

On July 26, 1923, the. testator was visiting the home of K. W. Mahaffey, one -of the; contestants, who lived in Ohio. Oil the datemiehtiohed'Jenny Mahaffey, the wife ,bf K. W. Mahaffey, wrote- 'ap'pplíéé _ ar lettér, !or rather .two. letters in one, tile first .part .being .signed by K. W. Mahaffey, and the last was signed “.Father.” This-last letter-contained questions about, the, crops, and the garden, and gave certain directions about a heifer anchtwo ponies which the testator owned. This letter indicated an intelligent appreciation of the affairs of the testator at his home. The admission of this letter is assigned as error.

It was testified by L. E. Mahaffey and not denied by K. W. Mahaffey, who also testified as a witness, that their father conld not read or write, and that Mrs. K. W. Mahaffey wrote the letters for J. E. Mahaffey when he was in her home, and that Mrs. Mahaffey conducted such correspondence as her husband, K. W. Mahaffey, had. The letter in question was. written to L. E. Mahaffey in response to a letter from him, was written by the person who wrote for K. W. MaHaffey, and the latter did not deny any of the statements contained in the letter, nor did he deny his wife’s authority to write it. We conclude therefore there was no error in the admission of the letter.

We find no error in the record, and, as the testimony is sufficient to support the verdict, the judgment must be affirmed, and it is so ordered.


text:
    Kory v. Dodge.
    Opinion delivered October 17, 1927.
    1. Judges — exchange of circuits. — Where the chancellors of the First and Eighth districts, under authority of Crawford & Moses’ Dig., §§ 2204, 2224, and 2225, exchanged circuits for the single date of September 22, 1927, and where parties to a cause being tried on that date in the Eighth Circuit stipulated that defendants might have the Friday following to complete their proof by the taking of depositions, and that plaintiffs should have the Saturday following that for the same purpose, and that depositions taken when transcribed should be presented to the chancellor of the First Circuit, who should make such orders in vacation as he deemed proper, held that the chancellor of the First Circuit had no authority to make the .orders contemplated after September 22, 1927, notwithstanding Crawford & Moses’ Dig., § 2190, relating to vacation orders and decrees.
    2. Courts — consent of parties. — Courts cannot be created by consent of parties.

      Prohibition to Lawrence Chancery Court, Eastern District; Frank II. Dodge, Chancellor on Exchange;
    writ awarded.

      Horace Chamberlin and W. E. Beloale, for appellant.

      Geo. M. -Gibson and Smith & Blackford, for appellee.
   Smith, J.

Suit was instituted in the Eastern District of the Lawrence Chancery Court by certain heirs of Isaac Less, deceased, and Gussie Less, the divorced wife of the said Less, ag’ainst Ida Less Kory, the widow of the said Less, and her attorney in fact, and one of the children and heirs at law of the said Less. The Lawrence Chancery Court is situated in the Eighth Chancery District. The complaint is long and involved, and its allegations need not be recited.

A petition and bond for removal of the caiise was filed bjr Ida Less Kory, upon which no order was made by the regular chancellor presiding in that district. This motion was considered and overruled by the Hon. F. H. Dodge, chancellor of the First District, on the third day of the term, to which order an exception was duly saved.

It appears that the chancellor of the Eighth District and the chancellor of the First District had made a contract for the exchange of courts, which provided that the said Dodge would preside over and hold the Lawrence Chancery Court in the Eastern District “for the date of Thursday, September 22, 1927,” and on that day the motion to remove was heard and overruled. A demurrer to the complaint was also overruled, to which rulings exceptions were saved. The defendant, Ida Less Kory, filed an answer and cross-complaint, the allegations of which need not be stated, and the court proceeded to the hearing of the cause.

The decree of the court contains the following-recital :

“And after the defendants had introduced a number of witnesses the hour of six o ’clock p. m. approached, and the defendants asked time within which to complete their proof by the taking- of depositions. Whereupon the parties hereto, by their solicitors of record, agreed in open fsourt that tlie- ^defe.^dajlts i^ig;ht^a^e(all;&,a^iiQ^^'iiday', tih.e>2>3d,dayof ^pptenjibpr, J927,,^i,tMn ydiich ;t© complete the taking of depositions upon said motion nqyqfpiicler consicleration, and\ that.^thereafter^the^plaipti^s^^hould haye($jJ day of Satjia?jáayy. ^eptepaber, 1927,, in which to take such .proof as they mj.ght desire in rebuttal, .and 'that the tájtíng, oij sai^’’ (Ipppsi't^png, ás ^o bo.th, parties should close on,’ Saturday," '’September, 24, 1927,-,land that, as soon as said..depositions; ^ypre^ transcribed they should be-presentad|q,ithp.chanQpllpp.hearlng .this, matter, the.Honorable Frank.jíf,. I}odgea¡^§igiflejftOT of.the First Chancery Circuit of.the ^afe.pf;, Akk^s.a-S;, at Little Rock, Arkansas, and that; said.iehapcejJj'qr mighj; thereupon make such orders and-.dp,cr.ees.,.thepein. .and upon.said motion,'at Little Rock, Arkansas,; in.vacation, ,as hp might deem proper; which orders aij-cLidecrees ,sq pqade ip, ¡vacation should be entered and'repqrded'Qmtlie records-.ofsthis court in the Eastern District,of Lajypppée Hpupty,: Arkansas, where said matter is; p,ending,, yd,th the -same force and effect as if made,, entered. ¡and rqqorpechin term time.” ...... . ¡ ;

■ Before'a*ny'further hearing was had before the Hon. Ft¡ B/ Dbd'ge-,• pursuant to the above order, application ■was made to this court for a writ of prohibition-restraining tlie said Dodge from the further hearing-of the-cause and the motions, made therein to remove. A temporary stay was granted by a member of this court,- which has been continued in force until the final submission of the -petition for-prohibition to the full court, which motion has now-been'submitted upon briefs of respective counsel.

" ” Numerous questions are discussed in these briefs, which we have found unnecessary to decide, for the reason that the authority of the said Dodge to further hear the cause has expired, and for this reason the petition for prohibition will be granted and the writ awarded.

- ■ By § 2204, C. & M. Digest, it is ¡provided that the several chancellors of the State may exchange and hold courts for each other, as in the case of circuit judges.

Sections 2224 and 2225, C. & M, Digest, read as follows: ’

“Section 2224. Tie judges of the circuit courts may, by agreement, temporarily exchange circuits or hold courts for each other for such length of time as may seem practicable and to the best interest of their respective circuits and courts. Such agreement shall be signed, by the judges so agreeing, and entered on the record of the court or courts so to be held.
“Section 2225. The judges exchanging as aforesaid shall have the same powers and authority, while holding court for each other, as the judge for the circuit in which such term or terms shall be held.”

It thus appears that the chancellors of the respective: districts were authorized by law to make the exchange of circuits, and it also appears that they limited this exchange by the express terms of their agreement to Thursday, September 22, a day of the term.

In the case of Evans v. State, 58 Ark. 47, 22 S. W. 1026, Mr. Justice Battle said:

“The Constitution authorizes them (circuit judges) to temporarily exchange circuits or hold courts for each other under the regulations'prescribed by law,, and the statute empowered them to exchange circuits and hold courts for .each other for such length of time as seemed fo" them practicable and to the best interest of .their respective .circuits ' and counts. * * # In éxchanging courts ’fibey' had 'Die right jb fix the time according "tp what, in that respect, ‘sehm'ed'to them practicable and to the be’stfin'tsfe'S'ti'of their respective courts and circuits.”

■' !'During 'the day llámed of; thé term of the Lawrence' ©hhiidety’Otíúrt''for; the'Eastern District 'thereof, the chhhcéllór df ;thfe 'First District had full authority to' preside ahd !tó" hlake any order or decree on- that day which the regular chancellor might have made, but his authority to preside and hold court was limited to that day of the term by the agreement for the exchange, and on 'that day, and that day only, could the chancellor of the 'First District preside; and he had no right thereafter to'fur-' tlier liear any cause pending in the Lawrence Chancery Court.

In the. early case of Auditor v. Davies, 2 Ark. 494, it was held (to quote a syllabus), that: “The power and authority of each circuit judge in this State are restricted and limited to the prescribed and ascertained boundaries of his circuit.”

■Respondent insists that the right to proceed with the further hearing of this cause is conferred by § '2190, C. & M. Digest, which reads as follows:

“Section 2190. A chancellor may deliver opinions and make and sign decrees in vacation in cause taken under advisement by him at a term of the court; and, by consent of parties,-or of their solicitors of record, he nmy try causes and deliver opinions, and make and sign decrees in vacation. Such decrees and all other orders and decrees which a chancellor may make in vacation shall be entered and recorded on the records of the court in which the cause or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases. ’ ’

We think, however, that, if this section confers authority upon the chancellor holding court in another district upon exchange, it could not operate to extend the time in which he might do so beyond the time limited by the agreement for the exchange.

Respondent also calls attention to the fact that the order for the further hearing of the cause, after Thursday, was made b}r consent of parties oh the motion of petitioner here, and such is the recital of the order, but the fact remains that this cause is pending in the Lawrence Chancer}7' Court, and the right of the chancellor of the First District to'preside there has expired, and courts cannot be created by consent of parties. Price v. Madison Co., 90 Ark. 195, 118 S. W. 706; Frank v. Frank, 88 Ark. 1, 113 S. W. 640, 19 L. R. A. (N. S.) 176, 129 Am. St. Rep. 73; Hyllis v. State, 45 Ark. 478; Gaither v. Wasson, 42 Ark. 126; Dansby v. Beard, 39 Ark. 254; Feild v. Dortch, 34 Ark. 399; Jacks v. Moore, 33 Ark. 31.

It follows therefore that the chancellor of the First District is without jurisdiction to proceed further, as he admits in his response he is about to do, and the writ as prayed will therefore be awarded.