text:
    Morrison v. State.
    Opinion delivered June 4, 1923.
    1. CRIMINAL LAW — NECESSITY OP OBJECTION AND EXCEPTION.— Though sentence was pronounced in a felony case on the day after the verdict was rendered, in violation of Crawford & Moses’ Dig., § 3229, defendant cannot complain on appeal where no objection was made nor exception saved in the trial court.
    2. Intoxicating liquors — unlawful sale — evidence.—In a prosecution for selling intoxicating liquor, evidence held to sustain a finding of guilt.
    3. Intoxicating liquors — sale—instructions.—In a prosecution for selling intoxicating liquor, an instruction relating to and defining one acting merely as agent for the purchaser and one relating to one acting as agent for a vendor of liquor, held not to ■ be conflicting.
    Appeal from Lincoln Circuit Court; T. G. Parham, Judge;
    affirmed.

      Johnson & Smith, for appellant.
    The court erred in pronouncing judgment ¿gainst appellant without his consent sooner than the law permits it to he clone. Sec. 3229, C. & M. Digest. Instructions number eel 3 and 4 are in direct conflict. Evidence at best 'only shows -appellant purchased the whiskey for and did not sell it to the others. Secs. 61-63-4, C. & M. Digest; 70 Ark. 14.

      J. S. Utley, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    No objection was made -or exceptions saved to the pronouncement of the judgment, so the action of the trial court cannot he reversed. 1 Ark. 349; 26 Ark. 616; 123 Ark. 548. Instructions 3 and 4 are not in conflict, and no error in giving them. ‘
   Humphreys, J.

Appellee was indicted, tried, and convicted in the Lincoln Circuit Court for the crime of selling liquor in said county, and as punishment therefor sentenced to serve one year in the State Penitentiary. Prom the judgment an appeal has been duly prosecuted to this court.

Appellant was convicted on February 15, 1923, and the court pronounced judgment against him on the following day. Appellant contends that this action on the part of the trial court constituted reversible error. It is provided by § 3229 of Crawford & Moses’ Digest that judgment shall not be pronounced in felony cases until two days after the rendition of the vérdict, unless the court is about to adjourn, and then in not less than six hours after the verdict, except by the consent of the defendant. No objection was made or exception saved by appellant to the pronouncement of the judgment, so, under a well-established rule of practice in this State, the action of the trial court cannot be reviewed. Patton v. Cobb, 26 Ark. 616; Ward v. Fort Smith Light & Traction Co., 123 Ark. 548.

Appellant’s next insistence for reversal is that while the evidence showed appellant procured or purchased whiskey for Fred Morrison and others, it was insufficient to show that ho sold it to them. It is true appellant testified that he was not interested in the sale of the liquor, and that he purchased it as a matter of accommodation for Fred Morrison and several boys with him. On cross-examination appellant was unable to give the name of the negro from whom he purchased the liquor or to describe the manner in which he was dressed. The testimony on the part of the State was to the effect that Fred Morrison, in company with three friends, went to Palmyra in a buggy for the purpose of buying a gallon of whiskey. "When they arrived in Palmyra, Fred Morrison asked appellant if he knew where they could buy some whiskey. Appellant told him lie had none himself, but he thought he could get some from a negro that night, at $12.50 or $13 a gallon; that, after supper, Fred Morrison gave appellant the necessary amount of money, and the two got in the buggy and went out in the country about a mile and a half, turned to the left, and stopped; that appellant got out of the buggy and went away alone, stating he was. going to meet the negro and get the whiskey; that he was gone, five or ten minutes, and came back with a gallon of moonshine whiskey which he delivered to Fred; that they returned to town, where Fred joined his companions and went home. The time and manner of getting the whiskey, taken in connection with the inability of appellant to give the name of the negro or to tell how he was dressed, warranted an inference that the negro was a myth, and that appellant was interested in the liquor. The testimony was sufficient to- support a verdict and judgment for selling liquor.

Appellant’s last insistence for reversal is that instructions Nos. 3 and 4, given by the court, were conflicting and misleading. The instructions are as follows:

“3. If the. defendant, at the request of the witness, Fred Morrison, and solely as the agent of the said Fred Morrison, and without having any interest in the sale of the liquor other than to procure the whiskey for the said Fred Morrison and the other witnesses who testified for the State, went to the party from whom the whiskey' was purchased and, with the money furnished him by the said Morrison, and without making any profit or having' any pecuniary interest or other- interest in the sale, purchased whiskey which he carried to Morrison, as a matter solely to accommodate Morrison and the other State’s witnesses, and not for the purpose of procuring a purchaser for the whiskey, or to assist in any way in making the sale, then you should acquit the defendant.”

“4. If you believe 'from the evidence in this case beyond a reasonable doubt that the defendant either sold or was interested in the sale of intoxicating liquors, as charged in the indictment, you should convict the defendant. And if you find from the evidence in this case beyond a reasonable doubt that the defendant did not sell the whiskey himself, but that he acted as the intermediary between the buyer and seller, and in that way aided and abetted and assisted the' seller in making the sale, then he is guilty just the same as if he had sold the whiskey himself, although you may further find that he received no pecuniary benefit from the sale.”

We cannot agree with learned counsel that the instructions are in conflict with each other. Instruction No. 3 relates to and defines one acting merely as an agent for a purchaser of liquor, while instruction No. 4 relates to one acting as an agent for a vendor of liquors. One being the converse of the other, there is no conflict between them.

The judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    L. O. Umsted Auto Company v. Edwards.
    Opinion delivered June 4, 1923.
    1. Liens — Repair of automobiles — place of debtor’s residence.— Crawford & Moses’ Dig., § 6871, providing, inter alia,, that one who does work repairing an, automobile and who has parted with possession thereof may avail himself of the lien provided by § 6866 by filing his account with the circuit clerk of the eounty in which the debtor 'resides within 90 days, contemplates that the lien shall be filed in the county of .the debtor’s home, not in a eounty where he happens to be sojourning.
    2. Liens — repair of automobiles — construction of statute. — The lien provided by Crawford & Moses’ Dig., §§ 6866-6874, cannot he preserved without a strict compliance therewith.
    Appeal from Jackson Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      Gustave Jones, for appellant.
    The question resolves itself into a determination of the county of the residence of the debtor against whose property the lien was attempted to.be fixed within, the meaning of §6878, C. & M. Digest. Intention largely controls in determination of the fact of residence. Decree is not supported by the testimony. 102 Ark. 518; 145 Ark. 585; 63 Ark. 543; 24 Ark. 155. Residence and domicile not the same, as trial court erroneously held. 43 Ark. 547; (1917) L. R. A. 785; note § 6866, C. & M. Digest

      Samuel G. Knight, for appellee.
    Appeal should be dismissed for noncompliance with rule 9. The attachment of appellee was properly sustained. Holderby was a nonresident of the State. C. & M. Digest, §494, 502; 105 Ark. 5. Can a mechanic’s lien be enforced against a nonresident debtor, and does it, under §§ 6871 and 6874, C. & M. Digest, have precedence over the lien of an attaching creditor? 49 Ark. 83 in point herein. Appellant seeks to enforce lien under § 687, C. & M. Digest, which must be done in county in which debtor resides. 71 Ark. 505; 27 Cyc. 132. Ap-pellee’s judgment not subject to collateral attack.
   Humphreys, J.

Appellant instituted suit against George Holderby in the chancery court of Jackson County to enforce a mechanic’s lien for repairing a certain automobile. George Holderby had left the State, and service was obtained upon him by warning order.

■ Appellee, J. G. Edwards, filed an intervention claiming a paramount lien to that of appellant on said automobile, under an attachment proceeding.

A statement of facts relative to the institution of the suits and filing the lien was agreed upon, and is as follows:

“It is agreed that J. G. Edwards, the intervener, filed his suit against the defendant, George Holderby, in the Jackson Circuit Court, on May 14, 1921, for debt by contract, and, ancillary to said action, he filed on the same date his affidavit for general attachment, and the same was issued-out of said court on said May 14, 1921, and the writ of attachment was levied on the Chandler car (the property in controversy between these parties), together with other property in Jackson County, Arkansas, on the same date. That the plaintiff, L. O. Umsted Auto Co,. on May 18, 1921, filed its itemized statement of account with the circuit clerk of Jackson County, claiming his mechanic’s lien on the car referred to, and on June 24,1921, brought this suit to enforce said lien, that, upon filing of this suit to enforce such lien ag-ainst said defendant, Georg-e Holderby, the plaintiff filed its affidavit for a warning order against said defendant on June 24, 1921, which was issued on said date, and duly published as required by law for constructive scrviee. . That, in point of time, the suit of the intervener in the circuit court of Jackson County and his attachment therein ancillary thereto was four days before the filing of the account of the plaintiff with the circuit clerk of Jackson County, and about forty days before the filing of this suit. That the plaintiff, L. O. Umsted Auto Co., after having performed the labor and furnished the materials for the repair of said automobile, had voluntarily parted with, the possession of the chattel, delivering it to the owner (then owner, G-eorge Holderby, the defendant herein).”

The canse was submitted upon the agreed statement of facts set out above and testimony adduced tending to show where G-eorge Holderby resided, which resulted in a finding by the court that Holderby was not a resident of Newport, Jackson County, within ‘the meaning of 6871 of Crawford & Moses’ Digest, at the time of filing the account for repairs with the circuit clerk of said county, and a decree dismissing the bill of appellant for want of equity, from which is this appeal.

Section 6871 of Crawford & Moses’ Digest is as follows: “If tlie lien-holder has voluntarily parted with possession of any such property upon which he has a lien under the provisions of this act, he may still avail himself of such lien, within ninety days after such work or labor is done or performed, or materials furnished, by filing with the clerk of the circuit court of the county in which the debtor resides a just and true itemized account for the demand due, after allowing all credits, and containing a description of the property to be charged with said lien, verified by the affidavit of the lien-holder; provided, that the time set out herein for filing liens shall apply only to motor-propelled vehicles, and shall not affect the time for filing such liens in other cases as now provided by law.” The record reflects, according to the weight of the evidence, that G-eorge Holderby owned a home at Newark where lie and his family resided'; that he made Newport his headquarters for business purposes, and spent most of his time there, renting a room by the month for occupancy in one or the other of- two hotels in Newport; that he called Newark his home, and, when going to see his family, always spoke of going home; that he paid his poll-tax in Independence County, and voted at Newark; that he did not abandon or separate himself from his family, but, on the contrary, contributed toward their support.

The best test of one’s residence is the place of abode of his family, especially where he spends any part of his time with them. It would be an anomaly in the law to say one resided elsewhere than in the home of his fam-. ily, simply because his business detained him most of the time in another locality. The place where the debtor resides, as used in section 6871, supra, means his home, not some place where he happens to be sojourning. Under this construction of the statute, appellant preserved no lien for repairs made upon said automobile by filing its account in the office of the circuit clerk of Jackson County. Prior to leaving Arkansas, George Holderby, its debtor, was not a resident of, but merely a sojourner in, Jackson County. In cases like this, where the lien-holder parts with the possession of the chattel repaired, the only way to preserve the lien is to file an itemized account in the county where the debtor resides. The lien cannot be preserved without a strict compliance with the statute creating the lien. Cyc. vol. 27, p. 132; Doke v. Benton County Lumber Co., 114 Ark. 1; Daily v. Arkadelphia Milling Co., 126 Ark. 405. Had appellant retained possession of the automobile, or, after parting with the possession thereof, had it filed its account within the time and at the place fixed by the statute, the lien thus preserved would have taken precedence over an attachment lien and judgment acquired before the account was filed. Having failed to retain possession of the automobile, or to preserve its lien by filing its account for repairs thereon at the proper place, it had no lien, and was in no position to contest priority of liens with ap-pellee. It was conceded that George Holderby was a non-resident of the State at the time .the attachment proceedings were instituted, and that he was the owner-of an automobile in Jackson Couidy. An attachment proceeding may be prosecuted in any county where the property of the non-resident may be found. Section 502, Crawford & Moses’ Digest. Tlie attachment proceeding was in accordance with the statute, and the judgment obtained therein was impervious to collateral attack.

No error appearing, the judgment is affirmed.'


author: McCulloch, C. J.

text:
    Dawson v. Mays.
    Opinion delivered June 11, 1923.
    1. Dower — divorce—A divorced wife, is not entitled to dower.
    2. Divorce — disposition op property. — A decree of divorce which provides that “all property not disposed of at the commencement of this action which either party hereto obtained from or through the other during the marriage” shall he restored, refers only to the separate property of the parties.
    3. Divorce — allowance in lieu op dower. — In a divorce proceeding an allowance in lieu of dower must be made in the divorce proceeding, and cannot he made in a subsequent proceeding.
    4. Dower — annulment op divorce. — Where a wife procured a decree of divorce from her husband in his lifetime, she will not he heard, after his death, to ask for its annulment at .the same term of court, in order that she may receive dower in his estate.
    Appeal from Phillips Circuit Court; J. M. Jackson, Judge;
    affirmed.

      J. G. Brookfield, for appellant.
    The decree of the chancery court was valid, and, this record not showing what evidence was heard by that court, all presumptions are in favor of its decree, which cannot he attacked collaterally. Sec. 3504, C. & ' M. Digest; 28 N. Y. Civ. Proc. 332; 57 N. Y. Supp. 901; 134 Cal. 426 ; 66 Pac. 572; 101 Ark. 390; 94 Ark.' 519. The chancery court had jurisdiction by personal service upon defendant, and if it rendered a decree or order after the death of defendant and without service upon his administrator, then our statute provides that relief can only be had in the court which granted the order. C. & M. Digest, § 6290, sub. 6; 63 Ark. 323; 107 Ark. 41; 33 Ark. 454. The administrator cannot attack the order except in tlie court making it. 23 Cyc. 912, 914. The chancery court retained jurisdiction, and could adjudicate property rights of the parties. C. & M. Digest, § 3511; 64 Ark. 518; 94 Ark. 487. Last order made at same time divorce granted. C. & M. Digest, §2187; 153 Ark. 206. Appellant was entitled to widow’s allowance.

      P. R. Andrews, for appellee.
    Chancery court was without power to make an order long after divorce granted and after the husband’s death, setting the decree aside and permitting the wife to claim dower in deceased’s estate. 60 L. R. A. 301; 13 Gray 209; 40 Pa. 151; 52 Hun 102; 5 N. T. Supp. 90; 153 Ark. 206; 111 IT. S. 523; 59 Ark. 441. Rights af wife should have been determined in decree granting divorce and matter res judicata afterwards. 77 Ark. 379; 135 Ark. 43. The decree of divorce could have been annulled only on joint petition of the parties. Crawford & Moses’ Digest, § 3513.
   McCulloch, C. J.

Appellee’s intestate, John Dawson, came to his death on or about June 20, 1921, near the city of Helena, in Phillips County, where lie resided. He lived on a houseboat, and his partially decomposed body was found in the boat. Letters of administration on the estate were, issued to appellee by the probate court of Phillips County, and appellant, claiming to be the widow of said decedent, presented her petition for allotment of dower and for other allowances authorized by statute for the benefit of a widow. The probate court denied the claim of dower and other allowances, and, on appeal to the circuit court, a judgment was rendered there, denying appellant’s claim. The case was heard in the circuit court on an agreed statement of facts, from which it appears that appellant and John Dawson intermarried in the year 1902 and lived together as husband and wife until Anril, 1917, when they separated, and an-pellant took up her residence in the city of Tuttle Rock.

In April, 1921, appellant ¡nsl.ilulod i.11 ihc chancery court of Pulaski Gpunty an action against said decedent, John Dawson, to' procure a decree for divorce on the ground of desertion. Dawson was summoned, but made default, and the chancery court rendered a decree in appellant’s favor on May 19, 1921, dissolving the bonds of matrimony. The decree contained a formal recital to the effect that “all property not disposed of at the commencement of this action, which either party hereto obtained from or through the other during the marriage, hereby annulled, and in consideration or by reason thereof, he restored to them, respectively,” and that “the court doth retain control of this cause for such further orders and proceedings as may be necessary to ascertain definitely, and enforce, the rights of the parties hereto in the property herein referred to.” There was no reference in the decree to an allowance of alimony or an allowance in lieu of dower.

The partially decomposed body of John Dawson was found, as before stated, in his houseboat in Phillips County, and the agreed statement of facts recites that Dawson came to his death on or about June 20, 1921. .

There were no children of the intermarriage between John Dawson and appellant, and she claims one-half of the estate as dower.

On August 3, 1921, appellant filed in the Pulaski Chancery Court her petition asking -that the decree of divorce theretofore entered be set aside and the action dismissed. It was alleged that decedent left his -mother as his only heir at law, who was a nonresident, and a warning order was issued and published warning her to appear in the proceeding. The ground set forth in the petition to set aside the decree was that the body of decedent was so decomposed at the time it was discovered that it was impossible to determine whether or not he was dead at the time the divorce decree was rendered. The court heard the petition on September 28, 1921, which was during the same term of court at which the original divorce decree was granted, and entered an order setting aside and vacating the decree for divorce and permitting the plaintiff (appellant) to take a nonsuit. Appellant thereupon filed her petition, as before stated, in the Phillips Circuit Court.

We'are of the opinion that the probate court, and the circuit court on appeal, were correct in denying appellant’s claim that she was the widow and entitled to dower in the estate of John Dawson. A divorced wife is not entitled to dower. Wood v. Wood, 59 Ark. 441; Kendall v. Crenshaw, 116 Ark. 427; Gwynn v. Rush, 143 Ark. 4. There was no application in the divorce proceeding for an allotment of property in lieu of dower pursuant to statute (Crawford & Moses’ Digest, § 3511), and the court rendered no decree on that subject. The formal reservation was with reference to separate property, and there was none shown to have been owned by appellant. Such an allowance in lieu of dower must be made in the divorce proceeding, and cannot be made in a subsequent proceeding. Taylor v. Taylor, 153 Ark. 206.

It appears from the record that the parties were divorced by a valid decree, which could not be vacated at the instance and request of the party who obtained it, after the death of the other party. The prevailing rule of law on this subject is Stated as follows: -

“The doctrine followed with practical unanimity is that a party who has obtained a divorce is precluded from disregarding it and attempting, by further proceedings, to gain the same or different relief, on the principle, mainly, that the first divorce must be held to dissolve the relation of husband and wife, and also on the ground that a person who had invoked the jurisdiction of a court may not disregard or attack the decision.” Note (p. 301) to case of Karren v. Karren, 60 L. R. A. 294.

A court of record has inherent power to set aside its own judgments or decrees during the term at which the same were rendered, but a party to an action who has obtained such a decree may not be in a situation to ask for or to receive the benefit of the annulment of the former judgment or decree, and such is the present case, for the plaintiff, by her own voluntary act, procured a decree for divorce, and, after the death of her husband, she cannot change her own status with reference to her former husband by causing the decree to be set aside and her status as wife reestablished. The question involved is not one of the power of the court, but as to the right of appellant to thus change her status after the death of her former husband from whom she had secured a decree for divorce.

The judgment is therefore affirmed.


text:
    Davis v. Chrisp.
    Opinion delivered June 11, 1923.
    1. Limitation of actions — statutory period — condition of liability. — As the Federal Employers’ Liability Act creates a right of action unknown at common law, and specifies the time within which an action may he commenced, it operates as a condition of liability, and not merely as a period of limitation.
    2. Pleading — amendment by substitution of party. — Crawford & Moses’ Dig., §§ 1101, 1239, do not authorize the substitution of a new party for one in whose favor or against whom there is no right of action.
    3. Limitation of actions — amendment.—Where there is an amendment stating a new cause of action or bringing in new parties interest in the controversy, the statute of limitations runs to the date of the amendment and operates as a bar when the statutory period of limitation has already expired.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      Thos. B. Pryor and Ponder <$> Gibson, for appellant.
    The course of action was barred by the 2 years statute of limitations. Hice v. Dixon, 161 Pac. 722; 173 Pac. 196. The time fixed for commencement of the action created or permitted by statute is a condition of liability and not a statute of limitation, and action must be coin» menced within the time allowed. 8 A. L. R. 141, and notes; 2 Roberts ’ Federal Liability of ’Carriers, 1210.. Filing of amended complaint is to be considered as the commencement of the suit against new defendants. 17 Ark. 663; 74 Ark. 526; 97 Ark. 19; 96 Ark. 388; 80 Ark. 245; 64 Ark 348; 59 Ark. 441; 6 Am. & Eng. Eno. of Law, 875; 51 L. R. A. (N. S.) 721; 67 Ill. App. 114; 8 A. L. R. 1386; ■241 U. S. 241. The original complaint was against the Missouri Pacific Railway Company, and was dismissed upon demurrer sustained to it. The amended complaint was filed after two years had passed from the bringing of the suit, setting up a new cause of action and against a new defendant, and the action was barred, and the demurrer should have been sustained. 241 Fed. 395; Ann. Oas. 1914-C 1026; 107 Atl. 569. Cause of action accrues under Federal Employers’ Liability Act within 2 years from date of death of deceased, and a personal representative appointed more than 2 years after such date cannot maintain an action. 16 A. L. R. 470; 17 R. C. L. 824. A new party defendant 'brought in by amendment, after the statute of limitation has run, is entitled to plead statute bar. 3 L. R. A. 324; 78 Ala. 508; 53 Ga. 102; 78 N. Y. 194; 12 Am. Rep. 657; 6 Pet. 61. Complaint not amended to substitute a new and different defendant for or against when action was brought. 75 N. Y. 304; 137 Am. St. Rep. 344; 96 Am. St. Rep. 948; 13 Am. St. Rep. 805. An action for personal injury must be brought within 2 years. P&trovis v. Del. River •& Ferry Go42 Atl. 955. Amendment introducing a new or different cause of action does not relate'back to the beginning of the action so as to stop the running of the statute of limitations. 86 N. E. 670; 118 S. W. 663; 112 N. W. 754; 120 S. W. 494; 99 Pac. 298. Where cause of action set forth in amended pleading is new, different and distinct from that originally set up, it is equivalent to bringing a new action to the time it is filed. 58 So. 186; 92 Fed. -820: 104 N. E. 186; 96 S. E. 640; 199 Pac. 861, is especially applicable here. Railroad company not liable after return of its road for injuries inflicted while railroad was under Federal control. 19 A. L. R. 675. Instruction No. 1 should have been given and a verdict directed for appellant. Requested instructions 2, 3, 4, and 8 clearly state the law applicable, and should have been given. The demurrer to the amended complaint should have ¡been sustained and the complaint dismissed. 94 Ark. 277. The Federal Employers’ Liability Act creates a cause of action which must be brought within the 2 years limitation. 204 Fed. 970; 87 Ark. 65; 108 Ark. 219; 227 U. S. 296. Appellee assumed the risk, and cannot recover. 1 Roberts, Federal Liability of Carriers, 978; 233 IT. S. -492; 241 U. S. 229; 245 U. S. 461; 241 U. S. 470; 241 U. S. 462; 236 IJ. S. 668; 241 IT. S. 310; see also 191 IT. S. 64; 220 IT. S. 590; 228 U. S. 319; 236 Fed. 1; 122 IT. S. 189; 109 U. S. 478; 41 IT. S. Sup. Ct. Reporter, 162; 90 Ark. 487; 57 Ark. 503; 135 Ark. 483; 134 Ark. 491; 135 Ark. 563; 101 Ark. 537; 113 Ark. 359; 85 Ark. 460; 113 Ark. 304. The court erred in giving instruction 2 over appellant’s specific objection. 34 IT. S. Sup. Ct. Rep. 229; 33 IT. S. Sup. Ct. Rep. 465; 24 IT. S. Sup. Ct. Rep. 24.

      Brundiclge & Neelly, for appellant.
    This suit was brought under the Federal Employers’ Liability Act within two years after the injury occurred against Mo. P. Ry. Co., under authority of Mo. P. Ry. v. Ault, 140 Ark. 572. Later the IT. S. Supreme Court held that such action must be brought against the agent of the government, the road being under Federal control, and at the first term of the circuit court thereafter an amendment to the complaint was made substituting the Director General as defendant. No-new case of action was alleged, and the amendment was properly made. C. & M. Digest, § 1239. Roberts’ Injuries to Interstate Employees, § 9; 101 Fed. 171; 137 Fed. 740; 226 IT. S. 570; 193 Fed. 189; 145 IT. S. 598; 104 Ark. 286; 96 Ark. 388, cited for appellant, is not an authority in support of its contention, but rather supports appellee’s position. Also Little Booh Traction & Electric Go. v. Miller, 18O Ark. 248; 108 S. E. (Da.) 273. No assumption of risk hy appellee. 129 Ark. 95. Instruction No. 2 was not erroneous. 1 Roberts, Injuries to Interstate Employees, 193.
   McCulloch, C. J.

Plaintiff, 0. II. Clirisp, was formerly employed by the Missouri Pacific Railroad Company as a brakeman, and, when the railroad passed into the hands of the United States Government for operation under the act of Congress providing for government control of railroads during the period of the war (act of Congress August 29, 1916), he continued in the employment of the government on that railroad. On January 17, 1917, while plaintiff was engaged in said service as a freight brakeman on a run between Memphis, Tennessee, and Bald Knob, Arkansas, he received serious personal injuries, which resulted in the loss of one of his legs, and the injuries were caused, according to the allegations of the oomplaint and as shown by proof in this case, by the negligence of defendant’s employees in the operation of the railroad.

This action was originally instituted by plaintiff on January 14, 1921, against the Missouri Pacific Railroad Company. The railroad company demurred to the complaint on the ground that it was shown on the face of the complaint that, at the time of .the alleged injury, the railroad property of the company and its operation were under government control, under the provisions of the Federal Control Act. The court sustained the demurrer on January 18, 1921, and on the same day the court made an order, on petition of the plaintiff, directing that James C. Davis, as agent of the government, be made party defendant and that a summons be served on him. Nothing further seems to have been done under that order, so far as this record shows, until August 23, 1921, when the plaintiff filed an amended complaint against Jamos C. Davis, as such agent, alleging the same fasts with respect to the injury and tlie cause thereof as in the original complaint, and alleging that the railroad was under government control. Summons was thereafter duty served on Davis, as agent, and on January 30, 1922, he appeared by counsel and demurred to the amended complaint on the ground that the action against said defendant Davis had not been instituted within two years after the happening of the alleged injury. The court overruled the demurrer, and the defendant then filed his answer, reserving the objections raised on the demurrer, and denying the allegations of the amended complaint with respect to negligence and the cause and extent of plaintiff’s injury. The answer also contained a plea that the alleged injury of plaintiff occurred while lie was engaged in interstate commerce for his employer and was therefore governed by the Federal Employers’ Liability Act, and that the action was not instituted within two years after such injury occurred. There was a trial of the issues before a jury, which resulted in a judgment in favor of plaintiff for the recovery of a large sum as damages.

It is undisputed, both in the pleadings and the proof, that plaintiff’s injury occurred on January 17, 1917, while he was engaged in the service of defendant, which constituted interstate commerce.

The first and principal contention of counsel for defendant as grounds for reversal is that the trial court had no authority, under our statute, to allow an amendment to the complaint substituting as defendant a new party, against whom there was alleged to be a cause of action, in the place of an original defendant, against whom there was no cause of action; that this was tantamount to the commencement of a new action after the expiration of the time allowed by the Federal statute for bringing such action. It is the contention of counsel for plaintiff that the substitution of a new party was permissible as an amendment to the complaint stating the same cause of action as in the original complaint, and that the substitution related back to the commencement of the action against the railroad company.

Tlie Federal Employers’ Liability Act (sec. 6‘) provides that no action may be maintained under the statute unless commenced within two years from the day the cause of action accrued. IT. S. Comp. Stat., § 8662. The rule seems to be established by all of the authorities on the subject that, where a statute creates a right of action unknown at common law and also specifies the time within which the action may be commenced, it operates as a condition of liability thus created, and not merely as a period of limitation. Anthony v. Railway Co., 108 Ark. 219; Partee v. Railroad Co., 204 Fed. 970; Rodman v. Railway Co., 65 Kas. 645; Kerley v. Hoelham, 8 A. L. R (Okla.) 141; Porter v. St. Louis-San Francisco Ry. Co., 51 L. R A. (N. S.) 721.

' Counsel for plaintiff cite cases — especially the decision of the Supreme Judicial Court of Massachusetts in Genga v. New York, N. H. & H. Ry. Co., 137 N. E. 637—which support their contention that, under statutes similar to ours on the subject of amendments, a new party defendant may be substituted after the expiration of the period of limitation so as to relate back to the commencement of the original action and to prevent the bar of the statute, but this court is firmly committed to the contrary rule. Our statute (Crawford & Moses’ Digest, § 1239) reads as follows:

“The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting' a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when- the amendment does not change substantially the claim of defense, by conforming the pleading or proceeding to the facts proved.”

Another section (1101) provides that “when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.”

This court lias repeatedly decided that these statutes are uot broad enough to authorize a substitution of a new party for one in whose favor or against whom there is no right of action. State v. Rottaken, 34 Ark. 144; Railway Co. v. State, 56 Ark. 166; Schiele v. Dillard, 94 Ark. 277; Coleman v. Floyd, 105 Ark. 300.

Judge Battle, as special Justice, speaking for the court in the case of State v. Rottaken, supra, after referring to the Code provision set forth above, said:

“Tins provision of the Code assumes that the plaintiff has a cause of action, and does not authorize the court in any case, where the plaintiff has failed to show any cause of action, to amend by adding the name of a party in whose favor a cause of action is shown by the complaint to exist, because such a proceeding would be practically instituting a new action, and forcing a party, at the instance of one who has no right to demand it, to commence an action when he does not wish to do so. Broad and. liberal as the provisions of the statute of amendments are, we see no authority in them for such a proceeding. ’ ’

In Schiele v. Dillard, supra, the court said:

“The appellants sought, by amendment to their complaint, to substitute new parties defendant. This could not be done. While the court may, in its discretion, al.low additional parties plaintiff or defendant to be added or struck out, it cannot make an entire change of parties plaintiff or defendant. That would be tantamount to a new suit between entirely different parties.”

Our cases also hold that, where there is an amendment stating a new cause of action or bringing in new parties interested in the controversy, the statute of limitations runs to the date of 'the amendment and operates as a bar when the statutory period of limitation has already expired. Lytle v. State. 17 Ark. 663; Little Rock Traction Co. v. Miller, 80 Ark. 245; Western C. & M. Co. v. Corkille, 96 Ark. 388; Warner v. Askew, 97 Ark. 19.

Ill tlie recent case of Arkansas Land & Lumber Co. v. Davis, 155 Ark. 541, we recognized this principle as -being sound, but held that the substitution of the Federal agent under the Transportation Act in the place of the Director General of Railroads, appointed under the Federal Control Act, did not amount to a change in parties, for the reason that the government was a defendant, and the change from one agent to another was not a change of the real parties in interest. Payne v. Stockton, 147 Ark. 598; Missouri Pacific Rd. Co. v. Johnson, 153 Ark. 146.

O’ther authorities to the same effect are as follows: Miller v. McIntyre, 6 Pet. (U. S.) 61; Seaboard Air Line v. Renn, 241 U. S. 290; Union Pacific R. Co. v. Wyler, 158 U. S. 285; Atmore Milling & Elevator Co. v. L. & N. R. Co. (Ala.), 19 A. L. R. 675; Maegerlin v. Chicago, 237 Ill. 159; Peterson v. Delaware River & Ferry Co., 190 Pa. 364; Boyd v. Mutual Fire Ins. Assn., 116 Wis. 155; 96 Amer. St. Rep. 928; Leatherman v. Times Co. (Ky.), 3 L. R. A. 324; Seibs v. Englehart, 78 Ala. 508; Morrison v. R. & O. R. Co., Ann. Cas., 1914-C, p. 1026; Carpenter v. Vermont R. Co. (Vermont), 107 Atl. 569-Hogardy v. P. & R. R. Co., 255 Pa. 236; 17 R. C. L. 822.

The cases cited on the brief of counsel for plaintiff merely go to the extent of holding that, where there is no substantial change in the cause of action or the parties, and where the change is merely formal or as an expansion or elaboration of the cause of action already stated, it can be done under statutes authorizing amendments, and does not constitute a new cause of action. In the Genga case, supra, decided by the Massachusetts court, the action against the railroad company was based on common-law liability, where the statute of limitation was invoked, and was not based on the Employers ’ Liability Act, which prescribes the period within which suit may be brought as a condition upon which liability rests. How far this may have influenced the Massachusetts court in reaching its conclusion that the substitution of a Federal agent for the original defendant was permissible we need not consider, for the decision in that case, if given its broadest application to the case now before us, would put it in direct conflict with repeated decisions of our own court.

The provision in the transportation act approved February 28, 1920 (41 U. S. Stat. at Large, 446), to the effect that actions against a Federal agent might be instituted “within the period of limitation now prescribed by the State or Federal statutes, but not later than two years from the date of the passage-of this act,” has no application, since the action is one under1 the Federal Employers’ Liability Act, which prescribes a period of two 3rears within which action may be brought. This provision of the transportation statute does not constitute an extension of time for commencing an action, but its effect is rather a restriction, for it limits the period for bringing such suits to two years after the enactment of the statute. Ellis v. Davis, 23 Sup. Ct. Reporter, 243.

Our conclusion is therefore that defendant is correct in the contention that the amendment substituting the Federal agent for the railroad companj7 was not authorized by our statute, and was tantamount to the commencement of a new action, which could not be done after the period prescribed by the Federal statutes within which such actions may be instituted. The substitution was not a mere change of representatives, as in the case of change from the director general to the Federal agent. The effect of the substitution was to change the action from one against the railroad corporation to one against the Lnited'States Government, and, as before1 stated, it constituted a complete change of parties. The Federal agent was not bound to take cognizance of an action against the railroad corporation, even though the service was on the same local station agent, and even though the complaint stated a cause of action for personal injuries sustained during government control. The identity of the corporation was not lost by its railroad property passing under government control, and it still could be sued on its legal obligations, therefore the commencement of an action against it was not notice to the government.

There was no waiver of the substitution, for the defendant preserved his objection in the answer filed, and also pleaded specially that the action against the present defendant was not commenced within two years from the date of plaintiff’s injury.

The judgment must be reversed and the cause dismissed, and it is so ordered.


author: Humphreys, J. McCulloch, C. J.,

text:
    St. Louis-San Francisco Railway Co. v. Fletcher.
    Opinion delivered May 14, 1923.
    Animals — injuries by' poison. — Where a railroad company sprayed its right-of way with a poisonous mixture, knowing that cattle were accustomed to graze there, and without notifying their owner, and the cattle were killed by the poison, the company is liable.
    Appeal from Mississippi Circuit Court; W. W. Bandy, Judge;
    affirmed.

      W. F. Evans, W. J. Orr and E. L-. Westbrook, for appellant.
    The testimony shows ^hat appellee’s cattle were running-at large in violation of law (Sp. act 154, Acts 1919) at the time they ate the poisoned grass on appellant’s right-of-way — were trespassing on its grounds — -and the court' erred in holding appellant liable for their death. The right-of-way was fended, except for a short distance at the station to permit ■ the public to' get to station grounds, and the poison spray was lawfully used to-kill the grass on the right-of-way. 57 Ark. 16; 142 Ark. 601; 247 U. S. 100, 62 L. ed. 1003.

      Gravette & Rayner, for appellee.
    Appellant kne^ cattle were accustomed to graze in its right-of-way. Its agents operating the tank-car with the poison spray saw them grazing, saw them fall back as the spraying tank passed and then return to their grazing. Appellee’s cow was among them, and died from eating the poisoned grass, and appellant is liable for the resulting damages. 142 Ark. 601, also cited by appellant; 70 Ark. 331.
   Humphreys, J.

The question for determination on this appeal is whether appellant is liable to appellee for the value of appellee’s cow that died from eating grass on appellant’s rdglit-of-way, which had been sprayed with a poisonous chemical mixture for the purpose of killing it. At the conclusion of the testimony appellant asked for a peremptory instruction, and no other, upon tile theory that the cow was tr-espa.smngfnipnriA3m-xight-of-way, and that appellant owed appellee no duty with reference to his~cow, even though she subsequently died from eating gTassupon which appellant had sprayed poison, with full knowledge that said cow and other cattle were accustomed to graze upon its right-of-way. The court refused to grant the request, but, on the contrary, peremptorily instructed a verdict for appellee, who had requested no instructions. This was, in effect, a submission of the issues of fact to the trial court' by the parties to the action. The verdict is therefore conclusive on appeal to this court, if not contrary to law, and if supported by any substantial evidence.

The record reflects the following facts: At the time the cow ate the grass and died, a special act was in force in Mississippi County prohibiting owners of cattle from allowing them to run out, in which provision was made for impounding cattle running at large. Notwithstanding the law had gone into effect, appellee and his neighbors. residing near Archllion. agreed to allow their"cattle to run at large until the law was enforced. Their cultivated fields were fenced. Appellant’s right-of-way was also fenced, save a short distance .on the west side for entry by the public to the depot and station grounds.

The grass on the right-of-way was good, and cattle in the neighborhood frequently entered the opening, and were in the habit of grazing there, without objection on the part of appellant. On the 14th day of July, 1921, appellant sprayed the right-of-way six or eight feet on each side of the track, from a tank on a slowly moving train, with a chemical mixture, for the purpose of killing the growing weeds and grass on each side of its track. The spraying was done under the supervision of the roadmaster. Not only was it the habit of the cattle to graze on the right-of-way, but during the spraying process five or six of them, then grazing there, fell back out of the way of the spraying tank and returned after the train passed. No warning was given the owners of the cattle of the intention to spray the right-of-way, and no effort was made by appellant to prevent the cattle from grazing upon the poison grass. Appellee’s cow and others in the neighborhood grazed upon the vegetation on the day it was sprayed with the liquid substance, and died with fits, and a greenish foaming from the mouth and nostrils. The poisonous spray wilted and killed everything it touched in the way of vegetation, except sycamore leaves. Little chickens died when they came in contact with it. It was injurious to the skin of human beings.

The facts detailed above are sufficient to support the finding that the chemical mixture sprayed by appellant upon the grass growing upon its right-of-way was a poisonous substance, deadly not only to vegetation but to animals eating the vegetation; also that appellant’s operatives knew that cattle were in the habit of grazing on the right-of-way, and were then grazing, where they sprayed the poison. Appellant’s contention is that its only duty to trespassing cattle was not to invite them upon the right-of-way by placing dangerous, attractive substances thereon; and that it was not liable in damages for spraying poison on vegetation grown on its private property, upon which trespassing animals were then grazing or were accustomed to graze. We are unableX to indulge the nice distinction that the property owner \ may poison uninvited cattle when trespassing on his pri- j vate premises, with impunity, and may not poison tres-y passing cattle, without incurring liability, which were aK tracted thereon by a poisonous mixture. Certainly the\ special stock law did not warrant such a proceeding. It! provided for impounding trespassing animals, not kill.-' • ing them. The result is certainly the same, where one places poison upon an attractive bait and thereby induces domestic animals to come upon its premises and eat thereof until they die, or whether, finding trespassing animals upon his premises, he covers the grass upoli which they are grazing with poison, thereby killing them. In either event, according to our view, he unlawfully killed the cattle. The invitation doctrine, or the doctrine of the turntable cases, in our opinion, has no application to the facts in the instant case, for the very good reason that the poison within itself was not an invitation. • But appellant had knowledge that this and other cows were accustomed to grazing, and were then graz ing, where it sprayed the poison. The mere fact tha^ cattle were trespassing upon the right-of-way did not license appellant to poison them. Certainly appellant owed appellee the negative duty of not knowingly killing his cow. The rule announced by this court in the case of Brinkley Car Company v. Cooper, 70 Ark. 331 (335), on the second appeal, seems to us peculiarly applicable to the facts in this case. Mr. Justice Riddick, in rendering the opinion in that case, used the following-language: “We hold that if the company owning the premises had notice that children had frequented the place-of this pool, or, from the nature of the surroundings, wore likely to do so, and if it careless^ left a pool of hot water there, concealed in such way that one would reasonably expect it to occasion injury to children, the company would be liable for damages to the boy, who, by reason of its concealed nature, walked into the pool of hot water and was burned. The owner of land has a right to use it for any lawful purpose, and this company had a right to operate its manufacturing- plant and empty .the hot water from its boilers on its premises when it became necessary to do so, and, before it can be made liable for an unintentional injury caused to a boy of six years of age by such hot water, two things are necessary; first, it must be shown that the company had notice that the boy or other children were likely to some upon its premises; and second, by reason of the concealed nature of the pool of water, or the want of notice on the part of the children of the condition of the water, injury to them ought to have been foreseen on the part of .the company as a consequence of leaving the pool of water in that condition.” In the instant case the .company had notice that the cattle frequented the place where it was spraying the poison, and that the cattle were grazing there at the time, and should have foreseen that the cattle would be killed, as a consequence of spraying the grass which they were eating, or would eat, with a poisonous mixture.

No error appearing, the judgment is affirmed.

McCulloch, C. J.,

(dissenting). The decision of the majority is, I think, an unwarranted extension of what is usually termed the doctrine of “the turntable cases.” Railway Co. v. Stout, 17 Wall. 657. This doctrine has been heretofore applied with hesitation and caution by this court and most other courts, and the conclusion now announced by the majority is in conflict with those decisions. Abbott v. Van Meter, 142 Ark. 601; United Zinc & Chemical Co. v. Britt, 258 U. S. 268.

Liability of a landowner has, in such cases, been imposed, not on account of dangerous defects or agencies allowed to exist on the premises, but because of the fact that trespassing children or animals are attracted by such defects or agencies to their injury. The rule of liability is now generally referred to as the “attractive nuisance doctrine,” and depends entirely on the fact that the danger is an attractive one to children or animals. In all of the decisions on the subject there is a clear recognition of the rule of law that the owner of premises is not under any legal obligation to keep the same safe for trespassers. The limit of the owner’s obligation is not to lure children or animals to the premises or to bait a trap for them.

In the present instance appellant was using its right-of-way in a lawful manner, and the poisonous spray was used for a useful purpose. It had the right to use the premises -in that way, and was not bound to protect against trespassing animals.

There is no evidence at all that the spray was attractive to animals or that the vegetation was more attractive after the spray fell on it. All that is shown is that cattle went there to graze because grass was to be found there. It is just a case where trespassing cattle went where grass was to be found, and were killed. So, under the application of the law made by the majority in this case, wherever injury to trespassing cattle occurs the owner of the premises is liable if it can be shown that the animals went there to graze and the premises were kept in an unsafe condition.


author: Wood, J.

text:
    Metcalf v. State.
    Opinion delivered May 28, 1923.
    1. Intoxicating liquors — instruction.—In a prosecution ior selling intoxicating liquor, an instruction that if the jury believe that accused was not interested in the sale, hut was merely acting as the agent of the purchaser, he would not be guilty, held more favorable than accused was entitled to, and not prejudicial.
    2. Intoxicating liquors — sale—evidence.—Testimony that defendant, being requested to purchase whisky for another, did so without disclosing the identity of the vendor, will sustain a conviction of selling liquor.
    Appeal from Sevier Circuit Court; B. E. Isbell, Judge;
    affirmed.
    No brief for appellant.
    J. S. Utley, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    Tlie testimony is sufficient to support the verdict under instructions more favorable to appellant than be was entitled to. 105 Ark. 402; 129 Ark. 344; 130 Ark. 326. •
   Wood, J.

This is an appeal from a judgment sentencing the appellant to imprisonment in the State Penitentiary for one year. The appellant was tried and convicted on an indictment which, in proper form, charged him with the crime of selling intoxicating liquors.

B. T. Murphy testified that in the latter part of the year 1922 he was engaged in the mercantile business at DeQueen, Sevier County, Arkansas. Pie bought a gallon of whiskey from the appellant. He paid him in cash the sum of $2 and traded him merchandise in the sum of $4. Witness asked appellant if he could find him any whiskey to bring him a gallon; that his wife was sick_ and he needed it. Appellant said he didn’t have any, but thought lie could get some. Witness afterwards found the whiskey back in the store in a box; didn’t know how it got there. Appellant told witness it cost $6, and witness paid him that amount, as stated above, in money and merchandise.

The appellant testified that Murphy asked him to get some whiskey for his wife, and he told Murphy that he would look around and see if he could get it. Ón the Saturday 'before appellant was arrested he was in a wagon-yard in DeQueen and there he met a man from Oklahoma by the name of M elver. He vspoke of having some whiskey. Appellant handed him $6 and asked him (o deliver the whisker to Murphy. Appellant afterwards asked Murphy if he had received it, and Murphy replied that lie liad not. Witness told Murphy tliat be bad sent a gallon up there and supposed it was in the hack of the store. They went back and found it there in a box. Murphy paid appellant $2 and appellant took the balance of $4 in trade in the store. Appellant didn’t make any profit in the transaction.

The court instructed the jury, among other things, that if they believed from the evidence that the appellant was not interested in the sale of the liquor, but that he was acting merely as the agent of Murphy, the purchaser, he would not be guilty, and that, if they should so find, they should acquit lrim. The instruction of the court was more favorable to the appellant than he was entitled to, under the testimony. Bobo v. State, 105 Ark. 462; Williams v. State, 129 Ark. 344; Bryant v. State, 156 Ark. 580.

There was no prejudicial error in the instructions, and there was testimony to sustain the verdict. The judgment is therefore correct, and it is affirmed.


text:
    Grantham v. Walker.
    Opinion delivered June 11, 1923.
    1. Appeal and ERROR — review—matters subsequently arising.— The Supreme Court is not authorized to consider, as grounds for reversal of a judgment, transactions between the parties claimed to constitute a waiver of the forfeiture which is the basis of the right o£ action upon which this judgment was rendered.
    2. Appeal and error — instruction—harmless error. — Where a complaint by a landlord sought to have a lease forfeited for breach of all the covenants contained therein, including one to pay rent, a general instruction which submitted all the alleged breaches to the jury, was not prejudicial as authorizing them to consider the failure to pay rent as a breach, although the rent had in fact been paid, where, in another instruction, the jury were specifically told not to consider the failure to pay rent as a ground of forfeiture.

      3. Landlord and tenant — forfeiture of lease — waiver.—Where there was evidence tending to prove that defendant lessee sublet parts of the demised premises without the plaintiff-lessor’s consent, in violation of the contract of lease, testimony of plaintiff that he did not object to such subtenants cultivating the land, and would not have moved them from the place if he had got possession, did not show a consent to the subletting nor a waiver of forfeiture on that ground.
    4. Landlord and tenant — forfeiture of lease — evidence.—Evidence held to sustain a finding of the jury that defendant had committed breaches of the lease contract which entitled the plaintiff to claim forfeiture of the lease.
    Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    affirmed.

      J. T. Boston, for appellant.
    After the trial below and appeal, appellant paid appellee the rent for the second year, 1922, which constituted a waiver of all prior breaches of the lease contract and entitled him, upon a showing of that fact here, to a reversal and dismissal of the case. Acceptance of rent after a forfeiture for its nonpayment waives the forfeiture. 235 S. W. (Ark.) 7i87; 79 S. E. (Ga.) 854; 94 Atl. (E. I.) 664; 67 Atl. 1023. Appellee could have, after the forfeiture of the lease, brought suit against appellant for use and occupation for 1922 (C. & M. Digest, 6561; 25 Ark. 134), but, when he accepted the rent for 1922 under the lease, it operated as a waiver of forfeiture. The court erred in giving instruction No. 5 over appellant’s specific objections. It was the court’s duty to'define the issues, instead of leaving the jurji to determine them from the attorney’s statement of' the terms or covenants of the lease. 153 S. W. (Ark.) 835; 175 S. W. 1186; 18 S. W. (Tenn.) 269; 4 Iowa 155;'8-N. W. 647; 19 N. W. 283; 38 Mo. Apn. 181; 58 Ky. 574; 5 Iowa 274; 63 N. W. 562. Instruction No. 7 was also erroneous. 61 Ark. ,113; 101 S. W. 725; 62 Ark. 353; 52 Ark. 11; 60 Ark. 532; 3 Cooley’s Briefs on Insurance, 2604. Court erred in refusing appellant’s requested instruction directing finding on ground of subletting premises. 115 S. W. 943; 117 S. W. 135;' 57 Ark. 466. '

      A. F. Barham, for appellee.
    The judgment should be affirmed for noncompliance with Rule 9. 133 Ark. 197; 143 Ark. 463. No authenticated copy of the record filed. C. & M. Digest, 2135; 73 Ark. 60S; 72 Ark. 477; Ann. Cas. 1918-C 615; 41 Ind. 335; 49 Ind. 181; 160 Ind. 447; 67 N. E. 229; 209 Ill. App. 393; 285 Ill. 306, 120 N. E. 757. The receipt was issued to appellant by the attorney under a misapprehension of the facts, from appellant’s misleading statement thereof, and he was without authority to adjust or settle matter. 32 Ark. 346; 32 Ark. 74; 93 Ark. 342; 56 Ark. 355; 6 C. J. 659, § 175; 2 ft. C. L. 1006, § ,85; 233 Fed. 731, Ann. Cas. 1917-A, 921. There was no waiver of the forfeiture by appellee. The judgment is correct on the whole record, and will not be disturbed. 152 Ark. 271; 152 Ark. 597; 75 Ark. 329. The failure to outline the covenants of the lease in- the instructions did not mislead the jury. Wisconsin-Arkansas Lbr. Co. v. Smith, 151 Ark. 95. .Appellant asked no correct instruction on the point. ' 133 Ark. 348; 137 Ark. 537; 150 Ark. 288; 87 Ark. 528. Instruction No. 8 covered the point as to subletting premises without written consent of lessor. The appeal should be dismissed.

      J. T. Coston, in reply.
    Appellee received the rent for 1922. Knew it, and waived the forfeiture. 50 Ark. 406; 100 S. W. 884; 2 Tiffany, Landlord and Tenant, 1387. Appellee knew of the subletting, and ratified it. 2 ‘Black, §§ 561, 583; 110 S. W. 1038; 99 S. W. 70; 69 Ill. 448; 149 Fed. 625, 79 C. C. A. 317; 96 N. Y. Supp. 946; 186 Mo. App. 515, 172 S. W. 410; 170 Ill. App. 41; 1 Denis (N. Y.) 694, 3 Am. Dec. 651. Cannot rescind in part. 20 Ark. 438. Appellee made no demand for further repairs. 182 S. W. 515. The error of refusing to give requested instruction 1 not cured by giving No. 8. Request No. 2 called the court’s attention to necessity for a correct instruction, and failure to give one was prejudicial error. 90 Pac. (Kan.) 993; 104 S. W. 433; 14 S. E. 17; 111 S. W. 1091.
   McCulloch, C. J.

Appellee owns a farm in Mississippi County, consisting of about 315 acres in cultivation, and be leased it to appellant for a term of five years, beginning with the year 1921, for an annual rental of $3,500, payable on November 15 of eacli year. The lease contract, which was in writing, contained a clause providing, in substance, that the lessee should keep the buildings, fences, ditches, gates and all other improvements ‘fin good condition and complete repair” during the term; that he would “cultivate and manage the said farm and lands in a fair and proper manner, according to the most improved course of husbandry;” that the lessee would not “assign or underlet the premises or any part thereof without the consent, in writing, of the lessor; that lie would, at the end of the term,-surrender the premises in good condition and repair, and that, “on any breach of any of the covenants by the lessee herein contained, the lessor may reenter upon the said premises, and immediately thereupon the said term shall absolutely determine.”

Appellee also sold to appellant all of the work-stock and feed and farming implements cn the place for an agreed price payable at the end of the first year, and appellant executed a-note for the price, with a mortgage on the stuff sold to secure payment.

Appellee instituted this action against appellant to recover possession, after the first year of the lease, on the ground that there had been a forfeiture on account of breaches by appellant of all the covenants contained in the lease contract. He also instituted a replevin suit against appellant to recover the mortgaged property for the purpose of foreclosing the mortgage, and also instituted an action for accrued rent. The actions were consolidated and tried together, and the trial resulted in a judgment in favor of appellee for the recovery of tfip leased premises. Judgments were also rendered in favor of appellee in the other cases, but no appeal has been prosecuted from either of them, and the questions relating thereto are thus eliminated from the controversy.

Appellant filed an answer denying the allegations in the complaint with respect to the breaches of covenants. The case was tried on the testimony of numerous witnesses, including the testimony of each of the parties.

Since the record was lodged in this court by appellant, he has filed a motion here to reverse the judgment and dismiss the complaint of appellee on the ground that, since the rendition of the judgment below and the prosecution of the appeal here, appellee has accepted payment of the rent for the year 1922 under the contract and executed a receipt therefor, reciting that the payment of rent was made under the written contract. It is contended that the acceptance of the rent under the contract operates as a waiver of the alleged forfeiture, and affidavits and counter-affidavits were filed here on the question as to whether the payment was made as rent or fon the use and occupation of the premises while held under the supersedeas bond during the pendency of this appeal.

There is no statute which authorizes this court- to consider, as grounds for reversal of a judgment, transactions between the parties claimed to constitute a waiver of the forfeiture which is the basis of the right of action upon which the judgment was rendered. There is a statute which provides that, where an appeal has been improperly granted, or appellant’s right of further prosecuting the same has ceased, the appellee may move for a dismissal of the appeal. Crawford & Moses’ Digest, §§ 2368, 2369. The statute does not, however, provide that the judgment may he reversed on account of any matters which occurred subsequent to its rendition. Nor are we aware of any principle of law or of practice which would authorize such procedure in an appellate court. In fact, it is clear that the exercise of such power would be original, and not appellate. It would involve an inquiry which, would be original in its nature, and not supervisory. We are of the' opinion therefore that there is no authority for us to consider the question whether or not there has been a waiver of the forfeiture which constituted the basis of appellee’s right of action.

It is next contended that the judgment should be reversed on account of error in the instructions to the jury. The particular error assigned is the ruling of the court in giving, on its own motion, instruction number 5, which reads as follows:

“Now the other suit is a suit in unlawful detainer, and that means, gentlemen, that the plaintiff contends that the defendant had breached the written lease con-, tract, and that, because of the breach, he has forfeited his right to the possession of the leased premises, and the didy you are called upon to perform is to pass upon the fact as to whether or not, under the instructions I am going to give you, the defendant has, in some substantial way, breached any of the covenants contained in that written lease. As to what the covenants were, attorneys will call your attention to in their arguments, and I will not call your attention specifically to that, but will leave that to the lawyers in their arguments.”

It is contended that this instruction was prejudicial in form, for it submitted all the alleged breaches by reference to the written contract and arguments of the attorneys, rather than by the court calling the attention of the .jury to them separately, and also that it is erroneous in submitting to the jury the issues concerning breaches of covenants about which there is no evidence.

It must be conceded that the instruction is not in good form, but we do not discover that there is, for that reason, any prejudicial error, if there is evidence tending to show a breach of each of the -covenants. ’The effect of the instruction was to submit to the jury all of the covenants embraced in the lease, and if the instruction is found to be abstract in any particular by submitting. an issue about which, there is no evidence, then it is prejudicial and calls for a reversal of the case; otherwise we do not think it can be treated as prejudicial.

It is conceded that the rent was finally paid for the year prior to the institution of this action (1921), and it is contended that, as that was one of the grounds of forfeiture alleged in the original complaint, it was error to submit it along with the other grounds of forfeiture. The court, however, gave another instruction specifically telling the jury that it could not find in favor of appel-lee on account of appellant’s failure to pay rent. In other words, the court, by a specific instruction, eliminated the question of the payment of the rent from the consideration by the jury, and we must assume that the jury obeyed the specific direction of the court rather than a general direction given with regard to the breaches of covenants.

Again, it is contended that there is no evidence to support the issue concerning the. forfeiture on account of subrenting parts of the premises without the written consent of the lessor. We think there was evidence sufficient to submit that issue to the jury. It is unnecessary to relate the testimony in detail, but it was not, as contended by counsel for appellant, admitted by appellee on the witness stand that he knew of the subrenting, and consented thereto. The testimony tends to show that most of the land was subrented to negro tenants, and that appellee knew that the negroes were arranging with appellant to cultivate parts of the land, but it is not shown beyond dispute that appellee knew that' there were to be rent contracts, or consented thereto. ' Counsel insist that appellee’s admission on the witness stand to the effect that he did not object to the negroes cultivating the land, and would not have moved them from the place if he got possession, constituted an admission of consent to the subletting, but we do not so construe the testimony of appellee. His testimony was given at the trial in May, 1922, which was during the crop season. and appellee bad a right, if be got possession of tbe place, to retain tbe tenants on tbe place without subjecting himself to “the charge of having waived tbe breach of tbe contract by appellant with respect to subrenting.

There was testimony sufficient to sustain tbe findings of tbe jury upon tbe issues concerning other alleged breaches of tbe contract. Tbe testimony of appellant himself and other witnesses tended to .show that tbe lands were not properly cultivated, and that a considerable portion thereof was permitted to lay out; that an average .crop was not raised on tbe place, by reason of improper cultivation; that appellant failed to clean out the ditches, and let them fill up, and allowed sprouts to grow up; that a large crib on the place was blown over by a storm, and that appellant permitted the lumber to be carried away; that appellant tore down tbe picket fences and burned them, and allowed a tenant bouse to get out of repair; that be permitted tbe mules to eat away some of tbe posts which supported a large barn, and that tbe barn fell down and was completely wrecked on that account. Tbe testimony tends to show that this barn was worth about $1,000, and that it was wrecked on account of appellant’s ^carelessness in failing to keep tbe mules from gnawing tbe supports.

There is no error found in tbe record, and tbe judg-nent is therefore affirmed.


text:
    Ramey-Milburn Company v. Sevick.
    Opinion delivered June 11, 1923.
    1. Fraudulent conveyances — inadequacy of price._Mere inadequacy of price is not of itself sufficient to establish fraud.
    2. Fraudulent conveyances — bulk sales law. — The purpose of the “bulk sales law” (Crawford & Moses’ Digest, § 4870 et seq.), was to regulate bulk sales of merchandise as a part of the stock of a mercantile establishment, and it has no application to a manufacturing plant which sells its product merely as an incident to the business.

      3. Receivers — DISCRETION as to costs. — The question of imposing the burden of the costs of a receivership being to some extent discretionary, an order imposing the costs of a receivership on the plaintiffs will not he disturbed where the appointment turns out to be unwarranted.
    Appeal from White Chancery Court; John E. Mar-tmeau, Chancellor;
    affirmed.

      Avery M. Blount, J. A. Comer and Brundidge & Neelly, for appellant.
    We recognize the right of an insolvent debtor to malte a tona fide sale of his property for the purpose of paying his debts, hut the value was so greatly -in excess of the purchase price as to manifest had faith. 92 Arfe. 248; 64 Ark. 187; 60 Ark. 433; 69 Ark. 544; 55 Ark. 582; 50 Ark. 320; 64 Ark. 380; 12 R. C. L. 533, 535, 581; 27 C. J. 510-535. The transaction was in contravention of the hulk sales law. C. & M. Digest, 4870; 63 N. W. 1054; 99 N. E. 68. The court erred in taxing costs of receivership against appellants. . .. -

      Bogle S- Sharp and Coohrill & Armistead,-for ap-pellees.
    The bulk sales law is to prevent fraudulent sales of stocks of merchandise, and has no application to this transaction of a sale of sawmills, lumber, logs, etc., á manufacturing plant and products. 66 S. E. (Gra.) 257;' 203 S. W. (Mo.) 507; 75 N. E. 404; 204 S. W. (Mo.) 730; 82 Pac. 905. Appellee S evict was not insolvent at this time of making 'Conveyances, nor was the consideration paid by Riner to him inadequate. 20 Cyc. 572, 583, 592; 60 Ark. 425; 61 Ark. 455. Mere inadequacy of price is not sufficient to establish fraud. 118 Ark. 229; 99 Ark. 248; 64 Ark. 184; 20 Cyc. 442, and'cases cited, 508, and 520. Appellee Riner was a bona fide purchaser, not chargeable with any notice of insolvency or fraud, as was also the Nebraska National Bank. The ground of attack on the good faith of the sale is inadequacy of consideration and insolvency of the seller, but our court holds that the mere circumstance of being indebted-is no evidence of fraud. 9 Ark. 482; 17 Ark. 146; 8 Ark. 83; 23 Ark. 494; 26 Ark. 20. Even great inadequacy of price is only a badge of fraud and may be explained. 8 Ark. 510; 30 Ark. 117. The awarding of costs was in the discretion of the chancellor, and this discretion was properly exercised herein. 86 Ark. 608.
   McCulloch, C. J.

Charles H. Sevick, one of the appellees, was the owner of several small manufacturing plants in White County, one a veneer mill at Higginson, and four sawmill plants, one at Walker, one at Higgin-son, one at Crosby, and another at West Point. iSevick owned the real estate on which some of the plants were situated, and was also the cwner of certain other real estate used in connection .with the plants.

In January, 1922, Sevick executed two separate bills of sale conveying all of the property mentioned above to W. T. Riner, his co-appellee. The two bills of sale were executed contemporaneously, and were properly placed of record in White County. Each of the conveyances mentioned a consideration of the sum of one dollar “and other good and valuable considerations, the receipt of which is hereby acknowledged.”. On the date of these conveyances appellee Riner executed a mortgage to the Nebraska National Bank of Omaha to secure a debt of $24,500. Appellants were creditors of Sevick, and, soon after the filing of the bills of sale, they commenced tin’s action in the chancery court of White County to cancel the conveyances to Riner as in fraud of the rights of Sevick’s -creditors. Sevick and Riner were both made defendants, and later the Nebraska National Bank filed an intervention asking that its mortgage executed by Riner be foreclosed, the interplea containing an allegation that no part of the debt had been paid.

The answer in the case contained appropriate denials of the allegations of fraud in the sale from Sevick to Riner, and also contained allegations that the real consideration for the purchase was the sum of $24,500 and the assumption by Riner of certain debts of Sevick to third parties in the sum of approximately $4,000, making a total consideration of about $28,000.

It appears from the allegations of the answer and also from the proof adduced by the appellees that, prior to the execution of these conveyances, Sevick was indebted to the Nebraska National Bank in the sum of $24,500, which had been carried by the bank for some time, and was past due. Sevick was anxious to dispose of the property in order to raise funds to pay the debt of the bank, was seeking a purchaser to raise funds for that purpose, and was being assisted by the bank to find a purchaser. Riner was employed by one of the officers of the bank in service not connected with the bank, but Riner’s employers suggested to him the purchase of this property and the operation of it. After thorough exaim ination, Riner decided to purchase the property, and entered into negotiations with Sevick, and the purchase was consummated by the two conveyances mentioned above. The payment of the purchase price was made, according to the testimony, by the extinguishment of the debt of Sevick to the bank and by the execution by Riner of a note and mortgage to the.bank for the amount of the original indebtedness of Sevick.

There was a receiver appointed by the court, on the application of appellants and over the protest and objection of appellee Riner.

On the final hearing of the cause upon oral and documentary evidence the court rndered a decree dismissing the complaint for want of equity, and adjudging the costs, including the expenses of receivership, against appellants, who have prosecuted an appeal to this court.

There was a conflict in the testimony. At least the state of the testimony is such that different inferences might have been drawn from it as to the good faith of the transaction, but we have reached the conclusion that the evidence is sufficient to support the finding of the chancellor and to justify the decree which was rendered. In the first place, it is not satisfactorily shown that Se-vick was insolvent at the time of these conveyances. The finding of the chancellor on this issue is not against the preponderance of the evidence. Nor does the evidence preponderate to the effect that the transaction was not made in good faith, nor that the consideration was inadequate. There is a wide conflict in the testimony as to the value of the property at the time of the conveyance. The testimony adduced by appellants tends to show that the aggregate value of the property may have been as high as $37,000, whereas much testimony was introduced on this subject by appellees, and in that testimony the lowest value was fixed at about $22,000. There is abundant testimony which justifies a finding that the value of the property was not appreciably more than $28,000, the price paid by Riner to Sevick for it. Certainly the preponderance of the evidence does not justify the finding that the value was sufficiently in excess of the purchase price as to manifest bad faith. The principle is elemental that mere inadequacy of price is hot of itself sufficient to establish fraud. While it cannot be said that the testimony in the case fixes a definite value beyond question, it is sufficient to .show that the price was not grossly inadequate. We therefore agree with the chancellor in his finding that there was not sufficient testimony to establish fraud in the transaction.

It is also contended that the sale is void because-it falls within our statute commonly known as the “bulk sales law” (Crawford & Moses’ Digest, § 4870 et seq.). The statute in question is entitled, “An act to prevent the fraudulent sales of stocks of merchandise,” and the first section provides that sales or transfers “in bulk of any part of or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conduct of any such business, otherwise than in the ordinary course of trade-and in the regular prosecution of the business of the seller,” shall be void unless a notice to the creditors be given and the sale otherwise be made in accordance with the terms of the statute. It is clear, from the language used, that the purpose was to regulate bulk sales of merchandise as a part of the stock of -a mercantile establishment. It has no application to a manufacturing plant which sells its product merely as an incident to the business. That was evidently the thought in the minds of the court in the cases of Fiske Rubber Co. v. Hays, 131 Ark. 248, and Robbins v. Fuller, 148 Ark. 173, though the precise question now under consideration was not involved in that case. Other courts have so interpreted similar or identical statutes. Balter v. Crum, 199 Mo. App. 380, 203 S. W. 507; Cooney, Eckstein & Co. v. Sweat, 133 Ga. 511, 66 S. E. 257; Wright v. Hart, 182 N. Y. 330, 75 N. E. 404; Everett Produce Co. v. Smith Bros., 40 Wash. 566, 82 Pac. 905.

In the present case the merchantable property consisted of logs and lumber of small value compared to the aggregate value of all of property conveyed, and it is quite clear, we think, that the bulk sales law has no application to it.

Finally, it is contended that the chancery court erred in decreeing the costs, including the expenses of the receivership, against appellants. The receiver was ap- ' pointed over the protest of appellees, and the appointment turned out to be unwarranted, for the reason that the appellants failed to make out their case by sufficient testimony. It is not a case where the title to the property itself was in controversy and the appointment of the receiver was for the purpose of its preservation and protection against damage, but the receivership was .to sequester the property so as to subject it to the payment of appellants’ claims. We are already committed to the rule that the question of imposing the burden of the costs of a receivership is, to some extent, one of discretion of the courts, and that that discretion will not be disturbed unless there has been a clear abuse. Myers v. Hines, 122 Ark. 320. While there is some contrariety in the authorities on this subject, our decisions seem to be in entire accord with tlie weight of authority. High on Receiver', § 809-A; 1 Clark on Receivers, § 850.

Finding no error in the -decree, it is in all things affirmed.