text:
    Green v. Hollingshead.
    Opinion delivered January 17, 1927.
    1. Appeal and error — assignment op error. — abandonment.— Where the refusal of an instruction was not made one of the grounds in a motion for new trial, the appellate court will not review such ruling.
    2. Contracts — consideration.—Defendants’ agreement to pay a certain amount for plaintiff’s used car if plaintiff or one of his employees should buy a new car from defendants held, to be based on a good consideration.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge; affirmed.
    STATEMENT BY THE COURT.
    This is an action by J. H. Hollingshead against Martin Green and Mrs. Martin Green, doing business as Green Motor Company, to recover the sum of $200 alleged to be due for a second-hand automobile.
    The defendants denied liability on the contract as stated in the plaintiff’s complaint. They allege that they were dealers in automobiles, and agreed to allow the plaintiff $200 for his second-hand car if he would purchase a new automobile from them,, that they were ready at all times to furnish the new car to the plaintiff under their contract, and that the plaintiff had refused to accept the same.
    J. H. Hollingshead was a witness for himself. According to his testimony, he purchased a Chevrolet sedan from the defendants and gave them a Ford touring car in part payment of the same. Subsequently he paid the balance of the purchase price of the Chevrolet sedan. At a later date defendants agreed with the plaintiff that they would allow him $200 for a second-hand Dodge touring car if he would purchase a new Chevrolet roadster, or if any one of his employees would buy a car from them. Subsequently W. H. Chriswell, an employee of the plaintiff, bought a car from the defendants. He made a payment of $200 on the car and gave his note for the balance of the purchase money. Subsequently Chriswell paid the note.

      According to the evidence for the defendants, the plaintiff negotiated with them for the purchase of a Chevrolet sedan, and wanted to turn in a Ford truck and a Dodge touring car 'in part payment of the purchase price. The defendants told the plaintiff that they could not take more than one car. It was then agreed that the plaintiff should turn in the Ford truck and be given a $200 allowance on the purchase price of the sedan. The sedan was delivered to the plaintiff, and he gave a note for the balance of the purchase price, which was paid. Some time later the plaintiff told the defendants that his wife objected to him using the new Chevrolet sedan. Plaintiff then proposed to buy a Chevrolet roadster from the defendants, and asked for an allowance on his old second-hand touring car. The defendants agreed' to allow the plaintiff $200 for his Dodge car in case he should purchase a new Chevrolet roadster from them. The plaintiff delivered the Dodge car to the defendants, and stated that he did not want the new roadster at that time because he was a little short of money. The defendants have been at all times willing to deliver to the plaintiff a new roadster upon payment of the balance of the purchase money in accordance with the terms of the contract. The plaintiff refused to accept the new roadster, and demanded of them $200 in payment for his Dodge car, less a repair bill for $14.70 which the plaintiff owed the defendants.
    The jury returned a verdict for the plaintiff in the sum of $185.30, and from the judgment rendered the defendants have duly prosecuted an appeal to this court.

      Cravens é Cravens, for appellant.

      Roy Gean, for appellee.
   Hart, J.,

(after stating the facts). After the court had read its instructions to the jury, counsel for the defendants asked the court to give to the jury an oral instruction, which was copied by the court stenographer. A reversal of the judgment is now asked by the defendants on the ground that the court refused to give this instruction. Counsel- for the defendants failed to make the refusal of the court to give this instruction one of the grounds in their motion for a new trial. Therefore their objections to the action of the court in refusing to give the instruction must be treated as abandoned. Oliphant v. Hamm, 167 Ark. 167.

The next assignment of error is that the court erred in giving instruction No. 2, which reads as follows: “You are instructed that, if you find from the preponderance of the evidence that the plaintiff Holling'shead bought from the defendants a certain automobile, and, as a part and parcel of said trade, the defendants accepted, among other things, plaintiff’s old Dodge tonring car, for which defendants agreed to allow plaintiff the sum of $200 on another car if he should decide to purchase another new car, or, if the plaintiff did not buy another car and one of his employees did buy a new car from the defendants, then the defendants would pay plaintiff the sum of $200, and you further find that, after said trade was so made between the plaintiff and defendants, one of the plaintiff’s employees did purchase a new car from the defendants, you will find for the plaintiff. ’ ’

It is claimed by counsel for the defendants that this instruction was abstract, and therefore prejudicial to the rights of the defendants. We do not agree with counsel in this contention.

According to the evidence adduced by the plaintiff, he delivered an old Dodge touring car to the defendants upon their agreement to allow him $200 for the same if he would purchase a new car from them, or if one of his employees should buy a new car from the defendants. The evidence for the plaintiff shows that W. H. Chriswell, one of his employees, subsequently bought a car from the defendants and paid for the same.

It is also contended that, if the defendants had agreed that they would allow the plaintiff $200 for his old Dodge touring car in the event that one of his employees would purchase a new car from the defendants, such an agreement was a purely voluntary undertaking on their part, • and without any consideration to support it.

Page on Contracts defines a valid consideration to be some legal right acquired by the promisor in consideration of his promise, or forborne by the promisee in consideration of such promise. This definition was quoted and approved in Nothwang v. Harrison, 126 Ark. 548.

Now it will be readily agueed that, if the plaintiff had gone to the defendants and offered them his old Dodge touring car for $200 and they had accepted' his offer and the Dodge car had been delivered to them by the plaintiff, they would owe him $200. Again, all would agree that if the plaintiff had applied to the defendants to buy a new car and offered to turn in his old Dodge car at $200 and defendants had accepted his offer, this would constitute a valid and binding contract. We cannot see that the transaction could be any different because there was attached to it a condition that the defendants would give him $200 for his Dodge car if one of his employees should buy a new car from them. The delivery and acceptance of the Dodge touring car by the defendants was a sufficient consideration for their agreement to pay the plaintiff $200, and the agreement cannot in any wise be said to be changed into a contract without consideration to support it because there was attached to the agreement a further condition that one of the employees of the plaintiff should buy a new car from the defendants.

The evidence for the plaintiff shows that he delivered his old Dodge car to the defendants, and that they accepted it under the terms of the contract. The evidence for the plaintiff also shows that, at later date, one of his employees purchased a new car from the defendants and paid them for it. Under these facts it cannot be said that the instruction was not predicated upon facts proved in the case, or that the agreement proved by the evidence of the plaintiff was void because there was no consideration to support it.

It follows that the judgment of the circuit court was correct, and it will therefore be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Markle v. Fallin.
    Opinion delivered January 17, 1927.
    1. Appeal and error — supersedeas bond' — liability op sureties.— In a suit against the sureties on a supersedeas bond, after affirmance of the suit in which it was given, it was error to charge them with the costs of executions issued to enforce a liability which did not exist against them.
    2. Appeal and error — liability on supersedeas bond. — Where a decree confirming a purchase by plaintiff at a foreclosure sale has been affirmed, the sureties on defendant’s supersedeas bond are liable for the rental value of the land while detained by defendant, as the purchase price was credited on the judgment and bore no interest.
    3. Use and occupation — damages.—The measure of damages for detention of real estate, to the possession of which one is legally entitled, is the rental value of the property.
    4. Appeal and error — liability on supersedeas bond. — Where a decree confirming a purchase by plaintiff at a foreclosure sale was affirmed, it was not error to render judgment against one only of the sureties on the defendant’s supersedeas bond for rents on the property detained collected by such surety.
    Appeal from Washington Chancery Court; Sam Williams, Chancellor on exchange;
    modified.

      W. N. Ivie, for appellant.
   Smith, J.

J. A. Fallin brought suit in the Washington Chancery Court to foreclose a vendor’s lien on a house and certain lots in the city of Fayetteville which he had sold to Mrs. Lillie Vick, now Markle. A decree in his favor was rendered, and the clerk of the court was appointed commissioner to sell the land. ■ The judgment in Fallin’s favor was for $5,698.24 and interest. After advertising the lots for the time and in the manner directed by the decree, the commissioner sold the lots, and Fallin became the purchaser, his bid at the sale being $4,850.

The Arkansas National Bank filed an intervention in this foreclosure proceeding, in which it claimed that certain of the purchase-money notes had been assigned to it by Fallin as collateral to a $1,500 loan which the bank had made Fallin.

Exceptions were filed by Mrs. Markle to the confirmation of the report of the commissioner, but, as no testimony was offered in support of the exceptions, the report was confirmed, and the commissioner was directed to pay to the bank the sum found to be due it, unless Mrs. Markle should, before noon of the 20th day of March, 1923, “file a bond with the clerk of the Supreme Court on such terms as to procure a supersedeas, and shall cause the supersedeas to be delivered to said commissioner before said hour on said date.” The bond was filed with the clerk of the Supreme Court on the 18th day of March, and the supersedeas issued on that day.

This bond was conditioned as follows: “Now, the undersigned, as sureties, hereby covenant with the said appellee that'the said appellant will pay to the appellee all costs and damages that may be adjudged against th'e appellant on appeal; or in the event of the failure of the appellant to prosecute said appeal to a final .judgment in the Supreme Court; or, if the said appeal shall for any cause be dismissed, that said sureties shall pay to the appellee all costs and damages, together with all rents or damages to property during the pendency of the appeal, of which the appellees are kept but of possession by reason of the appeal.”

Before this bond was filed the commissioner’s report was confirmed.

The decree appealed from was affirmed by the court on December 27, 1923, and a judgment was rendered against appellant and the sureties on the supersedeas bond for the debt, interest and costs. The mandate from this court did not go down until July 19,1924. Thereafter Fallin caused execution to be issued by the clerk of the chancery court against said sureties on this ’ judgment. One of the executions was directed to the sheriff of Madison County, the other to the sheriff of Washington County. A motion was then filed by Mrs. Markle and the sureties to amend the judgment of this court, and the prayer of that motion was granted, and a nunc pro tunc order was entered affirming the decree of the court below and rendering judgment for all costs. In this judgment it was ordered that the executions which had previously been issued be recalled and quashed.

Fallin brought this suit against the sureties on the supersedeas bond, and alleged the facts recited above, and prayed judgment for the rents which had accrued on the property sold since the date'of the confirmation of the sale to him, and for all costs in the foreclosure proceedings.

Testimony was offered to the effect that, after the affirmance of the foreclosure decree by this court, negotiations were entered into between Fallin and the sureties on the supersedeas 'bond whereby the judgment should be paid and the property returned to Mrs. Markle. The proposition was also considered of making a private sale of the property by Mrs. Markle, and, as a means to that end, she executed a deed to J. P. Harter, 'who was one of the sureties on the supersedeas bond, as trustee. Harter was in possession of the property from May 19, 1924, to April 24,1925, during which time he collected the rents on the property.

A decree was rendered in the suit on the supersedeas bond, in which all the sureties were held liable for all the costs of the foreclosure proceeding, including the costs on the two executions, and the costs of the commissioner’s sale and the confirmation thereof, and for the rent of the property to the time Harter, as trustee, took possession of the property, and a decree was rendered against Harter alone for the rent collected by him, less certain expenses he had incurred in making repairs and certain insurance he had paid, and this appeal is from that decree.

We think the court below was in error in charging the sureties with the costs on the two executions, amounting to $17, because there was never in fact any authority for the issuance of these executions. They were issued to enforce a liability which we held, when the matter was called to our attention, did not exist against the sureties.

We think, however, judgment was properly rendered against the sureties for all other costs. The supersedeas bond expressly covered those items.

The real point in controversy, however, is the rents on the property accruing since the confirmation of the commissioner’s sale. Appellants invoke the doctrine of many cases to the effect that a mortgagor in possession cannot be held liable for rent on the mortgaged property, the measure of his liability being interest on the debt which the mortgage secures.

We think, however, that this doctrine is not applicable here. It is true Mrs. Markle was a mortgagor in possession, but she had another relation to the property. She is also a judgment debtor in possession of property which had been sold under a decree of foreclosure and the sale had been duly confirmed after exceptions thereto had been overruled. After the decree of confirmation the purchaser was entitled to the possession of the property, and his right to the possession was postponed by reason of the supersedeas bond, wherein the sureties assumed and agreed to pay the damages and costs. Fallin’s bid became a credit on his judgment when the sale was approved and confirmed, and he was thereafter entitled to the possession of the property. He was not thereafter entitled to 'interest on his entire judgment, but to interest only on the part of the judgment which his bid at the commissioner’s sale did not suffice to pay. The supersedeas bond operated to deprive Fallin, not of interest, but of rent, because the measure of damages for the detention of real estate, to the possession of which one is legally entitled, is the rental value of the property.

In the case of Wilson v. King, 59 Ark. 32, Judge Battle said: “The effect of the bond (a supersedeas bond to enable appellant to retain possession of land) is to secure the payment of the value of the use of the property for the-time the appellee was deprived of the possession and the damages to it during the same time, in the event the judgment or decree is affirmed.”

Appellants say, however, that there was no demand for possession until most of the rent here sued for had accrued. It may be conceded that Fallin might have secured possession of the property at an earlier date than-he did secure it by suing out a writ of possession; but it is also true that Mrs. Markle and her sureties could have arrested the accumulation of liability on the bond by surrendering the possession of the property. Moreover, it is shown here that the delay in taking possession of the property was the result of an indulgence to enable the sureties to retake the property and make a more advantageous sale thereof than the commissioner had made. This sale was not made, and the sureties are in no position to complain of the delay.

It is finally insisted that it was error, in any event, to render .judgment against Harter individually for any of the rent, for the reason that this is a suit on the supersedeas bond, and that Harter’s liability is common to that of the other sureties.

We think there was no error in rendering a decree against Harter for a larger amount than was rendered against the other sureties on the bond. The complaint alleges “that, after the affirmance of the said judgment by the Supreme Court, the defendant, J. P. Harter, took possession of the premises, and has rented the same to other persons to the present time.”

Had Fallin elected so to do, he might have sued Harter alone on the bond. Harter might have raised the question of the right of contribution as against the other sureties; but that question does not arise here, because the judgment against Harter individually is for a sum which he does not question'came into his hands personally. The decree only requires him to pay a sum of money which he admits receiving, and he was allowed the credits to which he was entitled.

The decree of the court below will therefore be modified by striking out the items of costs* incurred in connection with the executions, and in all other respects will be affirmed.


text:
    Missouri Pacific Railroad Company v. Avant.
    Opinion delivered January 17, 1927.
    1. Railroads — failure to keep lookout — question for jury. — In an action against a railroad for collision with an automobile at a crossing, the issue whether the engineer kept a proper lookout was properly submitted to the jury, where the evidence tended to establish the negative, though a failure to.keep a lookout was not alleged as negligence.
    2. Appeal and error — sufficiency of assignment of error. — An assignment in a motion for new trial that the verdict was contrary to law and evidence is not sufficient to present the question that the jury was not properly instructed.
    Appeal from Poinsett Circuit Court; W. W. Bandy, Judge;
    affirmed.

      Thos. B. Pryor and Gordon Frierson, for appellant.

      G. B. Knott, Aaron McMullen and 8. T. Mayo, for appellee.
   Smith, J.

On July 5,1924, appellee left Harrisburg in his automobile for the purpose of driving to Forrest City. At Cherry Valley, a station on appellant’s railroad, he started to drive over the railroad crossing at that place. The railroad there runs north and south. There were three tracks, the center one being the main track; the others were sidetracks. Appellee was driving west as he started over the crossing across these tracks. There were numerous objects to obstruct his vision as he drove on to the railroad, among these being a cattle-pen, some sheds, a freight train on the west track, the engine to which was emitting steam, some piles of crossties, and, south of the cattle-pen, a sawmill, which was being operated, and a burning pile of sawdust. All these thing's were oel the east side of the railroad and on or near the railroad right-of-way. Appellee drove across the east sidetrack, and was about to drive on to the main track when a northbound passenger train struck his automobile and damaged it, and inflicted a rather severe personal injury to appellee himself.

This suit was brought to recover damages to compensate both the injury to the car and appellee’s personal injury. The jury returned a verdict in appellee’s favor for $1,455 for the personal injury, hut returned a verdict in favor of the railroad company for the automobile. The railroad company has appealed, and appellee has cross-appealed.

It was alleged — and there was testimony to support the finding — that the passenger train ran across this dangerous crossing at a high rate of speed, without blowing the whistle or ringing the bell. The complaint contained no allegation that there had been any failure to keep a proper lookout.

At the conclusion of the introduction of the testimony, the court and respective counsel retired to settle the instructions, and the court, of its own motion, prepared an instruction on the duty of the railroad company to keep a lookout. This instruction was objected to by the railroad company upon the ground that the failure to keep a lookout had not been alleged as an act of negligence. The court stated to counsel — the. jury being absent — that the testimony presented this issue and that the engineer’s testimony showed that he was not keeping a proper lookout. Counsel for the railroad company excepted to the ruling of the court in preparing an instruction on this issue, and then asked permission to recall the engineer for further examination on this subject.

This request was granted, and the engineer was examined in the presence of the jury on this issue. He testified that the automobile came on to the track from his side of the engine, which was the east side of the track; that he was looking up the track, and, when he first saw the automobile, which was moving slowly, it was only 150 feet away, and that he made an emergency application of the brakes, but, before the train could be stopped, the engine had struck the automobile. Appellee testified that, .just before he drove on the crossing, he stopped, and that he stopped again just before he drove on to the first or east sidetrack. The testimony of all the eye-witnesses was to the effect that appellee was driving very slowly.

We think, under the facts stated, the instruction on the duty to keep a lookout was not abstract. The jury might have found that, had a proper lookout been kept, the engineer would have seen the car at a much greater distance than 150 feet, and, had this been done, a warning whistle could have been blown in time for appellee to stop his slowly-moving automobile, even though the train itself could not have been stopped.

We think .the court was correct in the view that the testimony raised the issue of the failure to keep an effective lookout, and this testimony had been admitted without objection. No continuance was asked upon the ground of surprise; indeed, the witness whose duty it was to keep the lookout was present, and permission was given to recall him for further examination, and he was recalled and further examined on that subject..

We consider therefore that there was no error in the submission of that issue to the jury.

In support of his cross-appeal, appellee asserts that the court erred in giving certain instructions and refusing to give certain others; but the only error assigned by him in his motion for a new trial was that the verdict was contrary to the law and the evidence, and this assignment is not sufficient to present the question that the jury was not properly instructed.

No other questions are raised which require discussion, so the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Markland v. Merchants’ & Farmers’ Bank.
    Opinion delivered January 17, 1927.
    1. Sales — vendor’s lien. — A lien for the purchase price of personal property must be actually reserved in order to give the vendor a lien thereon.
    2. Sales — recital op lien.- — A statement in a note that it is secured by a vendor’s lien on certain personal property amounts to no more than a declaration that a lien existed thereon for the purchase money, and does not authorize the purchaser of the note to foreclose a lien thereon.
    3. Landlord and tenant — right to collect rents. — The purchaser of a note which recited that it was secured toy a vendor’s lien on a house on a certain lot could not collect rent after expiration of the vendor’s lease of the ground on which the house was situated, and was liable to the owners of the lot for the rents thereafter collected, with interest.
    Appeal from Union Chancery Court, Second Division ; George M. LeCroy, Chancellor;
    reversed in part.

      MaJiony, Yocum $ Saye, and J. N. Saye, for appellant.

      Stewart & Oliver, for appellee.
   Humphreys, J.

Appellee instituted this suit in the Second Division of the Union County Chancery Court against F. M. Cates and one of the appellants, William Markland, to foreclose an alleged vendor’s lien for $256.25, with 10 per cent, per annum from April 15,1920, against a house standing on lot 4, block 2, Bast Junction City, Arkansas, and for rents in the sum of $150 for the use of same. The suit was based upon the following note and the indorsement of same before maturity to appellee by the payee therein: •

“$256.25 Junction City, Ark. Jan. 15,1920.
“Ninety (90) days after date, we, or either of us, promise to pay to H. A. Dowdy, or order, two hundred fifty-six and 25/100 dollars. Payable to the Merchants’ & Farmers’ Bank, Junction 'City, Arkansas, for value received, negotiable and payable without defalcation or discount, and bearing interest at the rate of ten per cent, per annum from maturity until paid, and if the interest. be not paid annually, to become as principal and bear same rate of interest. The drawer and indorser severally waive presentation, protest and nonpayment of this note. Secured by a vendor’s lien'on a house in lot 4, block 2, East Junction City, Ark. If this note has to be "collected by an attorney I agree to pay ten per cent, attorney’s fees.
“F. M.. Cates.
“Due 4-14-20. No. 6699.
Indorsement on back: “H. A. Dowdy, without recourse.”

It was alleged in the complaint that the lot was-owned by Frank McQuillan, who leased it to J. C. Moore on May 29,1913; that, pursuant to authority contained in the lease, J. C. Moore moved the house referred to in the note onto the lot; that, under the terms of the lease, he, or his assigns, had the right to remove the house; that, on March 1, 1924, appellant, William Markland, without right, title or authority, took possession of said house and retained the possession thereof without payment of rent to appellee. The appellant, William Markland, filed an answer, denying the' material allegations in the complaint.

No service was had upon-F. M. Cates, and he did not enter his appearance.

The heirs of Frank McQuillan, deceased, filed an intervention, adopting the answer of William Markland. In addition they set out the lease made by .their father to J. C. Moore, which is as follows:

“This contract entered into between Frank McQuillan, as party of the first part, and J. C. Moore, as the party of the second part. Party, of the first part hereby agrees to lease to party of the second part a certain tract of land described as follows : Lot 4, block 2, in East Junction City, Ark. This lot being 60-feet running east and west and 100 feet running north and south, and located between lots 3 and 5.
“Party of the second part hereby agrees to improve said lot and pay as rent for said lease the sum of two dollars per month, monthly payments, for a period of five years. It is further agreed that party of the second part has the option to extend this lease for as long a period at the above stipulated price.
“It is further agreed between the parties of the first part and second part that whatever improvement that party of the second part may place upon said lot shall remain the property of the said J. C. Moore, or to whom he may sell lease, they having the. right to move improvement when above contract has been complied with, if party of the first part, Frank McQuillan, does not see fit to buy same, at an agreed price.
“It is further agreed that party of the first part pay taxes on lot and party of the second part pay taxes on improvement placed on lot.
“It is further agreed that, when rent shall be 90 days past due and does not pay upon demand upon him, that this contract shall be null and void, and party of the first part may order premises vacated, and party of the second part has no further claim or protection under this contract. ’ ’

They also alleged that, at the expiration of the lease, appellee retained possession of the house and collected rents thereon from third parties to the amount of $175, for which they pray judgment against said appellee.

Appellee filed an answer, denying the allegations of the intervention, and, in addition, alleged tjiat the lease contract was extended until June 1, 1923; that, before the expiration of said lease, J. C. Moore sold, transferred and assigned it and the improvements erected and constructed on said lot to the Citizens’ Bank of Junction City, Arkansas; that the Citizens’ Bank sold and transferred the same to H. A. Dowdy; that Dowdy sold and transferred the same to F. M. Cates; that Cates executed and delivered the note referred to above to Dowdy, and that Dowdy transferred the note to appellee before maturity for a valuable consideration.

The cause was submitted to the court upon the pleadings and testimony adduced by the respective parties, which resulted in a decree dismissing appellee’s complaint for the want of equity, and the cross-complaint and intervention of appellants for the same reason, from which both appellants and appellee have prosecuted appeals to this court.

The record reflects, according to the undisputed testimony, that the interveners are the owners, by inheritance, of said lot; that J. C. Moore leased the lot from their father for a term of five years, at $2 per month, with the privilege of renewal, for the purpose of constructing the improvements thereon, with an option to the lessee or his assignees to remove same at the expiration of the lease; that, pursuant to the terms of the lease, J. 0. Moore moved the building .in question onto the lot, and that he and his assignees retained the possession of the house, but failed to remove same at the expiration of the lease, or at the expiration of the alleged extension thereof; that the only claim that appellee has to the house arises out of the assignment of the $256.25 note assigned to it before maturity, without recourse, by H. A. Dowdy, the payee in the note; that this note was executed to H. A. Dowdy by F. M. Cates in payment of the house; that Dowdy had bought the house from the Citizens ’ Bank of Junction City, who had- theretofore purchased same from J. C. Moore, the original lessee; that the following indorsement appears upon the original lease heretofore set out in this opinion:

“ September 1,1913.
“For value received I hereby transfer all my rights to the within lease and all improvements thereon to the Citizens’ Bank, Junction City, Ark. J. C. Moore.
“Feb. 3, 1919.
“This lease is extended until June 1, 1923.
“William Markland, “Agent for McQuillan estate.”

That William Markland moved into the house between the first of January and last of February, 1924; that, at the time he moved in, the house was occupied by Mr. Batie, a subtenant of R. E. Davis, who had leased the house from appellee; that William Markland moved in for the purpose of taking* possession of the house for the interveners; that he accomplished this purpose, and was in the exclusive possession thereof when this suit was instituted; that, during the time appellee retained possession and control of the house, it collected $90 in rents from Mrs. Earl Bass, at least $60 from B. V. Hunter, $14 from B. E. Davis, and $20 from B. E. Gfrennen; that this rent, and perhaps more, was collected by appellee without paying ground rent to the interveners or their agent, William Markland.

The record discloses a conflict in the testimony as to whether there ever was a renewal of the lease and the exact date on which the last ground rental was paid to the interveners or their agent. According to a clear preponderance of the testimony, appellee paid no ground rent after it acquired the Cate-Dowdy note between January 15 and April 15, 1920, and it is extremely doubtful whether any one paid ground rent after that time.

The first question arising* for determination on this appeal is whether appellee had any lien upon the house by virtue of the Cate-Dowdy note it acquired by purchase. The note recites that it is “secured by a vendor’s lien on a house on lot 4, block 2, East Junction City, Ark.” This court decided in Roach v. Johnson, 71 Ark. 344, 74 S. W. 299, that a vendor of personal property has no statutory or equitable lien for the unpaid purchase price; and in Barnett v. Mason, 7 Ark. 253, and Peay v. Field, 30 Ark. 600, that a lien upon personal property can be created only by contract; and in Roberts v. Jacks, 31 Ark. 597, that a mere declaration in a note to the bank that a lien exists upon the property sold for the unpaid purchase price does not, in itself, constitute a contract lien thereon to secure the payment thereof. A lien must actually be reserved upon personal property sold in order to give a vendor thereof a lien thereon to secure the payment of the purchase price. Howell v. Crawford, 77 Ark. 12, 89 S. W. 1046. The statement in the note in the instant case amounted to no more than a declaration to the effect that a lien existed on the property for the purchase' money, under the rule announced in the cases cited above. It follows therefore that there was no basis upon which appellee could maintain a proceeding in foreclosure to enforce a lien against the house, or to claim rents from the interveners or their agent, on account of his occupancy of the house, after the expiration of the lease. The complaint of appellee was properly dismissed for the want of equity.

Appellee had no right to collect rents after the expiration of the lease, and, if same was extended, it had no right to collect rents either after it forfeited its rights under the lease by a failure to pay ground rent to the interveners or their agents, and especially after the expiration of the alleged extension of said lease. As we understand this record, it collected all of the rents it received from third parties, after failing to protect its rights to the possession of the house by payment of ground rents, and collected more rents from the third parties than the amount for which it was sued. The amount of rents claimed by the interveners was $175. The trial court should have rendered judgment in favor of the interveners for that amount, -with interest at 6 per cent, per annum from August 1, 1925.

The judgment of the trial court dismissing appellee’s complaint for the want of equity is affirmed, and, on account of the error indicated, the judgment of the trial court dismissing appellants’ intervention and cross-hill is reversed, and the clerk is directed to enter a judgment here in favor of appellants against appellee for $175', with interest at 6 per cent, per annum from August 1, 1925, until this date, to cover the rents collected by it.


author: Kirby, J.,

text:
    Polk-Bourne Real Estate Company v. Kahn.
    Opinion delivered January 17, 1927.
    Brokers — exclusive contract to sell land. — Giving exclusive authority to a broker to sell land, without specifying a time limit as to when the sale should be completed, merely prevented the placing the property for sale in the hands of other agents, but not the sale of the property by the owner himself, while acting in good faith towards his agent.
    Appeal from Pulaski Circuit Court, Third Division;' Marvin Harris, Judge;
    affirmed.
    STATEMENT OP PACTS.
    This suit was brought by appellant company, real estate brokers, to recover from defendant, Alfred G. Kahn, a commission claimed to he due under a contract between the parties for the sale of certain real estate, it being alleged that they had in fact procured the- purchaser, and that defendant sold the property in violation of his contract giving them the exclusive right to make sale.
    On May 23,1924, appellant wrote appellee a letter as follows:
    “Little Rock, Ark., May 23, 1924.
    “Mr. Alfred Kahn,
    Kahn Bldg., Little Rock, Ark.
    “Dear sir: Referring to conversation with you a few days ago, will you kindly give us exclusive sale of the 75 feet of ground on Broadway, between 17th and 18th? We have a number of parties interested in buying a location for a home on Broadway, Arch or Gaines, and it is possible we might interest them in this home-site of yours.
    “Yours very truly,
    “Polk-Bourne Real Estate Co.
    “By R. W. Polk.”
    “RWP-LS
    Appellee wrote the word “Yes” on the bottom of the letter in ink, and his initials, “A. G. K.,” and returned it to the company. Appellant wrote him again on May 28, 1924, as follows:
    “Little Rock, Ark., May 28, 1924.
    “Mr. Alfred G. Kahn,
    Kahn Bldg., Little Rock, Arkansas.
    “Dear sir: We thank you for your indorsement on our letter of May 23, stating you would give us an exclusive sale on the property on Broadway between 17th and 18th. You did not put a price on the property in your letter, but some time ago you gave us a price on this of $7,500.
    “Yours very truly,
    “Polk-Bourne Real Estate Co.
    “By R. W..Polk.”
    “rwp-ls”
    Appellee indorsed on the bottom of this letter in ink, ‘ ‘ $7,500 is right. A. G. K., ’ ’ and returned it to appellant.
    Appellant company then wrote some letters on June 21 and June 26 to the officers of- the Ku Klux Klan, suggesting that the 75 feet of ground, upon which there was a good garage with servants’ room above, should be purchased at the specified price by the Women’s Klan for use in connection with the property on the corner, which it adjoined, already purchased by the organization,- and which had no garage and servants’ room.
    Mr. Polk, of appellant company, also testified he had talked with Miss Gill, of said organization, about the sale of the property three or four days before he found out it had been sold, and that he had had a telephone conversation with defendant, who also asked: “Why don’t you sell that to the organization you belong to!” and he had laughed and replied, “That those were the people he was figuring with, and that he expected an answer in a day or two. ” He didn’t find out about the sale until several days after it was made, when he saw some workmen around the garage on the property. He also stated that a reasonable time for a real estate agency selling contract to run would be sixty days, and that a reasonable commission for the sale of such property would be five per cent.

      Butler, a real estate agent of twenty years’ standing, also stated that a reasonable time for the sale of the property would be ninety days, and that he would try to get six months; that five per cent, would be a reasonable commission; that that was the commission established by the real estate bureau and customary in this vicinity.
    W. S. Holt testified that he was in the real estate and loan business; had sold Mr. Comer the place adjoining on .the corner, and that Mr. Comer was interested in the Kahn property at the time that deal was closed, about the 17th of June; that about two weeks were consumed in making the sale; that he had talked with Mr. Comer about the Kahn property, telling him he thought if would be a good idea for them (Women of the Ku Klux Klan) to buy the Kahn property. In >a few days after the trade for the corner property was closed, Comer asked him to see what he could get the Kahn property for, and he called Mr. Kahn to his office and made him an offer of $7,000, which he would not accept, but stated he would accept $7,500, and on that basis the trade was closed. ■ He thought this was about the first of July; that he had a conversation about the Kahn property with Comer some time before June 17, and thought he was interested, as he said, “We will get this closed up first, and then see.” He was representing Mr. Comer at the time he called Mr. Kahn, and Mr. Kahn paid the commission to him. He didn’t talk to Mr. Kahn until about the first of July. He asked him for a ten days’ exclusive contract for the sale, but he would not grant it, saying “that he was about to make a sale himself. ’ ’
    James A. Comer testified he wanted to purchase a piece of property for the women of the Ku Klux Klan, and called in W. S. Holt to aid him. He looked at the house on the comer, and, at the time, told Mr. Holt to see if the Kahn lot could be purchased, and at what price. He first saw this property with a view to its possible purchase in negotiating for the purchase of the building on the corner; was not shown the property by any real estate dealer, and would not have bought the corner house if he had not been assured that this was for sale, and in dealing with the Kahn property Mr. Holt was acting for him. He told Holt he would give $7,500 for the property, no more; that if he had any commission it would have to come out of that. He made a flat offer of $7,500, which Mr. Holt reported was accepted, and details of closing the deal were started. He would not buy any property in Little Rock without consulting Mr. Holt.
    He had the conversation with Mr. R. W. Polk about the property before it was purchased, but Mr. Polk did' not in any way influence or induce him to buy it; said Miss Bobby Gill was the supreme national officer of the Women of the Ku Klux Klan.
    She stated in her deposition that she had asked Mr. Comer to purchase the property for her if he could get it, and he acted for the Women of the Klan at her request. Her attention was called to this property at the time she was inspecting the residence on the corner lot. No real estate dealer had anything to do with callins: her attention to it. Mr. Comer attended to all details in buying the property. .M.r. Polk either wrote her a letter or called her while she was out of town. He came to her office and told her something about the property.
    The defendant testified Mr. Holt telephoned him on June 24, asking if the property was for sale, and he told him it was. He said he was representing Judge Comer for the Ladies of the Ku Klux Klan, who had just bought the house on the corner, and “that Judge Comer was his close personal friend, and made his real estate purchases through him.” Two or three days later he came back and said Judge Comer was willing to pay $7,500 if the commission could be deducted. He told Mr. Holt it could be, and the deal was closed on that basis. He did not consult Mr. Polk, because “he had no contract with Mr. Polk.” He knew about the letters, but had made no contract, unless the letters were a contract. He did not have the property listed with any other real estate dealers. Herman Kahn owned the one lot and the defendant owned the half lot. Mr. Holt called him about the property somewhere the last of June, and he called Mr. Polk ahont it somewhere aronnd that time, he thought before.
    The case was tried before the court, a jury being waived. The court made the following findings of fact at appellants’ request:
    “The court finds that defendant sold said property or caused said property to be sold to the "Women of the Ku Klux Klan for said price of $7,500, said property being conveyed to said purchaser by deed executed July 10, 1924.
    “The court finds that defendant has not paid plaintiff any commission on the sale of said property.” And refused to make other findings, and refused to declare it a matter of law that the letters between the parties constituted a contract giving “the exclusive right of sale of said property for a reasonable time, and that a reasonable time, under the circumstances, would be ninety days, and that, under the terms of said contract, if plaintiff had sold said property for defendant during said ninety days, it would have been entitled to receive from the defendant a commission of five per cent, of the purchase price.” And also that defendant had the right to breach the contract without notice so long as the breach of same was made in good faith, but finds that he did not act in good faith, in the absence of which he had no right to breach the contract;' that plaintiff had a right to recover a five per cent, commission on the sale price.
    The court made the .following findings of fact at appellee’s request:
    “The court finds that the sale of lot 3 and the south half of lot 2, block 203, in the city of Little Rock, to the Women of the Ku Klux Klan was made by the defendant directly to the purchaser.
    “The court finds that, in making the sale, the defendant acted in good faith, even though it had developed that he‘had an exclusive contract with the plaintiff, containing no time limit. * . , ¡ ¡

      ‘ ‘ The court finds that the defendant did not place the property in the hands of any other real estate dealer, and that he sold the property personally and not through any agent in his employ.
    “The court finds that the plaintiff was not the procuring or inducing cause of the sale of the property in controversy;” and declared the law, at his request, that no contract was entered into between the parties.
    “The court finds that, if there were a contract entered into between the plaintiff and defendant, the same did not deprive the defendant personally of the right to make sale of the real estate in question, without liability for commission, provided he acted in good faith and without having placed the lands in the hands of any agent or broker, other than plaintiff, for the purpose of sale.”
    The court stated, on his own motion, that he did not think the two letters with the notations constituted final contract, or that any outside evidence could be admitted to determine whether or not there was a written contract, leaving the impression on him that there was something final to be done afterwards; that, even if there was an exclusive contract, the owner had the right to make sale direct, and entered judgment for the defendant, from which this appeal is prosecuted.

      Buzbee, Pugh d> Harrison, for appellant.

      ClaytonS Cohn, for appellee.
   Kirby, J.,

(after stating the facts). The great weight of the testimony shows that the sale of the property was effected by the owner upon negotiations begun by the representative of the purchaser; also it is true that appellee finally consented to a reduction of the price in an amount equal to the usual agent’s selling commission in order to make the sale; that appellee had not given any other agent than appellant, if its letters with his notations constituted an exclusive contract for selling, authority to make sale, and the court also found expressly that the appellee acted in good faith in making the sale himself, and its finding on contradictory testimony is conclusive.

Conceding that the letters between the parties, with the notations thereon, constituted an exclusive contract authorizing the sale of the 'property by appellant company, there was no time limit specified therein, nor can such contract he construed an exclusive one to make such sale, within a reasonable time, at the usual and customary commission, and could not deprive the owner of the right to make the sale without liability for payment of commission, while acting in good faith. In Harris & White v. Stone, 137 Ark. 23, this court said:

“In the present case the contract did not contain a time limit within which the agent might make a sale of the property, and there was an implied reservation of right of the owner to sell the land himself, free from any liability for commissions, provided he acted in good faith towards his agent. The contract, not specifying any exact period of time within which the agent was to have the exclusive right to sell, does not deprive the principal of the right to sell the land himself when he acts in good faith towards his agent.”

The giving exclusive authority under, the circumstances to appellant to sell, without a time limit as to when the sale should he completed, merely prevented the placing of the property for sale in the hands of other agents, hut not the sale of the property by the owner himself, while acting in good faith towards his agent.

The testimony amply sustains the findings and judgment, which is in all things affirmed.


author: Mehaeey, J.

text:
    Wrenn v. Manufacturers’ Furniture Company.
    Opinion delivered January 17, 1927.
    Judgment — vacating -default judgment after term. — Where one of plaintiff’s attorneys agreed with defendant’s attorney that the case should he continued and set down for a date to be approved by defendant’s attorney, but subsequently another of plaintiff’s attorneys, having no knowledge of this agreement, took judgment by default in the absence of defendant’s attorney, who learned this fact after the term had expired, the judgment was properly-vacated at the next term of court.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Rogers, Barber & Henry, for appellant.

      Abner McGehee, for appellee.
   Mehaeey, J.

The facts, as they appear from the pleadings, are substantially as follows: The appellant, the plaintiff below, filed suit in the Pulaski Circuit Court against the defendant; the defendant filed answer, and depositions were taken by both parties. The attorney for defendant and a member of the firm of the attorneys for the plaintiff agreed that the case should be continued from time to time, and that the case would be set down subject to the convenience and approval of the attorney for the defendant. The attorney for defendant was absent from Little Bock from December 15 until after the 8th of January, except one day. Attorney for defendant received no notice of the setting of the case. The attorney for the plaintiff who had been handling the case, and the one with whom the agreement was made, was absent from the city the latter part of the year, and another member of the firm took charge of the case. It does not appear that this attorney had any knowledge of the agreement. The case had been set by the court for the 8th of January. Judgment by default was taken on said day. Attorney knew nothing of the judgment having been taken until some time in May, after the term of court at which the judgment was taken had adjourned. On June 1, defendant filed its petition to vacate and set aside the .judgment, and on June 4 plaintiff filed his response. Defendant’s petition states the facts, and that it had a good defense.

There does not seem to be any controversy about the facts, but, as stated in appellant’s brief, the appeal is here on the simple proposition that the trial court had no right to set aside the judgment after the term. It does not appear that attorney for defendant was guilty of any negligence, and the fact that the judgment by default was taken by a member of the firm other than the one with whom the agreement was had is immaterial.

This court has held that, where the sickness of the wife of an attorney is the cause of his failure to appear at court and give his attention to the case, this is not such neglect as should operate to the prejudice of his client. It was stated that the sickness of the attorney’s wife was an unavoidable casualty excusing his nonattendance at the court. Learning v. McMillan. 59 Ark. 162, 26 S. W. 820.

In a recent case, where a defendant relied on conversations and statements of attorney for plaintiff, this court said: “There was such a misunderstanding as constituted unavoidable casualty or misfortune which prevented, the defendant from appearing and defending. There is no room to suspect — and the lower court did not find — that plaintiff’s attorney had intentionally misled the defendant, but the defendant and her husband, who was her representative in the matter, did testify that they were misled, and, because of that fact, had not arranged with the attorney they intended to employ to file an answer presenting a defense which, if true, would defeat a recovery, and had not furnished the attorney the information needed to prepare the answer.” McElroy v. Underwood, 170 Ark. 794, 281 S. W. 368.

We think that, while the attorney who took the default judgment knew nothing of the agreement, yet that the attorney for the defendant was misled, and the judgment of the circuit court is affirmed.


text:
    School District No. 25 v. Pyatt Special School District.
    Opinion delivered January 17, 1927.
    1. Schools and .school districts — creation by legislature. — The Legislature has power to organize school districts, and may do so without the consent of the inhabitants of the district.
    2. Schools and school districts — creation by special act-change op boundaries. — Where a special act of the Legislature created a certain school district, the county board of education could not change its boundaries.
    Appeal from Marion Circuit Court; J. M. Shinn, Judge;
    affirmed.

      Floyd & Floyd, for appellant.

      Elmer’Owens, for appellee.
   Mehaeey, J.

The appellants filed a petition with the county board of education in Marion County, Arkansas, stating that District No. 25 was organized under the laws of the State, embracing certain territory; that, in the year 1923, the Legislature created a school district known as the Pyatt Special School District in Marion County, and that a portion of the territory of the school district created by act of the Legislature was taken from District No. 25, and the petition asked that that territory be restored. Special school district filed a demurrer, and the county board of education sustained the demurrer on the ground that it had no jurisdiction.

The only question to be determined is whether the county board of education can change the boundary line of a district created by special act of the Legislature. This court, has several times held that a school district is the creature of the Legislature, or of some governmental agency named by the Legislature. This court has said: “The Legislature is primarily vested with the power to create school districts, and it may create or abolish a school district, or change the boundaries of those established, for any reason that may be satisfactory to it. The Legislature may do this without consulting and without obtaining the assent of those persons who reside in the territory affected.” Norton v. Lakeside Special School District, 97 Ark. 71, 133 S. W. 184.

The court also said in the same case: “The above provisions of the statute are applicable to the common school districts of the county, and it is under and by virtue of these provisions that the petitioners herein seek the transfer of the children from Lakeside School District. We do not deem it necessary in this case to pass upon the question as to whether or not these statutory provisions are also applicable to special school districts created by the Legislature or established in cities and towns, because we do not think that the petition sets forth sufficient facts to warrant the court in making the order prayed for, if such petitions are applicable to this special school district.”

The court, in the case quoted from, does not decide the question now before this court.

This court again, in speaking of the power of the Legislature with reference to school districts, said: “The legislative power in these respects is full and complete, and is conferred by the provisions of the Constitution. This power of the Legislature has been recognized many times by the court in determining questions relating to the formation of school districts and the changing of the boundaries of districts already created.” Special School District No. 2 v. Special School District of Texarkana, 111 Ark. 379, 163 S. W. 1164.

In McIlroy v. Stephens, 121 Ark. 591, 181 S. W. 887, the court said, in referring to an act of the Legislature: “The act as to rural special school districts had the effect of repealing the law authorizing the dissolution of one district and annexing to another.”

Again, it has been said repeatedly that, in all cases, the legislative control over the creation and boundaries of school districts is plenary, subject only, however, to the limitation that such action shall not impair the contracts or obligations of such districts.

The Legislature has full power, it may organize a district itself, and may do so without the consent of the inhabitants of the district, or it may authorize the county court or board of education or other governmental agency to form districts and change boundary lines; but, when the Legislature itself creates a district, of course it cannot be said that it authorizes any governmental agency to change the boundaries of a district so created, and neither the county board of education nor any other agency would have authority to change the boundaries of a school district created by the Legislature, unless the Legislature expressly authorized such agency to do so.

In a case in Illinois where it was sought to detach a portion of a district organized under special act of the Legislature, the court said: • “On hearing this demurrer, it was agreed by parties that the court should determine only the question of law, whether or not the trustees of schools were authorized by the Constitution and laws of the State of Illinois to detach a portion of said District No. 3 and include the same in a new district, by them otherwise properly organized, and that, on behalf of relators, said special act in relation to the Waterloo graded schools should be considered by the court as properly before it. The first section of that act organizes the territory of District No. 3, together with such additions as may, from time to time, be made thereto by the action of boards of school trustees, special act of the Legislature, or otherwise, into a school district, the schools therein established to be known and designated as the Waterloo graded schools. The subsequent sections provided that the schools shall be under the exclusive control and management of a board of directors, and defined their powers. The court, in pursuance to the foregoing stipulation, sustained the demurrer to the plea, and gave judgment of ouster to the defendants, ’ ’ etc.

The court further said, in the same case: “It will be seen that the special act established District No. 3 by its terms, and does not authorize the board of trustees to detach territory therefrom, but it is insisted that, by construction, such power is given. There is no occasion for construction, as we understand the act. By express terms the Legislature fixed the boundaries of the district. Those boundaries, by the provisions of the act, could only be changed by making additions thereto. To say that it was the ixxtention of the Legislature by special act to erect a school district and establish such a graded school as is provided in the several sectioxxs of this act, and yet leave its territory liable to be diminished without limit, is unreasonable and in direct conflict with the language of the act. The Legislature clearly intended that at least so much territory as is described in § 1 should be. secured to the district for the support and maintenance of the schools provided for by the act. To give this language a different meaning is xxot to coxxstrue, but to abrogate, the statute. ’ ’ Schaefer v. People, 20 Ill. App. 605.

The special act of the Legislature creating Pyatt Special School District not only fixes the boundary but takes the very territory from District No. 25 which District No. 25 now seeks to detach from Pyatt Special School District. In other words, they seek to have the county board of education abrogate the law creating the special school district. The sections of the Digest referred to, authorizing the county board of education to change the boundary lines of districts, do not authorize such board to change the boundary lines of a district created by special act of the Legislature. The act creating Pyatt Special School District does not authorize the board of education or any other agency to change the boundaries; it expressly repeals all laws in conflict therewith.

The judgment of the circuit court was therefore correct, and is affirmed.


author: Mehaffy, J.

text:
    Griffin v. State.
    Opinion delivered January 17, 1927.
    1. Criminal law — corroboration of accomplice. — Under Crawford & Moses’ Dig., § 3181, a conviction of a felony cannot be had on an accomplice’s uncorroborated testimony as to defendant’s connection with the commission of the crime, whether the court and jury believed the accomplice or not.
    2. Criminal law — competency of testimony. — Testimony that the pages of a hotel register for dates mentioned by an accomplice as those on which defendant was registered there were missing, held incompetent, in absence of any showing that defendant had anything to do with their removal.
    Appeal from Hempstead Circuit Court; James H. McCollum, Judge;
    reversed.

      Steve Carrigan, for -appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Mehaffy, J.

The appellant, David L. Griffin, was convicted of the crime of burglary and grand larceny. He contends that the evidence is not legally sufficient to support the verdict.

The law provides that a conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Crawford & Moses ’ Digest, § 3181.

Joe Mayfield testified that the appellant, two others and himself, participated in the burglary of the bank at Washington, Arkansas, as charged in the indictment; that, prior to the burglary, witness was at Van Burén, Arkansas, where he met the appellant, and that the appellant told him about the bank at Washington and their intention to break into it and get the money, and that the appellant told him the other boys were over in Fort Smith, and asked him to come over to the St. Charles Hotel, room 6. That he went over there, and found the door locked, but afterwards met the appellant. That the date he was at the St. Charles Hotel was ten or twelve days before the crime was committed. That he and appellant met again the next day and discussed the bank robbery, and the appellant caught a train and went to Little Rock. Witness said that he and his companions, other than appellant, were registered at the Como Hotel, in Fort Smith. That appellant caught the train on Friday morning, and that witness and the other parties connected with the robbery went through that evening. There is not a scintilla of evidence that appellant was in Fort Smith or was with Mayfield either at Fort Smith or Yan Burén, except the testimony of the accomplice.

Witness further testified that they left Little Rock at one o’clock and went to Texarkana, and registered at the Courier Hotel; that the appellant was registered at the Benefiel Hotel. He then tells about how the bank was broken into and robbed, and the part that he claims the appellant took in the matter. The proof also showed that the register containing the name, D. L. Griffin, was got from the Benefiel Hotel at Texarkana, and that they secured a letter which appellant had written while he was in the custody of the penitentiary officers at Little Rock, and expert witnesses testified that the signature on the hotel register and the signature to the letter which appellant had written were both, in their opinions, written by the same person, although they admitted there was some difference in the way the name was written. The cashier of the bank also testified that, some months before, a man came to the bank at Washington, asking for help, and he gave him fifty cents or a dollar, and, while he would not say that appellant was the same man, he really believed he was. The State also introduced a witness who testified that he had gone to the St. Charles Hotel at Fort Smith, and that the leaves of the hotel register for the dates which Mayfield said appellant was at the St. Charles Hotel, had been torn out, were missing.

Edwards, one of the parties who, Mayfield testified, assisted in the crime, was convicted, and his conviction was affirmed September 27,1926. It was there contended that there was no corroboration of Mayfield’s testimony, but, in that case, a witness for the State testified that he saw the defendant, Edwards, and Joe Mayfield in Hope on the 15th day of December, 1925, the day before the burglary; that the defendant and Mayfield stayed around the railroad station a good deal that afternoon, and that the witness recognized defendant as one of the parties he had seen in Hope. A deputy • sheriff also testified for the State in the Edwards case, to the effect that he heard Edwards tell his wife to go ahead "and borrow the money and when he got out of there he would rob another bank and they would have plenty of money; that this statement of the defendant to his wife was voluntarily made and was in the presence and hearing of the deputy sheriff. The court in the Edwards case said that the testimony of the deputy sheriff and the constable tended to connect the defendant with the commission of the crime and sufficiently corroborated the testimony of Joe Mayfield. In this case, however, there is no testimony, except the testimony of the accomplice, that appellant was ever seen in the company of any of the persons who committed the robbery, and no testimony that he ever said a word indicating that he had anything to do with the bank robbery or knew anything about it. In other words, there is no testimony corroborating Mayfield’s testimony tending to connect appellant with the commission of the crime.

Since the statute expressly provides that a conviction cannot be had in the case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and there being no such corroborating testimony in this case, it follows that his. conviction was wrong. It is immaterial whether the court and jury believed the accomplice or not. His story may have been such and his manner such that, from his testimony alone, there would be no reasonable doubt about the appellant’s guilt, but, if that were true, under the statute above quoted he could not be convicted without evidence corroborating the accomplice, and, as we have said, there is none in this case.

We also think that the testimony of the sheriff, to the effect that he examined the register of the hotel in Fort Smith and found that the pages for the dates mentioned by Mayfield were missing, was incompetent, as it did not tend in any way to show that Griffin had anything to do with the removal of the pages or the mutilation of the record.

We find no other prejudicial errors in the record, and, for the errors above mentioned, the case- will be reversed, and remanded for new trial.


author: McCulloch, C. J.

text:
    Burris v. State.
    Opinion delivered January 24, 1927.
    1. Intoxicating liquors — evidence' op sale. — Evidence held to sustain conviction of selling intoxicating liquor.
    2. Criminal law — evidence—smell of liquor. — In a prosecution for selling intoxicating liquor, the opinion of a witness, based on the smell of liquor, is competent to identify it as whiskey.
    3. Witnesses — cross-examination—test of credibility. — In a prosecution for selling intoxicating liquor, where a witness testified that, on the evening of the alleged sale, defendant was at a dance and not at the place of sale, it was admissible, for the purpose of testing her credibility and reason for remembering the date of the dance, to elicit on cross-examination that she remembered the date because she noticed defendant’s arrest in a newspaper the next day.
    Appeal from Union Circuit Court, First Division; L. S. Britt, Judge;
    affirmed.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   McCulloch, C. J.

Appellant was convicted on an indictment charging him with the offense of selling intoxicating liquor. An appeal was duly prosecuted to this court. Counsel for appellant has not filed a brief, but we will proceed to consider the assignments of error contained in the motion for new trial.

The first contention is that the evidence is not legally sufficient to sustain the verdict of conviction. Appellant was operating a place of business in Dumas City, Union County, Arkansas, and the State introduced testimony tending to establish the sale of whiskey by appellant at that place. Two deputy sheriffs testified that they drove out to Dumas City and stopped in front of appellant’s place of business, and sent a negro boy in to buy liquor; that the boy, in a few minutes, returned with two bottles of liquor, which they received from the boy, and preserved and produced before the jury. One of the witnesses, Mr. Hayden, testified that he saw appellant hand the bottles of liquor to the boy. . Witnesses Hayden and Duck testified that they went back to appellant’s place next morning and arrested him, and found a large quantity of liquor, the same kind as that purchased by the negro boy the night before. Hayden testified that the liquor was not analyzed by a chemist, and none of the witnesses testified about drinking any of it. Hayden testified that he examined it by smelling it, and stated positively it was whiskey. Witness Duck testified that, after appellant was arrested, he made the statement to witness that "he had been “fooling with liquor” for more than a week, and, when asked how much he had sold that night, he replied about one hundred bottles, and also stated that it was liquor that came from Hot Springs. The negro boy, Joe Nash, testified that, on the occasion mentioned by the two officers, he went into appellant’s place of business and purchased two bottles of liquor from appellant, and paid him for it. He stated he did not drink any of the liquor, but that “it looked like liquor.” The testimony was; of course, sufficient to sustain a verdict of conviction. .

Error of the court is assigned in permitting witness Hayden to testify that he identified the liquor as whiskey by the smell. The opinion of the witness, based upon the smell of the liquor, was competent evidence, and its weight was a question for the jury. It cannot be said as a matter of law that the evidence of the identification of intoxicating liquor must rest upon more substantial basis than that of the sense of smell. Blackmore on Prohibition, page 123; Strada v. United States, 281 Fed. 143.

Error is assigned ■ in permitting witness Maggie Yates to state that she had noticed publication in the newspaper about appellant’s arrest. This witness was introduced by appellant, and testified concerning his presence at a dance on the evening the liquor is said to have been sold by him at his place of business. On cross-examination witness stated that she remembered the date because she noticed in the paper, the next day, an account of his being arrested. This testimony was brought out on cross-examination, and in testing the credibility of witness to see whether she had any substantial reason for the identification of the particular date on which she was with appellant at the dance. There was no error committed; in fact the entire record is free from error, and the judgment is affirmed.


text:
    Alexander v. Temple.
    Opinion delivered January 24, 1927.
    1. Eminent domain — notice of condemnation of ditch. — A land- ' owner, though without actual notice of condemnation of the right-of-way for a drainage ditch, under Acts 1909, p. 829, was bound thereby.
    2. Eminent domain — right of landowner to compensation. — A landowner who continued to occupy and cultivate the right-of-way of a drainage ditch after condemnation, under Acts 1909, p. 829, was complete, did so at his peril, though he was not actually notified of the condemnation, and he was not entitled to compensation for destruction of the crop raised thereafter by the construction of the ditch; the maxim that one seeking equity must do equity not applying.
    3. Eminent domain — damages included in condemnation. — All of a landowner’s damage arising from taking of a right-of-way for a drainage ditch, under Acts 1909, p. 829, is conclusively presumed to have been included in the condemnation, in the absence of objection to the award in apt time.
    Appeal from Jefferson Chancery Court; 11. R. Lucas, Chancellor;
    reversed.

      Danaher & Danaher, for appellant.

      R. W. Wilson, for appellee.
   McCulloch, C. J.

Appellants, as commissioners of the Tucker Lake Levee & Drainage District, instituted against appellee this action in the chancery court of Jefferson County to restrain appellee from interfering with the construction of the improvement by the contractor or subcontractor.

Appellee owned a small tract of land in line with the right-of-way, and, when the subcontractors appeared, in the early part of November, 1925,to begin work with the dredging machine, appellee prevented them from coming on the land. He had planted a crop of cotton, which had matured, on the tract included in the condemned right-of-way, and he insisted that no work be done interfering with the gathering of his crop. Appellants then instituted this action to prevent the interference, the cause was heard by the chancery court on November 23, 1925, and a decree was entered by the court restraining appellee from interfering with the work, but in favor of appellee for recovery of the sum of $100 as damages for the destruction of the crop grown on the right-of-way.

It appears that, in the organization of the district and in the formation of the plans for the improvement, there was an assessment of benefits and damages filed in accordance with the statute (Acts 1919, page 829). Appellee had no actual notice of the statutory condemnation, but was bound by it. Dickerson v. Tri-County Drainage District, 138 Ark. 471, 212 S. W. 334. However, the condemnation was complete December, 1923, and nothing was done toward the construction of the improvement until November, 1925, when the subcontractors appeared on appellee’s land to begin work, and appellee insisted that his crop be not taken or damaged without compensation, for the reason that he had been permitted to plant the crop without actual notice that the ditch would be dug along the right-of-way before he had gathered the crop. The chancery court based its decision in favor of appellee on the ground that appellants, before obtaining relief, should be required to do equity by paying for the damage done under the circumstances. Apparently the court applied the familiar maxim that he who seeks equity must do equity. Our conclusion is that this was a misapplication of the equity doctrine, for the condemnation was complete, and appellee continued at his peril to occupy and cultivate the right-of-way. All of his damage for taking the right-of-way was conclusively presumed to have been included in the award made by the assessors, there having been no objection made to the award in apt time. Appellee’s continued possession of the property was, at most, permissive, and he can claim no damages by reason of the indulgence. The decree is erroneous, and is therefore reversed, with instructions to enter a decree in favor of appellants in accordance with this opinion.


author: Wood, J.

text:
    Ellis v. State.
    Opinion delivered January 24, 1927.
    1. Intoxicating liquors — sufficiency of evidence. — Evidence held to sustain conviction of manufacturing liquor and mash and of possessing a still and stillworm.
    2. Criminal law — evidence.—In a liquor prosecution, where defendant testified that he and another were at a still from which they fled as an officer approached, and that his companion said he was under suspended sentence and did not want to be caught, it was not error to admit the officer’s testimony that he had not seen defendant’s companion since the day he ran off.
    3. Criminal law- — -evidence—res gestae. — -In a prosecution for manufacturing liquor, admission of the testimony of a State’s witness as to finding defendant and another at a still, and as to what they said and did, held admissible as part of res gestae.

    4. Criminal law — harmless error. — In a prosecution for manufacturing liquor, where a State’s witness testified that defendant’s father appeared at the still shortly after defendant and his companion had fled and called out to such companion, a question asked defendant’s father whether he knew that such companion was in the habit of making liquor and was looking for him, though improper in form, was not prejudicial in view of the witness’ negative answer.
    5. Criminal law — improper testimony — invited error. — In a prosecution for manufacturing liquor, examination of defendant’s father as to whether he knew that defendant’s companion was in the habit of making liquor was invited by defendant’s statement that such companion, when he fled at the sight of the officer, stated that he was under a suspended sentence, and had to run.
    6. Criminal law — statement of court — weight of testimony.— In a prosecution for manufacturing liquor, where, during an argument of defendant’s counsel that the jury could convict only by guessing that defendant had some connection with possession of the still, the court’s remark to counsel that the word “guess” was not proper, and that, if there was no evidence at all, the case would not be on trial, held not an invasion of the jury’s province.
    Appeal from Pulaski Circuit Court; Abner McGehee, Judge;
    affirmed.

      Snodgress 3 Snodgress, for appellant.

      R. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

The appellant and one Wesley Boiler were indicted in three separate indictments for the crimes of manufacturing intoxicating liquor, manufacturing mash, and possessing a still and stillworm, contrary to the statute, in such cases made and provided. By consent the cases were consolidated for trial, and the appellant was convicted and sentenced by judgment o'f the court to one year’s imprisonment in the State Penitentiary in each of the three causes, from which judgments he appeals. No objection is raised to the validity of the indictments.

J. C. McKenzie testified that he was the constable of Ellis Township, in Pulaski County, and, as such, arrested the appellant in that township. The witness located a still where appellant was at the time. The still was about 200' • yards from the mash barrel. The still and mash were located on Clark’s place, in a very dense thicket. It was a copper still. Witness found altogether twelve mash barrels. He located the mash barrels a week or two before he found the still'. The still was in operation when witness found it. They had run off a gallon of whiskey that morning. The appellant and another hoy were at the still. Witness did not see them until they ran away. Witness followed them until they got in the field. The other man with appellant was Wesley Roller. Witness went hack to the still and hid himself in the hushes, to see what would happen. In a few minutes Horace Ellis, father of the appellant, came up the creek and got up right near the still, and called, “Wesley, Wesley!” and witness stepped out and arrested him. He was twenty or thirty feet from the still. There was a shirt at the ■ still that appellant’s father stated belonged to the appellant. Appellant had on an undershirt and no top shirt when he ran away. There were one or two kegs and a big eight or ten-gallon stone jar and two .half-gallon fruit jars there. The whiskey was running out of the still into a half-gallon vessel, which was nearly full. Witness did not see anybody else at all around the still. Witness found, at another place, the mash barrels in an awful thicket. Two or three days afterward appellant came down to the justice of the peace and gave up. When witness first saw the appellant and Wesley Roller, they were ten or twelve feet from the still. Witness had known appellant all his life. He lived something like three and a-half miles from witness.

On cross-examination appellant’s counsel asked the witness the following question: “Did Wesley (Roller) come hack to the justice of the peace in two or three days ? ’ ’ Witness answered, ‘ ‘ Ernest did — Wesley didn’t. ’ ’ On redirect examination witness, over the objection of appellant, stated that he had never seen Wesley Roller since the day he ran off, and witness did not know whether he was in the county or not. This all occurred in Pulaski County about June 18,1926.

Another witness testified to the effect that, at the request of McKenzie, on June 18, 1926, he went to assist McKenzie about getting out a still, and found tbe still running. His testimony substantially corroborated tbe. testimony of the other witness in regard 'to finding the stillworm, still, and mash. This witness did not know anything about the defendant having anything to do with the still.

Appellant testified in his own behalf, and admitted that he was at the still on the day designated, but stated that he had nothing to do with it. A man by the name of Wilkerson had offered him $10 to find two cows, and he had been looking for these cows at the time. Wesley Boiler, who had married appellant’s sister, was with appellant at the time. They had just walked down there to the still — had never been there before. Witness denied that he had a shirt at the still. He had a white shirt on, with no sleeves in it.

During the argument of counsel for appellant he stated to the jury that they could only convict the appellant by guessing that he had some connection with the possession of the still or manufacturing of mash or liquor. The court remarked to the counsel that the word “guess” used by him was not a proper one, and that the jury should not guess at the guilt or innocence of a defendant; that, if there was no evidence at all, the case would not be on trial, and that it was competent to convict on circumstantial evidence as well as direct evidence if the facts and circumstances warranted a verdict under the instructions given. Witness also stated, on cross-examination, without objection, that he didn’t know where Wesley Boiler was at that time.

The father of the appellant testified that, when he got near the still on the day designated by witness McKenzie for the State, he called “Wesley, Wesley!” On cross-examination he was asked, “You just knew Wesley Boiler was in the habit of making liquor, and were looking for him?” to which the witness replied, “No.”

The appellant contends that there is no testimony to sustain the verdict. The testimony set out above speaks for itself, and it is sufficient to warrant the jury in finding appellant guilty. The explanation appellant gave of his presence at the still did not explain it to the satisfaction of the jury, and the jury are the sole judges of the weight to be given his testimony. See Stover v. State, ante, p 76.

The court did not err in permitting the witness for the State, on redirect examination, to testify that he had never seen Wesley Roller since he ran off that day, and that he did not know whether he was in the county or not. Appellant himself testified that Wesley Roller was with him that morning at the still, and, without objection, on cross-examination he stated that, when the officer came up, Wesley said: ‘ ‘ There comes McKenzie. I am under a suspended sentence, and don’t want to be caught,” and ran away, and appellant ran with him.

There was no prejudicial error in the ruling of the court in permitting the witness McKenzie, for the State, to testify that he had not seen Wesley Roller since he ran away, and that he didn’t know whether he was in the county or not. The appellant himself, on cross-examination of witness, had elicited the fact that Wesley Roller had not come back to the .justice of peace court after he ran away. The testimony of this witness, on redirect examination, as to whether or not he had seen Roller, was along the same line of examination as that which the appellant had pursued with reference to the whereabouts of Roller. Appellant himself had testified that Roller said that he was under a suspended sentence, and had run away. It was not error for the court to permit witnesses for the State to testify that they found appellant and Wesley Roller at the still and what they said and did at the time. This was a part of the res gestae. They were jointly charged with the commission of these several offenses, and, as appellant concedes, Roller was in company with him at the still on that day, and they ran away from same at the approach of the officer at the same time, Wesley Roller remarking that he was under a suspended sentence and had to run. The' appellant is in no attitude to complain of the testimony, because, without objection, he had elicited testimony tending’ to prove that Roller had fled from the still and had not returned for his examination before the justice court. There was no error, under the circumstances, in permitting the State to show that Roller had not been seen since he fled on the day the officer saw him at the still.

There was no prejudicial error in the question asked appellant’s father concerning Wesley Roller. While this question, in the form set forth, was improper, -the witness answered it in the negative, and it therefore could not have been prejudicial to the appellant. Besides, the appellant’s own testimony, as we have stated, was to the effect that Roller himself, when he fled at the sight of the officer, stated that he was under a suspended sentence and had to flee. All this examination, if improper, was in. the nature of invited error, and the appellant cannot complain thereof. Tarkington v. State, 154 Ark. 365, 242 S. W. 830; McDonald v. State, 165 Ark. 411, 264 S. W. 961.

The remarks of the court to the attorney for the defense were not an invasion of the province of the jury, as these remarks cannot be construed by the court as an expression of an opinion by the court on the weight of the evidence. 'Considered as a whole, the remarks were only tantamount to telling the jury that it would be justified only in finding the defendant guilty if the evidence, either direct or circumstantial, warranted such verdict, otherwise not;

The record shows no reversible error, and the judgment must therefore be affirmed.


author: Hart, J.,

text:
    Coleman v. Mitchell.
    Opinion delivered January 24, 1927.
    1. Judgment — res judicata.- — -To render a judgment in one suit conclusive of matter sought to be litigated in another, it must appear from the record or from extrinsic evidence that the particular matter sought to be concluded was raised and determined in the prior suit, or that it might have been litigated in that case.
    2. Judgment — res judicata — presumption.—-On the issue of res judicata, where matters involved in -a subsequent suit were within the issues tried in a prior suit, it will be presumed that evidence necessary to support the prior judgment was introduced and considered in the trial court.
    3. Judgment — res judicata. — The value of a plea of res judicata is not to be determined by the reasons which the court rendering the former decree gave for doing so.
    4. Appeal and error — absence op evidence — presumption.-—Where a decree dismissing a cause of action with prejudice for want of equity recited that it was heard on oral evidence which is not brought into the record, it will be presumed on appeal that there was sufficient evidence to sustain the decree.
    Appeal from Drew 'Chancery Court; E. G. Hammock, Chancellor;
    affirmed.
    statement oe eaots.
    Harriett Coleman and others, who are named in the complaint, brought’ this suit in equity against Elisha Mitchell and others, who are also named in the complaint, to enjoin Elisha Mitchell, as administrator with the will annexed of the estate of Virginia Mills, deceased, and Elisha Mitchell and Pettus Mitchell, as legatees under said will, from in any manner disposing of any of the property belonging to said estate, and for the appointment of a receiver to take charge of said property, and require an accounting from the defendants for the proceeds of the property belonging to said estate received by them.
    According to the allegations of the complaint, Elisha Mitchell and Pettus Mitchell are the nephews of the husband of said Virginia Mills, deceased, and are the sole legatees under her will. The defendants, Major Baker and Isabel Trambell and the plaintiffs, are all cousins of Virginia Mills, deceased, and her heirs at law. It is further alleged that the will was denied prohate, and that Elisha Mitchell and Pettus Mitchell appealed to the circuit court from the order of the probate court holding that the will was not entitled to be admitted to probate. It is further alleged that the defendants compromised the suit in the circuit court, and that a full and true showing of the facts was not presented to the circuit court. The plaintiffs also allege that the execution of the will was obtained by the undue influence of Elisha Mitchell and Pettus Mitchell.
    The defendants filed an answer, in which they denied all the material allegations of the complaint. They denied that a compromise of the case was had in the circuit court, as alleged in the complaint, and that a full and complete hearing on the facts relative to the probate of the will was not had in the circuit court.
    The defendants also interposed a plea of res judicata. The defendants also alleged that the plaintiffs in this suit were present and represented by their attorney of record during the proceedings above referred to, and refused to make themselves parties to the proceedings.
    The probate of the will was contested by Major Baker and Isabel Trambell as heirs at law of Virginia Mills, deceased. The defendants also filed what they termed a demurrer and motion for dismissal, which is as follows:
    “Come the defendants, and move the court to dismiss the action and complaint and pleadings of the plaintiffs for want of equity, and for cause they state:
    “1. The complaint and pleadings of the plaintiffs do not state facts sufficient to constitute a cause of action.
    “2. The pleadings of the plaintiffs fail to show that all necessary parties have been made parties to the action.
    “3. This court has no jurisdiction in the premises.
    “4. The will of Virginia Mills, which is attacked by this action, was offered for probate in the Drew Probate Court, and the plaintiffs were present at the trial in the Drew Probate Court, represented by the same attorney who brings the present action. There was an appeal from the decision of the Drew Probate Court to the Drew Circuit Court, where the issue of the validity of the will of Virginia Mills was tried de novo on February 11, 1925, and the validity of the will was sustained by .judgment of the Drew Circuit Court. Plaintiffs were also present at the trial by their present counsel and attorney, and no appeal was taken from the- decision of the Drew Circuit Court. Plaintiffs therefore have had their day in court and had adequate remedies at law, and the present issue is res judicata.

    “5. On mandate from the Drew Circuit Court, the will of Virginia Mills was admitted to probate, and an administrator was properly appointed by the Drew Probate Court. Said administrator qualified, and has been constantly acting under orders of the Drew Probate Court since his appointment, and the administration of the estate of Virginia Mills has progressed many months under the jurisdiction of the Drew Probate Court. Plaintiffs have appealed from none of the orders of the Drew Probate Court, and have availed themselves of none of their remedies at law, although at all times well acquainted with their alleged rights and of the proceedings referred to. They are now estopped from maintaining this action and interfering with the jurisdiction of the Drew Probate Court. This court has no power to disrupt said administration nor to invalidate any of the proceedings which have been had in said probate court, including the probating of the will involved.
    “Wherefore, the premises considered, defendants pray that the action of the plaintiffs be dismissed at their cost for want of equity, and for all other and further general, equitable relief.”
    The final decree in the case reads as follows:
    “Now on this day comes on this cause to be heard upon the complaint of the plaintiffs, Harriett Coleman, Carrie Ann Shelby, Minerva Larry, Henry Jones, Marindy Moore and Queen Smith, filed February 12, 1925; and upon the amendment to the complaint filed by said plaintiffs on February 26, 1925; and upon lis pendens notice filed by the plaintiffs February 26, 1925; and upon the separate answer of defendants, Elisha Mitchell and Pettus Mitchell, filed March 3, 1925; and upon the motions of the defendants to dismiss, including a demurrer, and a plea of the jurisdiction of the court, and a plea of res judicata, and a plea of estoppel; and upon the motion of defendants to dismiss the actions because of noncompliance by the plaintiffs with the provisions of § 4206-a of Crawford & Moses’ Digest of the Statutes of Arkansas; and upon the reply of the plaintiffs to the defendants’ motion to dismiss; and upon oral testimony ore tenus in open court of the witnesses, Judge John W. Kimbro, W. H. Hardy, and John T. Cheairs, Jr.; and upon the records of the Drew Probate Court covering the probation of the will of Virginia Mills, deceased, and the administration of her estate to this date; and upon the records of W. H. Hardy, as clerk of the Drew Circuit Court, relative to the attendance of witnesses and persons present at the trial in the Drew Circuit Court on February 11, 1925, on the issue of the validity of the will of Virginia Mills, deceased; and upon statements and arguments of-attorneys for the respective parties in open court; and the court, being well and fully advised in the premises, doth find that both the motions to dismiss filed by the defendants should be, and the same are, hereby by the court sustained.
    “Wherefore, the premises considered, it is by the court considered, ordered, adjudged and decreed that the complaint and the amended complaint of the plaintiffs above named, and their entire cause of action be, and the same is, hereby by the court dismissed with prejudice, for want of equity; and the Us pendens notice filed by the plaintiffs is hereby by the court canceled, dissolved and held for nought; and the defendants are hereby awarded judgment against plaintiffs for all costs in this action accruing. ’ ’

      To reverse that decree the plaintiffs have duly prosecuted an appeal to this court.

      John T. Cheairs, for appellant.

      Williamson & Williamson, for appellee.
   Hart, J.,

(after stating- the facts). The record shows that the court heard the case, among other things, on the motion of the defendants to dismiss, including a demurrer and their plea of res judicata. The decree recites that the motion to dismiss is hy the court sustained. The motion to dismiss referred to in the decree is copied in our statement of facts, and need not he repeated here. Reference to it 'will show that it contains matters which, if proved, would sustain a plea of res judicata. To render a judgment in one suit conclusive of a matter sought to he litigated in another, it must appear from the record, or from extrinsic evidence, that the particular matter sought to be concluded was raised and determined in the prior suit, or that it might have been litigated in that case. Gordon v. Clark, 149 Ark. 173, 232 S. W. 19; Tri-County Higlnoay Imp. Dist. v. Vincennes Bridge Co., 170 Ark. 22, 278 S. W. 627; Howard-Sevier Road Imp. Dist. v. Hunt, 166 Ark. 62, 265 S. W. 517; and Newton v. Altheimer, 170 Ark. 366, 280 S. W. 641.

The matters involved in the present suit were within the issues tried in the suit relative to the admission of the will under consideration to probate, and it must he presumed that any evidence necessary to support its judgment that the will was entitled to probate was introduced and considered hy the circuit court in its determination of the case. Some of the heirs at law of Virginia Mills, deceased, were parties to that proceeding, and the plea of res judicata of the defendants alleges that the plaintiffs in this suit were present in court in person and hy attorney, and refused to take any part in the proceedings.

It has been held by .this court that, if a plea of res judicata should not he sustained when the issues are practically the same, the litigation would not end until the parties had no more money or the ingenuity of counsel in suggesting additional grounds in support of the issues has been exhausted. The court further said that the value of a plea of res judicata is not to be determined by the reasons which the court rendering the former decree gave for doing so. Tri-County Highway Improvement Dist. v. Vincennes Bridge Co., 170 Ark. 22, 278 S. W. 627. It is £he settled doctrine of this court that, where a judgment or a decree recites that it was heard upon oral evidence and that evidence is not brought in the record by bill of exceptions or other legal means, this court must indulge the presumption that there was sufficient evidence to sustain the decree of the lower court within the issues joined in the proceeding. Weaver-Dowdy Co. v. Brewer, 129 Ark. 193, 195 S. W. 367; Wiegel v. Moreno-Burkham Construction Co., 153 Ark. 564, 240 S. W. 732; Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096; and Fletcher v. Simpson, 144 Ark. 436, 222 S. W. 710.

The oral evidence recited in the decree was not brought into the record at all. It follows that the decree of the chancery court was correct, and it will be affirmed.