author: McHaNEy, J., Smith, J.,

text:
    Hart v. Wimberly.
    Opinion delivered February 28, 1927.
    Executors and administrators — sale of minor’s homestead.— Under the Constitution of 1874, art. 9, §§ 6, 10, sale of homestead of a minor by order of the probate court for payment of debts of the decedent is void for want of jurisdiction in the probate court.
    Courts — jurisdiction of probate court. — Probate courts have only such special and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can exercise only the powers expressly granted or necessarily incident thereto.
    Courts — jurisdiction of probate court. — The Legislature cannot confer jurisdiction on the probate court to order the sale of the homestead of a minor to pay decedent’s debts.
    Executors and administrators — sale of minor’s homestead.— An administrator has no power to sell a minor’s homestead, subject to homestead rights.
    Executors and administrators — sale of minor’s homestead.— An order of the probate court authorizing the sale of a minor’s homestead for payment of debts of the decedent is void ab initio and open to collateral attack.
    Executors and administrators — sale of homestead. — In the sale by an administrator, under order of the probate court, of land of the decedent, where the record fails to show that the land is not a homestead, the absence of such showing is sufficient to advise the purchaser that he acquired no title to a minor’s homestead.
    Executors and administrators — sale of minor’s homestead.— An order of sale and confirmation by the probate court stating that the land to be sold was at the late residence of decedent is sufficient notice to the purchaser that the land was decedent’s homestead.
    Executors and administrators — sale of decedent’s land. — In the sale of lands of a decedent, for the payment of his debts, the record must affirmatively show that the land is not the homestead of minors, before the probate court can have any jurisdiction to order a sale.
    Executors and administrators — sale of minor’s homestead.— One who purchases a minor’s homestead at a sale for the payment of decedent’s debts, is not protected because the proceedings appear regular for the sale of lands other than the homestead.
    Executors and administrators — sale of minor’s, homestead.— The sale of a minor’s homestead by the administrator to pay debts for the decedent, being void as not within the jurisdiction of the probate court, was not cured by Crawford & Moses’ Dig., § 181, as the Legislature cannot cure a proceeding made void by - the Constitution.
    11. Limitation op actions — Recovery op homestead by minors. — The right of action of a minor heir to recover his homestead sold by the administrator during his minority is not barred by Crawford & Moses’ Dig., § 6946, where such minor was only 22 years old when the suit was brought; the seven years’ statute providing that action may be brought within three years after arriving at majority being applicable.
    12. Infants — estoppel.—-Acceptance of minor heirs of their share of the money left from the sale of a homestead, after paying the debts of decedent, does not estop them from setting aside the sale made during their minority as void.
    Appeal from Clark Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      J. H. £ D. H. Crawford and McMill'am, £ McMillan, for appellant.

      J. 0. A. Bush, for appellee.
   McHaNEy, J.,

(on rehearing). Since this case was originally submitted there has been a change in the personnel of this court, which has necessitated a reconsideration of the whole case on petition for rehearing, and a majority of the court as now constituted agree to the opinions herein expressed. The principal question arising herein is the jurisdiction, or power, of a probate court to order a sale of the minors ’ homestead for the payment of debts.

In September, 1910, J. H. Wimberly died, a widower and intestate, in Clark County/the owner of a rural homestead, with three minor children, Vivian, Dexie, and ft. W. Wimberly, age 14,12, and 8 respectively, and owing some small debts of no considerable amount. On October 10 following, a neighbor, W. E. May, was appointed administrator, and duly qualified. He thereafter, on October 19, 1911, applied to the probate court for ah order to sell the lands of his intestate, incorrectly describing them, for the payment of debts probated against said estate, in which petition he stated “that the personal property belonging to the said estate is not sufficient to pay the debts.” It is nowhere stated that the land described, for which a sale was asked, was the decedent’s homestead, nor is any mention made of said minor children, bnt we assurhe that the application for letters of administration, which is not found in the record, correctly sets out the names and ages of such children. On the next day after the application was filed, October 20, the court granted the petition, and made an order directing the administrator “to sell the said land at the late residence” of deceased, on November 29, 1911, and to report his sale. Sale was had pursuant to the order, report was filed December 23 and approved, and deed ordered made to purchaser on payment of purchase price of $332.46 on January 15,1912. Deed was made to M. B. Mullins, and, through mesne conveyances, to appellant, W. S. Hart. On a trial the court found all the facts against appellants, and decreed a cancellation of the, sale above described and all subsequent deeds and deeds of trust in that chain of title as being void, and that appellees are the owners of said land; that appellants, Hart and Arkadelphia Milling Company, should pay ft. W. Wimberly $100 for one-third value of timber cut, with interest, and that Evans, Stone and Wimberly recover from Hart and Nowlin-Carr Company $200, with interest, for oak timber cut, and that the said heirs recover from Hart $192 for pine timber sold to Marlar Lumber Company. The court set-off all claims of appellant Hart for taxes and improvements against the rents and profits. From the judgment against them Hart, Arkadelphia Milling Company and Nowlin-Carr Company have appealed.

The sale of the homestead of a minor by order of a probate court, for the payment of debts of the decedent, is void, as the probate court has no such jurisdiction. Such a sale is void for lack of jurisdiction finder both the Constitution of 1868 and 1874. See art. 9, §§ 6,10, Const. 1874; art. 12, §§ 3, 4, 5, Const. 1868. In the case of Bond v. Montgomery, 56 Ark. 537, 20 S. W. 525, 35 Am. St. Rep. 119, it is said;

“Under the Constitutions of 1868 and 1874 the probate court had and has no jurisdiction to order the sale of a homestead of a deceased person for the payment of his debts, during the minority of his children, or so dong as his widow remains unmarried or does not abandon it, or shall not he the owner of a homestead in her own right. During this time the homestead is exempt from sale for the payment of the debts of the deceased owner. The order of sale in this case was therefore an absolute nullity.”

In Slayton v. Halpern, 50 Ark. 330, 7 S. W. 304, Chief Justice Cockrill said:

“The policy of exempting the homestead from sale after the death of the debtor for the benefit of the widow and minor children was continued by the Constitution of 1874, without abating the right as jt existed under the Constitution of 1868 and the act of 1852.”

In Ex parte Tipton, 123 Ark. 392, 185 S. W. 799, it is said:

“(4). A minor, being under disability, cannot waive his right to a homestead during minority. He can neither waive nor abandon his homestead rights. So that, at the time Merrill v. Harris was decided, it was settled in this State that, under the Constitutions of 1868 and 1874, the probate court had no jurisdiction to order the sale of a homestead of a deceased person for the payment of his debts during the minority of his children, or so long as his .widow remains unmarried and does not abandon it, or shall not be the owner of a homestead in her own right. During this time the homestead is exempt from sale for the payment of the debts of the deceased owner. The order of sale in such cases is void. ’ ’

Probate courts have “only such special and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto,” ias was said in Lewis v. Rutherford, 71 Ark. 218, 72 S. W. 373; Beakley v. Ford, 123 Ark. 383, 185 S. W. 796; and neither by the Constitution nor the statutes have they been given any such power. Indeed, the Legislature could not confer jurisdiction on such courts, as it would he in direct conflict with the Constitution.

In Griffin v. Dunn, 79 Ark. 410, 96 S. W. 191, the court said:

“The sale of the homestead hy the administrator was void, because the court has no .jurisdiction to order it.”

There is no provision anywhere in the law of this State for an administrator to sell a minor’s homestead while a minor, for any purpose. The guardian may sell his minor ward’s homestead for support and education, when necessary (Merrill v. Harris, 65 Ark. 355, 46 S. W. 538, 41 L. R. A. 714, 67 Am. St. Rep. 929), hut the administrator cannot do so. The administrator cannot sell the homestead subject to the homestead rights. Griffin v. Dunn, supra; McCloy v. Arnett, 47 Ark. 445, 2 S. W. 71; Stayton v. Halpern, supra; Nichols v. Shearon, 49 Ark. 75, 4 S. W. 167; Bond v. Montgomery, 56 Ark. 563, 20 S. W. 525.

In Neely v. Martin, 126 Ark. 6, 189 S. W. 104, it is said:

“At the time of the sale of the land in suit hy the administrator of Jesse Martin, to pay the debts of his estate, these lands constituted the homestead of his minor children, and the sale was therefore void.” Rushing v. Horner, 130 Ark. 26, 196 S. W. 468; Johnson v. Taylor, 140 Ark. 106, 215 S. W. 162; Turner Heirs v Turner, 141 Ark. 51, 216 S. W. 44.

Counsel for appellants substantially concede that the foregoing is correct, but contend that, the statute for the sale of land to pay debts having been complied with, and the sale approved by the court, the order of the probate court is not open to collateral attack. A complete answer to this is that there is no statute and could not he for the sale of land which is a homestead for the payment of. debts. The order of the probate,court is void ab initio. It is coram non judice, and is therefore open to collateral attack. A void judgment or order may he attacked collaterally Waggener v. Lyles, 29 Ark. 47; McDonald v. Ft. S. & W. Rd. Co., 105 Ark. 5, 150 S. W. 135; Dalton v. Bradley Lumber Co., 135 Ark. 392, 205 S. W. 695. There is some authority for holding that an action to obtain a decree declaring a judgment void ab initio is not a collateral attack. Hooper v. Wist, 138 Ark. 294, 211 S. W. 143, citing 15 R. C. L. 838, par. 311; Stumpff v. Louann Provision Co., ante, p. 192. Moreover, this contention of counsel is contrary to the decision of this court in Beakley v. Ford, supra, where it is said:

“The order of the probate.court under review contains no recitals that would bring it within the exercise of the jurisdiction conferred upon it by the statute. The probate court having no such common-law jurisdiction, and proceeding solely by virtue of statutory authority, its jurisdiction to exercise such authority must appear from the record, and will not be presumed. Gibney v. Crawford, 51 Ark. 34, [9 S. W. 309] ; Hindman v. O’Connor, 54 Ark. 627-43, [16 S. W. 1042] ; Morris v. Dooley, 59 Ark. 483-87, [28 S. W. 30]; St. L. I. M. & S. R. Co. v. Dudgeon, 64 Ark. 108-10, [40 S. W. 786]. See also Willis v. Bell, 86 Ark. 473, [111 S. W. 808].”

In the case of Ex parte Tipton, this court said:

“In the application of this rule we think the record of the probate court in the matter of selling tlie minor’s homestead upon the application of the guardian should show the fact that there were no debts, and, the record being silent on that point, the order of sale was void.”

It must therefore appear from the record that the land of the decedent which is to be sold to pay debts is other than the homestead, and, this not appearing, was sufficient to' advise a purchaser that he acquired no title. It appears from the order of sale and confirmation that the land to be sold was “at the láte residence of J. H. Wimberly,” which would be notice that it was his homestead. But that is unimportant, since it must affirmatively appear on the record that the land proposed to be sold for debts is not the homestead of the minor before the probate court can have any jurisdiction at all. A purchase of a minor’s homestead at a sale for the payment of debts cannot be protected because the proceedings appear regular for the sale of lands other than the homestead.

The main contention of counsel for appellant seems to be that this case comes within the curative provisions of the act of March 12, 1919, § 181, C. & M. Dig., as construed in Day v. Johnson, 158 Ark. 478, 250 S. W. 532, and Collins v. Harris, 167 Ark. 372, 267 S. W. 781. Neither of these cases involved the sale of a minor’s homestead for the payment of debts. In Day v. Johnson the minor’s homestead was not involved, as the land sold was not his homestead, and the effect of. the holding in that case is that irregularities in the sale of a minor’s lands for his education, when the sale is confirmed, are not open to collateral attack, and wall he cured by the above statute. In Collins v. Harris the sale of the minor’s homestead was involved, hut by the guardian and not the administrator, and was “for the support, education and maintenance” of the minor, and not to pay debts, and it was there held that the act of 1919, above referred to, cured the defect in the petition in failing to allege that there wTere no debts due and unpaid by the deceased parent at the time of sale, as had been the ruling of this court prior to the passage of said act. It will therefore be seen that these decisions in no way conflict with the former decisions of this court on the .jurisdiction of the probate court to order the sale of a minor’s homestead to pay debts. The act of March 12, 1919; could not have the effect of amending the Constitution, as would he the result if the contention of counsel is correct. The Legislature cannot cure a proceeding made void by the Constitution, and no act that it passes can breathe vitality into a' thing that is dead. The Legislature cannot do indirectly a thing directly prohibited by the Constitution.

The next question is the period of limitation, the contention being this action is barred by the five-year statute, § 6946, C. & M. Digest. The exact question was before this court on a like state of facts in Kessinger v. Wilson, 53 Ark. 400, 14 S. W. 96, 22 Am. St. Rep. 220, where Mr. Justice Battle, for the court, said:

“The land was set apart by the law to appellants, when their father died, as a home and means of maintenance during their minority. Until the younger of them reached the age of twenty-one years it could not have been lawfully sold to pay the debts of their father’s estate or partitioned between them. Nichols v. Shearon, 49 Ark. 75, 4 S. W. 167; Kirksey v. Cole, 47 Ark. 504, 1 S. W. 778. It was not subject to sale, but might have been rented to raise means for their support. Until the younger reached his majority, it remained set apart as 'a place, a sanctuary, to which he or she might return to find shelter, comfort and security of a home’during his or her minority. As an entire homestead it remained the home of both. Although the land constituting it descended to them subject to be sold to pay the debts of their father’s estate, it could not have been lawfully severed or diverted from the full occupancy and enjoyment by both of them as a home during the minority of either of them. Their homestead right was like a .joint tenancy with right of survivorship. As each of them arrived of age, his interest in it expired. After the older reached her majority, the younger was entitled to the exclusive use and enjoyment of the land as a home until he became twenty-one years old, and then both became entitled to have and to hold as tenants in common, subject to the right of the administrator of Daniel Kessinger to have it sold to pay Kessinger’s" debts. Kirksey v. Cole, 47 Ark. 504, 1. S. W. 778. The homestead right or estate and the estate inherited in addition thereto were like two separate and distinct estates vested in different persons and following in immediate succession. Their right to the enjoyment and possession of the same did not exist at one and the same time, and neither merged in the other. The former did not merge in the latter; for, in that event, the minor children would have lost the right to enjoy the homestead during their minority, and the land constituting it would have immediately become subject to sale for the payment of the debts of their father’s estate, it being insolvent, and the quality of the homestead, like unto a joint tenancy, would have been changed by severance to tenancy in common. Greenleaf’s Cruise on Real Property, vol. 6, marginal page 484, and cases cited. And the estate inherited from' their father, being the larger, could not merge in the homestead. So they remained separate and distinct. As they could not have been held otherwise, appellants necessarily had two rights of entry upon the land, one when they became entitled to the homestead, and the other when the younger was twenty-one years old.

“The homestead right has expired, and the right to the possession of the estate inherited in addition thereto has accrued. The time which expired before the last right of entry accrued did not affect it. The statute of limitations did not commence running against it until John Kessinger was twenty-one years old. The rule is, where there are two separate rights of entry, the loss of one by lapse of time does not impair the other. It has often been held that ‘a remainderman expectant on an estate for life or years, who had a right to enter because of the forfeiture of the tenant, is not bound to avail himself of the forfeiture, and his neglect to enter at the time does not bar him of his entry on the limitation of the estate of efflux of time or the death of the tenant.’ According to Plowden, in Stowell v. Lord Zouch, 1 Plowd. 374, where there were three separate rights in the same person, he was entitled to the benefit of all of them the same as though they existed in three different persons. The maxim of the law is, ‘ Qucmdo duo jura concurrunt in una persona, aeqnum 'est acsi assent in diver sis.’ ”

Again he said:

“What statute prescribes the time within which an action for the recovery of the land must be brought after the last right of entry accrued? Appellees pleaded the five years ’ statute. That statute, as enacted, provides: ‘All actions against the purchaser, his heirs or assigns, for the recovery of lands sold by any collector of the revenue for the nonpayment of taxes, and for lands sold at judicial sales, shall be brought within five years after the date of such sale, and not thereafter; saving to minors, persons of unsound mind and persons beyond seas, the period of three years after such disability shall have been removed.’ Is it applicable to this case?”

After a lengthy discussion of the authorities he answered the question as follows:

“The words of the statute are, ‘All actions * * * shall be brought within five years after the date of such sale, and not thereafter.’ It is clear that it commences to run from the date of sale, and not thereafter, as it declares. As it begins to run at the date of the sale, it is difficult to understand how it can bar an action when the cause of it did not arise until more than ten years after the sale had elapsed. The sustainment of a contention to that effect would lead to the absurd conclusion that all rights of action against the purchaser of land sold at a judicial sale, arising after the lapse of five years from the date of sale, are barred at the very instant the cause of action accrues. ' This would be equivalent to a denial of the right to be heard at all in the vindication of such rights. It is manifest that the statute was never intended to be applied in such cases, but that its object was to require all parties to bring suits against purchasers at judicial sales within five years after the date of sale, for the enforcement of only such rights to recover the land sold as can' be enforced in an action brought within that time, and to bar the recovery of such rights in any suit brought thereafter. It has no application to this action. The only statute of limitation at all applicable to this case is the seven years’ statute.”

This case has been cited with approval in the following cases, many of them relating to sale of the minor’s homestead: Duke v. State, 56 Ark. 468, 20 S. W. 600; Gates v. Kelsey, 57 Ark. 526, 22 S. W. 162; Finley v. Hogan, 60 Ark. 502, 30 S. W. 1045; Killeam v. Carter, 65 Ark. 70, 44 S. W. 1032; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 87, 84 S. W. 1044; Gavin v. Ashworth, 77 Ark. 244, 91 S. W. 303; Griffin v. Dunn, 79 Ark. 411, 96 S. W. 190; Martin v. Conner, 115 Ark. 365, 171 S. W. 125; Krow & Neumann v. Bernard, 152 Ark. 110, 238 S. W. 19.

Since the youngest child, R. W. Wimberly, was only 22 years old when this suit was brought, it necessarily follows, from what we have said and from the foregoing authorities, that the action is not barred as to any of the heirs for the recovery of the land, the seven-year statute being applicable, which provides the action shall- be brought within three' years after arriving at age of twenty-one years.

Neither can the doctrine of estoppel be invoked by appellant from the fact that, while yet minors, two of them were .paid their share of the money left from the sale of the homestead after paying the debts, and deposited with the clerk by the .administrator. It would be a weak safeguard of the minor’s homestead rights if the constitutional and statutory protection thrown around such rights could be destroyed by estoppel, as is claimed here.

We have examined the other question^ raised, including the claim for betterments, and have reached the conclusion that the chancellor’s decision is not against the preponderance of the evidence. He offset the taxes and improvements against the rents and profits, on conflicting evidence, and we are unable to say he was wrong in so doing. No error appearing, the decree is affirmed.

Smith, J.,

(dissenting) . With all deference to the opinion of the majority, it appears to me that they proceed from the fundamentally false premise that the probate court is a court of special jurisdiction, acting in the discharge of special powers, which makes it necessary that its right to" act affirmatively appear from the face of its proceedings.

One of the landmark cases in our reports is that of Borden v. State, 11 Ark. 519, 44 Am. Dec. 217. After there laying' down the rule, which has since been consistently followed, declaring the presumption of verity to be indulged in favor of the judgments and decrees of superior courts, the learned judge who wrote that opinion said: “The remaining question before us in this case is whether or not the probate court is to be regarded as a superior court within the principles laid down. We answer emphatically that in our opinion it must be so considered. Because it is not only a court of record, but a constitutional court of fixed and permanent character invested with general jurisdiction and plenary powers over the matters committed by law to its peculiar cognizance and open to review 'by appeal. There is abundant authority thus to hold as to this court, and, if there was not, it would be a matter of serious public concern. Because, while in point of law it is equal, in point of fact it is a-» more important court to the people of this State than the circuit court. And this will be manifest at once when it is considered that it only requires a period of about forty years to pass every atom of property in the State, real and personal, and many ehoses in action, through the ordeal of the probate court; while it is estimated that the whole would not be passed through the circuit court in an entire century. We feel freely warranted therefore, not only on the score of authority, but for cogent reasons of public policy, to fix this court upon the footing of superior courts. 11 Serg. & Bawle 429; 5 Cranch 173; 2 Howard S. C. R. 340; 6 Peters R. 220.”

The doctrine of that case has been many times since recognized, and the opinion in the case of Apel v. Kelsey, 52 Ark. 341, 12 S. W. 703, was based upon the recognition of the fact that the probate court was a superior court in favor of whose judgments a presumption of verity must be indulged when collaterally attacked.

The facts in the Apel case were that, in disregard of the mandatory provision of the statute that an administrator give notice of the sale of his interstate’s -lands in accordance with the provisions of law, an administrator had sold these lands at a private sale. There was no authority in the law for this action. On the contrary, it was done.in violation of the provisions of a mandatory statute, yet the sale was confirmed, and when collaterally attacked it was upheld for the reason there stated that: “It is impossible upon principle to distinguish the question here presented from those so often decided heretofore; and in obedience to the settled doctrine of this court, fixing the character of the probate court, and the effect of its judgments,-we hold that a private sale of land by an administrator, upon order of that court, is not void when confirmed.”

Full recognition was thus given to the impervious character of probate judgments 'and orders against collateral attack, for the reason that those courts were superior courts, which exercised a jurisdiction conferred by the Constitution.

The case of Day v. Johnston, 158 Ark. 478, 250 S. W. 532, reviews the legislation which resulted from that decision. It was there pointed out that, in delivering the opinion in Apel v. Kelsey, supra, Justice SaNdels had deprecated the state of the law growing out of the prior decisions of the court, which had become rules of property, and the aid of the Legislature was invoked to change the rule giving the same verity to the judgments of probate courts as was given to the judgments of other courts of record. Acting upon this suggestion the next session of the Legislature passed an act entitled, “An act to protect the estates of minors from loss” (Act 106, Acts of 1891, page 189), which provided that “All probate sales of real estate, made pursuant to proceedings not in substantial compliance with statutory provisions, shall be voidable.”

In the case of Mobbs v. Millard, 106 Ark. 563, 153 S. W. 821, the word “voidable” appearing in this act was construed to mean void.

While this act was the law, the cases of Beakley v. Ford, 123 Ark. 383, 185 S. W. 796; Ex parte Tipton, 123 Ark. 389, 185 S. W. 798, and Rushing v. Horner, 130 Ark. 21, 196 S. W. 468, were decided.

The case of Day v. Johnston, supra, pointed out that the act of 1891 had changed a rule of property announced in the Apel v. Kelsey case, and that the act of March 12, 1919 (General Acts of 1919, page 193), entitled, “An act to render conclusive judgments and decrees of the probate court in guardians’ and administrators’ sales,” had re-enacted the rule of property as announced in the Apel ease, and the right to change the' rule hv act of the Legislature was declared in the Day v. Johnston case, where we said: “We gave effect to one act, and we perceive no reason why we should withhold giving effect to the other; and, when we have given it effect, we must hold that the judgments of probate courts become impervious to collateral attack, if they contain the jurisdictional recitals which the General Assembly has determined are essential to constitute a valid sale against collateral attack.”

The question here presented is not, whether the homesteads of minors are exempt from sale for the payment of the debts of their ancestors, but is, whether it is within the power of the General Assembly to clothe the judgments of probate courts with an incontrovertible presumption in cases where the Constitution has conferred jurisdiction.

The probate court is a superior court, with a jurisdiction defined by the Constitution, giving it the control of the estates of deceased persons, and the Legislature has the power to clothe the judgments of that court with absolute verity on collateral attack where it has acted within its .jurisdiction. Such is the essence of the opinions in the cases of Apel v. Kelsey and Day v. Johnston, and the other cases to which they refer. See also Collins v. Harris, 167 Ark. 372, 267 S. W. 781.

It is not questioned by the majority that the provisions of the act of 1919 apply to the sale here under review if they, can be made to do so. The sale here attacked contains the recitals required by the act of 1919 to make the curative quality of that act applicable, but the majority say the act cannot cure a sale of a homestead for the payment of the intestate’s debts because the Constitution exempts the homestead from such sale.

It does not appear from the face of tlie record before us tliat the land sold comprised the homestead of the debtor and was sold in payment of his debts. It does appear that the court order fixed the place of sale at the “late residence” of the intestate, but it does not affirmatively appear that this residence was a part of the land ordered to be sold. Besides, a residence is not necessarily a homestead. The presumption, therefore, might well be indulged that in ordering the sale the probate court had found that the land ordered to be sold did not comprise a homestead, and such a presumption must necessarily be indulged if we are to give the same presumption of verity in favor of probate judgments as is indulged in favor of the judgments of other superior courts.

The majority recite and rely upon Waggener v. Lyles, 29 Ark. 47, and other similar cases. In the Waggener case it was said: “The objection to the validity of the proceedings of the probate court are not that the court has acted in excess of its powers, or that some act necessary to perfect its jurisdiction has not been complied with; but that the subject-matter submitted to it was one of which it could take no jurisdiction whatever; and when such is the case, whether in collateral or direct proceedings, the fact being apparent upon the record, such orders and proceedings are treated as nullities.”

There is no question about the jurisdiction of the probate court over the estate. It not only had jurisdiction, but it had exclusive jurisdiction, and upon the proper showing could have ordered a sale of the land. It may have improperly ordered the sale of the land. It might erroneously have found that the land was not a homestead, or that the minors had come of age, but it had the jurisdiction to determine these facts and its finding was not in excess of its .jurisdiction.

In the case of Blanton v. Forrest City Mfg. Co., 138 Ark. 508, 212 S. W. 330, it was said: “In determining the validity of a judgment upon collateral attack, a distinction must be observed between those facts which involve the jurisdiction of the court over the parties and subject-matter and those quasi jurisdictional facts without allegation of which the court cannot properly proceed and without proof of which a decree should not be made.”

Here the probate court had jurisdiction of the parties and of the subject-matter. It should not have ordered the sale of the homestead to pay debts,; but it does not appear from the face of the record that it did so. The presumption should therefore be indulged that the court made such a finding of fact as warranted the order made, although it now appears that the court was in error in its finding upon the facts upon which the jurisdiction was exercised.

The testimony in the record now before us does not show that the probate court, acted upon a matter in connection with a subject of which it could not take jurisdiction, but only that its action was premature or upon an erroneous finding of fact, but neither the prematurity of its action nor the error in the finding of fact affirmatively appears from the order attacked. The action of the court in prematurely exercising- its jurisdiction or in erroneously finding- the facts was an error to be cured on appeal, and was not such an inherent defect or lack of power as to render the order of the court subject to be collaterally questioned, as it emanated from a court of superior jurisdiction, acting within its jurisdiction.

It does not appear therefore that the action of the court in ordering- the sale of the land was coram non p i, cl ice.

The majority say that the youngest child of Wim-berly, the intestate, was only twenty-two years old when the suit was brought, and he was not therefore barred by limitation. The exact age of this youngest child, as shown by his own testimony, at the time of the institution of this suit, was twenty-two years and five months. Five months more than one-year had therefore elapsed after this youngest child came of age before the institution of this suit, and lié, as well as the other heirs, should be held barred by the act of 1919.

Section 1 of this act reads as follows: “That, in all guardians’ and administrators’ sales heretofore or hereafter made, the finding and recital in the judgment or decree of the probate court authorizing and ordering any such sale, that the guardian or administrator was duly and legally appointed and qualified, that the sale was conducted according to law, and that the facts set forth in the petition entitled the said guardian or administrator to make the said sale, shall he conclusive and binding on all parties having or claiming an interest in the said sale, save upon direct appeal to the circuit .court, made in such cases as are now provided by law; and such finding and judgment or decree of the probate court shall not be open to collateral attack, save for fraud or duress. Provided that, as to sales heretofore made, all parties having any interest therein shall have twelve months after the passage of this act in which to attack such sales.”

In the case of Bay v. Johnston, supra, we said that: “The act, in so far as it relates to sales heretofore made, might well be sustained as a statute of linaitations, as a reasonable time (one year) was allowed after the act was passed in which an interested party could prevent the consequences of the act falling upon him. Towson v. Denson, 74 Ark. 302, 86 S. W. 661, and cases there cited to this point. Cottonwood Lumber Co. v. Hardin, 78 Ark. 95, 92 S. W. 1118.”

Because of the fact, as was there pointed out, that the act applied to future as well as to past sales, we considered and passed upon the constitutionality of the act in the Day case, and held that it was constitutional.

The instant suit was not brought until long after the year had expired which the- act allowed for suits to he brought to attack sales under orders and judgments of the probate court which contained the recitals declared by the act to be essential and sufficient to constitute a valid judgment, and, as there is no saving clause in favor of infants, they, as well as all others, would be barred after'one year. But, in any'event, it would appear that the strictest construction of this act possible would he to hold that the year of limitation did not commence to run until the homestead estate had expired. Kessinger v. Wilson, 53 Ark. 400, 14 S. W. 96. But, as has been said, more than one year expired after the termination of the homestead estate before the institution of this’ suit, and, as the heirs and their vendees did not avail themselves of the saving clause in the act, they should be held barred by it.

For the reasons herein stated, I think the decree of the court below should be reversed; and I am authorized to say that Justices Wood and Kirby concur in the views here expressed.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Hines v. Consumers’ Ice & Light Company.
    Opinion delivered May 16, 1927.
    1. Electricity — negligence.—In an action for personal injuries, whether a light company was negligent in failing to keep properly insulated its wires near where plaintiff was engaged in repairing a telephone wire held for the jury.
    2. Electricity — duty of lineman to use care. — Where a telephone company had the right to use poles of a light company for stringing and operating its wires, and its employees could climb upon light poles for that purpose, plaintiff, a lineman, was required to use ordinary care for his own safety while engaged in the performance of this work.
    3. Electricity — knowledge of telephone lineman. — A telephone company’s lineman, engaged in stringing a telephone wire on the light company’s poles, is charged with knowledge of defective insulation on light wires, which was in plain view near where he was working.
    4. Electricity — contributory negligence of lineman. — Negligence of a telephone lineman engaged in stringing wire on light poles, in jerking a telephone wire (which was in rolls and which he knew would have a tendency to recoil when not stretched) off of a limb of a tree, and bringing it in contact with defendant’s live wire, barred a recovery for personal injuries.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      E. A. Upton and Henry Stevens, for appellant.

      McKay S Smith, for appellee.
   Hart, C. J.

Ross Hines brought this action against the Consumers’ Ice & Light Company to recover damages for injuries which he alleges to have been the result of the defendant’s negligence in failing to keep properly insulated its wires near where he was engaged in repairing a telephone wire.

This is the second, appeal in the case. Hines v. Consumers’ Ice & Light Company, 168 Ark. 914, 272 S. W. 59. Upon the former appeal it was held that, although an electric light (wire) company is not required to insulate all of its-wires, a telephone lineman having a joint right to use its poles may recover for injuries sustained through failure of the light company to have the wires with which he might reasonably come in contact properly insulated. It was held further that a complaint, which alleges that a joint right to use a pole for transmitting electricity existed between an electric light company and a telephone company, and that, by reason of the negligence of the former in failing to insulate its wires properly, a servant of the latter company was injured, states a cause of action.

Upon the remand of the case the evidence for the plaintiff to sustain charges that the light company was guilty of negligence was, in substance,, this:

E. Gr. Pettus wished to establish a telephone line from Magnolia to McNeil, in Columbia County, Arkansas. lie' made arrangements with the manager of the Consumers’ Ice & Light Company to string his telephone wires on its light poles between its plant in Magnolia and some point in McNeil. The light company had formerly operated a private telephone line on its light poles as an' adjunct to its own business. . It made arrangements with Pettus whereby his telephone company would deliver the long distance messages of the ice company in consideration of the use of its light poles for stringing his telephone wires. In order to operate his telephone line from Magnolia to McNeil, it became necessary for Pettus to make connection between Ms offices and tbe wires of the ice company in the two towns, and also to repair and reconstruct the old telephone line on the light poles of the ice company. A. Gr. Huckaby and Ross Hines were employed by. Pettus for the purpose of repairing and reconstructing the telephone lines. While making the repairs the telephone wire came in contact with a highly charged electric wire of the defendant, about six feet above where the telephone wire was to be strung. The electricity from the highly charged wire knocked Hines unconscious and severely burned his hand in which he held the telephone wire. The electric wire contained 2,300 volts, and the insulation on it had all worn off, and this defective condition had existed for quite a long time.

Under this state of facts the question of the negligence of the defendant was properly submitted to the jury. The plaintiff had a right to work on the light pole while constructing and repairing the telephone line, and the company might have been charged with knowledge that the defectively insulated wire would cause injury to any one engaged in work in close proximity to it. Texarkana Telephone Co. v. Pemberton, 86 Ark. 329, 111 S. W. 257, and Morgan v. Cockrell, ante, p. 910.

This brings us to the question of the contributory negligence of the plaintiff as a bar to his right of recovery. While the telephone company had the right to use the poles of the light company for stringing and operating its wires, and its employees might climb upon the light poles of the defendant for that purpose, still the plaintiff was required to use ordinary care for Ms own safety while engaged in the performance of his work. At the outset of the discussion on this branch of the case, it may be said that the plaintiff was charged with knowledge of the defective insulation of the light wires. His fellow-workman was a witness for the plaintiff, and testified that the insulation had all worn off of the electric light wire at the place where the plaintiff was injured, and that this defective condition had existed for a longtime. There were 2,300 volts of electricity in the exposed light wire. The plaintiff was working about six feet below the live wire and about one hundred feet from the bare wire or place where it was defectively insulated at the time he was injured. The plaintiff and Huckaby were working together at the time. Huckaby did not climb poles, but hired the plaintiff to do this part of the work. The pláintiff was a mature man, and must be charged with the knowledge of the defective insulation on the light wire, which was in plain view near where he was working. At the time he was injured the plaintiff was climbing the electric wire poles and tying the telephone wire on them. He had tied the telephone wire on three poles, and was hurt while he was engaged in tying it on the fourth pole, on West Main Street, in the town of Magnolia. Huckaby was handling the wire on the ground so that the plaintiff could pull it up and'tie it on the poles. The wire on the ground was a part of a roll, which was kept in front of Huckaby. In tying the wire on the pole they would have-to pull the slack out of the telephone wire, that is, the slack between the pole the plaintiff was on and the. one which he had previously tied the wire on. In taking up this slack the wire got caught in a limb. Huckaby pulled the wire’out from under the limb and turned it loose. The plaintiff then jerked the wire, and a kink formed in it. The telephone wire formed a loop, and, when Huckaby released it from the limb, and the plaintiff jerked it, it flew up and came in contact with the light wire- of the defendant about half-way between the poles. The electric wire was not insulated at that point, and, as above stated, was about six feet above where the telephone wire was to be strung. In short, the telephone wire was to be strung on the electric light poles about six feet below the electric light company’s primary wire. The limb spoken of was about seven feet from the ground, and the electric-light wire was about thirty feet high. The plaintiff should have anticipated that the telephone wire would coil up unless it was stretched, and that, when he jerked it, it was likely to do so and fly up and come in contact with the electric-light wire, which was highly charged, with electricity. The plaintiff and his fellow-workman should have used ordinary care to see that the telephone wire was kept' stretched and see to it that it did not come in contact with the live wire of the defendant.

While the plaintiff’s hand was severely burned on account of the telephone wire which he was holding coming in contact with the highly charged wire of the defendant, still his own fault and carelessness in the matter produced his injury and bars his right of recovery. He is charged with knowledge that the telephone wire was in rolls and was being unrolled for the purpose of stringing it along the light poles under the primary wire of the light company. He knew that the tendency of the wire could be to recoil itself when it was not stretched. He is.bound to have known that, when the wire was jerked off of the limb, which was about seven feet from the ground, it would begin to coil or kink, and, when the plaintiff jerked it, he is charged with knowledge that he was likely to bring it in contact with the live wire of the defendant and bring about the very injury of which he now complains. Under these circumstances the court erred in not directing a verdict for the defendant on the ground that the plaintiff was barred of recovery under the facts proved by himself on account of his own contributory negligence in the matter.

The .judgment must be affirmed. ' It is so ordered.


author: Humphreys, J.

text:
    Dorr, Gray & Johnston v. Headstream.
    Opinion delivered May 30, 1927.
    1. Appeal and error — conclusiveness op verdict. — Where evidence, though conflicting, is sufficient to support a verdict, the Supreme Court cannot invade the exclusive province of the jury nor determine where the weight of the evidence lies.
    2. Evidence — expert testimony as to injuries prom x-ray. — One may, by study, observation and experience as to the effect of the X-ray upon the human body, become competent to testify as an expert witness in an action for injuries due to burns from the X-ray, notwithstanding he is not a physician.
    3. Trial — -admissibility of rebuttal testimony. — In an action for injuries due from X-ray burns, a refusal to allow defendant in rebuttal to show details of the process' of -administering treatment held not error where it is in conflict with the original testimony of the witness and not offered to show actual conditions that existed.
    4. Evidence — admissibility of expert testimony. — In an action for X-ray burns it was not error to- allow expert witnesses to testify that, in their opinion, it constituted negligence for defendant to turn an X-ray of certain voltage on plaintiff for twenty or thirty minutes during the absence of the operator of the machine from the room, since the purpose of expert testimony is to get the conclusion of a witness based on facts assumed to be true.
    5. Damages — admissibility of evidence. — In an action for X-ray burns, an instruction authorizing damages arising from an ulcer developing ten months after X-ray treatment held not error, where there was testimony showing that the burn was the source of the ulcer.
    Appeal from Independence Circuit Court; Dene II. Coleman, Judge;
    affirmed.

      John B. McCaleh and J. J. McCaleh, for appellant.

      8. M. Bone, Watkins & Pate and Emerson, Donham £ Fullt, for appellee.
   Humphreys, J.

This suit was brought hy appellee against appellants, partners engaged in the practice of medicine and surgery at Batesville, Arkansas, to recover damages in the sum of $50,000 for negligently, carelessly and nnskillfully burning his left arm with an X-ray while treating a small place thereon diagnosed by them as eczema. It was alleged in the complaint that appellants applied the X-ray to the affected part, placing the machine within less than two inches thereof, and negligently, carelessly, and nnskillfully permitting the application of the X-rays to continue for thirty minutes, while out of the room, as a result of which his arm was seriously and permanently injured. There were other allegations of negligence in the complaint, of which no mention will be made, as appellee introduced testimony in support only of his allegation of negligence of appellants in applying the treatment.

Appellants filed an answer, denying all of the material allegations of the complaint, and interposing the further defense that the burn received from the X-ray-treatment was slight, from which appellee completely recovered under their treatment, and that the burn did not result from negligence or lack of care on their part, but was caused solely from the inherent uncontrollable nature of the rays and the fact that appellee was constitutionally hypersensitive to the X-ray, which condition was not and could not have been known to them.

The trial of the cause resulted in -a judgment against appellants for $5,000 in favor of appellee, from which is this appeal.

The record is so voluminous that it is entirely impractical to incorporate the substance of the testimony of each witness in this opinion. Lay and expert witnesses were introduced by both sides and examined at length. Suffice it to say that the testimony introduced by appellee tended to support the allegations of his complaint with reference to the negligent application of the X-ray to the affected part, which caused great pain and suffering for a long' time, necessitating two major operations by a noted physician in Chicago, an outlay of large sums of money, financial losses, deficiency in arm strength and power; whereas the testimony introduced by appellants tended to show skill and proper application of the X-ray treatment to the affected part, resulting in a slight burn, which they could not prevent on account of the uncontrollable character of rays generated by the X-ray machine, and the constitutional hypersensitiveness of appellee to the X-ray.

The jury found against appellants on the disputed questions of fact, and, as there is sufficient testimony to support the verdict, this court cannot invade the exclusive province of the jury and determine where the weight of the evidence lies. We can only review the record where any reversible errors were committed in the trial of the cause.

Appellants’ first contention for a reversal of the judgment is that the trial court erred in allowing Dr. L. M. Hill, a chiropractor, to testify as an expert witness in the case. Dr! Hill did not qualify as a physician and' surgeon, but testified that he was a graduate of the X-Ray School at Davenport, Iowa, and that he had taken courses in the E. 0. Thompson School at Baltimore, Maryland; that he had made between seventeen and twenty thousand exposures with X-ray machines for diagnostic purposes, but not as a therapeutic remedy; also that he was a graduate of Carver School of Chiropractic, of Oklahoma City, Oklahoma. X-ray specialists who apply the X-ray to the human body as a therapeutic remedy, as well as for purposes of diagnosis, are not always graduate physicians. Indeed, according' to the record, the operator of the X-ray machine at Mayo’s is not a physician. The X-ray is largely a scientific field unto itself, and any one who, by study, observation and experience in that particular branch of science, possesses knowledge and skill therein beyond that of persons of common knowledge, is competent to testify as an expert witness. Newport Manufacturing Co. v. Alton, 130 Ark. 542, 198 S. W. 120.

This court is committed to the doctrine that it is not necessary for one to be a physician in order to be an X-ray specialist and entitle him to testify as an expert. Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397, 13 A. L. R. 1403. In speaking of the application of X-ray and the competency of the testimony of one versed and skilled in the use thereof, the Supreme Court of Minnesota said:

“The so-called X-rays, discovered by Roentgen have been recognized and known to scientists, both in and out of the medical profession, for some eight years. During the time the apparatus for the generation of the X-rays, together with the fluoroscope, has been used very generally by electricians, professors of physics, skiagraphers, physicians and others, for experimental and demonstrative purposes. It is á scientific and mechanical appli-anee, the operation of which is the same in the hands of the college professor, or the physician of the allopathic, homeopathic, or any school of medicine. It may be applied by any person possessing the requisite scientific knowledge of its properties, and there would seem to be no reason why its application to the human body may not be explained by any person who understands it.”

From his study and experience Dr. Hill was qualified to testify as to the amount of dosage it would take to burn the human body and whether the dosage was properly or whether negligently administered.

Appellant’s next contention for a reversal of the judgment is that the trial court erred in refusing to allow appellant to show by their witness, Dr. Gray, who administered the treatment in question, the details of the process of administering the X-ray treatment. This testimony, to the effect that the X-ray machine could be adjusted to the body and be running without generating X-rays, was offered to rebut the evidence of appellee that Dr. Gray turned the X-ray machine on him for ¡a period of twenty or thirty minutes and left the room during that time. Dr. Gray had testified, in his direct and cross-examination, that he only administered the treatment for five minutes by the watch, and remained in the room during the entire time. The rebuttal testimony was in conflict with Dr. Gray’s original evidence, and was not offered to show the actual condition that existed. It was not offered in the nature of an admission that he had left the room and that, during his absence from the room, the tube in which the rays were generated was lighted and the motor running, yet no X-rays were being generated. The rebuttal testimony was not responsive to the issue of negligence joined and not a good faith offer to change the defense. We think the court was correct in excluding it.

Appellant’s next contention for a reversal of the judgment is that the trial court erred in allowing appel-lee’s witnesses, Doctors Ruff and Hill, to state that certain alleged facts constituted negligence on the part of appellants. They were permitted to testify that it would be negligence for an X-ray technician or practitioner to turn an X-ray of 4 milliamperes voltage on a patient for twenty or thirty minutes while absent from the room. The purpose for introducing expert testimony is to get the judgment or conclusion of the witness based upon facts assumed to be true. Expert witnesses could not answer a hypothetical question otherwise than by expressing an opinion or announcing a conclusion. We can see no difference in saying that certain acts or omissions constitute negligence in the treatment of a disease and saying that the acts hypothetically detailed show improper treatment. The court did not err in letting the two expert witnesses testify that, in their opinion, it constituted negligence for appellant to turn an X-ray on appellee of the voltage described for twenty or thirty minutes during the absence of the operator of the machine from the room. This court stated in the case of Durfee v. Dorr, 131 Ark. 376, 190 S. W. 376:

“Objection is made by appellant also to the action of the court in permitting practicing physicians, who qualified as experts, to testify as to the character of attention a patient should receive in a hospital. We think this evidence was competent, as it related to a subject upon which the average juror would have no information or experience upon which he would he in position to formulate an intelligent conclusion unless he based his conclusion upon the opinion of one qualified to speak ás an expert.”

Appellant’s • next contention for a reversal of the judgment is that the trial court erred in giving instruction number 2, which is as follows:

“You are further instructed that if you find that plaintiff’s arm was burned by defendant’s X-ray machine on account of defendant’s negligence, as above explained, and that the place so burned became infected without the negligence of the plaintiff, and while he was exercising due care to protect his injury, and that the plaintiff’s injury was aggravated and increased by said infection, defendants would be liable to plaintiff for such aggravated or increased injury.”

One objection made to the instruction is that the undisputed proof showed that the burn completely healed under the treatment of Dr. Gray during the month of August, 1922, and the diseased condition of the arm necessitating the operations developed later from other causes not connected with the burn. It is true that Dr. Gray testified to the facts just detailed, but appellee testified to the contrary, which .made the issue of fact a disputed one. Another objection made to the instruction is that it ignored the defense of the appellants that the burn had been entirely cured under Dr. Gray’s treatment. It is true that instruction number 2 only covered appellee’s theory of the case, but instruction number 6 requested by appellants and given by the court covered their theory of the case with reference to treating and curing the burn. Instruction.number 6 is. as follows:

“You are instructed that, even though you-should find from the evidence, under other instructions herein given, that the X-ray burn received by the plaintiff was caused by or through the negligence of the defendants in their manner of administering same, still, if you find from the evidence that, when such burn was reported by plaintiff to the defendants, they treated him therefor, and effected a cure thereof within a reasonable time, and that, after such cure was so effected, the arm. of plaintiff became diseased and developed into a worse condition than it was before such cure, then defendants cannot be held liable for such second or subsequent condition, nor are they required to prove the cause of such second or subsequent diseased condition in order to be exonerated from liability therefor.”

Appellants’ next and last contention for a reversal of the judgment is that the trial court erred in giving instruction number 3 upon the measure of damages applicable to the facts in the case, which is as follows:

■ “If yop find for the plaintiff, in determining his damages you should take into consideration the nature and permanency of bis injury, if any; the mental and physical pain and suffering, if any; the money expended in treatment of his injury and hospital expenses, if any; the diminished earning capacity of plaintiff, if any, as you may find from the evidence were occasioned by the negligence of the defendants, and award him such sum as you may find from the evidence will fairly and reasonably compensate him for said injuries so received.”

The objection made to the instruction is that it covered damages arising from the ulcer, which developed ten months after the X-ray treatment. There is testimony in the record tending to show that the burn was the source or origin of the ulcer which resulted in damage to the arm. It was proper for the jury to render a verdict compensating appellee for the injury to the arm if the burn was the proximate cause of the injury. This was a disputed fact for determination by the jury.

No error appearing, the judgment is affirmed.


text:
    Letzkus v. Letzkus.
    Opinion delivered June 27, 1927.
    Divorce. — condonation.—A decree allowing a wife temporary alimony for the maintenance, of herself and child' will not be set aside on the ground of condonation, where the husband subsequently entered and remained in his wife’s home by force, occupying rooms separate from her, and not conversing or eating with her.
    Appeal from Pulaski Chancery Cofirt; John F. Mar-tillean, Chancellor;
    reversed.

      Ben F. Reinberger, for appellant.
   Humphreys, J.

This is an appeal from a decree of the chancery court of Pulaski County annulling a temporary allowance of $75 per month in favor of appellant against appellee for the support and maintenance of herself and their child, which the chancery court rendered upon complaint and notice on the 28th day of July, 1926, and dismissing her complaint alleging sufficient grounds for alimony for the support and maintenance of herself and their child. The decree which was annulled also restrained appellee from selling or disposing of a certificate of stock in the Arkansas Abstract Guaranty Company until he should give bond to perform the decree of the court requiring him to pay alimony.

A response was filed-to the motion to set aside the decree. The issues joined in the motion and response were submitted to the court for adjudication upon the following agreed statement of facts, filed October -7, 1926:

“In the Pulaski Chancery Court. — Ida M. Letzkus, plaintiff, v. Anton Letzkus, defendant.

“The parties in the above entitled and numbered cause agree on the 'following statement of facts, upon which judgment shall be rendered therein, the controversy being submitted to the court upon same as'such agreed statement of facts:

“That Ida M. Letzkus of Little Rock, Arkansas, instituted a suit for maintenance and support from Anton Letzkus, her husband, alleging that he left and abandoned the plaintiff, and for other causes. That the defendant was duly served with process and a notice for temporary maintenance, and also for an injunction restraining the defendant from assigning and transferring his certificate of stock in the Arkansas Abstract and Guaranty Company, of Little Rock, Arkansas. On the-day of August the matter came on to be heard, decreed, ordered, and directed before final hearing that the defendant, Anton Letzkus, do pay to the plaintiff on the 28th day of each month $75 as temporary support for herself and child, and the further sum of $50 as attorney fee and $15 court costs. That the defendant has paid to the plaintiff the first month’s support and the attorney fees. The court further ordered and enjoined the defendant. from selling or transferring his certificate of stock, unless security was given to pay for the monthly support of the plaintiff and her child. That, after said temporary-order was entered, the plaintiff, Ida M,. Letzkus, continued to live at her home at 1411 Center Street, Little Rock, Arkansas. During his absence she caused locks to he changed on the premises so that she could have exclusive possession of the premises and be free of the harassment of her husband. That thereafter and before the final hearing1 the defendant entered said premises against the Avill of the plaintiff, and would not leave, but continued to live there, and during that time the plaintiff and defendant did not live together as husband and wife, hut did live in the same house, hut that she had a small and separate room in the house for herself and child; that the defendant did not eat at the home of the plaintiff, and that they did not converse with each other, but the defendant did sleep in his room in the residence, against the wishes of the plaintiff, but which she could not control. That, a short time after the order was rendered for support and after the injunction was issued, as stated, the defendant filed a motion in the chancery court to set aside the temporary order, without giving written notice, although the decree stated that he was served with summons and notice for support and injunction. That no answer was filed in said action denying' anything stated in the complaint, and more than twenty days had elapsed since the service of summons and notice. That the court dismissed the complaint of the plaintiff on account of the fact that the defendant, since the said order, lived on the premises, under the conditions as herein stated, and the plaintiff lived in a small room on the premises with her child, and never spoke to each other; and the court further stated that, although the defendant failed to support the plaintiff, no action can he had against a defendant if he lived at the home of the plaintiff, after the action was instituted by the plaintiff, and that she must not live in the same house with her husband before she could ask for support for herself and child through the courts of Arkansas, under the action of maintenance and support. Witness our hands by the attorneys of record this the 25th day of August, 1926. Prayed an appeal to the Supreme Court of Arkansas, which was granted.

(Signed) “Ben F. Reinberger,

(Signed) “T. E. Helm.”

It appears from the agreed statement of facts that the decree annulling the order for temporary alimony and restraining the sale of appellee ’s certificate of stock in the abstract company until he should give a bond to perform the order of the court, and in dismissing appellant’s complaint, was made upon the ground that the parties had been residing* in the same house since the rendition of the original decree. Living under the same roof or in the same house by consent, either express or implied, would warrant a court in finding that the charge made the basis for a claim for alimony had been condoned ; but, where a husband entered and remained in his wife’s home by force, occupying a room therein separate and apart from her and not conversing or eating with her, as the record reflects was done in this case, there was no condonation of the charge. The trial court erred therefore in annulling the original decree on the ground that the parties had resided together since the rendition thereof in the same house, or under the same roof. It affirmatively appears that their marital relations were not resumed, and that appellant did not consent or acquiesce in appellee entering her home and remaining therein. According to the agreement of facts, he entered and remained in appellant’s home by force.

On account of the error indicated the decree is reversed, and the cause is remanded for further pro eeedings not inconsistent with this opinion.


author: Mehaeey, J.

text:
    Cox v. State.
    Opinion delivered May 30, 1927.
    1. Indictment and information — 'Possession of still. — An indictment charging the possession of a still in statutory language held not defective for failure to allege a felonious possession, since an indictment for a statutory offense need use only the language of the statute, unless it is apparent that there are elements of the offense not described in such language.
    2. Criminal law — repetition of instructions. — Where an instruction which the court refused to give was covered in other instructions, there was no error in the refusal.
    3. Criminal law — failure of defendant to testify — instruction. —In a prosecution of a felony, refusal of an instruction that defendant’s failure to testify was neither evidence nor presumption of guilt, and should not he considered in determining guilt, held reversible error in view of Crawford & Moses’ Digest, § 3123.
    4. Intoxicating liquors — sufficiency of evidence. — Evidence held sufficient to support a conviction of possessing a still.
    Appeal from Pike Circuit Court; B. E. Isbell, Judge;
    reversed.

      T. W. Rountree and Tom Kidd, for ¡appellant.

      K. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Mehaeey, J.

Tlie grand jury of Pike County returned the following indictment, accusing Horace Cox of the crime of possessing a still:

“The grand jury of Pike County, in the name and by the authority of the State‘of Arkansas, accuse Horace Cox of the crime of possessing a still, committed as follows, to wit: The said Horace Cox, in the county and State aforesaid, on the 15th day of June, 1924, did unlawfully have and keep in his possession a still and stillworm, without registering the same with the proper United States officer, against the peace and dignity of the State of Arkansas. Geo. B. Steel, prosecuting attorney.”

Defendant filed the following demurrer:

“Comes the defendant, Horace Cox, and for his' demurrer to the indictment states: ' (1). That the indictment does not state facts sufficient to constitute an offense against the laws of Arkansas. (2). That the indictment does not state facts sufficient to constitute a felony. (3). That the indictment fails to allege that the defendant did ‘feloniously’ have in his possession the alleged still and stillworm. (4). That the indictment fails to allege that he had possession of the still and stillworm feloniously.

“Wherefore he prays that the court sustain the demurrer and for all other just and proper relief.”

The court overruled the demurrer.

R. W. Stell testified, in substance, that he was in the hardware business at Delight, and has lived in Pike County about 56 years. That he knew the defendant, Horace Cox, and knew Ed Kirkham.' He said he went in company with Mr. Kirkham, acting on information, and made an investigation some time in the year 1924, along in the spring. He stated that he went to where Mr. Cox lived, and commenced, about 9 o ’clock at night, to search around the place, up and down branches and creeks, and finally, between twelve and one in the night, they decided that it might be closer to his home, and got over in the pasture and found where he had the branch dammed up to hold the water. The still was put up, and two barrels of mash or beer were sitting there near the still. He said they decided it would be ready to run in two or three days, and they fixed everything back like they found it, and went away. While there they found a funnel and a quart cup. Witness said he did not go back with them any more. The place where they found the still was about a quarter of a mile from where the defendant lived. There was a little path, but it did not lead right up to the still. The still was on defendant’s premises, inside his pasture, and was right at the place where the dam was across the branch. It was a box still, made out of lumber. Witness does not think it had a metal top, but it had a metal bottom.

Ed Kirkham testified, in substance, that he had lived in Pike County since 1915, the last time; was raised there, and is now in the telephone business. He was deputy sheriff of Pike County during the year 1924. He testified that he knew defendant, Cox, and knew R. W. Stell. He is also acquainted with Mr. Chaney, former sheriff of the comity. Some time in the spring of 1921, witness thinks it was in April, witness and Stell went to the place where Cox lived and searched there until they located a still in the field or woods lot hack of his house, something near two hundred yards from the house, on a little stream. Defendant’s house faces east, and the still was west or a little northwest of the house, hack in the field. It is in the inclosure, hut in a patch of woods. He said they found a box still with a metal bottom and the rest wood, and two barrels of beer, with some other stuff. Witness said they then returned to Delight and informed the sheriff, Chaney, and witness and the sheriff went out, two or three nights after that, and found the still just like they first located it, but did not stay long that night. They decided to return again. They went away, and returned several times for the purpose of telling when there would be some whiskey made and when it would be run off. The last time witness and sheriff went about daylight in the morning and stayed until four or five in the afternoon. They weT,e expecting some one to come and run the beer off. Mr. Cox came, and, when they heard him coming, they did not want to be discovered right then, so they tried to make a get-away, but he had a dog that chased them. Mr. Cox ran to their grub-bags, and then he turned and went to his house, and they followed him. When they got to his house, he was sitting there talking to his wife, and said to them he was just telling his wife he was caught, and that Chaney was looking at him while he was drinking beer out of the barrel. Cox then said they might as well go down and pour it out. They went down to the still and made a bonfire out of the whole thing. They found a lye can, and the sheriff asked Cox if he had put lye in the stuff, and he said yes, a little. When witness was looking for the worm, Cox said he would never find it, and he motioned to a hole of water. He went to the water, and pulled the worm out of there. The sheriff told Cox that he could remain with his wife and children, and for him to come to Murfreesboro the next morning and make bond. Cox said, “If a man can be that good to me, I certainly will be there.”

Witness did not see Cox at the still directly. It was about 200 yards from the house to the still. Witness had assisted in capturing wildcat stills prior to that time, and indications were that there had been a run made previous to this and preparation for another one.

When they first discovered Cox he was coming from the house towards the still. Witness said there were no other houses near the still; he presumed the nearest one was about a mile. There are other houses in the community. He did not examine to see how close anybody else lived.

J. E. Chaney testified, in substance, that he had served as sheriff about eight years, and was sheriff in 1924. He was acquainted with the defendant and with Ed Kirkham. He went with Ed Kirkham to the place where Cox lived and found a box still and several barrels of mash. Witness had had considerable experience as sheriff in capturing and destroying stills. The still was not in operation. If they were ready to run they would have a cap and worm and fire. Mr. Cox showed witness where the worm was sunk in the branch, but witness does not remember anything but a water-keg that could be used as a cap. He has seen them used that way. They discovered nobody else at the still, and found the defendant near the still. Witness and Kirkham followed defendant on to the house, and, when they got there, he was at the gate, talking to his wife, and he said he had told his wife that witness had caught him; told her that witness was watching him while he drank beer out of the barrel. Cox said they had just as well go down there and pour it out.

There was a path loading from his house in the direction of the still. Defendant told witness where the worm was. Witness said there was a cloud coming up, and he told defendant he could stay with his wife and baby if be would promise to come to Murfreesboro the next morning, and Cox said he would be there. He did not come. Witness did not see him any more for nine months or a year. The still was located in Pike Connty.

. Ode Cox, a witness for the defendant, testified, in substance, that he was a brother of the defendant, and moved him to the place where he lived some time in the spring of 1924. Mr. Reynolds was within a quarter of a mile; Mr. Hamby lived within -one-half mile, and Haynes lived about half a mile and witness lived about a mile. Witness said he had been convicted in a liquor case and had served time, and got home some time last November.

Defendant was convicted, filed a motion for a new trial, which was overruled, and has appealed to this court.

Appellant’s first contention is that the indictment was defective because it did not allege that he feloniously had and kept in his possession a still. That is, he claimed it was defective because it did not use the word felonious.

The rule is well settled in this State that, in indict- . ments for statutory offenses, it is only necessary to use the language of the statute, unless it is apparent that there are elements of the offense not described in that language. As early as the 12th Arkansas the court said, in speaking of statutory offenses of marketing, branding, or altering the mark or brand of any animal:

“The felonious intent is no part of the description, as the offense is complete, without it. The felony is the conclusion of the law from the acts done, with the intent described, and makes part of the punishment, as, under our statute, the prisoner is rendered infamous and also disfranchised. The objection to the indictments therefore is not well founded in law, and consequently the circuit court, erred in sustaining the demurrer.” State v. Eldridge, 12 Ark. 609.

This rule has been announced,and adhered to in the following cases: State v. Seawood, 123 Ark. 565, 186 S. W. 72; Burrough v. State, 166 Ark. 138, 265 S. W. 642. The indictment in this case charges the offenses in the words of the statute, and it was therefore not defective because the word “feloniously” was omitted. The indictment does charge that defendant unlawfully had in his possession a still, stillworm, etc.

The appellant next contends that the court erred in giving- instruction No. 1 on its own motion and refusing to give Nos. 2, 3, and 7% requested by the defendant. ¥e think that the instructions that the court refused to give were covered in other, instructions of the court, and there was no error in refusing to give those mentioned.. However, the court refused also to give instruction No. 11, requested by the appellant, which is as follows:

“You are instructed that it is the privilege of the defendant to either testify in this own behalf or decline to so testify. The failure to testify is neither an evidence of his guilt or a presumption of law or fact of his guilt. Such fact is not to be considered by you in determining his guilt or innocence in this case.”

The statute itself provides:

“On the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses and misdemeanors, the person so charged shall, at his own request, but not otherwise, be a competent witness, and his failure to make such, request shall not create any presumption against him.” Crawford & Moses’ Digest, § 3123.

This court has said with reference to the above section of the digest: . .

“In order to give the defendant the benefit of this election, it is the duty of the trial court, when requested at the proper time, to inform the jury that a failure to testify in his own behalf shall not raise any presumption against him. Otherwise a jury might regard the defendant’s silence as an admission of guilt and thereby deprive him. of the election accorded him by the statute. ’ ’ Martin v. State, 151 Ark. 365, 236 S. W. 274; Threet v. State, 110 Ark. 152, 161 S. W. 139; Lee v. State, 145 Ark. 75, 223 S. W. 373.

The evidence in this case was sufficient to justify the jury in finding defendant guilty, and the instructions correctly submitted tire case to tlie jury. But, as we have already said, the court erred in refusing to give instruction No. 11 requested by the appellant, and for this error the case is reversed, and remanded for a new trial.


text:
    Shroll v. Newton County.
    Opinion delivered May 2, 1927.
    1. Evidence — collateral attack. — The judgment of the county-court awarding a bridge contract is not open to collateral attack to show that it was rendered during vacation.
    2. Counties — conclusiveness op judgment recital. — The convening order of the county court on the date when a bridge contract was awarded reciting that the court met pursuant to adjournment held conclusive on collateral attack to show that the order awarding the contract was not a vacation order.
    8. Counties — ratification of contract. — An order ratifying a county bridge contract will be presumed, on collateral attack, to have been made by court pursuant to adjournment.
    4. Counties — collateral attack on judgment. — An attack on a judgment of the county court is collateral when the judgment might have been appealed from.
    5. Bridges — execution of contract by county. — Omission to sign a county bridge contract did not render the contract voidable, since filing it, though unsigned, constituted an execution thereof.
    6. Bridges — collateral attack on order allowing payment.— Where an order allowing payment on completion of a county bridge construction contract was collaterally attacked, irregularities in publishing and po'sting of the contract held not‘subject to question.

      1. Bridges — authority to make contract.' — Where a quorum court made an appropriation for building bridges, the county court may make contracts for its expenditure so long as the fund remains unexpended wholly or in part.
    8. Appeal and error — presumption as to county court. — The Supreme Court will not presume that the county court exceeded its authority in the construction of two bridges and allowing payment after completion according to the contract.
    9. Constitutional law — constitutional amendment. — Amendment No. 11 to the Constitution, prohibiting the expenditure of more than the income of the county for any fiscal year, held not to affect a bridge contract awarded by a county court before the amendment became effective.'
    10. BRIDGES — LIABILITY OF COUNTY. — Thoug-h the quorum court appropriated only $20,000 for bridge construction, the county will be obligated to pay the entire price for a contract calling for greater expenditure, there being no evidence that the county court understood that the highway department or improvement district was obligated to contribute.
    Appeal from Newton Circuit Court; J. M. Shinn, Judge;
    reversed.

      Ben E. McFerrin, M. A. Hathcoat, Jno. E. Miller and Gul L. Pearce, for appellant.

      Woods do Greenhaw, for appellee.
   Humphreys, J.

This, is an appeal from the judgment of the circuit court of Newton County, rendered in a trial de novo, disallowing the claim filed by appellant against ■said county- on January 28, 1926, for $29,907.55, alleged to he the balance due for constructing two bridges pursuant to a contract entered into by and between the county court and appellant on the 18th day of October, 1924. One of the bridges was constructed across Buffalo Biver and the other across Beech Creek, in the western part of the county, -where the highway in Boad Improvement District No. 6 of said county, created under the Alexander Boad Law in 1922, intersected said streams. The purported contract upon which the claim was based provided that the cost of the construction of the Buffalo Biver bridge was to be $22,000 and the Beech Creek bridge $16,500, with the further stipulation that the price of construction might be increased or decreased in the. quantity of the material used in the bridges, as per specifications and plans furnished by the Highway Department of the State.

W. P. Spears, a citizen and taxpayer of the county, intervened for the purpose of appealing from the allowance of the claim by the county court and testing the validit3r thereof.

In 1922 the ouorum court aupropriated $20,000 to construct the two bridges in question. On April 24, 1924, the county court appointed the commissioners to select a location and prepare plans for the construction of the bridges. They made a report and filed plans and specifications in cooperation with the Highway Engineer, which were approved by the county court. On September 17,1924, the county court published and posted notice for bids, and appellant filed a sealed proposal for the construction of the two bridges. On the 18th day of October, 1924, the bids were opened, and the contract was publicly let to the appellant, who was the lowest bidder. The following order appears in county court record L with reference thereto:

“Be it remembered that on this 18th day of October, 1924, at nine o’clock a. m., court met pursuant to adjournment, when present and presiding were the Honorable Prank Griner, county judge, E. C. Shinn, clerk, and Sam Hudson, sheriff of Newton County, when the following proceedings were had and done, to-wit:

“In re Letting contract for construction of Buffalo River bridge and Beech Creek bridge, Newton County, Arkansas.

“Now on this 18th day of October, 1924, the same being the day advertised and set out in notice for the letting of the contract or contracts for the construction of the above and foregoing bridges, and the court ascertaining and being advised that said notice had been posted and advertised as the law directs for the letting of bridge contracts, and after publicly announcing that court was ready to receive bids for the construction of said bridges, and after receiving* all bids submitted, it appearing to the court J. E. Shroll of Ponca, Arkansas, was the best and lowest bidder, it is therefore considered, ordered and adjudged by the court that said bid for both the construction of the Buffalo River bridge and the Beech Creek bridge be and the same are hereby accepted in accordance with the proposal submitted, and the said J. E. Shroll is given ten days from this date to execute his formal contract for the construction of said bridges, and that he be and is required to file a personal bond or bond with some reputable surety company that he will well- and faithfully carry out the terms of said contract as set out in his proposal, said bond to be in the sum of ,the amount of the contract award.

“Ordered that court adjourn until the 21st day of October, 1924, at 9 a. m.”

Within the time permitted a contract and bond were filed, but the contract was not signed, through an oversight. Appellant then proceeded to construct the bridges' under the supervision of the commissioners and said highway engineer, in accordance with the plans 'and specifications, as changed or modified from time to time by them. After the bridges were partially completed, $20,000 in scrip was issued and paid to appellant under the following order made on December 31, 1924, appearing on page 374 of county court record L:

“In re Bridge across Buffalo River, near Boxley, and bridge across Beech Creek.

“On this day the report of the commissioners for Boxley and Beech Creek bridges was filed in open court and by the court examined and approved. Whereupon the icourt, after heretofore entering into contract with J. E. Shroll to build and construct said above mentioned bridges, and after having examined said report of commissioners as to work already done and materials on hand and contracted for, doth this day allow to the said J. E. Shroll, contractor, the sum of $20,000, and the clerk is ordered to issue his warrant, on the county treasurer for amount herein specified.”

The record of the court showed adjourning orders from October 21 to October 22, then to October 23, then to November 10, then to November 13, but did not show an adjourning order to December 31,1924, the date the order for $20,000 in scrip was made. Neither did it show an adjournment until court in course on December 13, 1924.

Appellant completed the bridges within the time allowed in the contract, and they were accepted by the commissioners, who made their final report to the county court on October 21, 1925, which contained the following-recommendations :

“Therefore we, as such commissioners, recommend that the increase and decrease in quantities he credited and charged to the respective parties to the contract for the construction of said bridges, and that the same be paid and settled for as per contract; that the contractor be released, as all work has been done, and we find faithfully, efficiently, and completed and performed as provided by the terms of the contract for the construction of said bridges. ’ ’

The county court adjusted the various increases and decreases in the kind and quantity of materials used in the bridges, and on that basis allowed appellant $29,907.55 in addition to the allowance of $20,000 in scrip on December 31, 1924. This is the order of allowance from which appellees took an appeal to the circuit court. There is a conflict in the oral testimony as to whether the 18th day of October, 1924, and the 31st day of December, 1924, were adjourned days of a regular term of court.

The main question involved in this appeal is whether the order or judgment of date October 18, 1924, awarding the contract for the construction of the bridges to appellant, was a vacation order, or whether it was an award of the contract by the county court during term time, and, if not, -whether the order of December 31, 1924, constituted a ratification of the contract by the county court.

The appeal by appellees herein from the order of the county court making the allowance was a collateral attack upon the orders or judgments of the county court of dates October .18 and December 31, 1924. The validity of those orders or judgments cannot be assailed by oral testimony on collateral attack. This court said, in the case of Woodruff County v. Road Improvement District No. 14, 159 Ark. 374, 252 S. W. 930, (quoting syllabus 5) : “While parol evidence may be introduced in a direct attack on a judgment of a court to show it was rendered in vacation, the rule is otherwise upon a collateral attack.” The convening order of date October 18, 1924, being the date the contract was awarded to appellant, recites that court met pursuant to adjournment, and such recital is conclusive on collateral attack. The order of December 31, 1924, ratifying tlie contract, must be presumed, on .collateral attack, to have been entered when the court was convened pursuant to adjournment. Either one of the judgments might have been appealed from, which is a. certain test that this proceeding is a collateral attack upon them. According to the undisputed evidence, a formal contract and bond were filed conforming in every particular to the order or judgment of date October 18, 1924, awarding the contract to appellant. The omission to sign the contract was an oversight, and the failure to do so did not render it void or voidable. All of its terms complied with the proposal of appellant and the acceptance of the county court, and the filing, though unsigned, constituted an execution thereof. It is suggested that the letting of the contract was not published and posted as required by law, but these irregularities cannot be questioned on collateral attack.

Appellees attempted to sustain the judgment disallowing the claim upon the ground that only $20,000 was appropriated by the quorum court to construct the bridges, and that the county court was without authority to make a contract for a larger sum than the amount appropriated. Leaving out of the equation the effect of Amendment No. 11 to the Constitution prohibiting the expenditure of more than the income of the county for any fiscal year, the authority of the county court for letting the contract for the building of the bridges cannot be questioned. This court said, in the case of Watkins v. Stough, 103 Ark. 468, 147 S. W. 443, that “when the levying court makes an appropriation for the purpose of building bridges, the statute authorized the county court to make contracts for its expenditure and to continue to make such contracts as long as the fund remains unex-pended, wholly or in pari.” None of the fund appropriated for these bridges hadbecn expended when thecounty court let the contract. There may have been other unexpended bridge funds on hand, for aught the record discloses, which would have authorized the letting of the contract. This court cannot presume that the county court exceeded its authority. Howard County v. Lambright, 72 Ark. 330, 80 S. W. 148. The contract in the instant case was not affected by Amendment No. 11 to the Constitution, because that amendment did not go into effect until December 7, 1924. Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22. The contract in the instant case was awarded on October 18, 1924, and the contract and bond were filed on October 28, 1924.

Appellees attempt to sustain the judgment upon the theory that the county court entered into the contract with the understanding that the cost of the bridges in excess of $20,000 should be paid either by the Highway Department or by Improvement District No. -6. Neither the Highway Department nor Road Improvement No. 6 obligated itself in a legal way to pay any part of the contract price. They were not parties to the contract, and appellant had no notice of any private understanding or agreement between the county court and Ben McFerrin relative to what proportion of the contract price should be paid by Road Improvement District No. 6.. Neither the notice of the letting, the proposal and acceptance of the contract, nor the contract itself, contained lany provision to the effect that the county should pay -only $20,000 of the contract price. On the contrary, the county court obligated the county to pay the entire contract price for the construction of the bridges.

, On account of the error indicated the judgment is reversed, and the cause is remanded with directions to the circuit court to enter a judgment directing the county court to enter an . order allowing appellant the balance due him of $29,907.55.