author: Mehaffy, J.

text:
    McConnell v. Bourland.
    Opinion delivered October 31, 1927.
    3. Reformation of- instruments — necessity of reforming mortgage. — In an action on notes secured by a mortgage, where the notes provided for 8 per cent, interest until maturity and thereafter for 10 per cent., and the mortgage recited that the notes bore 8 per cent., it was unnecessary to reform the mortgage to show that the notes bore 10 per cent, interest after maturity, since the notes were the evidence of the debt, and the mortgage was simply executed to secure their payment.
    2. Pleading — amendment of complaint to conform to proof. — In a suit to enforce notes secured by mortgage, where the complaint alleged that the notes bore 8 per cent, interest, but the notes recited that 10 per cent, interest should be paid after maturity, the complaint will be treated as amended to conform to the proof.
    •3;- Judgment — vacating after term. — In a suit on notes secured by a mortgage, where a decree for plaintiff for the -amount sued for was entered during the October term, the chancellor was without authority to vacate or set aside the decree after the term, except on the statutory grounds or by consent of the parties.
    '4. Judgment — when final. — Any judgment or decree which finally disposes of issues between the parties, and settles and adjudicates all rights in controversy, is a final judgment; and when these ,,things are done and the court adjourns, the court is without authority to vacate or set aside the judgment.
    5. Judgment — rendition and entry distinguished — Rendition of a judgment is a judicial act of the court in pronouncing sentence of law on the facts in controversy, as distinguished from the entry ■of*the judgment, which is the ministerial act of spreading it at . large on the record. .
    . 6. Judgment — when final. — When the decision has been reached, announced by the court, and a sufficient memorandum on the docket to show a final settlement of the case, it is a final judgment) although it has not been spread in full upon the record.
    '7. Appeal and- error — jurisdiction of supreme court. — The ' Supreine Court has appellate jurisdiction only in cases specifically mentioned in the Constitution, which gives it appellate and supervisory jurisdiction over all inferior courts of law and equity.
    8. Courts — jurisdiction of supreme court. — The Supreme Court has no original jurisdiction to compel by mandaifius. a clerk of an inferior court to- put a judgment or decree on record, such authority toeing vested in the trial court.

      9. Mandamus — compelling trial court to exercise jurisdiction. —Where the chancery court was mistaken in deciding that it bad a right to set aside and vacate a decree- after term, mandamus will lie to compel it to exercise its judgment and power in having its decree recorded.
    Mandamus to Sebastian Chancery Court, Greenwood District; J. V. Bourland, Chancellor;
    writ granted.

      Roioe é Tatum, for petitioner.

      George, W. Johnson, for respondent.
   Mehaffy, J.

R. H, McConnell was the owner of certain notes secured by mortgage, and brought suit in the Sebastian Chancery Court, Greenwood District, to foreclose said mortgage. The note was given for real estate, and was executed by J. R. Dunning and his wife, Grace Dunning, payable to R. A. Harper. The note and mortgage were transferred by said Harper to the plaintiff, R. H. McConnell, and, as above stated, McConnell brought a foreclosure suit.

The complaint in the foreclosure suit alleged that there were two notes secured by the mortgage, each for $750 at 8 per cent, per annum, the first note due January 1, 1921, and the second note due January 1, 1922. The notes were lost when the Farmers’ Bank of Greenwood, Arkansas, was robbed, and could not be produced. On April 27, 1926, plaintiff was given 10 days in which to make the following amendment to his complaint: “Said notes bear 10 per cent, from maturity until paid.”

There was a decree on October 18, 1926, for plaintiff for the amount sued for with interest, and, by agreement, sale and execution were suspended' for 90 days, and the deputy clerk, Smith, was appointed commissioner to make the sale.

The chancery court adjourned on the 20th day of October, 1926, for the term.

It is undisputed that the chancery docket shows the above facts, and it is also undisputed that the attorneys for the plaintiff were to prepare precedent for the clerk and submit it to the opposing counsel for his examination, and, if he objected to it, it was to be submitted to the judge.

The defendant’s attorney objected to the precedent because of some difference in the interest, and the judge refused to approve the precedent, and in the response of Judge Bourland he says that the notes are fully described in evidence by plaintiff in his own personal testimony and by other witnesses, and their testimony was not contradicted by any of the defendants, and the' court accepted it as true, and still accepts it and believes it in fact to be true. And he also states that there was no doubt as to the tenor of the notes, although lost, but he says that the mortgage presented as an exhibit to the complaint does not contain a description of the notes mentioned, and the mortgage did not show upon its terms that it had been executed to secure the notes described in the complaint and given in evidence, but, on the face of the mortgage-, it had been given to secure other notes of a different description. The response then says that the particular difference between the description of the notes sued on and the notes described in the mortgage, while a relatively small difference, yet it was and is a vitally important legal difference, and the judge therefore thought that the mortgage should be reformed because of the difference between the testimony describing the notes and the description in the mortgage. And he states that the court could not, without supplementary complaint setting up a cause of action for reformation and serving on the parties, reform the mortgage.

The testimony had been taken, and convinced the court that it was correct, and that the interest should be . as stated in the testimony and not as stated in the mortgage, and this testimony was all introduced and considered before the decree was taken. The record does not show when these conclusions were reached by the judge, except that it was after the decree had been rendered and the court had adjourned.

The plaintiffs then filed an amended complaint, and the response of Judge Bourland says that the amended complaint filed for the plaintiff shows on its face that they knew that the court had declared and made known to them the setting aside of such premature decree. That it shows by the mere filing that the premature decree had been by the court vacated. The judge further states in his response that the defendant administrator, by the permission of the court, objected to the hearing of the same, and demurred on the ground that the amended complaint did not state even an imperfect cause of action for reformation, because none of the defendants had been summoned thereon or otherwise had legal notice, and that the court sustained the objections and struck the complaint from the record.

The chancery docket does not show that the original decree was ever vacated omset aside, but the judge himself says that, while the docket does not formally show the setting aside of the decree, both the attorneys and their clients knew, before the October term, 1926, closed, it was his intention of vacating the decree, and knew that it had been done at the October term, 1926, and that this knowledge is confirmed by their own act in filing an amended complaint at the April term, 1927.

It is undisputed that the chancery docket shows that the plaintiff was allowed 10 days to amend his complaint; that within that time it was amended by interlineation, the amendment simply showing that the notes were for 10 per cent, after maturity, the plaintiff and his attorney both swearing that this amendment was made, and made before the case was tried, and it is not disputed. The attorney for the respondent simply states that he does not know when it was made.

It is also undisputed that on October 18, 1926, the chancery docket shows that there was a decree for the plaintiff for $2,441.30 at 10 per cent. It is also undisputed that the chancery docket shows that there was a foreclosure sale to be made on a credit of three months, and that Smith was appointed commissioner. The docket also shows that the sale and execution were suspended for 90 days. ■

After the complaint was amended, evidence was introduced to the effect that the notes bore interest at 10 per cent, after maturity, and the chancellor was convinced that this evidence was true, and he rendered his decision accordingly. Evidently the chancellor had overlooked the clause in the mortgage describing the notes, and, when lie discovered that the mortgage said nothing about 10 per cent, after maturity, he concluded that that was a vital matter and that there would have to be a suit to reform the mortgage. And, according to his response, he told the parties this would have to be done, and he also states that he set aside the decree, although the chancery docket does not show anything about this.

We think the chancellor was in error in .holding that there would have to he a reformation of the mortgage; that plaintiff had amended his complaint to speak the truth, and had introduced testimony to establish the allegation in his complaint, but, if the evidence had been admitted without objection, the complaint would have been considered amended to conform to the proof, even if there had been no amendment to the complaint. The notes themselves were the evidence of the indebtedness, and contained the evidence of the amount of interest, and the mortgage was simply executed to secure the payment of these notes. And while it described the notes as bearing interest at 8 per cent., without saying anything about 10 per cent, after maturity, this in no way affected plaintiff’s right to recover on the notes and did not affect his right to have the land sold to pay the judgment, and there was no necessity for a reformation of the mortgage.

Mr. Johnson, attorney for respondent, in an affidavit states that shortly after the entry of an order the plaintiff’s attorney presented a precedent to him for a decree in accordance with the rules of the chancery court. That he took the decree to his office and, after inspecting it, informed Mr. Rowe that it did not conform to the pleadings and the exhibits which were offered in evidence to support his.decree, and that, if such precedent were finally approved and entered, he desired to appeal. That he also informed Judge Bourland of the variance, and that Judge Bourland informed him that the decree would be set aside. He further states that Judge Rowe informed him that he would take up the matter of the approval of the precedent, and that there was a rule that all decrees affecting titles to land had to be submitted to the counsel and then to the .judge, if they did not agree before the judgments became effective. That he was present when Judge Bourland informed Mr. Rowe that he could not approve the precedent, that the proceeding would have to be started over by the filing of a supplemental complaint, and also states that he procured a carbon copy of the complaint filed on the 21st day of April, that he filed an answer, and that he has no knowledge of when the change was made in the original complaint, bnt that it appears now that there was a change made.

It will be observed that Mr. Johnson does not claim to know when these changes were made, and the testimony of Judge Rowe and Mr. McConnell is positive on this question.

The chancellor says in his response, after he discovered the errors, that he expressed his determination to vacate the decree in the April term, 1927, which was done. Bnt the 1927 term was another term.of court, and the term at which the decree of foreclosure was rendered had ended. And the chancellor, after the end of the term at which the decision was made, had no authority to vacate or set aside the decree except for the grounds mentioned in the statutes or by the consent of the parties, and it is not shown that they consented to the setting aside of the decree. It is claimed that they knew it and filed a supplemental complaint, but there is no claim that they consented to setting aside the decree.

Our statute says: “A judgment is the final determination of the rights of the parties in an action.” Section 6233, Crawford & Moses’ Digest.

In this case it appears that, on the 18th day of October, the chancellor determined the amount,- after hearing the testimony, gave judgment for that amount, ordered the sale of the described property, and, by consent of the parties, suspended the sale and execution for 90 days, and then the court adjourned, and the attempt to set aside or vacate the decree was at the next term of court.

It is stated that the rules of the chancery court require attorneys to submit precedents to the attorneys on the opposing sides, and, if there is an agreement, then the precedent is to be submitted to the chancellor for his approval. But this does not mean that there has not been a judgment or decree rendered. In fact, there Avould be no occasion to prepare a precedent if there had been no decree. The precedent is to be prepared, and the chancellor passes upon the decree as to form. It would be the duty of the chancellor to order the clerk to put bn record a decree in conformity with his decision. If the precedent presented was not «satisfactory to him, of course he would not put that precedent on record. But it would be his duty to so change it as to make it conform to his findings, or to direct the clerk what to put on as a decree.

There is no claim that he took this case.undér advisement. The statute provides that the chancellor may take a case under advisement and render his decree in vacation, but it is not claimed that this case was taken under advisement, but the proof conclusively shows that the finding of the chancellor was made on the 18th day of October, 1926. After court adjourned the chancellor was without authority to set aside or vacate his findings, although he had authority to refuse to put on a precedent prepared by either party and to direct the clerk to put on record a decree in conformity with his findings.

After the lapse of the term of court following, October 16, 1908, that order became final, and could not be altered or changed except upon appeal. It could not thereafter be changed, set aside or altered by any further pleading, proceeding or trial in the lower court. •* * * A’judgment is an adjudication by a court by which the merits of a question are determined. There is no strict formality necessary in the language used to express the adjudication of the court. The judgment is tested by its substance rather than by its form. It is sufficient if the entry shows that the issue between the parties has been passed upon by the court and the merits of the question finally determined. * * * The rights of the parties to a suit are determined upon the trial thereof, which is defined by our statute to be a judicial examination of the issues, whether of law or fact, in action.” Melton v. St. Louis, I. M. So. Ry. Co., 99 Ark. 488, 139 S. W. 289.

It lias been said in speaking of the entry of judgments :

“That it will be regarded as sufficiently formal if it shows: (1) The relief granted; and (2) that the grant was made by the court in whose record the entry is written. In specifying the relief granted, the parties, of and for whom it is given must, of course, be sufficiently identified. * * * It was said of the trial magistrate that he, in entering up his judgment, acted ministerially as clerk. The judgment was held to be regular. In the California case cited (Lynch v. Kelly, 41 Cal. 232), the .justice had failed to enter a judgment upon the verdict of the jury. Subsequently he issued an execution upon the judgment. The question arose whether steps taken under the execution were not void in consequence of the judgment having been omitted. It was held that he might have been compelled, in a proper judicial proceeding, to have entered up the judgment, and that, though informal and irregular, the action under it was not void. * '* * The entry of the judgment is the act of the clerk; its signature the act of the judge. But it is not an act involving the exercise of discretion. It is ministerial, and, if there appears no good reason to ihe contrary, the judge may be compelled to sign a record which, in law, it was his duty to sign unconditionally. The judgment which was rendered (if one was) was the act of the court. Its recordation having been complete, as it is alleged it was, it remained only for the judge to sign it.” Montgomery v. Viers, 130 Ky. 694, 114 S. W. 251.

The court in the above case also said: “The judgment of the court is the pronouncement of the judge upon the issue submitted to him. When spoken, it is the court’s judgment. Necessarily, the giving of the judgment must precede its historical engrossment. The clerk of the court executes the mechanical act of recording in some manner so as to give permanence to the evidence of the .judgment that the court has delivered.”

Any judgment or decree which finally disposes of the issues between the parties to an action and finally settles and adjudicates all the rights in controversy, is a final judgment. And when these things are done and court adjourns, the court is without authority to vacate or set aside the judgment.

“A decree which finally disposes of all of the issues raised between all the parties to an action, and finally settles and adjudicates all the rights in controversy, is final. * * * A decree is none the less final because Some future orders of the court may become necessary to carry it into effect. * * * Nor because, when the merits of the controversy are adjudicated upon and the equities of the parties definitely settled and account is directed to be taken to ascertain what sum is due from one to the other as a result of the decision made by the court, or where, asa result of the judgment, the defendant or plaintiff is required to pay money in order to have it carried out and a subsequent order is necessary for the purpose of determining that the money had been paid and the conditions complied with.” Guaranty Trust & Savings Bank v. the City of Los Angeles, 186 Cal. 110, 190 Pacific 35.

It has been said that it must be manifest that the record is not the judicial act. It is only historical. Its practical use is evidential.

As we have said, the chancellor concluded that an error had been made, and that the judgment that he had pronounced was improper because of the difference in the description of the notes in evidence and the description in the mortgage. And it was because, in his opinion, this was a vital matter that he undertook to vacate the judgment at the following term.

The chancellor was in error in holding that a reformation of the mortgage was necessary and in vacating or setting aside the judgment at the following term of court.

The statute provides: “The judgment must be entered in the order book and specify clearly the relief granted or other determination of the action.” Section 6276, Crawford & Moses’ Digest.

We think that the entries in the order, book specify very clearly the relief granted and the determination of the action.

“The rendition of a judgment is the .judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict or findings, as distinguished from the entry of the judgment, which is the ministerial act of spreading it at large upon the record. Upon its rendition, and without entry, a judgment is final, valid, and enforceable, as between the parties, in the absence of any statute to the contrary, although for many purposes entry of the judgment is also essential.” C. J., vol. 34, 44.
“The custom of drawing a formal judgment and having the judge to sign it is usually observed, particularly where it contains special provisions requiring settlement by the court unless agreed upon by the parties. But, unless required by statute or rule of court, this is unnecessary.” 34 C. J., 46.
“A decree becomes effective from the day of its rendition and not from the day of its entry on record.” Hollobauch v. Taylor, 134 Ark. 415, 204 S. W. 628.
“Where a judgment or decree has been actually rendered but not entered on the record, in consequence of an accident or mistake, or the neglect of the clerk, the court has power, at ¡a subsequent term, to order that the judgment or decree be entered of record nimo pro tunc, provided the fact of its rendition is satisfactorily established.” Kelley Trust Co. v. Lundell Land & Lbr. Co., 159 Ark. 218, 251 S. W. 680.

There are authorities to the contrary, but we hold that, when a decision has been reached, announced by the court and sufficient memorandum on the chancery docket to show a final settlement of the case, it is a final judgment, although it has not been spread in full upon the record. It becomes the duty of the court to require it to be spread upon the record.

This 'court has appellate jurisdiction 'only, except in cases specifically mentioned in the Constitution. And the Constitution gives this court appellate and supervisory jurisdiction over all inferior courts of law and equity. Section 4 of art. 7 of the Constitution.

This court, however, has no original jurisdiction to compel by mandamus a clerk of an inferior court to put a judgment or decree on record. The trial court itself has that authority. The chancellor in this instance has authority to direct the clerk of the chancery court. This court having no .jurisdiction to issue a writ of maclamus compelling the parties, other than the chancellor, to perform their duties as to recording judgments, the petition as to them is dismissed.

While it appears that the chancellor was in good faith trying to assist all parties in getting a proper valid judgment, we think that he made a mistake of law in holding that there was any necessity to reform the mortgage, and that he was mistaken in deciding that he had the right to set aside or vacate the decree after the term. Mandamus will therefore lie to compel the court to exercise its jurisdiction and power in having the judgment recorded.

It is therefore ordered that the clerk of this court issue a writ of mandamus, except as to the clerk and his deputy, in accordance with the prayer of the petition.


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Allen v. State.
    Opinion delivered October 31, 1927.
    1. Criminal law — admissibility and weight of confession. — The question whether a confession was freely and voluntarily made, so as to be admissible in a murder trial, is for the court, but the determination of the weight and credibility of such evidence, when admitted, is for the jury.
    2. Criminal law — voluntary confession — invasion of jury’s province. — Where, in a murder trial, the court admitted a confession of the defendant, it was error for the court to state in the jury’s presence that the confession was made without any threats or any hope of reward, where there was a conflict of testimony on that point.
    3. Criminal law — objection not preserved in motion for new trial. — Where, in a murder trial, the court erred in making certain statements relative to the manner in which the confession had been obtained, but the defendant’s motion for new trial did not preserve such matter as error, the error was thereby waived.
    Appeal from Calhoun Circuit Court; L. S. Britt, Judge;
    affirmed.

      J. 8. McKnight, for appellant.

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

The appellant was indicted by the grand jury of Calhoun County at its July term, 1927, accused of the crime of murder by killing Lucius Dunn, was tried, convicted of voluntary manslaughter, and sentenced to a term of seven years in the penitentiary. He thereafter filed a motion for a new trial, which was overruled, exceptions saved, and to reverse this .judgment he prosecutes this appeal.

Lucius Dunn was killed and his body buried, and a few days later discovered. Appellant had been arrested and charged with the crime before the body was discovered.

Appellant states in his brief: ‘ The only matter we wish to present to the court is raised on the question of the insufficiency of the testimony to sustain the verdict,' and the errors in the admission of certain evidence and the exclusion of other evidence at the trial.” Appellant also states: “If the confession was voluntarily made and properly admitted as evidence in the trial, then it is sufficient to sustain the verdict.” It therefore becomes unnecessary to set out any of the evidence except the evidence of the confession, because, as appellant himself states, if properly admitted, it is sufficient to sustain the verdict.

C. I. Abbott, the sheriff of Calhoun County, testified that he hrrested the defendant and put him in jail; that he talked with him, but did not threaten, hit or strike him, did not intimidate him nor hold out any hopes of reward to him. He made his statement to the sheriff the first night he was arrested. Witness testified that appellant talked freely and voluntarily, and appellant told witness that the last time he saw Lucius Dunn was when they crossed the water and Lucius left him in front of John Neeley’s. He never changed his statement until the body was found. Appellant knew that he was sheriff, and had known him all his life. The sheriff talked to the appellant several times, and one time in the vault of his office, about 10 or 11 o’clock. There were present the prosecuting attorney and Mr. Plunkett. That was the day they carried him to Camden. He talked to him again about 6 o’clock, and then again on the courthouse steps. Appellant then told witness that he wanted to talk to him, and told him that he killed Lucius Dunn.

On cross-examination witness said that, during the time he kept appellant in jail, he talked to him five or six times.. Brought him out once at night, once carried him up to the prosecuting attorney’s office, and once talked to him in the dark. There were then present Neill Dunn, Darnell, Jim Dunn and Mr. Plunkett. Neill Dunn is a brother of Lucius Dunn, Jim Dunn is his father, and- Darnell is his brother-in-law. That he put one Poster in the cell with defendant. Poster suggested that he be put in the cell with the defendant. The sheriff thought that he could get some information that would help in running down the crime.

On redirect examination the witness testified that appellant told Mm about going in a boat with Lucius; that deceased claimed to have some.whiskey, but, when they got there, it was gone. That deceased got mad, cursed him, and drew a knife on him, and that appellant picked up a boat paddle and kept him off. Then the deceased picked up a paddle and started towards appellant, and appellant told him if he did not stop he would shoot him, and that Dunn came on, and he shot him, and he fell in the water, and that appellant caught him by the overalls and dragged him to the bank, and that he left him there dead, and went to Neeley’s place, and stayed until that night at 11 o’clock, at which time he returned and buried him. He told about the manner of burying him, and then went to the sheriff’s office, and called the prosecuting attorney, and he made the same statement as to how he killed Dunn.

Witness said he did not let defendant’s attorney talk to him until after the prosecuting attorney had talked to him, but after the prosecuting attorney talked to him he let his attorney talk to him. It was after that that he confessed. Witness refused to let appellant talk to his father or his attorney until after he had talked to the prosecuting attorney; kept him in jail from Friday until Sunday before he would let him talk to his father or his attorney. Both the defendant and his father were insisting all the time that he had the right to talk to his lawyer. That he let him confer with his attorney after that, any time he asked to. Carried appellant to Camden and placed him in charge of the police department. The prosecuting attorney and Mr. Darnell, Lucius’ brother-in-law, went with them. Had kept the prisoner over 35 days when he brought him into the prosecuting attorney ’s office, and appellant insisted that he was innocent. Neill Dunn called him a damn liar. Neill got mad and talked rough and loud. Neill weighs about 220 pounds, and is 42 years of age. Defendant is about 19 or 20 years of age, and weighs about 120 pounds.

M. C. Darnell, a brother-in-law of the deceased, talked to witness, and said no one threatened him nor used violent language toward him, nor offered any promises or hope of reward. Witness did not at any time threaten him nor hear any one else threaten him or offer him any hope of reward. Does not know what others said to him. Does not know how long he had been in jail, but he told witness about killing Dunn. Said he did the job solely by himself. This witness is a special agent for the T. P. Railroad, and his business is investigating crimes. Was not present when Neill Dunn cursed appellant. Witness is 40 years old, and weighs about 190 pounds. He is 6 feet 1 inch high. Had talked to the appellant one time before he confessed.

Abbott, the sheriff, was recalled, and testified to further conversations, and other witnesses testified. All of them stated that no threats were made, and no promises.

We deem it unnecessary to set out other evidence.

Appellant’s first contention is that the confession should not have been admitted, and that without it there was no evidence to support the verdict.

If the confession was freely and voluntarily made, it was admissible; otherwise it was not admissible. This court has many times held that confessions of guilt, to be admissible, must be free from taint of official inducement proceeding either from hope of gain or torture of fear. When improper influences have been used to obtain a confession, the presumption arises that a subsequent confession of the same crime flows from that influence.

This court has held that the question of the admissibility of a confession is a question for the court. The court determines whether the confession was freely and voluntarily made, and if, in the opinion of the court, it was so made, it is admitted in evidence. Its determination of this question, however, is solely for the purpose of passing on its admissibility, and when it has been admitted in evidence it is then a question for the jury. If the court determines that the confession was freely and voluntarily made, without promise or threat, even though made to the sheriff while he was under arrest, it is competent evidence. Myer v. State, 19 Ark. 156; Youngblood v. State, 35 Ark. 35; Wallace v. State, 28 Ark. 531. In this case all of the witnesses testify that there were no threats and no promises made, and we think the court was justified in admitting the confession, notwithstanding the presence in a dark room of the sheriff, prosecuting attorney and relatives of the deceased.

This court lias uniformly held that the trial court determines the admissibility of the evidence, and this is the province of the court, although there may be conflict in the testimony as to whether there were promises or threats. In fact, there is no conflict in our decisions with reference to this question.

This court has said: “The judge must pass upon any question involving the competency of witnesses and the admissibility of the evidence offered, but it is for the jury to pass upon the weight of the evidence and the credibility of the witnesses.” Paxton v. State, 114 Ark. 393, 170 S. W. 80, Ann. Cas. 1916A, 1239.

It- was therefore proper for the court to pass upon the admissibility of the confession, and the province of the jury to determine its weight and credibility. It was the province of the jury to determine whether it was made voluntarily and freely or whether there were any promises or threats.

‘ ‘ There being a conflict in the evidence as to whether the statement was voluntarily made, the trial court admitted it, over the objection and exception of appellant. * * * We think, under the principle announced in the case of Henry v. State, 151 Ark. 620, 243 S. W. 70, it was proper to admit- the statement, with the restrictions contained in the court’s 7th instruction. In the case referred to the court said: 'The testimony was sufficient to justify the court in submitting it to the jury, but appellant, as before stated, .had a right to have the jury consider the question whether or not it was a confession voluntarily made.’ Hughes v. State, 154 Ark. 621, 243 S. W. 70.

It -was proper for the court to admit the confession, but as to whether it was freely and voluntarily made should have been submitted to the jury -without any comment from the court, without any statement from the court that would indicate what the court thought about it being voluntary or not.

The appellant’s next objection is to the following statement made by the court: “The objection and motion is overruled for the reason that no showing has been made that any threats were made or any hope of rewards given.” Appellant was insisting that the court exclude certain testimony, and the court, in the presence of the jury, made the statement above set out.

As we have already said, it was the province of the jury and not the court to determine whether there were any threats made or any promises or any inducement, and this remark of the court was improper and invaded the province of the jury. This error, however, was. waived by the appellant, who does not preserve this objection in his motion for a new trial.

In speaking of an objection urged in this court, the court said: “With regard to this, it need only be said that it was not made one of the defendant’s grounds for a motion for a new trial. It is well settled in this State that error cannot be predicated on rulings of a trial court which were not assigned as erroneous in defendant’s motion for a new trial. ’ ’ Lambden v. State, 150 Ark. 580, 234 S. W. 987.

Again: “Moreover, the action of the court in this respect was not made one of the grounds in defendant’s motion for a new trial. An exception to the admission of the testimony which is not brought forward in the motion for a new trial will not be considered on the appeal.” Gooch v. State, 150 Ark. 269, 234 S. W. 33, 35; Freeman v. State, 150 Ark. 387, 234 S. W. 267.

It would serve no purpose to call attention to additional cases holding that, unless appellant’s motion for a new trial contains the objection, it cannot be considered here. We have carefully examined the record, and find no error other than the one to which we have called attention, and, as we have already said, appellant’s motion for a new trial does not contain this objection, and the judgment is therefore affirmed.


author: McHaney, J.

text:
    Bassett v. Bourland.
    Opinion delivered October 31, 1927.
    1. Prohibition — jurisdiction to consider errors. — A petition for & writ of prohibition is an original proceeding, in which the Supreme Court cannot consider the alleged error of the chancery court in refusing to transfer a cause to the circuit court.
    2. Prohibition. — erroneous exercise of jurisdiction. — The writ of prohibition will not issue to prevent an inferior court from erroneously exercising its jurisdiction, but only where the inferior court is wholly without jurisdiction or is threatening to act in excess of its jurisdiction.
    3. Prohibition — error in transfer of action. — Since the circuit court had jurisdiction to pass upon a motion to transfer a cause therein pending to equity, if it erroneously transferred the cause, prohibition is not the remedy; it can be corrected only on appeal.
    4. Trial — improper transfer of cause — mode of objection. — On transfer of a cause from the circuit to the chancery court, the proper course of the party objecting is to appear in the chancery and move for a re-transfer, and upon his motion being overruled he could either stand upon his motion and refuse to proceed with the trial, in which case the chancellor would dismiss his complaint and enter a judgment against him, or he could go to trial in the chancery court and, upon an adverse decree, appeal to the Supreme Court, thereby testing the jurisdiction of the chancery court.
    Prohibition to Sebastian Chancery Court, Greenwood District; J. V. Bourland, Chancellor;
    dismissed.

      Rowe & Tatum, for appellant.

      Evans S Evans, for appellee.
   McHaney, J.

Petitioner has filed in this court a petition for a writ of prohibition against the respondent, as chancellor of the Sebastian Chancery Court, Greenwood District, praying that respondent be prohibited from hearing and determining a consolidated cause pending in said chancery court, on the ground that said court is without jurisdiction to hear and determine same. The petitioner alleges in his petition that, as administrator of the estate of Eobert S. Boyd, deceased, he brought a suit in the Sebastian Circuit Court, Greenwood District, on Nov. 27, 1926, against the Mutual Benefit Health & Accident Association, to recover on an accident policy of said association in the sum of $1,500 held by his intestate, in which said association agreed to pay said sum in the event of the accidental death of said intestate; that said Boyd came to his death on November 23, 1925, through accidental means, within the meaning of said policy, and was therefore liable to the plaintiff in said sum, for which he prayed judgment.

The defendant in this action filed an answer, admitting that said Boyd had taken out a policy in said company and paid the premium thereon up until April 1, 1925, by which it insured the said Boyd from loss of life through accidental means in the sum of $1,500, but that suicide, sane or insane, was not one of the risks covered by said policy; that said policy lapsed on April 1, 1925, for nonpayment of premiums, and was not in force thereafter until the 12th day of October, on which date Boyd procured the defendant to reinstate said policy, and paid the premium thereon to December 31, 1925, and denied that Boyd came to his death through accidental means, or in any way in which to make said defendant liable. It was further alleged in said answer that said Boyd procured the reinstatement of said policy on October 12 with the purpose and intent of committing suicide, so as to benefit his estate-in the sum of $1*500' and to defraud the defendant out of said sum; that, during the period covered by said policy after reinstatement, to-wit, on November 23,1925, said Boyd committed suicide with the intent of defrauding the defendant, and that his action in thus procuring the reinstatement of the policy constituted a fraud upon the.'defendant, and that therefore the reinstatement was void and of no effect. The defendant-further alleged that it had instituted a suit in the Sebastian Chancery Court, Greenwood District, against the plaintiff, by which it sought to have the reinstatement of the policy canceled and set aside for fraud, and prayed that the cause pending in the circuit court be transferred to equity. Upon a hearing of the motion to transfer, on January 18, 1927, the motion was granted and the cause was transferred, over the objections and exceptions of petitioner, to the chancery court, and was there consolidated with the canse of action pending in the chancery court heretofore mentioned. Thereafter, on April 23,1927, petitioner filed in the chancery court a motion to transfer back to the law court, because the chancery court had no jurisdiction, and because there was a full, complete and adequate remedy at law for said association, which was overruled by the court. Petitioner thereafter filed a demurrer and answer to the suit pending against him in the chancery court.

Petitioner further alleges that, unless prohibited by tins court, the respondent, as judge of the Sebastian Chancery Court, will proceed therein, to determine said cause, and he therefore prays that this court prohibit respondent from so doing. To this petition respondent filed a general demurrer.

This is an original proceeding in this court, and not a proceeding by way of appeal, and this court cannot consider the alleged errors of the circuit court and chancery court to determine whether the application for the writ should be granted. In the recent case of District No. 21 United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546, this court said:

“The case not being here on appeal, but upon prohibition, our consideration must be confined to the question of the power of the chancery court to appoint a receiver in a case of this sort. The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. ’ ’ Citing Russell v. Jacoway, 33 Ark. 191, and Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59.

The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction; but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. To illustrate: The circuit judge certainly had jurisdiction to pass upon the motion to transfer to equity the case pending in its court. If it erroneously transferred the case to equity, prohibition is not the remedy. It can be corrected only on appeal. Petitioner pursued the proper course in objecting and excepting to the order of the circuit court- transferring the case to chancery, and by appearing in the chancery court and moving to transfer the case back to the circuit court. Upon his motion to re-transfer being overruled in the chancery court, he could pursue either of two courses: He could stand upon his motion and refuse to proceed with the trial, in which case the chancellor would no doubt dismiss his complaint and enter a judgment against him, from which he could appeal to this court, thereby testing the jurisdiction of the chancery court. Hodges v. Harrell, 173 Ark. 210, 293 S. W. 25, where a similar procedure was adopted. Or he could go to trial in the chancery court, and, upon an adverse decree against him, he could appeal to this court, where this court would review the case for all errors appearing in the record de novo.

We therefore refrain from a discussion of whether the transfer from the circuit to the chancery court was right, and whether the decision of the chancery court on the motion to re-transfer to the circuit court was right, for, if both of these decisions were wrong, they cannot be corrected by prohibition, and can only be corrected by appeal. The petition for a writ of prohibition is therefore denied.


text:
    Carroll v. Leemon Special School District.
    Opinion delivered October 31, 1927.
    1. Schools and school districts — patrons of school. — Under Crawford & Moses’ Dig., § 9029, requiring a petition of two-thirds of the patrons before a relative of school director may be employed as a teacher, the term “patrons” embraces the heads of families only, including- the school directors.
    2. Schools and school districts — de facto directors. — Persons elected by the directors of a school district to fill the vacancies on board caused by the removal of two of the directors from the district, who assumed the duties of that office, though not de juro officers, were officers de- facto.

    3. Schools and school districts — validity of employment of teacher. — In an action by a teacher on contract awarded by school directors at a meeting, in which two of the six directors failed to participate, held that the district was bound under the contract, notwithstanding two of the directors participating- were de facto officers merely.
    4. Sunday — validity of contract. — Where the terms of a contract of school directors employing the teacher were agreed to on Saturday preceding, the fact that the written instrument witnessing the contract was drawn and signed by the directors on Sunday held not to render void the contract dated and delivered to and signed by the teacher -on Monday.
    5. Schools and school districts — breach of employment of teacher — jury question. — In an action by a school teacher against the school district, for the breach of a contract of employment, the issue of whether plaintiff sustained any damages as the result of a breach, held for the jury.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    reversed.

      Bogle & Sharp, for appellant.
    ■ Lee S Moore, for appellee.
   McHaney, J.

Appellant is a school-teacher, and, under date of April 27, 1925, entered into a written contract with appellee, through four of its six directors, to teach its school for nine months at $100 per month, to begin on September 14. Appellee is a special school district created by special act of the Legislature (act 110 of 1919), with six directors. In January, 1925, the county board of education of Monroe County made an order detaching the lands of J. C. Guthrie and Jess Childress from Common School District No. 30 of Monroe County, .and attaching same to appellee district, thereby making-said Guthrie and Childress patrons of appellee’s school. A month or so thereafter two of the regularly elected directors of appellee moved out of the district, leaving J. A. Sain, Willie Davis, 0. L. Wlúíted aud-J. L. Ferguson on the board, Whitted being the secretary. Shortly after the removal of the two members the remaining four held a meeting, at which all were present, for the purpose of filling the vacancies on the board, at which said Guthrie and Childress were elected, but in which Whitted did not participate, he claiming they had no right to act as directors. One meeting of the board as then constituted was thereafter held prior to April 25, in which Whitted and Sain refused to participate. On Saturday night, April 25, a meeting was held at the sehoolhouse, at which all the directors were present, but again Whitted and Sain refused to sit in with the other four or to participate in the meeting’ in any way. At this meeting the other four agreed to employ appellant for the time and on the terms above stated. .On the next day, Sunday, the contract was reduced to writing by the four members of the board, signed by them, and delivered to appellant on Monday, the 27th, when she signed it. The terms of the contract were fully agreed upon at the Saturday night meeting.

Appellant is related to two of the members of the board within the fourth degree of consanguinity, and presented a petition to the board, prior to her employment, purporting to contain two-thirds of the patrons of the district, requesting that she be employed as a teacher.

On May 26, 1925, the lands of -Guthrie and Childress were put back in District No. 30, and they thereafter ceased to be connected with appellee district. At the regular school election in May, two other directors were elected on the board, and, on the next 'Saturday, May 29, the new board held a meeting, passed a resolution canceling appellant’s contract, and mailed her a copy thereof on the 30th, which she received in due course, and, on June 8, she advised the board she would not surrender her contract. Another teacher was employed in her stead, and on the 30th day of August, 1926, she instituted this action to recover the whole amount of the salary which would have, accrued to her as damages for the alleged wrongful breach of her contract. During the course of the trial the court ruled, over appellant’s objection, that the petition to the board for her employment, under § 9029, C. & M. Digest, would have to contain two-thirds of all the patrons of the district, counting as patrons both husbands and wives, both parents of children attending school, and that the directors who signed the petition, although patrons, could not be counted in determining whether the petition contained the necessary two-thirds. Thereupon counsel for appellant stated that, in view of this holding of the court, appellant’s petition did not contain two-thirds, and the court, over appellant’s objection, instructed a verdict for appellee, hence this appeal.

Appellant contends that the above ruling’s of the court are erroneous, and call for a reversal of the case. Appellee contends that the court correctly construed the law, but, even not so, that appellant cannot prevail in any event, as she had no valid contract of employment. We will discuss both contentions.

Section 9029, C. & M. Digest, is as follows: “Hereafter all school directors * * * are hereby prohibited from employing any person as teacher in the public schools related to any of them by consanguinity or affinity within the fourth degree, unless two-thirds of the patrons of said school shall petition them to do so.”

Appellant admits that she is related within the prohibited degree, and we are required to construe the last clause of the above section, “unless two-thirds of the patrons of said school shall petition them to do so. ’ ’ Who are patrons of a school within the meaning of the statute? Did the lawmakers intend to require the petition to contain two-thirds of both fathers and mothers of schoolchildren?' Or two-thirds of the heads of families whose children attend siich school? We are of the opinion that the statute has reference to the heads of-families, on whom the law primarily places the responsibility of support and education of their minor 'children, generally the father, and, if none, then the mother, or guardian, as the case may be, and that both fathers and mothers cannot be counted in determining whether the petition has the required number. There is nothing in the statute that prohibits a director from signing the petition, if he is a patron, and we hold that he may do so. On the question of who is a patron, see Neal v. Bethea, 158 Ark. 403, 250 S. W. 336.

As to the contention of appellee that Guthrie and Childress were not legal directors, and hence no legal contract, it is conceded they were not de jure officers, but we are of the opinion that they were officers d,e facto, and as such, tog-ether with the other two, at a meeting of which all had notice and all attended, but in which two of the six did not participate, could bind the district on this contract, provided the petition contained the requisite number of signatures of patrons. As to who are officers de facto„ in the case of Faucette v. Gerlach, 132 Ark. 58, 200 S. W. 279, this court quoted from Constantineau on the de facto doctrine as follows: “ ‘A person who enters into an office and undertakes the performance of the duties thereof by virtue of an election or appointment, is an officer de facto, though he was ineligible at the time he was elected or appointed, or has subsequently become disabled to hold the office.’ Indeed, it is settled by the current of authority almost unbroken for over 500 years in England and this country, that ineligibility to hold an office does not prevent the ineligible incumbent, if in possession under color of right and authority, from being an officer de facto with respect to his official acts, in so far as third persons are concerned. The reason of the rule is that ‘the eligibility of an officer is as difficult of ascertainment as his actual election, and sound policy requires that the public should be no more required to investigate the one than the other, before according respect to his official position’.”

And the court, in stating the general rule in the same case, said: “The general rule is that the official acts of de facto judicial officers, within the scope of their jurisdiction, are as valid and binding as if they were the acts of de jure officers.” Inland Construction Co. v. Rector, 133 Ark. 277, 202 S. W. 712; School Dist. No. 54 v. Garrison, 90 Ark. 335, 119 S. W. 275.

It is finally contended that the contract was made on Sunday, and is void for this reason. We cannot agree with appellee. The terms of the contract were agreed to on Saturday night, April 25. The evidence of the contract, the written instrument, was drawn and signed by the directors on Sunday, dated Monday, and delivered to appellant and signed by her on Monday. It is therefore not void for this reason. As to whether she sustained any damages is a question for the jury.

The case is therefore reversed, and remanded for a new trial.


author: McIIaney, J.

text:
    Thomas v. State.
    Opinion delivered October 31, 1927.
    1. Criminal law — possession op stolen goods — instruction.—An instruction in a prosecution for grand larceny, charging that the possession of recently stolen property is a circumstance which the jury may consider along with other circumstances in determining whether the possessor stole the property, unless he offers a reasonable explanation of his possession, and that, if the property alleged in the indictment was recently stolen and defendant was found in possession thereof, the jury must consider that circumstance, along with other circumstances, in determining the guilt, unless he explained possession, held not aptly worded, but not reversible error as making possession presumptive evidence that the possessor was guilty of larceny.
    2. Larceny — possession op recently stolen property. — The mere possession of property stolen does not raise a presumption of the defendant’s guilt, but is merely an evidentiary fact pertaining to establish guilt which should be admitted to the jury.
    3. Criminal law — instruction as to venue. — It was error to refuse an instruction that, before the jury could convict defendant of grand larceny as principal, it must find that he was actually present in the county where the larceny was committed, and aided, abetted, or assisted, or was present, ready and willing to aid and abet in the offense charged.

      Appeal from Crawford Circuit Court; J. 0. Kin-cannon, Judge;
    reversed.

      Dave Partain, for appellant.

      E. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   McIIaney, J.

Appellant was indicted in the-Crawford Circuit Court in one indictment of two counts, the first charging him with grand larceny of certain merchandise, the property of L. T. Byars, and the second charging him with burglary. He was tried and convicted for the larceny, and acquitted on the charge of burglary. From the judgment and sentence of five years in the penitentiary against him he has duly prosecuted an appeal to this court.

Appellant urges for our consideration only two errors of the trial court, either of which, he contends, calls for a reversal of this case. The first is the action of the court, on its own motion, in giving, over his general and specific objections, instruction No. 4-A, as follows:

“There is a rule of evidence that says possession of recently stolen property is a circumstance that the jury may consider, along with all the other facts and circumstances in evidence, in determining whether or not the person who is in the possession of it stole it, unless you find from the evidence that the person in possession of it offers to you a reasonable explanation of his possession. So, iii this case, if you find the property alleged in the indictment was recently stolen and that this defendant was found in possession of that properly, then it will be your duty to consider that circumstance, along with all the facts and circumstances in the case, in passing upon the question of guilt or innocence of the defendant, unless you find, of course, that he has explained to you his possession of it. If you find that, then you should not consider it at all. ’ ’

The second is, the refusal of the court to give his requested instruction No. 6, which is as follows:

“You are instructed that, before you can convict the defendant, Frank Thomas, on the charge of grand larceny contained in tlie indictment, you must find beyond a reasonable doubt, from the testimony, that the defendant was actually present in Crawford County and aided, abetted or assisted, or was present ready and willing to aid or abet in the taking, stealing or carrying away of the property alleged to have been stolen, and, even if yon should find from the testimony that the defendant received and had in his possession property described in the indictment and alleged to have been stolen, knowing the same to have been stolen, but that he came into possession of it after it had been stolen, and that he himself was not actually present, aiding, abetting or assisting or was present, ready and consenting to aid or abet in the stealing of the property, then you cannot convict him of larceny under this indictment.”

1. The only evidence in the record which tends in any way to connect appellant with the crime of larceny, for which he was convicted, is the fact that, shortly after the crime was committed, he had possession of some of the stolen articles of merchandise in Sebastian County. There is in the record sufficient evidence to go to the jury, under a proper indictment, on the question of appellant’s guilt or innocence of .receiving' stolen properly, knowing the same to have been stolen. But there is no evidence in the record, save and except the possession of the stolen articles shortly after they were stolen, to show that he was guilty of having stolen the goods. Appellant did not take the stand and testify in his own behalf, and he now urges that instruction No. 4-A is susceptible of construction that the jury should convict him if they found from the evidence that he was in possession of the stolen property shortly after it was stolen, unless they should “find from the evidence that the person in possession of it offers to you a reasonable explanation of his possession.” And it is claimed that this is emphasized in the last half of the instruction, providing that, if they shoirld find the property was recently stolen, and that appellant was found in possession of it, it would be their duty to consider that circumstance “along with all the facts and circumstances in the case, in passing upon the question of guilt or innocence of the defendant, unless you find, of course, that he has explained to you his possession of it.” It is urged that the instruction requires appellant himself to offer a reasonable explanation of his possession, and while the instruction may be susceptible of such a construction, yet we do not think it is the necessary effect of it, but that the possession might be explained by him through other evidence than that of himself. The instruction is not aptly worded, and we think that it would have been better to have phrased this instruction somewhat like that in the case of McDonald v. State, 165 Ark. 411, 264 S. W. 961, where the court approved the following instruction:

“You are instructed that the possession of property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration under all the circumstances in the case, to be weighed as tending to show the guilt of the one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it be not rebutted. ’ ’

The court held, in that case, that the above instruction was not open to objection as being a charge upon the weight of the evidence, or as making it the necessary duty of the jury to convict upon proof of unexplained possession of property fecently stolen. This court has many times held that the mere possession of property stolen and unexplained by the defendant does not afford presumptive evidence of the defendant’s guilt. Pearrow v. State, 146 Ark. 182, 225 S. W. 311; Long v. State, 140 Ark. 413, 216 S. W. 306.

The rule is correctly stated in 17 B. C. L., § 76, where it is said:

“The true rule is, without doiibt,-that the possession of the property by the defendant, soon after the commission of the alleged crime, is merely an evidentiary fact tending to establish guilt which should be submitted to the jury, to be considered in connection with all the other facts and circumstances disclosed by the evidence. It does not in any case raise a presumption of law that the defendant committed the alleged larceny, although the unexplained exclusive possession of stolen goods shortly after the commission of a larceny may, and often will, be sufficient evidence to justify a jury in finding the possessor guilty.”

We therefore hold on this point that the error complained of in the above instruction is not sufficient to justify a reversal of this case, but, on a re-trial, it should be so phrased as to remove the objectionable features complained of by appellant.

2. It is next insisted that instruction No. 6 should have been given, and that the court erred in its refusal to do so. In this we think appellant is correct. Before the appellant could have been convicted under the indictment charging him with this larceny, he must have been present in Crawford County, and either actually committing the larceny himself or he must have been present, aiding, abetting or assisting therein, or ready and consenting to aid and abet in the larceny. Section 2311 of C. & M. Digest reads as follows: “All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and indicted and punished as such.” Appellant is indicted here as principal offender. Therefore he could not be indicted and convicted as a principal if he was not present, under the circumstances above named. In the •case of Friend v. State, 109 Ark. 498, 160 S. W. 384, this court held that, “not being present when the offense was committed, he could not properly be indicted as a principal, but should have been indicted as accessory.” Citing Smith v. State, 37 Ark. 274; Williams v. State, 41 Ark. 173; Roberts v. State, 96 Ark. 58, 131 S. W. 60; Hughey v. State, 109 Ark. 389, 159 S. W. 1129.

While the unexplained possession of the property which had recently been stolen, if the jury found it to be unexplained, is a circumstance tending to show that appellant was present in Crawford County and committed tlie larceny, yet, if the jury should actually find, regardless of such circumstance, that he was not present and participating,, then it would be their duty to find him not guilty, because, if he were not present, he has been indicted for the wrong offense and could not be convicted therefor.

.In the case of Hughey v. State, 109 Ark. 389, 159 S. W. 1129, Hughey was indicted for the larceny of a cow, and was found in possession of the cow shortly after it had been stolen. The proof showed that lie was not present aiding, abetting or assisting in stealing the cow, but that he had advised Tom Burke to steal cattle generally, which he would buy and dispose of in his business as a butcher, and split the profits with Tom Burke. The cow was found in his slaughter-pen shortly after it was stolen, and this court said:

“ Appellant was not present aiding, abetting and assisting in the stealing of the cow, and if he was in accord with and encouraged Tom Burke to steal cattle generally, as the evidence tends to show, he was at the most an accessory before the fiact of the larceny, and could not be convicted upon an indictment for larceny.” (Citing Roberts v. State, 96 Ark. 62, 131 S. W. 60; Corley v. State, 50 Ark. 313, 7 S. W. 255; Smith v. State, 37 Ark. 274; Williams v. State, 41 Ark. 173). Neither can he'be convicted upon an indictment for larceny of receiving stolen property, knowing it to have been stolen, not being present, aiding, abetting* and assisting in the taking and carrying* away of the animal, the asportation of which was complete upon her delivery at the slaughter-pen for inspection and sale Ho was hot guilty of the offense of larceny, and the testimony is insufficient to support the verdict. ’ ’

We are therefore of the opinion that the refusal to give this instruction constituted a reversible error, and that the case must therefore be reversed and remanded for a new trial. It is so ordered.


text:
    Frank v. Frank.
    Opinion delivered October 31, 1927.
    1. Process — nonresident defendants. — In a suit to quiet title under Crawford & Moses’ Dig., § 8363, nonresident defendants must be served as provided by § 1159.
    2. Action — when suit commenced. — Where a complaint in a suit to quiet title named certain nonresident defendants, but no warning order was ever made, there was no service on such nonresident defendants as required by § 1159, and suit was not commenced as to them, since by analogy to § 1049, a suit is commenced in a case of constructive service only when a complaint is filed and an order made by the clerk warning the nonresident defendants to appear.
    3. Judgment — jurisdiction op nonresident defendants. — Until thirty days have expired after-the appointment of an attorney ad litem for'nonresident defendants constructively summoned, as provided by Crawford & Moses’ Dig., § 6261, and the attorney has made his report as required by § 6262, the court is without jurisdiction to make any final order affecting the rights of nonresident defendants, since compliance with such statutes is mandatory and jurisdictional.
    '4. Appearance — nonresident defendants. — In a suit to quiet title ag'ainst nonresident defendants, the filing of demurrers by an attorney ad litem appointed by the court to represent such nonresident defendants did not enter their appearance.
    5. Judgment — when premature. — In a suit to quiet title against nonresident defendants, where no warning order was made and published as required by the statute, a decree sustaining the demurrer filed by an attorney ad litem and dismissing plaintiff’s complaint for want of equity was premature.
    Appeal from. SI. Francis Chancery Court; A. L. Hutchins, Chancellor;
    reversed.

      A. H. Murray and Randolph, S Randolph, for appellant.

      F. F. Hard son, for appellee.
   McHaney, J.

This suit was instituted by Clara M., Elizabeth Gr., Charles F., and John L. Frank, who are four of the children and heirs at law of John F. Frank, deceased, against Walter A. Frank and Leonora F. Boweii, a widow, two of the children and heirs at law of said deceased, and Amelia L. Bowen, Samuel Nash Bowen, Hughetta Bowen (non compos) children of said Leonora F. Bowen; Monroe C. Frank, a minor, son of said Walter A. Frank; Clara Belle and Harriette Amelia Frank, children of said John L. Frank, Harriette Amelia being a minor 20 years of age on November 6, 1926, according to the allegations of the complaint, without guardian; and Yivia W. Frank and Margaret F. Barrett, nee Frank, and R. B. Barrett, her husband, the widow and only child and heir at law of R. B. Frank, deceased, who was a son and heir at law of said John F. Frank, deceased, to quiet their title to certain lands conveyed to them under the will of said John F. Frank, deceased, and to secure a construction of said will and the effect of certain deeds executed' by. the beneficiaries under said will, and in pursuance thereof, each to the other, of the respective shares allotted to them under said will.

It is alleged in the complaint that all the parties, both plaintiffs and defendants, are nonresidents of this State, their respective residences being set out, showing that they are all residents of the State of Tennessee. It is further alleged that the plaintiffs are the owners in fee and in possession of the lands devised to them under the will of said John F. Frank,- and by virtue of the deeds aforesaid, but that the defendants named are contending that said -will and deeds did not convey a fee simple title and that the deeds undertook to convey a contingent remainder interest in said lands, which could not be alienated under the laws of Arkansas, because it was too uncertain as to time, the parties and interest, and that the deeds above mentioned were and are null and void.

The complaint was filed July 10, 1926, and, on the same day, an affidavit for warning order was also filed, which is in due form. On the same date the clerk of the court issued what is called a “warning order,” but which was in reality only a “notice of the filing of the petition describing the land and calling upon all persons who claim any interest in the land to appear in said court and show cause why the title of the petitioner should not be confirmed,” as required by § 8366, 0. & M. Digest.

On October 26,1926, the court made an order appointing F. F. Harrelson as attorney ad litem and guardian ad litem, and on the same day Mr. Harrelson, as guardian ad litem for Hughetta Bowen (non compos) and Harriette Amelia Frank, a minor, and as attorney ad litem for the other nonresident defendants, filed separate demurrers to the complaint, which were submitted to the court on the same day and sustained. On plaintiffs ’ declining to plead further, their complaint was dismissed for want of equity, from which is this appeal.

Section 8363 of 0. & M. Digest provides: ‘ ‘ Such person shall file in the office of the clerk of the chancery court of the county in which such land is situated a petition describing the land and stating facts which show a prima facie right and title to the land in himself, and that there is no adverse occupant thereof; and, if the petitioner has knowledge of any other person who has or claims to have interest in such lands, the petitioner shall so state, and such person or persons shall be summoned as defendants in the case. ’ ’

It will be seen that this section requires the plaintiffs or petitioners to name the persons he knows who claim any interest in the lands, and that such persons shall be served with summons in the case. The petition or complaint in this case names the persons claiming an interest, but there has been no service upon them. True, they are nonresidents, but they must be served as provided by law, § 1159, C. & M. Digest. By § 1162, C. & M. Digest, it is provided: “A defendant against whom a warning order has been made and published shall, upon completion of the publication of the warning order for the four weeks required by law, be deemed to have been constructively summoned upon the date of the making of the order.” Under § 1049 of the Digest, “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon.” It will therefore be seen that the law requires two acts to .commence a civil action: (1) the filing of a complaint, and (2) causing a summons to issue to the defendants tliereon; and this court held, in the case of Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203, 105 S. W. 77, that, although there is no statute governing in case of constructive service, by analogy a suit is commenced in such case only when a complaint is filed and an order is made by the clerk warning the nonresident defendants to appear. Until the warning order has been made and published for four weeks, as required by § 1160, there has been no service on the nonresident defendants, and this was not done in this case. Therefore the defendants were not in court, and the case was prematurely submitted to the court.

There is still another reason why the judgment in this case was prematurely rendered. By § 6261, C. & M. Digest, it is provided:

“ Before judgment is rendered against a defendant constructively summoned, and who has not appeared, it shall be necessary: 1. An attorney be appointed at least thirty days before the judgment is rendered, to defend for the defendant and inform him of the action and of such other matters as may be useful to him in preparing for his defense. He may take 'any steps in the progress of the action, except filing an answer, without its having the effect of entering the appearance of such defendant. The-attorney mhy be appointed by the clerk when the warning order is made, or by the court, and shall receive a reasonable compensation for his services, to be paid by the plaintiff and taxed in the costs.” Section 6262 is as follows: ‘ ‘ The attorney appointed pursuant to the last section shall be a regular practicing attorney of the court; and, before an order for his compensation is made,. he must make a written statement of all that he has 'done in the casé, which shall be signed by him and filed with the papers of the action.”

As will be seen, the appointment of the attorney ad litem, the filing of the demurrer and the order or-decree of the court sustaining it and dismissing the complaint all occurred on the same day. The object of the lawmakers in enacting § 6261 was to afford time and opport.nnity for the attorney ad litem to communicate with the nonresident defendants and advise them of the action against them, and § 6262 requires him to make a report or statement in writing under his signature of what he has done in the premises. We are of the opinion that, until the thirty days have expired after the appointment of the attorney ad litem, and he has made his report, the court is -without jurisdiction to take any affirmative action in the case. In other words, that a compliance with these sections of the Digest is mandatory and jurisdictional. Until they are substantially complied with, the court is without jurisdiction to make any final order affecting the rights of the nonresident defendants. The filing of the demurrers did not enter the appearance of the nonresidents. Henry v. Blackburn, 32 Ark. 445; and Bush v. Visant, 40 Ark. 124.

It necessarily follows that the decree of the court was premature, and must be reversed and remanded, with directions to take no action until the defendants are in court, and for further proceedings according to law and the principles of equity, and not inconsistent with this opinion. It is so ordered.


author: Ponder, Special Judge,,

text:
    El Dorado v. Coats.
    Opinion delivered October 31, 1927.
    1. Municipal corporations — construction of grant. — Every grant from a city acting in its .sovereign capacity is to be construed strictly against the grantee and in favor of the city.
    2. Municipal corporations — grant of exclusive franchise. — It will not >be presumed that a city has granted an exclusive franchise to furnish gas to the city unless the deliberate purpose of the city to so surrender such power clearly appears.
    3. Municipal corporations: — contracts..—A city council, in the • exercise of its sovereignty, may contract like an individual and be bound accordingly.
    4. Municipal corporations — franchise as contract. — Where rights are granted by an ordinance and a franchise given, a contract-is created between the city and the party or corporation to whom it is granted.
    5. Constitutional law — impairment of obligation of contract.— Although an ordinance granting a franchise to a gas company became a contract founded on mutual considerations, yet, where it granted no exclusive rights, a second ordinance granting a similar franchise to a rival company is valid, as not impairing the obligation of a contract.
    6. Injunction — grant of second franchise. — Where no exclusive right is conferred by an ordinance granting a franchise to a person to furnish gas to a city,- another person or corporation claiming the right to operate under a second similar franchise granted by the city will not be restrained.

      1. Gas — exclusiveness of franchise. — Where a franchise granted by a city ordinance to a gas company was not expressly made exclusive, no exclusive rights were gained thereunder.
    Appeal from Union Chancery Court, Second Division; George M. LeGroy, Chancellor;
    reversed,
    statement by the court.
    W. M. Coats, receiver, El Dorado Gas Company and Central States Gas and Electric Company, the appellees herein, brought suit in the Second Division of the Union Chancery Court against the city of El Dorado and Public Utilities Corporation of Arkansas, the appellants. In the complaint it was alleged that the El Dorado Gas Company is a corporation, organized and doing business under the laws of the State of Arkansas, and that the Central States Gas & Electric Company is a corporation organized and existing under the laws of the State of Delaware ; that the El Dorado Gas Company is a subsidiary of the Central States Gas & Electric Company, a majority of its stock being owned by that company; that W. M. Coats had been duly appointed by the chancery court of Union County as the receiver of said companies, and had taken charge of all of their properties, and was operating same under orders of the court; that the court had authorized 'the receiver to institute this action; that the Public Utilities Corporation of Arkansas is a corporation organized under the laws of the State of Delaware, and with .its principal place of business in the city of El Dorado, and that it had complied with the laws of this State with reference to foreign corporations doing business here; that the city of El Dorado, on the 21st day of March, 1921, passed ordinance No. 237, and granted to J. W. Atkins, his successors and assigns, the right to erect, maintain and operate a system of pipes for the conveyance of natural gas, for heating, lighting and furnishing power for manufacture and other purposes, for public and private use, in the said city of El Dorado, and granted to him and his successors and assigns the right to use the streets, alleys and public grounds of said city for these purposes; that Atkins, his successors and assigns, accepted the rights granted under the franchise, and complied with the terms and conditions of the same; that the Central States G-as & Electric Company are the owners and entitled to the rights and privileges granted under the ordinance to Atkins,, his successors and assigns, by proper deed of conveyance and assignment; that Atkins, his successors and assigns, were granted, for a period of twenty-five years after the passage of the ordinance, the right to enter upon and excavate, dig and do such things as might be necessary to lay its gas mains and gas pipes, with the necessary attachments, for the purpose of supplying gas to its consumers in said city. The rates to be charged consumers were set out in said ordinance, and it was further provided that the city was to receive 2 per cent, of the gross receipts from the sale of gas in said city, same to be paid each month. The city of El Dorado was to receive free gas for the purpose of heating the city hall and city prison, and was also obligated to keep in reserve at least one well, of sufficient capacity to supply the city with gas, in case any of the other wells failed, and to give to the city of El Dorado preference of supplying gas as against all its other consumers.”
    It was further alleged that the appellees had erected, and maintained at a large expense, a system of pipes for the purpose of supplying gas-under the terms of said ordinance and franchise. That it had furnished the city its gas free, as provided in said ordinance, and had paid 2 per cent, of its gross receipts.
    It was further alleged that, on the 6th day of January, 1927, the city of El Dorado, through its mayor and council, for the purpose of supplementing and obtaining a competitive system of pipes for furnishing gas to domestic and industrial consumers in the city, passed an ordinance granting to the Public Utilities' Corporation of Arkansas and to its successors and assigns the right to erect, maintain and operate a system, of pipes for the conveyance of natural gas, for heating, lighting and furnishing power for manufacturing and other purposes for public and private use, in the city, and granting to it the right to use the streets, alleys and public grounds in said city for a period of twenty-five years, and that said ordinance was duly passed and later accepted by the said Utilities Corporation of Arkansas. The rates to be charged under the ordinance granting the franchise to the utilities corporation were set out in the ordinance.
    That by the passag’e of the ordinance granting to J. W. Atkins, his successors and assigns, the right to lay pipes and mains for the purpose of providing gas to its consumers, it entered into a contract with J. W. Atkins, his successors and assigns, and that the said franchise and privileges were exclusive, and conveyed to them exclusive rights and privileges, and that, by reason of the provisions in said ordinance requiring the payment of 2 per cent, of the gross receipts to be paid to the city, and having obligated Atkins and his assigns to furnish gas free to the city for its hall and prison, without reserving to the city the right to enter-into a similar contract with anyone else, by clear implication contracted and agreed with Atkins and his assigns to have the exclusive privilege of using the streets and alleys of said city for the purpose named in the ordinance, and also by implication contracted and agreed with Atkins and his assigns not to enter into any other contract with any other person or corporation, by which gas might be furnished to consumers in said city, thereby depriving Atkins and his assigns of full benefits to be derived under their ordi- . nance and franchise.
    That the granting to Atkins and his assigns, being exclusive, the city of El Dorado had no right or authority under the law to grant to the public utilities corporation the privilege of using the streets and alleys of said city for the purpose of laying pipes and mains, and to supply customers with gas, and that the rights granted under the last named ordinance are void, and that the public utilities corporation would not be entitled to exercise any rights or privileges granted to it under and by virtue of said ordinance.
    It was further contended that the public utilities corporation had accepted the rights granted to it in the last named ordinance, and had already entered upon the streets, and commenced to dig and excavate, for the purpose of maintaining and operating a system of pipes for the conveyance of natural gas to be sold to consumers in said city, and that, if the public utilities corporation were permitted to erect and maintain a system of pipes in the city, and Were permitted to furnish domestic and industrial consumers gas in said city, in competition with the Central States Gas & Electric Company, it would seriously impair the obligation assumed by the said company and its contract with the city, under the franchise granted, which would result in great and irreparable injury to said company.
    That the franchise granted to the public utilities corporation, and the contract thus made, was all done for the purpose of destroying the Central States Gas & Electric Company’s ability to perform the obligations imposed upon it by their contract with the city, and would prevent it from exercising and enjoying the rights and privileges granted to it under and by virtue of its franchise obtained from the said city.
    There was a prayer for an injunction to restrain the public utilities corporation, its agents, servants and employees, from proceeding to lay its gas mains and gas pipes in the streets and alleys of said city, and from distributing natural gas and supplying and selling the same to its customers in tbe said city, and that the franchise granted to it be canceled and set aside, and that, upon a final hearing, it be permanently enjoined from proceeding under said franchise.
    We do not deem it necessary .to set out anything further in regard to the ordinances which are the basis of this litigation, because the salient features of the same have already been stated, and a fuller statement would incumber this opinion.
    A notice, petition and bond for removal of the cause to the District Court of the United States in and for the Western District of Arkansas, El Dorado Division, was filed, which was by the court overruled.
    The public utilities corporation filed a general demurrer to the complaint of the appellees, because the same did not state facts sufficient to constitute a cause of action.
    The city of El Dorado filed a separate demurrer to the complaint, because: (1). The suit was against the city of El Dorado, to enjoin an alleged breach of a franchise granted to Atkins and his assigns, and to enjoin the said city from carrying out a franchise granted by it to the Public Utilities Corporation of Arkansas, and that, in granting either of said franchises, the said city of El Dorado was acting for and on behalf of the State of Arkansas, and that the suit, in fact, was against the State of Arkansas. (2). That the complaint did not state facts sufficient to constitute a cause of action.
    The court overruled both of said demurrers, and the city of El Dorado and Public Utilities Corporation of Arkansas elected to stand on its demurrer, saved exceptions to the ruling of the court, and prayed an appeal to this court, and the chancellor granted an injunction, which became effective on May 21, 3927.

      Jeff Davis, J. G. Rap «dale, Pace Davis, Robinson, House S Moses and Powell, Smeatl S Knox, for appellant.

      Mal tony, Yocum £ Saye, Marsh, McKay é Marlin and tí. E. Gamer, for appellee.

      Neill Bohlinger, amicus curiae.

   Ponder, Special Judge,,

(after stating the facts): The appellees, W. M. Coats, receiver, El Dorado Gas Company and Central States Gas & Electric Company, claim that the latter company has the exclusive right of supplying the city of El Dorado and its inhabitants gas for domestic and commercial purposes. That this exclusive right and privilege is given and granted to it by virtue of a certain ordinance passed by the city council on March 21, 1921, under which J. W. Atkins, his successor and assigns, were given this franchise, and that Atkins organized the El Dorado Gas Company, and transferred to it this franchise. That, although the word “exclusive” does not appear in the ordinance, still by reason of certain provisions in the ordinance by which the city was to receive two per cent, of the gross revenues from the business each month, and was to keep one well in reserve for the benefit of the city and its consumers, by implication it was intended and did operate to make an exclusive franchise, under the law. That the first ordinance granting a franchise to Atkins and his successors made a contract between him and the city, and that the same cannot be impaired or broken by the passage of the ordinance on the 6th day of January, 1927, and that this last ordinance and franchise are void.

By its complaint filed in equity the plaintiffs asked that the defendant corporation may be perpetually enjoined from building its gas and pipe lines in the city of El Dorado, and furnishing gas to the inhabitants of said city, and from enjoying the rights and benefits given it by reason of the franchise granted, notwithstanding such right had been granted by the council' of said city, under the powers given to it by the Legislature of this State. Both plaintiff and the defendant corporations derive their franchises and authority from the council, acting in its sovereign capacity. In this country, as in England, every grant from the sovereign power is to be construed strictly against the grantee and in favor of the city or government. The rights of the public are therefore not to be presumed to have been surrendered to a corporation, except so far-as the intention to surrender them appears in the charter. Inland Fisheries Commrs. v. Holyoke Water Power Co., 104 Mass. 450, 6 Am. Rep. 247; Newton v. Mahoning County, 100 U. S. 548, 25 L. ed. 710; Bradley v. South Car. Phosphate & P. R. Min. Co., 1 Hughes 72, Fed. Cas. No. 1, 787.

The plaintiff claims there was a contract between it and the city of El Dorado which secured to it the exclusive right to furnish gas to said city. The court says, in Tucker v. Ferguson, 22 Wall. (89 U. S.) 527, 22 L. ed. 805: “But the contract must be shown to exist. There is no presumption in its favor. Every reasonable doubt should be resolved against it. Where it exists, it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require.”

A 'State or council ought never to be presumed to surrender this power, because the whole community have an interest in preserving it undiminished; and when a corporation alleges that the State or council has surrendered its power of improvement and public accommodation, abandonment ought not to be presumed in a case in which the deliberate purpose of the State or council does not appear. Charles River Bridge Co. v. Warren Bridge, 11 Pet. 420, 9 L. ed. 773; Northwestern Fertilizing Co. v. Hydepark, 97 U. S. 666, 24 L. ed. 1036; Union Bridge Co. v. Spaulding, 63 N. H. 298.

The contention of the appellees is that the franchise granted by the. ordinance in March, 1921, to Atkins and his assigns, together with what was done under the same, constituted a contract which is binding on the council and the city, and that the subsequent franchise granted to the appellant company impairs the obligation of this contract.

Unquestionably tbe State or the council, in the exercise of its sovereignty, may contract like an individual, and be bound accordingly.

This court is committed to the doctrine that, where rights are granted by ordinance, and a franchise given, it creates and makes a contract between the city and the party or corporation to whom it is granted. City of Mena v. Tomlinson, 118 Ark. 166, 175 S. W. 1187; Ark. Light & Power Co. v. Cooley, 138 Ark. 390, 211 S. W. 664; Pocahontas v. Central Power & Light Co., 152 Ark. 276, 244 S. W. 712; El Dorado v. Citizens’ Light & Power Co., 158 Ark. 550, 250 S. W. 882; Natural Gas & Fuel Co. v. Norphlet Gas & Water Co., 173 Ark. 174, 294 S. W. 52. These decisions and others of this court have created fixed property rights in this State, and it is not the purpose of this decision to modify or overrule these cases and the rules of law therein announced. But they all distinguish themselves from the case at bar, for they were not exclusive contracts, or exclusive franchises, and herein lies the line of demarcation. This distinguishes contracts of a private nature from public contracts, and the rule of interpretation is different.

In-the case of Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S. W. 165, Ann. Cas. 1913D 1086, Chief Justice McCulloch said:

‘ ‘ A city council acts in a legislative capacity in exercising the powers conferred upon it to grant franchises for the public benefit. The power thus conferred upon a city council by the lawmakers is coequal with the power in this respect of the Legislature itself, and in the exercise of the power of discretion, is vested with power which cannot be taken away by the courts. To proceed upon any other theory would be to substitute the judgment and discretion of the courts for the judgment of the city council, with whom the lawmakers have seen fit to lodge this power.”

In the case of El Dorado v. Citizens’ Light & Power Co., 158 Ark. 550, 250 S. W. 882, Chief Justice McCulloch, again speaking for the court, said:

“The council of the city of El Dorado passed an ordinance, granting a franchise to Rowland and other citizens to construct and operate a system for furnishing light and water in the city, and the franchisé was subsequently assigned to the Citizens’ Light & Power Company. Prior to that time a franchise for similar purposes, not exclusive, had been granted to the Arkansas Light & Power Company, and that company is operating in the city. ’ ’

The italicized words, “not exclusive,” clearly shows that it was not an exclusive contract. The ordinance granting the franchise alone making the contract, the question therefore to be determined in cases of this kind, when the legislative interference is claimed, is whether such interference impairs the obligation of the contract, for there may be legislation such as to injuriously affect the interest of those with whom such contracts exist, and yet impair no obligation of contracts. Thus it has been held that, when a State confers no exclusive privileges to one company it impairs no contract by granting a franchise to a second one, with powers and privileges which necessarily produce injurious effects and consequences to the first. Washington & B. Turnpike Co. v. Maryland, 3 Wall. (70 U. S.) 210, 18 L. ed. 180.

The misfortunes which follow in such cases, as the court aptly remarks in that case, “may excite our sympathies, but are not the subject of legal redress.”

Such was the doctrine laid down in Charles River Bridge v. Warren, 11 Pet. (36 U. S.) 527, 9 L. ed. 773, and which from that day to this has been sustained by the courts of last resort in this country. Tuckahoe Canal Co. v. Tuckahoe & James River Canal Co., 11 Leigh (Va.) 42, 36 Am. Dec. 374; Leigh Water Co. v. Easton, 121 U. S. 391, 7 S. Ct. 916, 30 L. ed. 1059.

In considering the question whether the council has transcended its power by the ordinance granting the appellant compány the right and privileges contained in the franchise, it becomes necessary to construe the legislative act of the council and the ordinance under which the appolices assert üioir claim of ail exclusive right. For, notwithstanding the ordinance granting to appellees the franchise became a contract, founded upon mutual consid.erations, yet, if no exclusive right was conferred, then the second ordinance, which granted the franchise of the same rights to the appellant company, is valid because no obligation of contract was impaired. Nor will equity interfere by injunction to restrain the operation of a person or a corporation, claiming the right to exercise a similar franchise under the legislative authority conferred by the council. High on Injunctions., § 902.

Under the rule of law herein announced, the appellees did not have an exclusive contract or franchise.

This doctrine is vital to the public welfare.

Mr. Justice Clifford, in Holyoke Water Co. v. Leyman, 15 Wall. (82 U. S.) 512, 21 L. ed. 133, remarks:

“That repeated decisions of this court have established the rule that, whenever privileges are granted to a corporation, and the grant comes under revision in the coixrts, such privileges are to be strictly construed against the corporation and in favor of the public; and that nothing passes but what is granted in clear and explicit terms. Whatever is not unequivocally granted in such ordinance is taken to have been withheld.”

The samé rule is followed in 12 K C. L., pp. 18(5 to 198.

The only other question to he determined is the construction to he given to § 7492 of C. & M. Digest. We are of the opinion that, under the language of this section, the council may have granted to the appellees an exclusive franchise or not, as in their judgment seemed best. Not having granted such a franchise, there is nothing in this section that makes it exclusive.

For the reason given this cause is reversed, and remanded with directions to dismiss the complaint of the appellees, because the same does not state a cause of action, and for want of equity, and that the restraining order granted herein shall be dissolved.

Judge McHaney, being disqualified, did not participate in the proceeding.

Justices Wood,- Smith and Kirby dissent.