author: Smith, J.

text:
    Grand Court of Arkansas, Order of Calanthe, v. Carter.
    Opinion delivered November 30, 1931.

      Scipio A. Jones, for appellant.

      Sam M. Levine, for appellee.
   Smith, J.

This suit was brought in the Jefferson County Circuit Court against the Grand Court of Arkansas, Order of Calanthe, (hereinafter referred to as the Order) a fraternal benefit society, whose principal office or headquarters is in the city of Little Bock, in Pulaski County, by appellees, who alleged that they were the beneficiaries in a certificate issued to one Mattie Carter, a deceased member of said Order, and that, although said certificate was in full force and effect at the time of the insured’s death, payment of the certificate had been refused after proper demand for payment had been made.

A summons was issued and was returned as having been served on W. E. Floyd, the State Insurance Commissioner, as “the agent designated for service by the Grand Court of Arkansas, Order of Oalanthe,” by the sheriff of Pulaski County, Arkansas. Thereafter a judgment was rendered in the circuit court of Jefferson County on September 20, 1930.

On October 6, 1930, a motion was filed to quash the sum mona and to vacate the judgment, for the reason that the circuit court of Jefferson County had no jurisdiction of the cause of action. The motion to vacate the judgment alleged the existence of a valid defense to the original suit, in that the certificate sued on had lapsed for the nonpayment of dues, and that the plaintiffs were not the real beneficiaries under the certificate.

The motion to vacate the judgment alleges that the Order is a fraternal benefit society duly organized under the provisions of act 462 of the Acts of 1917 (vol. 2, Acts 1917, page 2087), appearing as §§ 6068 et seq. of Crawford & Moses’ Digest, and that, under a section of this act appearing as § 6071, Crawford & Moses * Digest, the Order was exempt from suit in any county except that of its domicile, or principal place of business, which was in Pulaski — and not in Jefferson — County. This section reads as follows: “'Section 6071. Except as herein provided, such societies shall be governed by this act, and shall be exempt from all provisions of the insurance laws of this State, not only in governmental relations with the State, but for every other purpose, and no law hereafter enacted shall apply to them, unless they be expressly designated therein.”

A portion of § 17 of the act of 1917 appears as § 6091, Crawford & Moses’ Digest, and provides that “Every sooiety * * * shall * * * appoint in writing the commissioner of insurance * * * to he its true and lawful attorney on whom all legal process in any action or proceeding against it shall be served, and in such writing shall agree that any lawful process against it which is served upon such attorney shall be of the same legal force and validity as if served upon the society * *'

Another portion of the same section appears as § 6092, Crawford & Moses’ Digest, and reads as follows: “Section 6092. Copies of such appointment, certified by said insurance department, shall be deemed sufficient evidence thereof, and shall be admitted in evidence with the same force and effect as original thereof might be admitted. Service shall only be made upon such attorney, must be made in duplicate upon the commissioner of insurance, or, in his absence, upon the person in charge of his office, and shall be deemed sufficient service upon such society; provided, however, that no such service shall be valid or binding against any such society when it is required thereunder to file its answer, pleading or defense in less than thirty days from the date of the mailing the copy of such service to such society. When legal process against any such society is served upon said commissioner of insurance, he shall forthwith forward by registered mail one of the duplicate copies prepaid and directed to its secretary or corresponding officer. Legal process shall not be served upon any such society except in the manner provided herein.”

It is insisted that, under §§ 6071 and 6092, Crawford & Moses’ Digest, and under § 1177, Crawford & Moses’ Digest, the defendant Order should have been sued in the county of its domicile, and not elsewhere. Section 1177, Crawford & Moses’ Digest, reads as follows: “Section 1177. Where any action embraced in the preceding section is against a single defendant, the plaintiff shall not be entitled to judgment against him on the service of a summons in any other county than that in which the action is brought, unless he resided in that county at the commencement of the action, or unless, having appeared therein, he fails to object, before the trial, to its proceeding against him.”

We think counsel have misinterpreted the purpose and effect of the sections of the act of 1917 above quoted. Section á of the act, appearing as § 6071, Crawford & Moses’ Digest, does exempt appellant order and other fraternal benefit societies from all provisions of the insurance laws “of this State, not only in governmental relations with the State, but for every other purpose and no law hereafter enacted shall apply to them unless they be expressly designated therein;” but we think this means, as the title to act 462 indicates, that they are exempt from statutes “pertaining to the regulation and incorporation” of such associations, and not from laws regulating service upon corporations generally.

In the case of Mutual Aid Union v. Blacknall, 123 Ark. 377, 185 S. W. 465, it was insisted that the defendant, a mutual aid society, having its principal office and place of business in Benton County, had been improperly sued in Logan County. This insistence was based upon § 4348, Kirby’s Digest, which provides that: “The insurance laws of the State shall be so construed as not to apply in their operation and requirements to any mutual aid society or organization in this State.” But, in overruling that contention, we said that the statute did not undertake to deal with the subject of service upon such mutual companies, and could not therefore be held to provide for a different manner in which such companies may be sued and served with process, and therefore the suit had been properly brought in Logan County.

Here the act of 1917 does to some extent deal with the question of service, but only to the extent of providing that such companies must agree, as a condition upon which they may be authorized to do business in this State, that service may be had as against them upon the Insurance Commissioner. It is not provided in the act of 1917 that such suits must be brought in the county where the Insurance Commissioner maintains his office. Indeed, many of these societies do not have their principal offices in Pulaski County, the capital county of the State, where the Insurance Commissioner maintains his office. So, therefore in many cases, it would not he possible to sue such societies in the counties where they have headquarters and also obtain service in that county against the Insurance Commissioner, who maintains his office in another county. If suits can only be maintained in the county where service is had, then all suits would have to be brought in Pulaski County, for service cannot be had on the Insurance Commissioner elsewhere, even though the society had done no business in that county and had no office there.

We therefore conclude, as was said in the Blacknall case, supra, that the statute had not undertaken to deal with the question of service, and that it did not do so further than to provide that it should be had upon the Insurance Commissioner. The exemption of the act of 1917, as its title indicates, is limited to the regulation and incorporation of such societies.

It was not so expressly held in the case of United Order of Good Samaritans v. Brooks, 168 Ark. 570, 270 S. W. 955, but such was the effect of that decision. That was an appeal in which, as in the instant case, a motion had been filed to vacate a default judgment and to quash the service, and § 6092, Crawford & Moses’ Digest, was invoked in support of the motions. It is true, the point there raised was that the summons was defective, but we held there had been no violation of the statute rendering judgment in Arkansas County, although we know, from an inspection of the record in that case, that the defendant, a fraternal benefit society, had its principal place of business in St. Francis County. The opinion in that case was delivered April 13,1925, and the case arose subsequent to the passage of the act of 1917.

Now, it was held in the case of Phillips v. Mosaic Templars of America, 154 Ark. 173, 241 S. W. 869, that the provisions of 6153, Crawford & Moses ’ Digest, did not apply to the certificates there in suit, which had been issued by a fraternal insurance society. Section’6153, Crawford & Moses’ Digest, provides that suits arising on policies of insurance may be maintained at any time within the period prescribed by law for bringing actions on promises in writing, and that any stipulation to the contrary in the policy should be void. It was there held that a limitation in a benefit certificate issued by a fraternal insurance society requiring suit to be brought within one year after the cause of action accrued was valid, notwithstanding the provisions of § 6153, because § 6071, Crawford & Moses’ Digest, had exempted such societies from all insurance laws of the State regulating them unless they were expressly designated therein.

That holding is not in conflict'with the view here announced, for the reason that § 6071 had exempted fraternal orders from the insurance laws of the State in the matter of their regulation in their dealings with their memberships, and the adoption of a rule by such societies and made a part of the certificates issued to their members was one of these regulations. It is not alleged here that appellant order had any regulations or rule prescribing the venue of suits brought against it, whereas in the Phillips case, supra, the fraternal order did have a limitation in its benefit certificates as to the time within which suits might be brought upon certificates issued by it.

We conclude therefore that the suit was properly brought in Jefferson County, and the defense now asserted should have been there interposed. •

We are not unmindful that % 6092 has been amended by act 104 of the Acts of 1931 (Acts 1931, page 290), it being there provided that service had in conformity with § 6092 “shall be sufficient to give jurisdiction to the courts of the State, sitting in any county where such society has a local lodge, or where the death of the insured occurred, or where the beneficiary in the certificate or policy of insurance resides. ’ ’

The act of 1931 is not a legislative construction of the act of 1917. Indeed, the act of 1931 may have been passed to put at rest the question raised in this suit, the judgment in which was rendered before the passage of the act — a question which does not appear to have been previously raised in any of the many suits prosecuted against fraternal insurance societies, just as the instant case was.

The judgment is correct, and is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Smith v. Lawson.
    Opinion delivered November 30, 1931.

      Philip' McNemer, for appellant.

      Linwood Brickhouse, for appellee.
   Smith, J.

Appellant filed a petition in the court below for a writ of mandamus to be directed to James Lawson, as collector of the city of Little Eock, to require that officer to receive the purchase money for certain property and to require the delivery of the property to appellant upon payment thereof. He alleged that the council of the city of Little Eock, by resolution No-. 1253, ordered the sale of an abandoned light plant, which resolution was vetoed by the mayor, but was later passed over his veto. Pursuant to the authority conferred by this resolution, the property was sold, and appellant became the purchaser for the price of $10,500. He tendered this sum' to the city collector and demanded delivery of the property. The collector declined to receive the money or to deliver the property; hence this suit.

The collector declined to receive the money or to deliver the property for the reason that a petition had been filed praying that the proposed resolution be referred to the electors of the city, and the sole question presented for our decision is whether such a resolution may be referred under the I. and R. amendment, adopted at the 1920 general election. Applegate’s Constitution of Arkansas, Annotated, page 203; General Acts 1919, page 481.

Petitioners for the referendum assert that authority for this proceeding is conferred by the paragraph of the amendment, which reads as follows:

“Every extension, enlargement, grant, or conveyance of a franchise, or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in the real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall-be subject to referendum, and shall not be subject to emergency legislation. ’ ’

Learned counsel say they have been unable to find any other State Constitution containing a similar provision to assist us in its interpretation; and we have been unable to find any decision construing any constitutional provision sufficiently similar to ours to cover the exact point raised by this appeal.

In support of the prayer for mandamus, it is insisted that the amendment is not applicable to such an administrative act as that of the resolution in question under which the property was sold, and that, if applicable to such resolutions, it does not apply to sales of personal property, but applies only to sales of real property. We do not concur in this view. The amendment, to be properly construed, must, of course, be read in its entirety— as a whole; and, when so read, we find that the people of the State, or of any county, city or town, are authorized to initiate and refer measures in the manner there provided. Another paragraph of the amendment defines the word “measure” as therein employed, and this definition reads as follows:

“Definition. The word ‘measure’ as used herein includes any hill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.”

There would appear to be little question as to the inclusion of resolution No. 1253 within this definition of the word “measure,” if read by itself; but it is insisted that the paragraph immediately preceding the one containing that definition and quoted above narrows and restricts this definition in the exercise of the power conferred on the electors of municipalities. The insistence is that the authority to refer ordinances and resolutions relating to the sale of municipal property is limited to real property exceeding in value three hundred dollars, and that having expressed the power to refer ordinances and resolutions relating to such real property,-there was an exclusion of the power to refer ordinances and resolutions relating to personal property.

We do not agree, however, that this is the correct construction of the amendment or that the power is thus limited.

It is a matter of common knowledge that a high per cent, of the revenues of all cities and towns is expended for personal property variously employed, and, if the amendment does not apply to personal property, the council might dispose of the city’s personal property unwisely and to the great damage of the city or town.

The. limitation of three hundred dollars as to value is not without significance. Section 771'5, Crawford & Moses’ Digest, was in force when the amendment was submitted to and adopted by the people of the State. This section confers upon boards of public affairs in cities of the first class (to which class the city of Little Rock belongs) the exclusive power to make purchases of all supplies, apparatus, materials and other things requisite for public purposes in cities of tbe first class, but imposes the requirement upon tbe boards, where the amount of expenditure exceeds three hundred dollars, to transmit an estimate thereof to the city council with their recommendation only relating thereto. If the recommendation of the board is approved, an ordinance is passed making it the “duty of said board to advertise and let the work or contract to the lowest responsible bidder.” The use of the same monetary value in the amendment appears therefore to indicate the intention, to reserve to the people the right to subject to the referendum any contract disposing of city property where the value exceeds three hundred dollars.

It might, in many cases, in view of the expense of the referendum, be unwise to refer such contracts to the people. On the other hand, the existence of this power has a tendency to prevent hasty or improvident action on the part of the council. But this is a question of policy not addressed to us and may be considered by us in so far only as it tends to aid in the interpretation of the amendment.

It must be confessed that the paragraph of the amendment first above quoted is somewhat ambiguous, but, when read in connection with the paragraph immediately following in which the word “measure” is defined, we think the distinction cannot be made that ordinances and resolutions relating to real property may be referred, whereas ordinances relating to personal property may not, the value in each case exceeding three hundred dollars.

The prayer for mandamus was denied in the court below, and that judgment will be affirmed. It is so ordered.

Hart, C.J., concurs in the judgment only; Butler, J., dissents.


author: Humphreys, J.

text:
    Hale v. Central Bank.
    Opinion delivered November 30, 1931.

      Harb & Barnard, for appellants.

      Raymond Jones, for Central Bank, and Artlmr G. Frankel, for J. C. Green, appellees.
   Humphreys, J.

The main and controlling question presented by this appeal is whether notes signed by duly elected' trustees and a mortgage executed by them to secure the notes upon real estate owned by the Arch Street Baptist Church, unincorporated, to raise money to construct a church building thereon are valid.

Appellants brought this suit to cancel the notes and mortgage upon the ground that they were void ab initio because executed and delivered to a contractor to raise money to complete the church building without specific authority from the congregation to do so.

Appellees, who acquired the notes before maturity from the contractor to collaterally secure notes which he owed each of them, defended the action upon the ground that the trustees had authority to execute them.

Upon a trial of the cause the court ruled that the instruments were valid and duly assigned to appellees as collateral security, and that they should not be canceled or returned to appellants until the amounts due by the contractor to the respective appellees were paid, from which is this appeal.

The facts material to a determination of the ques,tions involved on this appeal are as follows: The Arch Street Baptist Church, unincorporated, authorized its duly elected trustees to enter into a contract with Cullins to erect a church building upon their lot for the sum of $25,000, and to do additional work for $1,755, totaling $26,755. After the payment of a large part, or perhaps all of the contract price, the building was not completed, and the trustees, in order to enable the contractor to raise money to complete same, executed a series of negotiable notes to him in the total sum of $6,177.24, and secured same by the execution of a mortgage upon the property without further authority from or knowledge of the congregation. Instead of obtaining’ additional money upon the notes and mortgages to complete the building, the contractor assigned notes numbers 2, 3, 4 and 5 to J. C. Green as collateral security for the balance of purchase money the contractor owed Green for lots he purchased ¡from Green, in order to obtain a release of the vendor’s lien; and assigned notes numbers 6, 7, 8, 9, 10 and 11 to the Central Bank as collateral security to secure the payment of a note for $2,245 he owed it. All these notes were assigned before maturity to the respective appellees to secure the payment of bona fide indebtedness which Cullins owed them. The record is cloudy as to whether the money advanced by the Central Bank evidenced by the $2,245 note had been used by Cullins in the construction of the church building. At any rate, no work was done by Cullins on the church building after he procured the notes and mortgage from the trustees. The trustees who executed the notes and mortgage were elected as successors to the trustees who made the contract by authority of the congregation to construct the church building.

The general rule of law is that duly elected trustees of churches operating under congregational government hold the naked legal title to the property and have no authority to mortgage same unless authority to do so is conferred upon them by resolution voted by a majority in number of the congregation in a meeting called for that purpose. Calvary Baptist Church v. Dart, 68 S. C. 221, 17 S. E. 66; Pallilla v. Gallilee Baptist Church, 215 Ala. 667, 112 So. 134; Gallilee Baptist Church v. Pallilla, 219 Ala; 683, 123 So. 210; Patterson v. Baptist Church, 8 La. App. 109; Kennesaw Free Baptist Church v. Labmire, 105 Neb. 755, 174 S. W. 296, 8 A. L. R. 98; Hyde Park Supply Co. v. Peck-Williams Heating & Ventilating Co., 176 Ky. 656, 197 S. W. 391. The general rule announced in these cases has no application in this State to contracts entered into or notes and mortgages executed by trustees of congregationally governed churches to erect buildings. In Arkansas the' status of trustees of congregationally governed churches is fixed and made secure by § 8637 of Crawford & Moses’ Digest; and authority is conferred upon them to improve the property by § 8638 of Crawford & Moses’ Digest, which is as follows:

“The trustee or trustees for the time being, of any religious society aforesaid shall have the same power to defend and prosecute suits at law or in equity, and to do all other acts for the protection, improvement and preservation of said property as individuals may do in relation to their individual property.”

The erection of a church building constituted an improvement of the property in the instant case, and authority to raise the money on negotiable notes secured by mortgage was conferred upon the trustees by the statute when it conferred upon them authority to improve the property “as individuals may do in relation to their individual property.” It cannot be gainsaid that an individual has a right to mortgage his individual property to obtain money with which to improve same. But for this statute the trustees could not have pledged the property to raise money with which to construct a church building without action by the congregation. The statute conferred such authority upon them.

The decree is therefore affirmed.

Hart, C. J., and Mehaeey, J., concur; Mr. Justice Kirby, dissents.


text:
    Tracy v. Tracy.
    Opinion delivered November 30, 1931.

      A. A. McDonald, for appellant.

      Cravens $ Cravens, for appellee.
   Humphreys, J.

In February, 1931, appellee was cited by the chancery court of Sebastian County, Fort Smith District, for failure to pay alimony of $7.50 per week alleged to have been adjudged against him in a divorce proceeding against him by appellant in 1927.

Appellee interposed the defense that, when the final decree was rendered in the cause on the 4th day of January, 1928, permanent alimony was not adjudged against him, and that the order allowing temporary alimony theretofore made was superseded by the final decree. Thereupon, appellant by permission of the court, amended her motion for the citation so as to pray for a mmc pro tunc entry in the final decree adjudging permanent alimony of $7.50 per week alleging that it was made and omitted from the original decree through oversight.

Upon a trial of the issues joined the court found that the only order made for alimony was the order allowing temporary alimony of $7.50 per week. Based upon that finding, the court dismissed appellant’s petition for'a citation and amendment thereto praying for a nunc pro tunc order, from which is this appeal.

The attorney for appellant testified that, when the original cause.was tried, the court took the case under advisement and later granted a decree of divorce and announced that the temporary order for alimony should stand. When asked why he did not include the announce.ment or order in the precedent prepared by him and okayed by the court and followed by the clerk in entering the final decree, he replied that he guessed he omitted it because the chancellor thought it was unnecessary to include it.

The ex-chancellor, who rendered the final decree, testified that he remembered rendering the decree, but could not recall the particulars or details in connection therewith. He gave it as his opinion, after reading the temporary order for alimony and final decree which contained no reference to alimony, that it was unnecessary to make or enter an order for permanent alimony, as the order theretofore made for temporary alimony remained in force until,changed or modified.

The attorney for the appellee testified that on the final trial of the cause the court took the case under advisement, stating that he would continue the temporary order for alimony until the further orders of the court, but that he was not present when the case was finally decided and does not know what was said or done except as reflected by the written decree which contained no reference to alimony.

The rule is that, in nunc pro tunc orders correcting judgments or decrees so as to incorporate provisions not appearing therein, such provisions must be shown by clear and decisive evidence to have been made by the court and omitted therefrom. Applying that rule, we cannot say that the finding of the trial court is contrary to the weight of the evidence.

We cannot agree with appellant’s further contention that, even though no order for permanent alimony was made, the temporary order for alimony survived until changed or modified by the court. The general rule is that the final order and decree supersedes an order for temporary alimony. 191 C. J. page 221; 1 R. C. L. page 895. Under our statutes temporary alimony is allowed if necessity exists during the pendency of the divorce proceeding. Sections 3506 and 3510 Crawford & Moses’ Digest.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Biggs v. Davis.
    Opinion delivered November 30, 1931.

      J. A. Tellier and Grace W. Tellier, for appellant.

      Sam T., Tom and Donald Poe, for appellee.
   Kirby, J.,

(after stating the facts). The statute requires the clerks of courts of record in -entering judg ments and decrees to leave a space or margin on the record for entry of memorandum of satisfaction thereof and to enter such satisfaction in certain instances, and that, whenever a judgment is satisfied otherwise than by execution, it shall be the duty of the party or his attorney within sixty -days thereafter to enter satisfaction in the judgment books by writing the words “satisfied in full” with the date of the entry and the signature of the party making it. Sections 6280-81; 6325-26, Crawford & Moses’ Digest. The statute also provides by whom the satisfaction of a judgment may be entered and the effect thereon. Expressly, “Satisfaction entered in accordance with the preceding provisions shall forever discharge and release the .judgment or decree.” Section 6330, Crawford & Moses’ Digest. See also Gordon v. Moors, 44 Ark. 349, 51 Am. Rep. 606.

Hodges was a .joint judgment debtor. The appellant concedes the judgment was satisfied in full as to him and set out in his petition to revive the judgment against appellee that it was satisfied in full as to Hodges. Appellee was a joint maker of the note, upon which judgment was rendered ag’ainst both Hodges and himself, each of them being bound to the payment of the whole amount thereof, so far as the judgment creditor is concerned, with the right of contribution against the other as between themselves. This right of contribution was necessarily destroyed by the satisfaction of the judgment as to one of the debtors for a substantially less amount than one-half thereof, and deprived appellee, the other judgment debtor, of any right to contribution in case of his having to make payment of the judgment without any consent or any fault on his part, and must be so far as he is concerned held to release him also from a liability upon said judgment satisfied in full as to his co-obligor. Tankard v. First National Bank of Fort Smith, 124 Ark. 154, 187 S. W. 160; 4 Page on Contracts, § 2456, pp. 4349-50; Whiting and Slak v. Beebe Bros., 12 Ark. 421.

Appellant insists, however, that there was no intention to satisfy the judgment as ag’ainst appellee, as expressly stated in the entry of satisfaction thereof as to Hodges, “but said judgment is not satisfied as to Wallace Davis”; and that the entry of satisfaction must be considered only as a covenant not to sue Hodges leaving the other joint judgment debtor liable to the payment of the judgment.

In Pettigrew Machine Co. v. Harmon, 45 Ark. 290, the distinction between a release of a debtor and a covenant not to sue is fully discussed, and it was there said that the whole instrument should be considered together in determining whether it was intended by the parties to be a release and to remit the claim or merely to create a covenant undertaking not to sue one of the parties. In that case there was an express reservation of liability of the other obligors, and it was held that the effect of the instrument was to constitute merely a covenant not to sue. It is true this entry of satisfaction of judgment states: “but said judgment is not satisfied as to Wallace Davis”; the entry of satisfaction as to Earl W. Hodges, the other judgment debtor, is, in the language of the statute, “satisfied in full” as to him, and the effect thereof is .declared as a discharge or release of the judgment. There can be no question of the intention being other than the effect as prescribed by the statute in the use of the words for showing satisfaction of the .judgment, and it cannot therefore be held to be only a covenant not to sue contrary to the meaning of it as declared by the statute in conformity with which it is executed. There was no entry of satisfaction of the judgment upon the record in accordance with the statute in the case of Hadley v. Bryan, 70 Ark. 197, 66 S. W. 921, wherein a release to one of the parties was held to be only a covenant not to sue, and the case is not controlling here.

It follows that no error was committed by the court in sustaining the demurrer and dismissing the complaint. The judgment is accordingly affirmed.


author: Mehaffy, J.

text:
    Wright v. LeCroy.
    Opinion delivered November 30, 1931.

      Joe Joiner and Garner <& Whitley, for petitioners.

      Henry Stevens and A. A. Thomason, for respondents.
   Mehaffy, J.

On December 31, 1931, O. A. Reed filed a claim in the county court of Columbia County for $368; and on the same day there was placed upon the record a sale of certain machinery to O. A. Reed amounting to $368. The order of the court approving the sale to Reed recited that it had issued to Reed warrants for the amount and had sold him this property. It appears that both orders were made at the same time. Emmet Atkinson was the judge of the county court, but his term expired on the day that he made the order.

S. G. Wright, a citizen and taxpayer of Columbia County, on the 10th day of January, 1931, filed an affidavit for appeal from the order of the county court, and the appeal was granted.

After the appeal was lodged in the circuit court, application was made to the judge of the circuit court in vacation for an order to supersede and stay the judgment of the county court and to order the possession of the property delivered to Columbia County. The circuit court required a supersedeas bond, and directed the circuit clerk to issue an order directed to the sheriff to take possession of said property and deliver it to Columbia County.

Thereafter, Reed filed a complaint in the Columbia Chancery Court, praying an order from said court enjoining the sheriff, C. T. Fincher, from levying on or otherwise interfering with his possession of said property pending an appeal taken from the county court of Columbia County to the circuit court; and the chancellor issued a temporary restraining order as prayed for in the complaint. The petitioners herein filed a motion to dissolve the temporary injunction, denying the right of the chancery court to issue a temporary injunction. The chancery court declined to either make the injunction permanent or to dissolve it, but entered an order continuing the temporary restraining order during the pendency of the case in the Columbia Circuit Court.

The petitioners then filed an original suit here, asking that the chancery court and the chancellors thereof be restrained from interfering with the sheriff in executing the order of the circuit court made by the judge of that court in vacation when the Columbia Circuit Court was not in session. The chancery judges entered their' appearance and filed response, and the question here is whether the chancery court had authority to issue a restraining order interfering with the sheriff in serving the writ issued by the circuit judge.

It is first contended by the respondents that S. G. Wright as a citizen and taxpayer had no authority to appeal from the order of sale made and confirmed by the county court, and they call attention to the cases of Armstrong v. Truitt, 53 Ark. 287, 13 S. W. 934, and Van Hook v. McNeil Monument Co., 101 Ark. 246, 142 S. W. 154. It is insisted that, in order to appeal from the order of sale, it is necessary for the person seeking to appeal to •become a party and that a citizen and taxpayer has no right to appeal without first becoming a party to the ■suit. It is urged that this is not an appeal from an allowance made by the county court, but is an order affirming a sale. We do not agree with respondents in this contention because, at the same time the order confirming the sale of the property to Reed was made, there was an order made allowing Reed $368, as a claim against the county. It is evident from the record that this was all one transaction, and it was in fact an allowance to Reed.

Section 2287 provides that appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court. We think none of the authorities cited and relied on by respondents have any application here for the reason that we hold that this is an appeal from an allowance made by the county court. This, of course, answers the second and third contention of the respondents. The appeal was properly taken from the county court to the circuit court and properly lodged in the circuit court, and the circuit court therefore had jurisdiction of the parties and the subject-matter.

Section 2232 of Crawford & Moses’ Digest gives the circuit court authority to issue, hear, and determine all necessary writs to cany into effect their specific powers, and it further provides that any such writs may be issued upon the order of the judge of the appropriate court in vacation. We think it therefore clear that the circuit judge had the right to issue a writ staying proceedings.

It is next contended that the order of supersedeas can not be made to have a retroactive effect or compel restoration of property. Whether this exceeded the authority of the circuit court or not, Wright, if it was an erroneous judgment, could appeal; and under the decisions of this court, if it were a Amid judgment, he could, either appeal or treat it as a nullity. He would certainly have had the right to so supersede or stay the proceedings so as to prevent the disposition of the property by Reed until it was tried in the circuit court and determined whether the county actually owed him the $368 for which allowance Avas made.

It is then contended that Aubey Rowe, county judge, violated the law in becoming a party to the order directing the circuit clerk to issue a writ for the property. It is true that, in claims against counties, the law required the county judge to defend ; but this is not the character of action that requires that action on the part of the county court. If the judge had reason to believe that the allowance to Reed should not have been made and that the sale was therefore Amid, it Avould have been his duty to become a party and protect the interests of the county.

It is next insisted that the chancery court had jurisdiction to restrain processes from courts of coordinate jurisdiction. When a chancellor or a circuit judge has jurisdiction in a cause pending in his court and issues a writ, the other court of coordinate jurisdiction would not have the right to interfere and prevent the sendee of the writ. The chancery court could not prevent the service of a writ by the circuit court, nor could the circuit court interfere in the service of a writ issued by the chancery court. If this practice were permitted, it would create no end of confusion, and the sheriff or other officer would not know which judge or court to obey. Tc> prevent situations of this sort and the confusion that would arise if such practices were permitted, this court will grant a writ of prohibition. Arkansas Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. (2d) 879; Caldwell v. Dodge, 179 Ark. 235, 15 S. W. 318; Metzger v. Mann, 183 Ark. 40, 34 S. W. (2d) 1069. Circuit courts and chancery courts are of equal dignity; and, in cases where there is concurrent jurisdiction, the court that first acquires jurisdiction has the right and jurisdiction to conduct the matter to an end without interference by another court of equal dignity. Salem v. Colley, 70 Ark. 71, 66 S. W. 195; State of Arkansas v. Devers, 34 Ark. 188; Bradley v. State, 32 Ark. 722; Estes v. Martin, 34 Ark. 410; Kastor v. Elliott, 77 Ark. 148 91 S. W. 8; Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; and Ex parte Dame, 162 Ark. 382, 259 S. W. 754.

It follows from what we have said that the chancery court had no jurisdiction to issue an order restraining the sheriff from serving a writ issued by the circuit judge, and the writ of prohibition is therefore granted.


text:
    Hogan v. Bateman.
    Opinion delivered November 30, 1931.

      Kent K. Jaclcson, for appellant.

      Busbee, Pugh & Harrison, for appellee.
   Mehaffy, J.

The appellant, Clyde Hogan, Jr., begun work for the appellee, Bateman Contracting Company, wbioli is a partnership composed of N. S. Bateman and Allen Bateman. The appellee was engaged in the construction of the White River -bridge at Cotter, Arkansas. The appellant was 16 years of age. He begun work on the 27th day of May, 1930, and was injured on the 30th day of June, 1930. He alleges in his complaint that he was required and suffered to work seven days per week, ten hours per day every day, and some days ten and a half hours, and others eleven hours per day and more than fifty-four hours per week, contrary to law.

Appellant bases his right to recover on § 7091 of Crawford & Moses’ Digest, which reads as follows: “No boy or girl under the age of 18 years shall be employed, permitted, or suffered to work in any occupation for more than six days in any week, or more than 54 hours in any week, nor more than 10 hours in any one day, or before the hour of six in the morning or after the hour of ten in the evening.

The undisputed proof shows that the appellant was 16 years of age; that he went to work for the appellee on the 27th day of May, 1930, working under a foreman named Williams, who has since died; that he worked at whatever they told him to do; part of his duty was to carry cement and help operate the mixer; that the first week beginning on the 27th day of May, he worked 70 hours; and that on some days he worked ten and a half hours, and on one day worked eleven hours; that the day he worked eleven hours he began work at seven in the morning, worked until 12:25, took five minutes off for dinner, and worked until six o’clock. His physical condition, when he entered the employment of appellee, was good; he had been examined so that he could go to the C. M. T. C., a training camp for boys.

He was injured about 10 or 11 o’clock on the 30th day of June, while lifting sacks of cement, weighing about 95 pounds. He was suffering with pains in his side, picked up the sack and threw it in, and, according to his testimony, something tore loose in his side. He started home, but was unable to go, and he was taken home in a car and put to bed. He suffered a great deal.

He was then taken to the hospital and treated by Dr. Rollins, who was the physician and surgeon for the appellee. He suffered great pain in the hospital, where he stayed for two or three days, and was then taken to Little Rock and operated on for hernia. He was in the hospital at Little Rock for about 18 or 19 days.

At the time of his injury he was earning'$2.50 a day and was averaging 24 or 25 days a month. He was unable to do any labor for three or four months. He had been examined for a rupture prior to this time, was advised to wear a truss, but was told that he -was not ruptured. This examination was in 1927.

It w.as admitted that at the time of the trial he was in a perfectly sound physical condition, and that he only claimed four months’ disability.

He was injured on the 30th day of June, 1930, and had not worked on the 29th, 28th or 27th. The three days before the 27th, that is the 26th, 25th and 24th, he worked 10 hours a day. The evidence also shows that he did not work on Sunday, the 22nd.

Appellant, after his injury, when he was at the hospital, made a statement to Dr. Rollins. This statement was written out by Dr. Rollins, who then called in a notary public, had her to swear appellant to the statement. This statement was introduced in evidence, and the notary public testified that she was called in by Dr. Rollins, read the statement to appellant, and he signed it. The undisputed evidence shows that at the time he made the statement he was suffering excruciating pain, and he says that he simply said “yes” to what they asked him.

The trial court directed a verdict for appellee. Judgment was entered accordingly, and this appeal is prosecuted to reverse said judgment.

It is first contended by the appellant that the court erred in admitting the statement made by him to Dr. Rollins and the testimony of Miss Myrtle Shoemaker, the notary public.

The evidence of Dr. Rollins was clearly inadmissible under § 4149 of Crawford & Moses ’ Digest. He received his information while attending the appellant in a professional character, and of course he could not, over the objection, testify as to any information so received.

This court has said: “The purpose of § 3098 of Kirby’s Digest is to cover the relation of doctor and patient with the cloak of confidence and thus to allow a greater freedom in their communications to each other in regard to matters touching the disease of the patient. Such statutes are enacted as a matter of public policy to prevent physicians from disclosing to the world the infirmities of tlieir patients.” Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720.

This court in the same case quoted with approval the decisions of other courts holding that a physician who was requested ¡by the attending physician to be present could not testify, and that a physician’s partner could not testify as to a communication made in his presence.

In the case at bar the physician, Dr. Rollins, wrote the statement in pencil and then called the notary public, had her to type it, and then in the presence of the physician read it to appellant and witnessed his signature. Her testimony was no more competent than that of the physician.

If a physician could call any third person and disclose to such person his information and thereby enable her to testify, the statute would be of no effect. The physician could always evade the statute in this way.

In the case at bar, however, in addition to this, the undisputed evidence shows that the appellant was suffering so much pain that he did not know what they were doing.

It has been repeatedly held that other physicians either partners or physicians called in consultation, and present when the statement was made, could not testify; that the communication in their presence was privileged under the statute, and that it would be an evasion of the statute to permit evidence of facts thus obtained. Ætna Life Ins. Co. v. Deming, 123 Ind. 384, 24 N. E. 86 and 375; Green v. Town of Nebagamain, 113 Wis. 508, 89 N. W. 520. See notes 16 L. R. A. (N. S.) 888.

The appellant contends that the court erred in directing a verdict for the appellee.

Persons are prohibited by the statute from employing children under 18 years of age in any occupation to work more than the hours prescribed by the statute. Section 7091, Crawford & Moses’ Digest.

If a child under 18is injured while employed in violation of statute, he may recover damages from his employer. Statutes like the one involved here are enacted for the purpose of protecting the lives and limbs of children 'by prohibiting- their employment in any occupation to work more than certain hours, and, if one is injured while employed in violation of such statutes, he is entitled to recover.

The evidence, however, in the case at bar, conclusively shows that appellant was not injured while the statute was being violated and shows that the violation of the statute was in no way connected with the injury. It is true that the evidence shows that the first week appellant was employed, beginning May 27, 1930, the statute was violated, but there is no evidence tending- to show that it was violated at any time thereafter. The evidence shows that the appellant was injured on the 30th of June. On the 29th, 28th and 27th of June he testified that he did not work at all; that on the 26th, 25th and 24th he did not work more than 10 hours, and did not work on Sunday.

There is therefore no evidence tending to show that the injury resulted from a violation of the statute or that it was in any way connected with the violation of the statute.

The court said in one case: “If the negligence, whether per se or otherwise, does not proximately cause the injury, there can be no recovery on account of it. This bring-s us to the question of whether there was any causal connection between the disobedience of the statute and the injury. In short, was there any intervening cause?” Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S. W. 887, 12 A. L. R. 1208.

If appellant had been injured while the statute was being violated, the violation of the statute by the employer would not only be negligence, but would he the proximate cause of the injury, but it can not be said that the violation of the statute three weeks prior to the injury had any connection with the injury, or that there was any causal connection between the disobedience of the statute and the injury.

It is true that appellant says that working overtime previous to the date of his injury weakened his condition, and the strain of lifting excessive weights caused him to become ruptured, but there is no evidence that his long hours of labor the first week weakened his condition in any way. If he had been working in violation of the statute up to near the time of his injury and there was any evidence tending to show that this violation of the statute had any connection with the injury, it would then be a question of fact for the jury, even though he was not at the time of his injury being required to work in violation of law. If he had been working over hours the three weeks preceding his injury, then the fact that he was injured on Monday morning when it could not be said he was working over hours that week, could not prevent his recovery.

There must, in order for the injured party to recover, be some evidence that the prohibited working was the proximate cause of the injury. Birmingham News Co. v. Andrews, 204 Ala. 649, 87 So. 168; Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S. W. 887, 12 A. L. R. 1208.

The violation of the statute does not appear to be the proximate cause of the injury, and the judgment is therefore affirmed.


author: McHaney, J.

text:
    Hyatt v. Wroten.
    Opinion delivered November 30, 1931.

      Utley <& Hammock and A. F. Barham, for appellant.

      James G. Gosten and J. T. Gosten, for appellee.
   McHaney, J.

The subject of this controversy is the will of John L. Wroten executed by him and properly attested on the first day of September, 1928. He died in November, 1929, at the age of 75. In this will he bequeathed $5 each to the appellees, three of whom are his ■children and one a. grandchild. Of the remainder of his estate he devised and bequeathed one-fourth thereof to the board of trustees of the Arkansas Masonic Home and School and by the fourth paragraph thereof he gave the entire remainder of his estate “to my faithful housekeeper, Mrs. Lula Garner.” He appointed W. W. Prewitt as the executor of his will, and directed that the executor sell all his real and personal property in the manner provided by law, and, after the payment of his debts, he should make the distribution of the estate in the manner above set out. The chief beneficiary, Lula Garner, died intestate in December, 1929, leaving surviving her the contestees, J. R. Hyatt and M. M. Hyatt, her brothers and only heirs at law. The will was duly probated, and thereafter the appellees appealed from the order of probate to the circuit court. Said Prewitt qualified as executor of the will of John L. Wroten, and A. S. Rogers as administrator of the estate of Lula Garner, deceased, and they, together with J. R. and M. M. Hyatt, constitute the contestees and appellants in this case. The contest in the circuit court was- based upon two allegations of incapacity of the said John L. Wroten to make a will, first, that he was mentally incapable, and second that its execution was procured by the undue influence of Lula Garner on the- testator. On the trial of the case the court instructed the jury as to the form of the verdict as follows: ‘‘ Gentlemen, the forms of verdict in this case, the first one reads, ‘We, the jury, find for the will.’ If you find the will was valid, you will sign that form of verdict. That is, if Wroten had mental capacity to make a will, and it was not obtained or procured by undue influence, you will sign the first form of verdict which reads, ‘We the jury find for the will.’ If you find that the will was obtained by undue influence or that Wroten didn’t have the mental capacity to make it, then you will sign the next form of verdict which reads, ‘We the jury find against the will.’ That means the will is invalid, of no force. If you sign that form of verdict finding against the will, then I have got other interrogatories for you to answer, ‘If you find against the "will answer the following interrogatory: Was the execution procured by the undue influence of Lula Garner?’ Answer, yes or no. That is, if you find against the will. If you find that the execution of the' will was procured by the undue influence of Lula Garner answer this interrogatory: ‘Was the whole will procured by her undue influence or was just that part of the will that was made in her favor procured by such undue influence?’ If you sign the first verdict, there is no occasion to answer the interrogatories, but, if you find against the will, then there is occasion to answer the interrogatories. If you find that the whole will was not caused by her undue influence, but find that part of it here was caused by her undue influence you will set out that part you find was due to her undue influence, if any.”

The jury, under the above instruction returned the following verdict: “We, the jury, find against the will. Hiram Cox, Foreman.” In addition the jury answered the interrogatories submitted by the court as follows: “Was the execution procured by the undue influence of Lula Garner? Answer, yes.”

“Was the whole will procured by her undue influence or was just that part of the will that was made in her favor procured by such undue influence? Answer: Just that part of the will that was made in her favor.”

Thereupon the court found from the verdict that it was the intention of the jury to sustain the will as to' the bequest in favor of the Masonic Home and School, and against the will as to the bequest in favor of Lula Gamer and instructed judgment accordingly. From this judgment both sides have appealed;

It is first strenuously insisted by counsel for appellants that there was no substantial evidence introduced upon the trial of the case to show either mental incapacity on the part of the testator or undue influence on the part of Lula Garner, and that therefore there was no substantial evidence to support the verdict upon which the judgment is based. We cannot agree with counsel in this contention. It appears, however, from the verdict that the jury did not find against the will because of the mental incapacity of the testator, but solely on the ground of the undue influence of Mrs. Gamer. There were a great many witnesses who testified in this case pro and con on both questions, and, while the testimony of the undue influence of Mrs. Gamer is meager, yet we are of the opinion that the evidence was sufficient to take the case to the jury on both questions, that of mental capacity and undue influence. Both questions were submitted to the jury on instructions that are not questioned, and the verdict of the jury must be sustained if there is any substantial testimony to support the finding of undue influence on the part of Mrs. Gamer. In determining this question, we must view the evidence in 'the light most favorable in support of the - verdict. The facts are, briefly stated, that the testator was 75 years old at the time of his death and Lula Garner was 40 or 50. She had been living with him as his housekeeper about five years at the time of his death, and it appears that she exercised a great influence over him — “was always willing to do anything she wanted him to do,” as one witness put it. She went with him almost everywhere in his car, and, when she did not go with him, she would walk out to the oar and see him off. The evidence further discloses that there were three bedrooms in the house where they lived alone, one on one side of the hall and two on the other; that she occupied a béd in the room adjoining* the testator’s bedroom with a door opening* from one to the other. She was seen to “wash his neck and ears and put his shoes on him,” and he was seen with her in the house with nothing* on but his shirt and underwear with her adjusting* his neck tie. The testator was a married man, his wife being confined in the State Hospital for Nervous Diseases for many years prior to her death which happened prior to that of the testator. ■ While no witness testified directly that the testator and Lula G-arner were guilty of illicit relations, the facts and circumstances testified to were such as to justify the jury in inferring such relationship. We think the fact that they thus lived together for four or five years in the same house alone and with adjoining rooms with a door between, as said by this court in Alford v. Johnson, 103 Ark. 236, 146 S. W. 516, “was amply sufficient to justify the jury in finding* that their relations were meretricious and adulterous.” And, as was said in the same case: “There can be no doubt that a long* continued relation of adulterous intercourse is a source of great mutual influence of each of the parties over the mind and person and property of the other. * * * When, therefore, undue influence is charged, the fact that the person accused of exercising it lived in illicit relations with the testator is properly admitted in evidence, to be considered by the jury, and from such testimony the jury may draw an inference of fact of such undue influence. And, when in addition to this there is any direct testimony adduced in evidence showing that such influence has been actually exercised, then it will be sufficient to justify the finding that the execution of the will was not a free and unrestrained act of the testator, and therefore that it was executed through undue influence sufficient to invalidate it. While it is true that a presumption of undue influence mil not arise as a matter of law from the mere fact that the will is favorable to- one occupying illegal relations to the testator, yet it is an important fact to- go to the juiy as a circumstance to be considered by them along with other testimony in the case tending to prove the exercise of undue influence. There is a distinction between influence exerted'through a lawful relation and that exercised by one occupying an unlawful and adulterous relation. Much less evidence will be required to establish undue influence on the part of one holding wrongful and meretricious relations with the testator.” See cases cited.

The proof further shows that the testator was ever ready to do whatever she wanted done and to do. things about the farm in the way she directed it to be done. Also that he was suffering from hardening of the arteries and high blood pressure which the physicians said tended to lower his mentality and break down his will power. Being subject to her influence in matters of minor importance when coupled with that wicked influence which arises from an illicit relation, we are forced to the conclusion, or at least the jury was justified in so finding, that he disinherited his own children and gave his property to his paramour, or a major portion of it, as a result of a baneful influence operating with great force on a diseased body and a waning will power. We think that if such relation existed between the testator and Lula Garner, as the jury has evidently found, when taken in connection with the bequest to her, this of itself is sufficient evidence of an undue influence exerted by her over the testator as to justify the verdict against the will. As said by the Supreme Court of Florida in Newman v. Smith, 77 Fla. 633, 82 Sou. 251: “W'e do not mean to say that a will should be disturbed merely because it is unreasonable and unjust, but where, as in the instant case, it does violence to the natural instincts of the heart, to the dictates of fatherly affection, to natural justice, to solemn promises, to moral duty, such unexplained inequality and unreasonableness is entitled to great influence in considering the question of testamentary capacity and undue influence.”

Undue influence is generally difficult of direct proof. It is generally exercised in secret, not openly, and, like a snake crawling upon a rock, it leaves no track behind it, but its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of the testator to suit his or her purposes. We cannot therefore say that there was not substantial evidence to support the jury’s verdict.

It is next urged that the verdict resulted from the admission of the incompetent testimony of two physicians who had treated the testator in the past as to • what diseases he had and as to his mental condition. It is contended that such testimony was admitted in violation of § 4149, Crawford & Moses’ Digest. This statute provides that physicians and nurses shall not be compelled to disclose information which they have acquired from a patient while attending him in a professional capacity. The physicians were not claiming the privilege and the heirs of the testator, the appellees, specifically waived the privilege by putting the physicians on the stand, and we think the court unduly limited their testimony under the rule announced in the recent case of Schirmer v. Baldwin, 182 Ark. 581, 32 S. W. (2d) 162, where we held that the heirs may waive the privilege extended to physicians and nurses. The remarks of counsel about which complaint was also made were made in connection with the testimony of the .physicians, and, since we hold that the testimony was competent and that the court unduly limited it, the remarks of counsel become unimportant.

The only other question that ha,s given us any concern is the question as to whether the verdict of the jury, both general and special, that is, the general verdict against the will, and the answers to the two interrogatories, constitutes a conclusive finding against the will as a whole, or whether it is a finding that the will is valid as t-o the Masonic Home and School and invalid as to Lula Garner. It will be remembered that the court told the jury that, if they found against the will, “that means the will is invalid, of no force.” Appellees have appealed on the ground that the effect of the verdict both general and special is that the whole will is invalid. The answer toi the second interrogatory propounded by the court, however, contradicts that idea, and is a special finding of the jury that “just that part of the will that was made in her favor” was procured by undue influence, and that constituted a special finding of the jury to that effect. Under our Code of Civil Procedure, § 1304, Crawford & Moses’ Digest, it is said: “When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly. ’ ’ The question then arises as to whether a will may be valid in part and invalid in part because of the undue influence of the beneficiary as to the invalid part. In Page on Wills, (2d ed.) § 195, page 341, it is said: “Undue influence avoids such part of the will as is caused thereby. If the whole will is the product of undue influence, it is thereby entirely avoided, including a clause of revocation, and a condition ag'ainst the contest of the will by disappointed heirs. Fraud, which amounts to undue influence, vitiates a will like any other form of undue influence. If a part of the will is caused by undue influence, and such undue influence does not affect the remaining provisions of the will, the validity of the provisions which are not caused by such undue influence depends, in part, on whether it is possible to ascertain which portions are caused by the undue influence, and whether such portions, if ascertained, can be held to be invalid, and the rest can be given effect. If it is not practicable to ascertain what portions of the will were caused by undue influence and what were free from it, or if effect cannot be given to such provisions as are not caused by undue influence, without defeating the intention of the testator, the entire will is invalid.”-To the same effect see Schouler on Wills, (6th ed.) vol. 1, p. 400. There is no difficulty in this case in separating the valid portion from the invalid portion as the testator directed his executor to sell his entire estate and then distribute the proceeds, one-fourth to the Masonic Home and School and three-fourths to Lula Garner. Therefore the bequest to the former will stand and the latter fail.

We therefore conclude that the court correctly construed the verdict of the jury and entered judgment accordingly, sustaining the bequest to the Masonic Home and School and invalidating the bequest to Lula Garner. Affirmed. ‘

Smith, Mehaeey and Butler, JJ., dissent.


text:
    Williams v. Hulse.
    Opinion delivered November 30, 1931.

      J. V. Walker and G. D. Atkinso'n, for appellant.

      Pearson <ds Pearson, for appellee.
   McHaney, J.

Appellants are the owners of a house and lot fronting 80 feet on East Lafayette Avenue in the city of Fayetteville, which they acquired October 2, 1928, and which they have since occupied as their home. Appellees are the owners of the adjoining lot to the east, on which is a duplex apartment occupied by tenants. In August, 1924, Gus Bridenthal, the then owner of appellant's house and lot, entered into a written agreement with appellees for the construction of a driveway from Lafayette Avenue to the rear of their properties so as to serve both properties. This driveway was constructed wholly at appellee’s expense, but entirely on the lot now owned by appellants. The agreement is as follows:

‘ ‘ This contract and agreement, made and entered into at Fayetteville, Arkansas, this 28th day of August, 1924, by and between G-us Bridenthal, hereinafter known as the party of the first part, and Marcus Hulse, hereinafter known as the party of the second part, as follows, to-wit:
“For and in consideration of the sum of one dollar paid by the party of the second part to the party of "the first part, the receipt of which is hereby acknowledged, and for other good and valuable consideratio*n, the said party of the first part grants to the said party of the second part, his heirs and assigns, the use of a strip of ground off the east side of his property, located at 412 East Lafayette Avenue, Fayetteville, Arkansas, to be used as a joint driveway between the property of the party of the first part and the property of the party of the second part, located at 416 East Lafayette Avenue, in the city of Fayetteville, Arkansas.
“The party of the second part agrees to the joint use of said driveway, either by the party of the first part, or his heirs or assigns.
“It is agreed that the said joint driveway has been constructed at the expense of the party of the second part, as follows: A solid slab of concrete 6x7, extending from the inside of the curb, across the parking to the sidewalk; a 28.5 foot concrete retaining wall to protect the property of the party of the first part; 7 x 37 feet of concrete and 7 x. 91 feet of gravel base on driveway; also 24 x 30 feet of gravel for.a turn around, the latter being located on the property of the party of the second part, but for the joint use of the parties hereunto.
“This contract is made in good faith and executed in duplicate at Fayetteville, Arliansas, on the date first above written.”

This agreement was not acknowledged, but was subscribed and sworn to, and was filed for record and recorded more than a year after appellants had purchased the property from Art Lewis, who acquired it under foreclosure of a mortgage from Bridenthal. The driveway was constructed so as to run straight north from the street to appellant’s garage, being of concrete a portion of the way and gravel the remainder, with gravel in front of the garage of appellees extending to the driveway covering an area sufficient to turn a car around and which was used by appellants and their grantors as well as appellees for such purpose. Both parties used the driveway and the turnway until a disagreement arose between them and the right to the use of the driveway by appellees and their tenants was disputed by appellants, whereupon the appellees placed the written agreement of record. Appellants shortly thereafter learned of this agreement for the first time and brought this action to quiet title as to the use of said driveway and to cancel the above mentioned contract as a cloud on their title. After hearing the evidence and viewing the subject of controversy, the court found no equity in appellants’ complaint and dismissed it for want thereof.

We will assume, in the disposition of this appeal, that the above instrument was sufficient in form and substance to convey an easement and that it was subject to record. Still, it was not recorded for more than a year after appellants purchased their property, and it is conceded by appellees that constructive notice was lacking. It is contended by appellees, however, that appellants had actual notice, or that they had actual notice of such facts and circumstances as to put a person of ordinary prudence and business sagacity upon inquiry as to the true situation, and that they must be held to a knowledge thereof. We cannot agree with appellees in this contention. The rule is, as stated by this court in Wilson v. Nugent, 174 Ark. 1115, 299 S. W. 18, “that notice of facts and circumstances which would put a man of ordinary intelligence on inquiry is equivalent to knowledge of all the facts a reasonable inquiry would disclose, where there is a duty to make the inquiry. ” See also eases there cited. What are the facts and circumstances relied on to put appellants on inquiry? They inspected the property as prospective purchasers twice for about fifteen minutes each time before buying. They saw the driveway. Knew it was on the east edge of the lot they were viewing and went directly north from the street to the garage thereon. Conld have seen, hut say they did not because they gave it no attention, the gravel turnway on appellees’ lot. Appellees testified they told appellants about the arrangement for the driveway, but failed to say they did so before he bought. It is true that appellants permitted appellees and their tenants to use the driveway for a time after purchasing, but without knowledge of a claim of absolute right or of said contract, and this was a permissive use only. We do not think these facts sufficient to put appellants on inquiry, and the proof is lacldng to show actual knowledge of the contract. Their grantor knew nothing about the contract between Briddenthal and appellees, and they testify they knew nothing about it and would not have bought had they been so advised. It is all due to appellee’s negligence in failing to record their contract for an easement, if subject to record, and calls for an application of the rule that where one of two innocent persons must suffer a loss, it should fall upon him whose negligence caused it.

We are therefore of the opinion that thé learned trial court erred in dismissing the complaint for want of equity. Decree reversed, and cause remanded with directions to grant the relief prayed.

Kirby, J., dissents.


author: Butler, J.

text:
    Miller v. Fearis.
    Opinion delivered November 30, 1931.

      Coulter S Coulter, for appellant.

      Ragsdale <& Matheney, for appellee.
   Butler, J.

The appeal in this case questions the sufficiency of the appeal from the prohate court on the ground that it was not perfected within the time required by law. The appeal was granted by order of the probate court on March 2, 1927, and the transcript lodged with the clerk of the circuit court on January 30,1928.

The appellant invokes § 2262 of Crawford & Moses’ Digest in support of his contention, and argues that § 6525 of the Digest, regulating appeals from the justice court, is in the identical language of this section, and that it (§ 6525) has been construed by a number of our decisions to support the contention made that the appeal here was not perfected within the time prescribed by law. The two sections are in fact identical and read as follows: “All appeals allowed ten days before the “first day of the term of the circuit court next after the appeal allowed shall he determined at such term unless continued for cause.” In construing that section regulating appeals from the justice court, this court has held in a number of decisions, beginning with the case of Smith v. Allen, 31 Ark. 268, cited by appellant here, that it is the duty of one appealing from the justice court to see that the transcript is lodged by the justice within the time prescribed by § 6225, and a failure to do this is ground for the court, acting within its discretion, to dismiss the appeal for failure to prosecute with due diligence. The failure to have the transcript filed, however, does not give the other party to the suit absolute right to have the case dismissed, but the court should hear the party in default to the end that he may excuse his delay if possible. Hart v. Lequieu, 110 Ark. 284, 161 S. W. 201.

The state of the record in this case does not disclose any facts from which it can be said that the refusal of the court to dismiss the appeal was an abuse of this discretion, and, inasmuch as the appeal was taken within twelve months from the judgment of the probate court, it was taken within time. Section 2258, Crawford & Moses’ Digest.

This case arose upon the filing of a note of the appellant’s intestate in the probate court, it having been first presented to the administratrix (appellant) and disallowed by her. The probate court disallowed the claim, and on appeal to the circuit court, after having moved to dismiss the appeal for the reasons heretofore given, moved to dismiss the case on the ground that the claim was not authenticated as required by law. This motion was overruled, and the cause proceeded to trial before a jury, and judgment was rendered in favor of the claimant on the instruction of the court. The refusal of the court to nonsuit the claim because of the insufficiency of the affidavit is the principal assignment of error and the one that has given us most concern. After, a careful examination of all of the authorities cited by the appellant, we have concluded that the affidavit was a substantial compliance with, the statute, and that the court did not err in its refusal to nonsuit the claim. The affidavit filed with the claim is as follows:

“I, M. P. Matheney, as attorney for the Fearis Separator Company, do solemnly swear that the above and foregoing demand against the estate of W. H. Murray, deceased, is just and correct, and that nothing has been paid or delivered toward the satisfaction of said demand, except what is credited thereon; that the sum of one thousand ($1,000) dollars, with interest from 12/13/1925 is justly due. M. P. Matheney, attorney for J. J. Fearis and Fearis Separator Company. Subscribed and sworn to before me this 27th day of February, A. D. 1926. J. Gh Bagsdale, Notary Public.”

The statute directing the manner in which claims may be authenticated is found in § 101, Crawford & Moses’ Digest, and reads as follows: “And the claimant shall also append to his demand an affidavit of its justice, which may be made by himself, or an agent, attorney or other person. If made by the claimant, it shall state that nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, .naming it, is justly due. If made by any other person, it shall state that the affiant is acquainted with the facts sworn to, or 'that he had made diligent inquiry and examination, and that he verily believes nothing has been paid or delivered toward the satisfaction of the demand, except the amount credited thereon, and that the sum demanded is justly due.”

This court has held on numerous occasions that the making of an affidavit is a jurisdictional requirement, but that it need not be in the exact language of the statute, but will be sufficient if there is a substantial compliance with the statutory requirement. Ross v. Hine, 48 Ark. 304, 3 S. W. 190; Eddy v. Loyd, 90 Ark. 340, 119 S. W. 264; Wilkerson v. Eads, 97 Ark. 296, 133 S. W. 1039. It will be observed that the affidavit was not made by the claimant in person, but by his attorney, and it is insisted that the affidavit is insufficient because is does not state that the affiant “is acquainted with the facts sworn to or that he has made diligent inquiry and examination, and that he verily believes that nothing has been paid or delivered toward the satisfaction of demand except the amount credited thereon. ’ ’ This omission is the identical language of that part of § 101, supra, prescribing upon what terms a person other than the claimant may make the affidavit. Among the cases cited by the appellant, and the one which most nearly supports his contention, is that of Lanigan v. North, 69 Ark. 62, 63 S. W. 62. In the opinion in that case the affidavit is not set out, the court contenting itself with the following statements “The affidavit attached to the claim of the'Union Lime Company, a partnership, was made by F. O. Wyman, who does not show that he was a member of the firm or that he was acquainted with the facts sworn to.” It cannot be determined from the opinion whether or not the affidavit contained the positive statement “that nothing has been paid or delivered toward the satisfaction of the demand except what is credited thereon, and that the sum demanded is justly due.” The statute providing for the affidavit contemplated that it would not always be convenient or possible for the affidavit to be made by the claimant himself, and that as another might not certainly know the facts, provision was made that, where he made diligent inquiry, he might state that he'verily believed nothing had been paid except what appeared credited thereon, and that the sum demanded was .justly due. When one has certain knowledge, then it is unnecessary to make the allegation of diligent inquiry and of belief; “but if the affiant possesses positive, definite and certain information of the truth of the matter alleged, it would be a work of supererrogation to require him to make inquiry about a fact already known, and we think the act set out above was not intended to deprive the affiant of the right to make an affidavit, the truth of which rests upon his own knowledge.” Willard v. Willard, 134 Ark. 197, quoting from page 201, 203 S. W. 1019, 1020.

In the affidavit before us, knowledge of the facts is stated in unequivocal and positive terms as a truth which appellant knew, and not something which he believed to be true. In the case of Breckenridge v. Weber Dry Goods Co., 167 Ark. 429, 268 S. W. 593, the court had before it a claim to which the following affidavit was attached: “H. R. Warden, being first duly sworn, on oath declares and says that he is a resident of the county and State aforesaid; that he is bookkeeper for the firm of Weber-Walters Dry Goods 'Company; that the above account is true and .just and unpaid, after allowing all due credits and set-offs.” In that case appellant contended among other things that the affidavit was not a sufficient compliance with § 101, supra. In passing1 upon that question the court said: “We think the positive statement of H. R. Warden, the cashier of appellee, to the effect ‘that the above account is true and just and unpaid, after allowing all due credits and set-offs’, is a substantial compliance with the statute requiring him to state that he has made diligent inquiry and examination and he does verily believe that nothing has been paid except the amount credited and that the sum demanded is justly due.”

It seems that there was no defense offered by the administratrix to the claim on its merit, but that she contented herself with a bare technical defense which courts are not inclined to favor and which are not allowed except in such cases as from which there is no escape. The affidavit in this case, while not a literal copy of the language of the statute, is a substantial compliance with its terms. The judgment of the trial court is therefore correct, and it is affirmed.


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    School District No. 18 of Jackson County v. Grubbs Special School District.
    Opinion delivered November 30, 1931.

      Jones d Wharton, for appellant.

      G. M. Erwin, for appellee.
   Butler, J.

This case is here on appeal from a judgment of the circuit court affirming the action of the county board of education of Jackson County, by which School District No. 18 and a part of School District No. 27 were consolidated with the Grubbs Special. School District. The remonstrants, who are the appellants here, urged for a reversal of the case errors of the trial court in four particulars.

It is first insisted that the notice of the proposed consolidation, having been signed by only four petitioners, was not a compliance with the statute regulating the manner in which notices should be given, in that the notice should have been signed by all of the petitioners. That part of the statute which the remonstrants say justifies their contention-is as follows: “Notice shall be given by the parties proposing the change.” Section 8821 of Crawford & Moses ’ Digest.

In the recent case of Nathan Special School District No. 4 v. Bullock Springs Special School District No. 36, 183 Ark. 706, 38 S. W. (2d) 19, we held that it was unnecessary for each signer of the petition to also sign a notice. In that case the notice was signed by only four of the petitioners, as in the instant case, and it was contended there, as here, that the notice, having been signed by four only of the petitioners was insufficient. There we said: “The trial court properly held that the notice was sufficient and properly given. The only purpose which the notice serves is to inform those interested of the nature and effect of the proceeding and the date upon which it would be submitted for a hearing. Those of the petitioners who sign the notice do 'so for themselves and all the other signers.”

The remonstrants urged as error the ruling of the trial court (a) that the signers were presumed to be qualified electors, and the burden was upon the remonstrants to show otherwise; (b) in permitting the “enumeration records” of the districts affected to be identified by the county superintendent and introduced for the purpose of showing the ages of certain signers of the petition whose names did not appear on the poll tax list; (c) in permitting a witness to testify as to the qualifications of two signers whose names did not appear on the poll tax list.

If it be conceded (which we deem it unnecessary to decide) that the court erred in its aforesaid ruling, no prejudice resulted. The court went very thoroughly into the question of whether or not a majority of the electors signed the petition. From the evidence considered by the court, it unquestionably appears, and the court found, that there were 194 qualified electors within the territory affected, and that a majority of the names of the signers appeared upon the official list of poll taxpayers, so that, if the testimony relative to those who became twenty-one years of age after the time for assessment had expired and that relative to those who had moved into the district and paid their poll taxes elsewhere in the State were improperly admitted, the petition would still have been signed by more than a majority of those whose qualifications were indubitably proved.

It is contended that the proceeding of the board was void because a member of the county board of education, Mr. Grant, who acted as chairman at the hearing of the petition, was one of its signers. To sustain this view, art. 7, § 20, of the Constitution is invoked, which is as follows: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity within such degree as may be prescribed by law, or in which he may have been of counsel or presided in any inferior court.” The legal definition of “judge” is one who presides and administers the law in a court of justice. The word i£ justice” is one of broader signification and is a term used in the United States and England to designate judicial officers and magistrates of every grade. From a consideration of the language of § 20, in connection with the entire article, it is apparent that the words “judge” and “justice” were used in their legal sense and referred only to the judicial officers named in article 7.

It affirmatively appears from the record that Mr. Grant’s attendance at the meeting of the board was not necessary to form a quorum of the county board of education which the court judicially knows consists of five members, and it appears from his testimony, which was all the testimony taken on that question, that Grant did not vote. He testified that it was not necessary to vote. He, however, acted as chairman at that meeting. The fact that he was a member of the county board of education did not preclude his signing the petition. In Carroll v. Lemon Special School District, 175 Ark. 274, 299 S. W. 11, where the sufficiency of a petition was challenged because it contained the name of one who was a member of the board of directors, in passing on that question, the court said: £ £ There is nothing in the statute that prohibits a director from signing the petition if he is a patron, and we hold he may do so.” So, in the case at bar, there is no statutory inhibition against a member of the school board signing a petition and no more reason why he may not do so than a member of the board of directors. Although a member of the county board may sometimes be called upon to act in a qv,asi judicial capacity, he is neither a judge nor .justice within the meaning of art. 7, § 20, supra, and the case of Ferrell v. Keel, 103 Ark. 96, 146 S. W. 494, cited by counsel for appellants, has no application here.

It is lastly the contention of the remonstrants, and one which counsel earnestly urge, that the appellee, Grubbs Special School District, is estopped to avail itself of the consolidation because of a contract entered into on June 3, 1911, by its president on the one part and two members of the school board of district No. 18 on the other, by which it was agreed that, for a consideration moving to it, the Grubbs Special School District should not in the future seek to acquire any of the territory of school district No. 18, or extend its boundaries so as to impair the area of the latter. This contention is not tenable for a number of reasons: first,' it was not the Grubbs Special School District that was proceeding in this matter, but the qualified electors of the territory affected, which might have included not only electors residing in Grubbs Special School District, but also in district No. 18 and a part of district No. 27 as well; second, it does not appear that the president of Grubbs Special School District or the two members of the board of directors of district No. 18 were authorized by their respective school boards to enter into the contract; third, it also may be said that boards of directors can only enter into agreements which bind their several districts and the inhabitants thereof by reason of express statutory authority. First Nat. Bank, etc., v. Whisenhunt, 94 Ark. 583, 127 S. W. 968. The authority of boards of directors existing June 3, 1911, the date of the alleged contract, is contained in § 8942 of the Digest, and that authority cannot be extended in any view of the case so as to empower boards to enter into a contract like the one before us. Hatfield v. School Dist., 178 Ark. 260, 10 S. W. (2d) 374; Rural Special School Dist. v. First Nat. Bank, 173 Ark. 604, 292 S. W. 1012. There might have been reasons for making the contract at the date of its execution, but, regardless of what such reasons may have been, a contract of that nature cannot stand, for to so say would be to put it beyond the power of the Legislature by any means to alter the territorial limits or boundaries of the district, regardless of new conditions which might arise making a change expedient. Therefore, if the parties executing the contract had been authorized to do so, their act was, and is, void.

Learned counsel for the remonstrants have cited a number of cases, both of this and other courts, holding that school districts, as quasi public corporations, are empowered to acquire and dispose of real property and to enter-into contracts for the benefit of their respective districts, and that, where contracts are made by persons not authorized to do so, or which are voidable for some informality, the districts are estopped from contesting their validity where they had accepted and received the benefits arising therefrom. All the contracts with which those cases dealt, however, were such as the boards had power to make, but which have no application where the power in the first instance is lacking, as in the contract now under consideration. Ark. Nat. Bank v. School District, 152 Ark. 507, 238 S. W. 630.

In the brief for the remonstrants, no point is made that the evidence shows an abuse of discretion of the county board of education in ordering the consolidation. It was in testimony that the consolidation would be for the best interests of the children within the territory affected, and the county board so found. In reviewing this finding, the circuit court found that the evidence justified the finding of the board.

• After a careful examination of the testimony and a consideration of the questions raised by the appellants, we conclude that there was no error committed by the trial court. Its judgment is correct, and it is therefore affirmed.