author: MoHaney, J.

text:
    Hamner v. Starling.
    4-2564
    Opinion delivered May 23, 1932.

      IIenry Moore, Jr., for appellant.

      Marsh, McKay •& Marlin, for appellee.
   MoHaney, J.

This is a suit for specific performance brought by appellees against appellant to compel him to convey to them as the widow and heirs at law of J. W. Starling, deceased, 360 acres of land contracted to be conveyed by appellant to said Starling on or about December 15, 1924, by oral agreement. The complaint alleged the sale and purchase of the land for a consideration of $12,800, of which $800 was paid in cash, and that the remainder was to be paid from the proceeds of one-fourth of all the cotton grown on the lands until the purchase price with interest should be paid. It was alleged that they were able, ready, and willing to pay the balance due. Appellant answered admitting the sale for the consideration alleged and the cash payment, but that said Starling agreed to pay in addition $300 incurred by appellant as attorney’s fee for examining the abstract of title and certain incidental expenses, mailing the total purchase price $13,100; that Starling agreed to pay interest thereon at the rate of 10 per cent, per annum and from 1925 to 1931, inclusive, for taxes, lumber, goods, wares and merchandise, and after charging him with such amounts and interest at 10 per cent, and after giving credits for all payments made, there was still a balance due as of February 3, 1931, of $10,808.44. He offered to convey on payment of said sum. If not paid, he prayed a foreclosure of his lien for same. The items in dispute will be hereinafter discussed in detail. The court decreed specific performance, but found the balanee due on the purchase price to be $5,161.28 with interest at 6 per cent, to date of payment. But if payment was not made in 45 days the land was ordered sold to pay the balance of the purchase money for which a lien was declared against the land. There was no personal judgment against- appellees. From this decree both sides have appealed.

Mrs. Starling, as administratrix of her deceased husband’s estate (he having died intestate in January, 1931) was made a party plaintiff. On demurrer of appellant, the court held that she was not a proper or necessary party plaintiff to the action in her representative capacity and struck her name from the complaint. This action of the court is attacked by the appellees and sought to be upheld by appellant because of the effect it might have on the admissibility of the testimony of appellant as to transactions with or statements of the intestate. Section 4144, Crawford & Moses’ Digest, and § 2, Schedule to Constitution 1874. We do not decide this interesting question as to whether or not the executrix was a proper or necessary party, for, as we view the matter, it becomes immaterial. For the purposes of this opinion therefore we treat appellant as a competent witness.

The first point of difference between the parties relates to the alleged payment of taxes by appellant for the years 1924, 1925 and 1926. The trial court gave judgment to appellant for the taxes paid for the year 1924, but refused him credit for taxes for 1925 and 1926. We think the court erred as to the 1924 taxes, but did not err as to those for the other years. The facts are that appellant purchased this land from one Kresky for $3,200 less than he sold it to Starling for. We do- not mean any reflection on appellant, as he was buying for cash and selling on credit, and no doubt Starling knew this fact. The land was bought for Starling at his suggestion. At that time, about December 15, 1924, he put up with, appellant $800 which in turn appellant put up as earnest or good faith money. Title was not finally acquired by appellant until January 30, 1925, when deed was taken in his own name. Nothing was said about the taxes at that time, and it was not known whether the land could be bought or whether the title was good. Appellant was to get a good title, and the title would not be good with the lien for taxes unpaid. There was no valid and binding sale, no grantor and grantee, until appellant got his deed from Kresky on January 30, 1925. As between appellant and Kresky, the latter was due to pay the taxes for the year 1924, unless appellant agreed to pay same. Section 10,023, Crawford & Moses’ Digest. Starling was never the record owner, and the proof shows conclusively that he did not go into possession until sometime in January or February, 1925. The purchase price was $12,800, and not that amount plus the 1924 taxes. Appellant should not have credit for the amount thereof. The receipt was taken in his own name, and correctly so as he was due to pay same.

As to the taxes for 1925 and 1926, the receipts therefor were held by appellant, but they were receipts to Starling, and not to appellant. This was very cogent evidence that Starling did pay the taxes for these years. The record title was in appellant, and there was nothing of record or even in writing to show Starling’s ownership. Appellant testified that he paid all taxes at Starling’s request, and the amounts paid were charged to Starling’s account on his ledger, but we cannot say this testimony was sufficient to overcome the written tax receipts showing payment by Starling. The evidence to accomplish this must be clear and convincing.

It is next insisted by appellant that the court erred in allowing- him only 6 per cent, interest instead of 10 pe-r cent., as he testified the oral agreement was. We do not think so. We have many times held that an agreement to pay interest at a rate greater than 6 per cent, will not be enforced as to the excess unless the agreement is in writing. Matlock v. Purifoy, 18 Ark. 492; Wallis & Bro. v. Lehman, 36 Ark. 571; Johnson v. Hull, 57 Ark. 550, 22 S. W. 176; Temple v. Hamilton, 178 Ark. 355, 11 S. W. (2d) 465. We decline to reconsider these cases and overrule them. Appellant invokes the maxim that he who seeks relief in equity must do equity, and that therefore, to get a performance of the contract appellees ought to be required to perform the contract as made and pay interest at 10 per cent. But the same rule applies to him, as he seeks to foreclose his purchase money lien for the balance due at 10 per cent, on an oral contract to pay. As said in Temple v. Hamilton, supra, to quote a syllabus: “An agreement to pay interest on an account at a rate exceeding 6 per cent, will not be enforced as to such excess, unless the agreement be in writing.” And that was an equity case.

On the cross-appeal, in addition to the 1924 taxes, which we have already discussed and disallowed, it is urged that the court erred in allowing appellant his charge of $300 for attorney’s fees and expenses, and we agree with appellees in this regard. Appellant was undertaking to acquire the land and a good title at a handsome profit to himself. If he had sold the land to Starling without profit, it would be equitable for his estate to pay this amount, but, since he was making an investment for his own benefit, with both his investment and profit at stake, we think it would be inequitable to charge the estate with it.

As to the amounts advanced for building material and supplies totaling $1,377.05, we think these amounts were properly allowed and should bear interest at 6 per cent, from the date of advancements.

Interest should be charged on the balance of purchase price of the land from January 30, 1925, at 6 per cent, instead of December 15, 1924. Appellant had no money invested therein until he got his deed with good title, and the agreement was to return to Starling his $800 cash payment, if, for any reason, the deal fell through.

"We also think the court erred in arriving at the rental value of the land for the year 1931 by allowing appellees credit for a portion of the value of an estimated amount of crops grown on the land for that year. We do not mean to say that the market value of the customary portion of crops grown and harvested would not be the rental value. It would. So also what its rental value was in money. In Missouri Pac. Rd. Co. v. Frost, 146 Ark. 472, 225 S. W. 645, we held that a mortgagee in possession is liable, not merely for the rent he received, but for the rental value of the land, and Greer v. Turner, 36 Ark. 17, is cited to support that statement. So here appellant is in the position of a mortgagee in possession and is liable to appellees for the rental value of the land.

The testimony as to the rental value is so indefinite and uncertain as to make it difficult of ascertainment, and we therefore refer this matter to the trial court, with the right of either party to submit further proof in this regard.

The decree will therefore be reversed, and the cause remanded with directions to restate the account in accordance with this opinion, except as to rental value for 1931 and 1932, if appellant is still in possession, and as to rental value to permit the parties to offer further testimony and for further proceedings according to law and the principles of equity.


source: Caselaw Access Project

author: ■Smith, J.

license: Public Domain

text:
    American Surety Company v. Kinnear Manufacturing Company.
    Opinion delivered July 7, 1930.

      W. G. Dinning, for appellant.

      Moore <& Moore, for appellee.
   ■Smith, J.

This is the third appeal involving suits by contractors who furnished labor or material, or both, used in the construction of the River Terminal by Wharf Improvement District No. 1 of the City of Helena. A controlling question in each of these cases was whether the suits had been commenced within six months of the date of the completion of the improvement.

The two former appeals were from decrees in which the chancellor held that the improvement had been completed more than six months prior to the time of the institution of those suits. Wharf Imp. Dist. No. 1 of Helena v. U. S. Gypsum Co., 181 Ark. 288, 25 S. W. (2d) 425; Perry Hanson Gin Co. v. American Surety Co., 181 Ark. 1150, 26 S. W. (2d) 1113. In the instant case there was a verdict by a jury and judgment thereon in favor of the plaintiff subcontractor against the principal contractors and the surety on their construction bond, and this appeal is from that judgment.

The opinions in the former cases recognized that there was a conflict in the testimony on the question of the date of the completion of the work, and in the last-mentioned of these two cases it was said: “In addition to this, it may be said that the chancellor found from the evidence that the improvement was completed more than six months before the beginning of this suit. The chancellor’s finding is conclusive unless it is against the preponderance of the evidence. We have reached the conclusion that the finding in this case is supported by a preponderance of the evidence, and the decree is affirmed.”

It appears, however, that, while the testimony in the instant case is sufficiently similar to that on the former appeals to render a restatement of the facts unnecessary, the testimony is not identical. There were some depositions which were used in all three cases, hut there was some oral testimony offered at the trial from which this appeal comes.

The two former cases were tried before the chancellor, while the instant case was heard by a jury, and the instructions given by the court at this trial show that the liability of the surety on the bond of the principal contractors was made to depend upon the question of the date of the completion of the improvement. The jury was told that the plaintiff subcontractor had the right to recover against the surety of the principal contractors if the suit was brought within six months of the date of the completion of the work, and the verdict in favor of the plaintiff necessarily implies the finding by the jury that the suit was brought within that time.

Although the finding of fact in the instant case is contrary to the finding of fact made by the chancellor in the former cases, the judgment here appealed from must be affirmed if there is any substantial testimony to support the verdict upon which the judgment was rendered, unless it must be reversed for some other reason. The plaintiff here was not a party to either of the former cases, and it is not concluded by the finding of the chancellor in those cases.

We would, therefore, affirm the judgment in the instant ease, so far as the sufficiency of the testimony is concerned, notwithstanding the finding of fact by the chancellor in the former appeals, if the testimony heard at the trial from which this appeal comes is legally sufficient for that purpose; and we think it is. It must be remembered that we do not reverse the decrees of chancery courts on the facts unless the findings based on those facts appear to us to be contrary to the preponderance of the evidence; whereas in appeals from judgments rendered upon verdicts of juries we are required to affirm, so far as the sufficiency of the testimony is concerned, if the testimony tending to support the verdicts is sufficient for that purpose, when given its highest probative value. This results from the fact that in chancery appeals we try the cases de novo, whereas in law cases we do not.

These questions were considered in the case of Simpson v. Martin, 174 Ark. 956, 298 S. W. 861, which cited the case of Bush v. Alexander, 134 Ark. 307, 203 S. W. 1098. Those cases involved the title to adjoining tracts of land owned by different parties, but the controlling question in each case was whether the land in litigation formed as an accretion to other lands the title to which was not in dispute. In the Bush v. Alexander case the judgment of the court, based upon the verdict of the jury finding that the land in litigation was an accretion, was. not reversed, because that verdict was supported by testimony legally sufficient to support that finding; whereas the decree in the case of Simpson v. Martin, based upon the finding that there was no accretion, but an avulsion, was affirmed, because that finding did not appear to be contrary to the preponderance of the evidence. The Simpson case was a chancery case and was tried de novo; the Bush case was a law case and was, therefore, not tried de novo on the appeal.

As the testimony here is in conflict as to the date of the completion of the work, and is legally sufficient to support the finding that the work had not been completed more than six months prior to commencement of the instant ease, we would be required to affirm the judgment from which this appeal comes, notwithstanding the decrees on the former appeals and our affirmance of them, if no other question was presented for our decision. But there is another question. Appellant asked an instruction numbered 6, reading as follows: “If you find from the testimony in this case that W. F. Schulz was the architect and had the supervision of the construction of the improvement, and that as such on the 31st day of March, 1927, executed and delivered to the Commissioners of Wharf Improvement District No. 1 of Helena, Arkansas, his ninth and final estimate of the work performed under such contract showing a completion thereof, then you will find that such final estimate constituted an acceptance of the improvement, unless you find that the commissioners of said district expressly repudiated the act of the architect, and gave notice of such repudiation, both to the contractor and to the architect, or took any other course that may have been provided for hy the terms of the contract.”

The court refused to give this instruction as requested, and gave it as amended, and as amended and given it reads as follows: “If you find from the testimony in this case that W. F. Schulz was the architect and had the supervision of the construction of the improvement, and that as such on the 31st day of March, 1927, executed and delivered to the Commissioners of Wharf Improvement District No. 1 of Helena, Arkansas, his ninth and final estimate of the work performed under such contract showing a completion thereof, then you will take that into consideration as to whether or not that said building was accepted as being completed.”

It is apparent that the effect of the amended instruction is to make the final estimate of the supervising architect evidentiary merely of the fact that the work had been completed when the estimate was given; whereas it is insisted, for the reversal of the judgment, that the principal contractors were not entitled to the estimate until the work had been completed, and that, in the absence of actual fraud or such inattention and indifference to the interests of the improvement district as to imply had faith, the estimate is conclusive of the fact, unless questioned in the manner provided by the building contract. It was not insisted at the trial below that the architect was guilty of actual fraud or that inattention and indifference which implied bad faith.

The building contract was offered in evidence, and § 39 thereof reads as follows: “Architect’s Decision— ‘The architect shall, within a reasonable time, make decisions on all claims of the owner or contractor and on all other matters relating to the execution and progress of the work or the interpretation of the contract documents. The architect’s decisions, in matters relating to artistic effect, shall be final, if within the terms of the contract documents. Except as above or as otherwise expressly provided in the contract documents, all the architect’s decisions are subject to arbitration.”

This provision, or a similar one, appears in most contracts of this character, and has uniformly been construed as meaning that the architect is constituted an arbiter between the owner and the contractor. Illinois Surety Co. v. U. S., 240 U. S. 214; U. S. Fidelity Co. v. Board of Com’rs., 137 Ark. 375, 209 S. W. 88; Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242; Hill v. Cone, 176 Ark. 704, 2 S. W. (2d) 700, and cases there cited.

The last paragraph of this section recites that the architect’s decisions in matters relating to artistic effect shall be final if that question arises under the building contract. This means, of course, in the absence of fraud or such inattention and indifference as implies bad faith. The paragraph concludes with the proviso that “Except as above or as otherwise expressly provided in the contract documents, all the architect’s decisions are subject to arbitration.”

The question here involved is not one of artistic effect; therefore the decision of the architect is not final; but we think the effect of the proviso last quoted is to make it final unless one party or the other questions the decision and requests an arbitration. The language is meaningless if it does not mean this. We, therefore, conclude that instruction numbered 6 should have been given in the form requested, and that it was error to modify it over appellant’s objection, and for this error tbe .judgment must be reversed, and it is so ordered.


author: Smith, J.

text:
    American Surety Company v. Kinnear Manufacturing Company.
    4-2579
    Opinion delivered May 30, 1932.
    • W. G. Dinning, for appellant.

      Moore, Daggett & Burke, for appellee.
   Smith, J.

This is the second appeal of this case. See page 953 ante. Two other appeals had been previously decided which arose out of the bond here sued on. Wharf Imp. Dist. No. 1 v. United States Gypsum Co., 181 Ark. 288, 25 S. W. (2d) 425; Perry Hanson Gin & Machine Co. v. American Surety Co., 181 Ark. 1146, 26 S. W. (2d) 1113. The first two appeals were from decisions of the chancery court, in which it was decided that the suits brought upon the bond executed by the surely company had not been brought within six months after the completion of the work covered by the bond given by the principal contractor as required by law.

We said, in the opinion on the former appeal in this case, ante p. 953, that the decision of the chancery court upon very similar facts was not conclusive of those facts upon the jury trying this case, for the reason that the plaintiff here was not a party to the chancery cases, and we there stated the reasons why this was true, which need not be restated here.

. We reversed the judgment on the former appeal of the instant ease, for the reason that the court had refused to give an instruction numbered 6, there set out, as requested, and for this reason only. We there said that the judgment would have been affirmed had this instruction been given, as no other- error appeared. The instruction was modified and given as modified, and we held that it was error to modify the instruction, and we reversed the judgment for that reason. The effect of the instruction thpre set out, as asked, was to make the final estimate of the architect conclusive of the performance of the contract covered by the bond unless the district had expressly repudiated the action of the architect and had given notice of such repudiation both to the architect and to the contractor, or had taken some other course provided for by the terms of the contract. The effect of the modification of the instruction was to make the architect’s final certificate evidentiary only, and not conclusive, of the fact that the contract had been fully performed.

The mandate which went down to the lower court upon the reversal of this judgment contained the following recitals: ‘ ‘ The court erred in refusing to give instruction numbered six in the form requested by the appellant and in modifying it. -It is therefore considered by the court that the judgment of said circuit court in this cause rendered be, and the same is hereby, for the error aforesaid reversed, annulled and set aside with costs; and that this cause be remanded to said circuit court for a uew trial and for further proceedings to be therein had according to law, and not inconsistent with the opinion herein delivered.”

This mandate conformed to the opinion of the court.

It was said, in the opinion holding that instruction numbered G should have been given as requested, that “it was not insisted at the trial below that the architect was guilty of actual fraud or that inattention and indifference which implied bad faith.”

Upon the remand of the cause, and before its retrial, the complaint was amended to specifically allege that the architect was guilty of that inattention and indifference which implied bad faith, and this issue was submitted to the jury under instructions correctly declaring the law of that subject.

It is very earnestly insisted that this action of the court was erroneous, and, in support of that contention, we are .cited to several of the numerous cases in which this court has held that, where a judgment has been reversed in this court and remanded for a new trial, the law as announced on the former appeal is the law of the case, and that a proposition of law decided on the former appeal is not open to reconsideration upon a subsequent appeal. This contention, as applied to the facts of the instant case, is so completely answered in the opinion in Morgan Engineering Co. v. Cache River Drainage District, 122 Ark. 491, 184 S. W. 57, that we quote from it as follows:

“But this doctrine can have no application here for the reason that on the former appeal the judgment was reversed because the court erred in its instructions to the jury, and the case was remanded with directions not ‘ to render judgment in accordance with the opinion, ’ but for ‘further proceedings in accordance with the opinion.’ There is a marked distinction between the two. ‘Further proceedings’ contemplated that there was to be a new trial on the issues that might be presented, and that proof might be introduced on these issues. The order was in effect a remand for a new trial in general. Of course, all further proceeding’s that were to be had were to be in accord with the opinion, and, if the issues on the second trial and the testimony remained substantially the same, then the appellant would have been entitled to a judgment for the value of its services under the terms of the alleg’ed contract under which it claimed, computed in the manner directed by this court in its opinion on the former appeal. 'But, as was said in St. Louis, Iron Mountain & Southern Ry. Co. v. York, supra: ‘The finding of the facts upon the former appeal cannot be binding as the finding of facts in this second trial, because the testimony on the second trial might be different from or additional to that given on the first trial. But the principles of law determined and announced upon the former appeal are binding, and must stand as the law of this case; and if the testimony upon this second trial is substantially the same as on the first trial, then the former decision of this court upon all questions of law involved in this case must be followed on this appeal’.”

The opinion in that case further amplified the doctrine stated by a review of other oases by this court there cited.

We stated, in the former opinion in the instant case, that the testimony sufficiently supported the jury’s finding that the suit was brought within the time limited by the bond and by the statute pursuant to which it was executed (§ 6913, Crawford & Moses’ Digest), and the similar testimony offered at the trial from which this appeal comes is also sufficient to support that finding.

At the trial from which this appeal comes, instruction numbered 6 was given without modification, but there was testimony to support the allegation, not made at the former trial, that the architect’s final certificate was void, for the reason that it was given without authority and resulted from an inattention and indifference which implied bad faith, and the testimony in the record before us is legally sufficient to support that finding.

The contract between the improvement district and the principal contractor, to secure the performance of which the bond was executed, not only required the architect, before issuing his final certificate, to ascertain that the work had been completed in accordance with the plans and specifications, but contained also the following provision: “Before issuance of final certificate, the contractor shall submit evidence satisfactory to the architect that all payrolls, material bills and other indebtedness connected with the work have been paid.”

Certain correspondence appears in the record between the architect and the surety company, in which the architect referred to certain work which he regarded as immaterial, but not completed, and it was referred to as “one or two minor details,” but which the jury has found, under instructions submitting that question, were substantial. One of these letters, written by the architect to the surety company subsequent to the issuance of the final certificate by the architect, contained this statement: “The Kaueher-Hodges Company, however, have a great many accounts outstanding, which have not been paid to this writing, and I do not see how the bond can be released until everything is finally adjusted satisfactory to the terms of the contract.”

One of the outstanding accounts there referred to is the account here sued on, and, while the architect no doubt assumed that this account would be paid along with others, the undisputed testimony shows that the account here sued on has not been paid. In fairness to the architect, it may be said that he probably regarded his final estimate and certificate as being qualified by the letters written subsequent to the issuance of this certificate, in which he stated to the surety company that the bond could not be treated as discharged until certain unpaid bills due by the contractor to materialmen had been paid.

It is finally insisted that there can be no recovery in this case because there was no arbitration or demand therefor. The building contract contains provisions for supervision of work and for replacement and correction of defective work, and also that the architect’s decision in matters relating to artistic effect shall be final, and that, “Except as above, or as otherwise expressly provided, in the contract documents, all the architect’s decisions are subject to arbitration.” If this provision relates to any questions except those arising between the owner, the improvement district, and the contractor (which we are not required here to decide), it may be first said that no dispute had ever arisen relating to appellee’s account, and there was nothing to arbitrate concerning it. Indeed, its original validity is not even now questioned.

But, as has already been said, the binding character of the architect’s decision is destroyed if that decision was fraudulent or was induced by such inattention or indifferences as implied had faith.

It was said in the case of Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242, that, “Notwithstanding the contract makes the certificate, report, opinion, decision of the architect conclusive on the parties, the law writes into this provision that the conduct of the architect must be free from fraud. Fraud on his part destroys the effect of the provision. Therefore, if the architect fails to exercise his honest judgment, or makes such gross mistakes as necessarily imply bad faith, his decision, report, certificate and opinion are not binding on the parties to the contract. (Citing authorities.) ” See also the later cases of United States Fidelity & Guaranty Co. v. Board of Commissioners, 137 Ark. 375, 209 S. W. 88, and Hill v. Cone, 176 Ark. 697, 3 S. W. (2d) 985.

The questions of fact which arose upon the issues herein stated were submitted to the jury under correct declarations of law, and the jury’s verdict is conclusive of them. The judgment must therefore be affirmed, and it is so ordered.


author: Mehaeey, J.

text:
    Citrus Products Company, Inc., v. Tankersley.
    4-2575
    Opinion delivered May 30, 1932.
    J. J. Friedman and U. L. Meade, for appellant.

      Hardin $ Barton, for appellee.
   Mehaeey, J.

On February 10, 1931, the appellants filed suits against the appellees in the municipal court in the city of Port Smith, Arkansas, for $321.82. They filed statements of account and no other pleadings.

The statement filed for the Citrus Products Company, Inc., was for $279.58, and the statement for Menasha Products Company was for $66.65. The defendants did not appear in the municipal court, and default judgment was rendered against them, whereupon they filed affidavit for appeal and bond.

In the circuit court the defendants filed answer, denying that they, or either or any of them, were indebted to plaintiff on accounts sued on; denied that they were partners at the time the account was alleged to have been contracted; denied that either of them was responsible for the account; denied that there was any indebtedness due; and denied that the checks sued upon were authorized by them or either of them; denied that B. L. Pitts had any authority to write checks, and particularly the checks sued on, on the account of the defendants or either of them, or on account of the White Dairy Products Company; and they especially denied that Kate Tankersley, administratrix of the estate of R. H. Tankersley, deceased, was liable, and alleged that no claim had been exhibited against the estate of her intestate; that she was appointed administratrix, and morel than twelve months had transpired, and no claim had been exhibited.

The case was tried in the circuit court, where there was a verdict and a judgment for defendants, and the case is here on appeal.

The depositions of E. J. Hockstead and E. H. Lewandoski were offered in evidence.

One of the attorneys for the plaintiffs offered in evidence a signed order attached to copies of invoices. The statement was introduced over the objection of defendants, although the attorney who introduced it did not testify, and there was no evidence by any one identifying the papers or signature of any person signing the order or the invoices.

Hockstead, in his deposition, testified that he was treasurer and agent of the Citrus Products Company and that the account annexed in favor of Citrus Products Company against the White Dairy Products Company, a partnership composed of Ross Tankersley, Walter Tankersley, and Mrs. Tankersley; that the balance shown on the account was correct, and that no part of it had been paid. The witness did not show that he had charge of the books, or knew anything about them.

Plaintiff was then permitted to read interrogatory No. 4 and the answer thereto, which was based on the report of the R. GK Dunn agency. It was shown that the report of R. Gr. Dunn Company indicated that Ross Tankersley and R. L. Pitts were partners. All these things transpired before the witness had any connection with the Citrus Products Company.

A check signed “White Dairy Products Company, by R. L. Pitts,” for $124.83 was introduced, and witness testified that these checks were returned from the bank unpaid, and that they received a telegram from White Dairy Products Company on December 31, 1928, advising that they would mail check on January 15, and Pitts’ signature canceled, and that they had never received the check.

He testified, in answer to interrogatory No. 7, that the mercantile report indicates that the present partnership is composed of Ross H. Tankersley and Mrs. Kate Tankersley, and the report indicated that the above persons secured control of the interest of Ross Tankersley and R. L. Pitts, on February 14, 1930, and have since continued to be the owners.

In answer to another interrogatory, witness said that they had received a telegram canceling Pitts ’ signature, but had never received any letters denying liability. Numerous letters and statements were introduced, but it is unnecessary to set them out here.

Lewandoski testified, by deposition, for the Menasha Products Company in substantially the same way that Hockstead did for the Citrus Products Company, and introduced statements of the accounts. Neither of the witnesses testifying knew, or pretended to know, who the partners were or who owned the business. They did not offer any evidence tending to show that the merchandise for which they were asking payment had ever been delivered to the defendants or any of them.

The defendants introduced Mrs. Lena Curtis, the daughter of Mrs. R. H. Tankersley, who testified that R. L. Pitts was not a member of the partnership now or at any time. He was the ice-cream maker. Witness was at work for the White Dairy Products Company as general office manager, and knows there was no partner in there. She was there in 1928 and 1929.

Witness testified that Borengasser was bookkeeper, but never had any authority to bind the company. He had no authority to write the letters. On cross-examination, this witness testified that Pitts did not put any money into the concern, and, when asked how she knew, she said she heard her father say so many times. This answer was objected to by plaintiff.

Mrs. Elaine Robertson testified in rebuttal for plaintiffs, and, among other thing’s, she said that she received a check for $15 from the White Dairy Products Company, and she.also testified that Mrs. Curtis promised to make payments. This witness was secretary and stenographer in the office of Mr. Friedman, attorney for plaintiffs.

At the close of the testimony the court, of its own motion, instructed the jury, and refused to give instructions requested by plaintiffs.

After appellants had filed their motions for a new trial, they filed an amendment to the motion asking for a new trial on the grounds of newly discovered evidence.

It is appellants’ first contention that the court erred in not excluding the testimony of Mrs. Lena Curtis to the effect that she had heard her father say that Pitts did not put any money in the business. This was an answer brought out on cross-examination, and it could not have been prejudicial. The appellants did not show by any competent evidence that Pitts either put any money in the business, was a partner, or had any authority to bind the company. There is no evidence that there was any partnership.

It is next contended that the court erred in overruling appellants’ amendment to its motion for a new trial, wherein it was alleged that Miss Minnie Burke, who lived in Fort Smith, would testify that she was an employee of defendant during the year 19291 in the month of January, during the life of R. H. Tankersley, and was employed by Ross Tankersley, Jr., and R. L. Pitts, and Pitts was recognized by Mr. Tankersley as owning an interest in the business, and, to her knowledge, issued most of the checks for bills contracted by defendant, and also ratified and approved her employment, and would issue checks and sign the firm’s name, by him, for her salary; that this witness was unknown to plaintiff prior to said trial, and that she would testify further that the defendants bought the articles mentioned .in the account, and that she saw them in the possession of defendants.

It was alleged that plaintiffs are nonresidents of the State, and that their attorney did not know of this witness until after the trial.

The record shows that on 'March 20, 1931, this case was postponed until April 8; that on April 8 the defendants filed a verified answer denying eafffi and all the allegations of the complaint. The appellants knew on March 20 that defendants claimed that Pitts had no authority to make any contract.

On April 8, when defendants filed their answer, appellants knew that defendants denied any partnership, and denied any authority of Pitts to make contracts or sign checks.

On the same day, April 8, the cause went to trial in the circuit court. After starting the trial on the 8th, the court continued the case on motion of the plaintiffs for the term, which meant a continuance for six months. The plaintiffs had all this time after they knew what the issues were. They knew that defendants denied Pitts had any authority; they denied receiving the goods, and knew all of the defenses set up in appellee’s answer, and no reason is shown why the plaintiffs did not introduce proof showing that the merchandise was delivered to defendants. This might have been done by the carrier who delivered it, and the record does not show why Pitts and ¡Borengasser, and others who knew all the facts, were not produced as witnesses. There was nothing to prevent plaintiffs from subpoenaing the defendants or any other witnesses who might have known about the facts.

This court has repeatedly held that a motion for a new trial on the ground of newly discovered evidence should not only be supported by affidavits, but that a new trial would not be granted on the grounds of newly discovered evidence unless the party applying for the new trial had used proper diligence.

Here, after approximately six months’ time, plaintiffs went to trial without introducing any competent evidence, either to show that a partnership existed, and, if so, who the members were, or whether Pitts or Borengasser had any authority to order merchandise, make contracts, or sign checks.

The burden, of course, was on the plaintiffs to make out their case, and as to whether they did or not was a question of fact decided by the jury against the appellant.

Appellants dfb not ask a reversal because of any error of the court in giving or refusing to give instructions. It is therefore unnecessary to discuss the instructions.

We find no error, and the .judgment is affirmed.


author: Mehaity, J.

text:
    Coca-Cola Bottling Company v. McAnulty.
    4-2580
    Opinion delivered May 30, 1932.

      Bulloch <& Priddy and Busbee, Pugh S Harrison, for appellant.

      Robert A. Ragsdale, Reuben Ghenowith and Hays $ Smallwood, for appellee.
   Mehaity, J.

This action was begun by appellee in tbe Pope Circuit Court against appellant and Henry Carter to recover for personal injuries received when he was struck by an automobile driven by said Henry Carter.

It was alleged that tbe appellant bad parked its truck on tbe left side of tbe highway, so that tbe wheels and body of tbe truck extended over tbe bard surface of tbe road four or five feet. Tbe bard surface or pavement was 14 feet wide, and tbe entire roadbed was 22 feet wide.

Appellee, who was riding in a buggy with bis nephew, got out of the buggy after tbe team bad been driven off tbe highway, and about 30 or 40 yards from tbe truck. Tbe truck was in front of a filling station. Appellee walked from where tbe buggy was stopped on tbe shoulder of tbe highway, until be got opposite tbe filling station, and then started across tbe highway to tbe filling station. He bad gone two or three steps when be was struck by a car driven by Henry Carter. Tbe car driven by Carter was going at a very rapid rate of speed.

Tbe appellee was knocked down, bis leg broken, and be was otherwise injured. He alleged, and tbe proof tended to show, that Carter was driving very rapidly, and that there was not room on tbe highway for the passage of tbe car between tbe truck and appellee; that, before reaching tbe truck, Carter swerved bis car to tbe left and struck appellee.

It was alleged that bis injuries were caused by tbe concurrent negligence of tbe appellant and Henry Carter. There was a verdict and judgment against Henry Carter and appellant for $3,000.

Henry Carter did not appeal. Tbe appellant filed motion for a new trial, which was overruled, and appeal prosecuted to this court.

Appellant’s first contention is that there was no evidence to justify tbe submission of tbe question of negligence on its part to tbe jury.

The Legislature of 1927 passed act 223, which was au act regulating the operation of vehicles on highways. Section 9 of said act reads as follows:

“Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway and shall drive a slow-moving vehicle as closely as possible on the right-hand edge or curb of such highway, unless it is impracticable to travel on such side of the highway, and except when overtaking' and passing another vehicle subject to the limitations applicable in overtaking and passing set forth in §§ 12 and 13 of this act. ’ ’

The first paragraph of § 24 of said act is as follows: “No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; provided in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of 200 feet in each direction upon such highway.”

The undisputed evidence in this case shows that appellant had driven its truck on the left side of the highway, parked it there, so that the body and wheels of the truck extended four or five feet over o.n the hard surface of the highway, and the hard surface was only 14 feet wide.

The evidence tends to show that the truck of appellant was so parked on the highway that it did not leave a clear and unobstructed width of 15 feet' of the main traveled highway opposite said truck.

The undisputed, evidence shows that the main traveled portion of the highway was only 14 feet wide, and, if the truck was on the. hard surface at all, it necessarily left less than 15 feet for the passage of other vehicles.

It is true that Henry Carter, the driver of the car which struck appellee, saw the truck and its position, but, if appellant was guilty of negligence, this negligence of Henry Carter did not relieve it from the consequences of its negligence.

It is also true that, if there was any negligence on the part of the driver of appellant’s truck, it was in obstructing the highway. That it did obstruct the highway is not disputed, and that it was parked on the wrong side of the road is not disputed.

Of course, the remaining space of the highway would be the same whether the truck was parked on the right or wrong side. But in any event, if the wheels and body of the truck were over the pavement four or five feet, it did not leave 15 feet for the passage of other vehicles as provided by law.

Appellant calls attention to, and relies on, Powers v. Standard Oil Co., 98 N. J. Law 730, 119 Atl. 273. In that case the truck of the Standard Oil Company was parked on the wrong side of the street in violation of the traffic law, and a little girl nine years old ran out from behind the truck and was struck by a passing automobile. Suit was brought against the driver of the car and the Standard Oil Company and another. There was a verdict in favor of the driver of the automobile, and against the other defendants. It was not alleged in that case that there was any violation of the traffic laws by the Standard Oil Company, except the mere parking on the wrong side of the street. There was ample space for other vehicles, and the court held that the parking of the truck did not per se constitute negligence upon the owner of the truck so as to subject him to liability as an efficient proximate cause.

Appellant says that the truck did not extend more than four or five feet on the hard surface of the roadbed, and that this left at least 17 .feet of roadway remaining. If the roadway is to be considered 22 feet wide, and the truck'was five feet on the hard surface, then it was at least nine feet in the road, and that would only leave 13 feet if the entire roadbed was included, rather than the hard surface. In any event 15 feet required by law was not left. In the above case relied on by appellants, there was no question of an obstruction of the highway, but the only allegation was that the truck was parked on the wrong side of the street. It was not claimed in that case that the highway was so obstructed that there was not ample room to pass. Moreover, it was held that the injured party there was guilty of contributory negligence.

In the instant case, whether the appellee was guilty of contributory negligence was a question of fact to be determined by the jury, and its verdict is not without evidence to support it.

It is next contended that whatever negligence there may have been on the part of appellant, that negligence was not the proximate cause of the injury. Where concurrent negligence is alleged, the general rule is stated as follows: “As a general rule, it may be said that negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence concurring with one or more efficient causes, other than plaintiff’s fault, is the proximate cause of the injury.. So that where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause without which the injury would not have resulted to as great an extent, and that such other cause is not attributable to the person injured. But it must appear that the person sought to be charged was responsible for one of the causes which resulted in the injury. The concurring negligence of another cannot transform the remote into the proximate cause of au injury, or create or increase liabilities therefor.” 45 C. J. 920.

There was ample evidence to support the -finding of the jury that the injury to appellee would not have occurred if the truck had not been so parked as to obstruct the highway. If it did obstruct the highway when parked there, and this obstruction was negligence, it was a continuing act of negligence up to the time of the injury, and whether it was negligence, and whether the injury would not have occurred but for this negligence, were questions for the jury. Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S. W. 473.

“The law is practical, and courts do not indulge refinements and subtleties as to causation, if they tend to defeat the claims of natural justice. They rather adopt the practical rule that the efficient and predominating cause in producing a given effect or result, though subordinate and dependent causes may have operated, must be looked to in determining the rights and liabilities of the parties.” Cook v. Ormsby, 45 Ind. App. 352, 89 N. E. 525.

The undisputed proof shows that Henry -Carter was guilty of negligence, and'the undisputed proof shows that appellant’s truck was obstructing the highway in violation- of law, and whether this violation of law was negligence was a question of fact for the jury.

Appellant calls attention to the .case of Hartnett v. Boston Store, 265 N. E. 331, 106 N. E. 837, L. R. A. 1915C, 460. There was in that case, however, no question of concurrent negligence, but the Boston Store, the defendant, undertook to escape liability by showing that the condition existing at the time and place was the proximate cause of the injury. The court in that case however said: “There are three essential elements in actionable negligence: First, a duty imposed by law to exercise care in favor of the person for whose benefit the duty is imposed; second, the failure to perform that duty; and third, a consequence so connected 'with the failure to perform the duty that the failure is the proximate cause of the injury.”

In the instant case there can be no question about the duty being imposed by law, nor can there be any dispute about the fact that it was for the benefit of persons using the highway. The undisputed proof shows that there was a failure to perform that duty, and there was substantial evidence to show that the injury would not have happened but for the failure to perform its duty by appellant.

Appellant also calls attention to Anderson v. Baltimore & O. R. Co., 74 W. Va. 17, 81 S. E. 579, 51 L. R. A. (N. S.) 888. The court however said in that case: “The causal connection between the first act of negligence and the injury is broken by the intervention of an act of a responsible party, which act is in law regarded as the sole cause of the injury.” In the instant case the causal connection was not broken. The negligence of the appellant continued and existed as long as its truck remained on the highway in violation of law, and it was its negligence together with the negligence of the driver of the automobile, that caused the injury.

It is next contended that appellee was guilty of contributory negligence as a matter of law. The undisputed proof shows that he started across the highway, and before he started he looked to see if a car was coming, and, as he proceeded to cross the highway, the car driven by Carter struck the truck and then struck appellee, causing the injury. Contributory negligence, under the circumstances, was a question of fact for the jury, and this question was submitted to the jury by the court, and the finding of the jury on this question is conclusive here.

We have not discussed or reviewed the authorities cited by appellee, with reference to the violation of the traffic law, because there is no contention that the instructions given in this case were erroneous.

We find no error, and the judgment is affirmed.


author: McHaney, J.

text:
    Howell v. Harvill.
    4-2581
    Opinion delivered May 30, 1932.

      Busbee, Pugh >& Harrison, for appellant.

      Charles D. Frierson, Jr., and Chas. D. Frierson, for appellee.
   McHaney, J.

Appellant prosecutes this appeal from a judgment for $8,642.50 against him for personal injuries sustained hy appellee hy reason of a cave-in or slide of gravel in the gravel pit of appellant some distance out of Jonesboro. Appellee was employed hy appellant as fireman on a steam shovel used hy appellant in digging gravel from a gravel pit known and operated as Cotton Belt Gravel Company, and his right leg was crushed when a large slide of gravel caught him on the running hoard of the steam shovel on which he was standing at the time, having gone out on the running hoard to advise the operator of the shovel that the water was low and that it would he necessary to cease operations to get a sufficient head of water in the boiler. Appellee and the shovel operator, Whittington, were engaged in digging gravel from a large pit by scooping it np as it caved in from the bank or by scooping into the bank with the steam shovel and undermining it so it would cave in, and loading it on cars by an operation of the steam shovel. It was all done mechanically. Neither the operator, Whittington, nor appellee were in any danger caused by slides of gravel from the bank when in the cab of the machinery. The bank of gravel was estimated by the witnesses to be from 25 to 50 feet high, but by actual measurement was shown to be 30 feet high. On August 19, 1929, the accident occurred, causing serious and permanent injuries to appellee. He was immediately taken to a hospital, treated for his injuries, and on January 10, 1930, appellant settled the claim for $1,000 plus hospital and doctor’s bills of $357.50, on the representation of the physician that he had recovered, with a good union of the broken bones, and would be well again.

Appellant requested a directed verdict in his favor, which was refused. We think this request should have been given, and that appellee was not entitled to recover in this action for two reasons: 1st. that appellant was not guilty of any actionable negligence; and, 2nd, that if there were any negligence shown, it was the negligence of a fellow-servant, Whittington, for which no recovery can be had. This view makes it unnecessary to discuss other questions argued by the parties.

The undisputed evidence shows that appellant was mining gravel by use of a steam shovel; that it is the universal custom or proper method to operate the shovel by scooping into the bank of the gravel bed, filling the scoop or shovel, and, by an operation of the machinery, the shovel or scoop is then turned to a car and dumped into it. The same process is then repeated, and the gravel loaded into cars. The scoop or shovel operates from the bottom of the bank upwards, and in this way the bank is undermined, and the gravel bank caves in, causing slides. It frequently happens that the gravel slides in around the machine which is only the length of the boom or arm away from the bank, and often covers it up. The machine then hacks out, scoops up the loose gravel, and digs into the hank again for another slide. It is not customary or good practice to dynamite a hank no higher than this was, hut the universal practice is to undermine it with the shovel and let it cave in. Appellant was proceeding in the usual, customary and proper way to remove the gravel when the injury complained of occurred. The machinery was being frequently changed to bring it closer to the bank as gravel was removed or to back up, if necessary, to get out of a slide and pick up the cave-in, and working conditions were changing as the necessity arose.

Where the conditions under which a servant works are constantly changing, so as to increase or diminish his safety, it is his duty to make his place of work safe, and no duty in that regard rests upon the master, the servant assuming the risk arising from the use of the working place and appliances. Moline Timber Co. v. McClure, 166 Ark. 364, 266 S. W. 301.

Appellee had been working in the capacity of fireman for two or three months, and during all that time they had been doing the work in exactly the same way. No dynamite had been used. Under these circumstances, we think there was no negligence shown on the part of the master.

But, conceding negligence, it was the negligence of Whittington, a fellow-servant. Both appellee and Whittington were engaged in a common purpose under a common foreman, Thorpe. Neither had any control or direction over the other, and neither could hire or discharge the other. So, if there be any negligence shown, such as failing to warn, or turning the machinery to the right instead of the left, or in failing to notice the trickling or spitting of the gravel and failing to move the machinery to a place of safety, it was the negligence of Whittington, a fellow-servant. Appellant, although present on the job, was not exercising immediate supervision over appellee or Whittington, nor directing personally how the- work should be done.

We are therefore of the opinion that there was no substantial evidence to take the case to the jury, and that appellant’s request for a directed verdict should have been granted. The case will be reversed, and, as same seems to he fully developed, the cause will be dismissed. It is so ordered.


author: Hart, C. J.,

text:
    Walker v. Taylor.
    4-2567
    Opinion delivered June 6, 1932.

      Golemcm d Reeder, for appellant.

      J. Paul Ward, for appellee.
   Hart, C. J.,

(after stating the facts). It is first earnestly insisted by counsel for appellant that the decree should be reversed because the failure of the plaintiff to secure leave to sue the receiver of the insurance company was a bar to the jurisdiction of the court. We do not agree to this contention. The decree recites that the plaintiff and defendant were both present and represented by their attorneys and agreed that the case should be presented for final determination in the Independence Chancery Court. The requirement that leave of court must be had before a receiver can be sued is for the receiver’s protection; and, if waived by him, no advantage can be taken of the omission by any one else. This is certainly true in all cases like this where there is no attempt to interfere with the actual possession of the property placed in the hands of the receiver.

In a case note to 29 A. L. B». at page 1460, it is said that, although leave to sue a receiver is generally required, the great weight of authority is to the effect that failure to secure permission to sue a receiver appointed by a State court does not affect the jurisdiction of the court in which the suit is brought. It is generally held that the defect is merely technical and may be remedied by order or may be waived.

Reliance, however, is placed by counsel for appellant on the case of Ratcliff v. Adler, 71 Ark. 269, 72 S. W. 896. It is true that the case note just referred to cites that case as following the minority rule that the failure to secure leave to sue a receiver is a bar to the jurisdiction of the action, but we do- not think that such is the effect of the decision. The court expressly stated that it was unnecessary for it to determine whether failure to obtain permission to sue is a matter affecting the jurisdiction of the court in which the suit is brought, for, if it be conceded that the guneral' rule is that the court will not entertain jurisdiction of a suit-brought against a reeéiver appointed by another court until the appointing court has given its consent that he be sued, still there are exceptions to the rule. The case under consideration- was' held to fall within the' exceptions because the same judge presided over the court that appointed the receiver who presided over the court in which the suit was brought. Hence it was said that there was an implied consent to the action on the part of the court which appointed the receiver. This case seems to recognize that the omission to obtain leave to sue the receiver is a matter which does not affect the jurisdiction of the court in which the suit is.brought anc] may- be waived by the receiver.-

In the present case, the receiver expressly consented to the jurisdiction of the court which tried the case; and, as an arm of the court which appointed him receiver, in the, absence of evidence to- the contrary, it will be presumed that he obtained leave of the court to do so. .

- The court properly held with the plaintiff on the merits of the case. This is not a suit to recover the sum of $3,000, as argued by counsel for the defendant. The' whole matter is one of bookkeeping. .'Op the 15th. day of November, Í930, before the Little-Rock-bank closed its doors for insolvency on the 17th day of November, the insurance company made a deposit of drafts in said bank in the sum of $15,500. One of them was a draft on an insurance company in the State of California. The bank at once placed $3,000 of this amount to the credit of the Batesville bank. This bank became insolvent and was placed in the hands of the State Bank Commissioner for liquidation. No return was had on the draft of the insurance company which was sent to California for payment until more than a week after both banks had been taken charge of by the State Bank Commissioner as insolvent banks. The draft given by the defendant on the California insurance company was returned not paid and has never been paid. Therefore the chancery court, properly directed that the $3,000 which had been credited to the insurance company on the books of -the Batesville bank was without consideration, and that the State Bank Commissioner, who was in charge of the Little Rock bank and the Batesville bank as insolvent banks,- should be directed to charge the entry of $3,000 on the books of the Batesville bank, whereby it would show a credit to the Little Rock bank' for $3,000, instead of to the defendant insurance company.

It follows that the decree of the chancery court was correct, and it must be affirmed.


author: Hart, C. J.

text:
    New York Life Insurance Company v. Cherry.
    4-2598
    Opinion delivered June 6, 1932.

      James B. McDonough, for appellant.

      Hardin & Barton, for appellee.
   Hart, C. J.

This appeal is prosecuted from a judgment of the circuit court of the Fort Smith District of Sebastian County, rendered on the 10th day of February, 1932, refusing to set aside a judgment rendered against appellant in favor of appellee in a garnishment proceeding.

The material facts disclosed by the record may be briefly stated as follows: On February 28, 1931, M. A. Cherry sued Etta L. Stokes in the Sebastian Circuit Court for the Fort Smith District to recover $2,000 alleged to be due on a promissory note executed by Etta L. Stokes and Walter R. Stokes, her husband, on January 1,1925, and due one year after date. The complaint alleges that, since the execution of said note, Walter R. Stokes had died, and that there was no administration on his estate. A writ of garnishment was sued out against the New York Life Insurance Company, which was alleged to be indebted to Etta L. Stokes upon a life insurance policy. Summons was issued on the complaint, ■directed to the sheriff of Sebastian County. The return of the sheriff-was dated March 25, 1931, and shows that he returned the summons because he was not able to find the defendant in Sebastian County. The return was filed with the clerk on March 26, 1931. The writ of garnishment was dated February 28, *1931, and showed that it was served on the second day of March, 1931.

On September 15, 1931, the plaintiff filed what she called an amendment to her complaint in which she alleged that Walter R. Stokes died on or about the 19th day of February, 1931, and that he was a resident of the Fort Smith District of Sebastian County, Arkansas, at the time of his death. It was also alleged that Eugene K. Torbett was duly appointed administrator of his estate by the probate court of Sebastian County. The prayer of the complaint is that Eugene Torbett, as administrator of the estate of Walter R. Stokes, deceased, be made a defendant, and summons issue for him as well as for the defendant Etta L. Stokes. Summons was duly served upon the defendant administrator in Sebastian County. On the 15th day of September, 1931, a summons was issued on Etta L. Stokes, directed to the sheriff of Johnson County. The return of the sheriff of Johnson County shows that summons was duly served by delivering a copy to- Mrs. E. L. Stokes in Johnson County as commanded in the summons. On the 9th day of October, 1931, judgment was rendered in favor of M. A. Cherry against E. K. Torbett, administrator of the estate of Walter R. Stokes, deceased, and Etta L. Stokes, in the sum of $1,385, and the accrued interest. Judgment was also rendered in favor of the plaintiff against the New York Life Insurance Company as garnishee.

At the same term of the court at which the judgment was rendered, said New York Life Insurance Company filed a motion to set aside the judgment against it as garnishee on the ground that it was void. The facts above recited were set forth in the motion. It was stipulated that on September 15, 1931, the probate court of Sebastian County appointed E. K. Torbett as administrator of the estate of Walter E. Stokes, deceased. It was further agreed that Walter E. Stokes carried a policy in the New York Life Insurance Company in which Etta L. Stokes, the defendant, was a beneficiary, and that the amount of money due her on said policy was $1,977.18. It was further. agreed that the New York Life Insurance Company had paid the amount of said policy to Etta L. Stokes on the 21st day of May, 1931, and that it did not owe her any other sum.

Under our statute a writ of garnishment may not issue until after an action has been commenced by filing complaint and procuring summons to be issued. First National Bank of Huttig v. Rhode Island Insurance Company, 184 Ark. 812, 43 S. W. (2d) 535; and Missouri Pacific Railroad Company v. McLendon, ante p. 204.

The original suit in this case was brought by M. A. Cherry against Etta L. Stokes on the 28th day of February, 1931. The summons was directed to the sheriff of Sebastian County; and on the 25th day of March, 1931, the sheriff returned the summons unserved because he was unable to find the defendant within Sebastian County. The writ of garnishment was issued on the day the suit was commenced and was duly served upon the New York Life Insurance Company on the second day of March, 1931, as evidenced by the return of the sheriff filed March 25, 1931. There was no judgment rendered in favor of the plaintiff against Etta L. Stokes in the original action, presumably because no service of summons had been had upon her as required by § 1144 of Crawford & Moses’ Digest.

It is well settled in this State that a valid judgment can not be rendered against the garnishee where no judgment has been rendered against the defendant in favor of the plaintiff. The reason is that garnishment proceedings are auxiliary to the main suit. The object of a garnishment is to get money or property in the possession of the garnishee and subject it to the payment of the judgment which the plaintiff may recover against the defendant. It necessarily follows that there can be no lawful judgment ag'ainst the garnishee until after judgment has been recovered against the defendant. Norman v. Poole, 70 Ark. 127, 66 S. W. 433; St. Louis, Iron Mountain & Southern Railway Company v. McDermitt, 91 Ark. 112, 120 S. W. 831; Smith v. Spinnenweber, 114 Ark. 384, 170 S. W. 84; Smith v. Bank of Higden, 115 Ark. 216, 170 S. W. 1008; Bank of Eudora v. Ross, 168 Ark. 754, 271 S. W. 703; and Austin Bridge Company v. Vaughan, 178 Ark. 995, 13 S. W. (2d) 13.

This brings us to a consideration whether the pleading, termed by the plaintiff an amendment to her complaint, which was filed on September 15, 1931, was what it purported to be, or whether it was the commencement of a new action against the defendant. The suit was based upon a promissory mote executed in favor of the plaintiff by Walter R. Stokes and Etta L. Stokes, his wife. The 'original complaint states that Walter R. Stokes was dead, that there was no administration on his estate, and that the suit was brought against Etta L. Stokes.

Under § 1176 of Crawford & Moses’ Digest, the action might be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.

As we have already seen, no' service was had upon the defendant, Etta L. Stokes, in the original action, and the plaintiff elected to sue her alone. When the plaintiff failed to' get service on Etta L. Stokes in the manner provided by the statute, in September, 1931, she filed what she called an amendment to her complaint and asked that the administrator of the estate of Walter R. Stokes be made a defendant. It will be remembered that the original complaint alleged that no' administration had been had upon his estate. The summons issued upon Etta L. Stokes under the amended complaint was directed to the sheriff of Johnson County, and recites that she was in that county. Thus, the record affirmatively shows that she was not a resident of Sebastian County at the time the amendment to the complaint was filed, although she may have been a resident of Sebastian County when the original suit was brought. This indicates that the amendment to the complaint was filed for the purpose of giving the Sebastian Circuit Court jurisdiction of the person of the defendant Etta L. Stokes. She had not been served in the original action; and, as long as she stayed in Johnson County, she could only be legally served by making some one a party defendant who was jointly liable and over whom the circuit court of Sebastian County for the Fort Smith District had jurisdiction.

This is not a case where new parties might be brought in without affecting the rights of the parties to the original action. The return of the sheriff in the original suit expressly shows that the defendant could not be found in Sebastian County, and inferentially shows that service could not be had by leaving a copy at the usual place of abode of the defendant with some member of the defendant’s family over the age of 15 years. The bringing of a suit against the administrator of the estate of Walter R. Stokes, deceased, and the issuance of a summons against Etta Stokes directed to the sheriff of Johnson. County was equivalent to an admission that service could not be had upon Etta L. Stokes in Sebastian County. In the meantime the garnishee had paid the amount of the policy to Etta L. Stokes as it had the legal right to do.

Under these circumstances, the appointment of an administrator over the estate of Walter R. Stokes, deceased, and making him a party defendant to the action constituted a new cause of action and was not an amendment to the original cause of action’ by the substitution of parties defendant or by bringing in new parties over whom the circuit court of Sebastian County for the Fort .Smith District already had jurisdiction in the original suit. Unless and until Etta L. Stokes was legally served in Sebastian County or entered her appearance to the action, the circuit court of Sebastian County had no jurisdiction over her person and could acquire none. The commencement of a new action was an abandonment of the old one. Therefore the judgment rendered against her was not under the original action brought against her, but was under what constituted a new cause of áotion against the administrator of her husband’s estate in which she was also made a party defendant. This would require the issuance of a new writ of garnishment, and none was ever issued. The money had already been paid out by the New York Life Insurance Company to Etta L. Stokes, the beneficiary named in the policy which had been issued to her husband. Smith v. Spinnenweber, 114 Ark. 384, 170 S. W. 84.

It follows that the judgment must "be reversed; and, inasmuch as the cause of action ag’ainst the garnishee appears to have been fully developed, it will be dismissed here. It is so ordered.


author: Humphreys, J.

text:
    Saenger v. Standard Lumber Company.
    4-2584
    Opinion delivered June 6, 1932.

      Ras Priest, for appellant.

      James II. Johnston, Hendrix Rowell, A. H. Rowell and W. B. Alexander, for appellee.
   Humphreys, J.

This is an appeal from a judgment sustaining an intervention of appellee in an attachment proceeding brought by appellant against V. O. Jones Hardwood Company, Inc., in the circuit court of Jackson County.

The cause was tried by the court sitting as a jury upon the pleadings and testimony, from which the court found that all the lumber on the yard of V. O. Jones Hardwood Company, Inc., at Newport was covered by three absolute bills of sale executed by V. O. Jones Hardwood Company, Inc., to appellee except certain lumber that had been sold to A. L. Ulen and others and. that the lumber covered by said bills of sale belonged to appellee and was not subject to the attachment which appellant levied upon said lumber.

The trial court gave appellant a personal judgment for the amount of his account against the V. O. Jones Hardwood Company, Inc., but refused to sustain the attachment on the lumber covered by the bills of sale, which were executed prior to the issuance of the writ of attachment. The V. O. Jones Hardwood Company, Inc., made default and did not controvert the alleged grounds of appellant’s attachment, and on this account appellant takes the position that he was entitled to have his attachment sustained on all the lumber on the yard. His contention is that appellee had no right to defend against the attachment proceeding. This contention does not take into account the issue of the ownership of the lumber tendered by the intervention of appellee Ulen, and others. According to the allegations of their interventions, they became the owners of the lumber in question by purchase before the issuance and levy of appellant’s attachment. An intervener in an attachment proceeding claiming- title to the property attached becomes the plaintiff in the action, and the onus is upon him to prove his title thereto. State v. Spikes, 33 Ark. 801; Stevens v. Oppenheimer, 45 Ark. 492; Excelsior Mfg. Co. v. Owens, 58 Ark. 556, 25 S. W. 868. And he must recover, if at all, upon the strength of his own title to the property. Cate-LaNieve Co. v. Plant, 172 Ark. 82, 287 S. W. 750. The title to the property involved is the paramount issue between an intervener and the attaching creditor, irrespective of whether the alleged grounds of attachment have been controverted by the debtor, and, of course, it would be error for a court to sustain an attachment because the alleged grounds of the attachment were not controverted if the intervener met the burden and proved title to the property attached.

Appellant also contends that the bills of sale were intended as chattel mortgages to secure advances as the lumber was sawed and stacked on the yard, but the testimony of Miller and Carnahan tended to show that the intention on the part of V. O. Jones Hardwood Company, Inc., was to sell and on the part of appellee to buy the lumber, and that there was a constructive delivery of same. The bills of sale are absolute, and purport upon their face to convey the title to the lumber from Y. O. Jones Hardwood Company, Inc., to appellee. The court made this finding sitting' as a jury, and appellant is bound thereby on appeal in this court, as there is substantial evidence to support it. A sale of chattels is absolute, and title to the property passes from the vendor to the vendee, even though only a part of the purchase money is advanced or paid, if a sale was intended by the parties and if supported by actual or constructive delivery. Cate-LaNieve Co. v. Plant, supra. The testimony of Carnahan was to the effect that, after the lumber was sawed and stacked on the yard, an inventory was made of same, and that a mark was placed thereon.

Appellant also contends that appellee was unable to identify the lumber supposed to be covered by the bills of sale as its lumber. There is substantial testimony in the record tending to show that it could and did identify the lumber on the yard as that covered by the bills of sale. Carnahan was asked the question if the lumber on the yard was the lumber actually purchased by appellee, and he answered that it was, explaining that it checked exactly with his inventory except a small portion thereof that had been stolen. He also testified that he had seen the lumber frequently, and that he had examined it the day before the trial of the cause and identified same as the lumber that he had invoiced and marked. This evidence is of a substantial nature and sufficient to support the finding and judgment of the trial court.

No error appearing, the judgment is affirmed.


author: Mbhaeey, J.

text:
    Franklin v. Mann.
    4-2666
    Opinion delivered June 6, 1932.

      John Baxter, for appellant.

      Hal L. Norwood, Attorney General, J. W. House and M. J. Harrison, for appellee.
   Mbhaeey, J.

The Inter-Southern Life Insurance Company is a foreign corporation organized under the laws of the State of Kentucky and was authorized to do business in the State of Arkansas, and did business in this State prior to the receivership. It operated in the State of Arkansas under the laws and supervision of the Insurance Commissioner.

A receiver was appointed by the court of Kentucky. On April 18, 1932, the deputy and acting Insurance Commissioner of the State of Kentucky telephoned A. D. DuLaney, Insurance Commissioner of Arkansas, requesting that an ancillary receiver be appointed in Arkansas. On the same day, April 18, the Insurance Commissioner of this State certified the Inter-Southern Life Insurance Company to the Attorney General as an insolvent company operating in Arkansas.

Thereafter, on April 19, 1932, the Attorney General of this State presented a petition on behalf of the Insurance Commissioner to Judge Richard M. Mann, circuit judge'of the Pulaski Circuit Court, asking for the appointment of an ancillary receiver. M. J. Harrison was appointed ancillary receiver, and filed his bond, which was approved.

On April 20, 1932, the acting Insurance Commisv sioner of the State of Kentucky wrote to A. D. DuLaney a letter confirming the telephone conversation, and stating that the reason for asking that an ancillary receiver be appointed in Arkansas was for the sole purpose of having the co-operation and assistance of the Commissioner in Arkansas in working out the conditions of the Inter-Southern Life Insurance Company to the best advantage of the policyholders.

Thereafter, on April 22, 1932, P. O. Bynum filed a petition in the Chicot County Chancery Court asking for the appointment of a receiver by that court. He alleged that he was a creditor of the insurance company. The Chicot County Chancery Court granted the petition and appointed Mr. Gr. A. Franklin receiver. Gr. A. Franklin then came to Little Rock and filed a motion in the Pulaski Circuit Court to quash the order of the Pulaski Circuit Court appointing Harrison receiver. This motion was denied. No appeal was taken from the order denying the motion.

The petitioner here, G-. A. Franklin, asks for a writ of prohibition directing and commanding the said R. M. Mann, as judge of the circuit court of Pulaski County, to make no further orders in this matter, and that, upon a final hearing, an order be made by this court quashing the receivership proceedings and the order of the Pulaski Circuit Court appointing a receiver.

The petitioner, in his brief, states: “The only question to be determined is one of jurisdiction. The petitioner readily admits that, if the Pulaski Circuit Court had jurisdiction to appoint a receiver, then this writ of prohibition should be denied.”

The only question therefore for our consideration is whether the Pulaski Circuit Court has jurisdiction.

As early as 1873 the Legislature of this State recognized the importance and necessity of a general law regulating and supervising insurance companies doing business in this State, and it passed an act in 1873 to establish an insurance bureau. This act was amended from time to time, and in 1917 there was an act passed creating the office of Insurance Commissioner and State Fire Marshal. These acts prescribed the duties of the insurance Commissioner, and, among other duties imposed on the Commissioner by law was that of enforcing all laws of this State in relation to insurance companies, and to see that all laws of this State respecting insurance companies are faithfully executed.

The eighth paragraph of § 5951 of Crawford & Moses’ Digest, is as follows: “Whenever the Insurance Commissioner shall have reason to believe that any insurance company of this State is insolvent or fraudulently conducted, or that its assets are not sufficient for carrying on the business of the same, or during any noncompliance with the provisions of this chapter, he shall communicate the fact to the Attorney General, whose duty it shall then become to apply to the Supreme Court or the circuit court, or, in vacation, to any of the judges thereof, for an order requiring said company to show cause why their business should not be closed; and the court or judge, as the case may be, shall thereupon hear the allegations and proofs of the respective parties, or appoint some suitable person as examiner to perform such duty and report upon the facts to said court or judge. If it appear to the satisfaction of said court or judge that such company is insolvent, or 'that the interests of the company so require, the said court or judge shall decree a dissolution of such corporation, and a distribution of its effects; but, in case it shall appear to said court or judge that said corporation is able to comply with the provisions of this act, and that it is not insolvent, a decree shall he entered annulling the act of the Insurance Commissioner in the premises and authorizing such company to resume business.”

It is contended by the petitioner, however, that this paragraph refers to insurance companies of this State only, and does not apply to foreign corporations. However, § 11 of art. 12 of the Constitution of this State provides, among other things, in speaking of foreign corporations: “And, as to contracts made or business done in this State, they shall be subject to the same regulations, limitations and liabilities as like corporations of this State, and shall exercise no other or greater powers, privileges or franchises than may be exercised by like corporations of this State.” This provision of the Constitution was also enacted by the Legislature as a statute, and is § 1825 of Crawford & Moses’ Digest.

It was manifestly the intention of the Legislature, in creating the office of Commissioner of Insurance and prescribing his duties, to protect all the policyholders and persons interested in an insurance company, and for this reason provided a State officer whose duty it is to supervise all insurance companies in this State, and to see that all laws are faithfully executed, to the end that every one interested in an insurance company may have protection.

It was evidently thought that this would be a greater protection to the policyholders and interested persons than to permit any creditor or policyholder to bring suit anywhere in the State for the purpose of taking charge and management of an insolvent insurance company.

The application for a receiver in the Pulaski Circuit Court on behalf of the Commissioner was made at the instance and request of the Insurance Commissioner of the State of Kentucky.

In the ease of Grand Lodge, A. O. U. W., v. Adair, 182 Ark. 684, 32 S. W. (2d) 430, all the questions involved in this case are settled. The authorities are reviewed, and it would serve no useful purpose to review or discuss them again. In the ease referred to it is said: “ A special department and a State official are clothed with special duties and powers to invoke the aid of courts of general jurisdiction in the discharge of these duties.” It is also said in the same case: “It is a well-established rule that has been often adhered to by this court that, where a court-exercising general jurisdiction under the Constitution has been given special statutory jurisdiction in certain matters, and the manner in which jurisdiction is to be exercised is pointed out by the statute, the record of such court must show the jurisdictional facts.”

This is a special proceeding provided for by statute, for the purpose, among other things, as we have said, of protecting the interests of policyholders and the property of the company.

The petitioner contends that the case of Grand Lodge, A. O. U. W., v. Adair, supra, has no application, his contention being that the statute applies to fraternal benefit societies. We think the statute is broad enough to cover all insurance companies, and that it was the intention of the Legislature, in forming this general plan to protect policyholders in all insurance companies, and there is nothing in the Constitution prohibiting the Legislature from authorizing the circuit court to act on the petition of the Insurance Commissioner.

The writ of prohibition is denied.