author: Smith, J.

text:
    Road Improvement District No. 6 v. St. Louis-San Francisco Railroad Company.
    Opinion delivered May 19, 1924.
    1. Highways — validity of legislative assessment of benefits.— The Legislature cannot make an assessment of benefits from road improvements that is arbitrary, unreasonable or confiscatory, and, if this showing is made, the courts will grant relief although the act making the assessment does not provide a forum in which the assessment can be attacked.
    2. Highways — legislative assessments — review.—Legislative assessments for road improvements are not reviewable for mere errors in judgment upon questions of fact in the decision of which different conclusions may be drawn.
    3. Highways — legislative assessment — effect of pendency of appeal. — The power of the Legislature to confirm assessments of benefits against a railway company from a highway improvement which had been approved by the county court was not affected by the pendency of an appeal of the railway company to the circuit court.
    4. Highways — statute confirming assessment — construction.— Special Acts 1921, p. 831, §§ 3, 5, confirming the assessment of benefits of a certain road improvement district “now on file with the county clerk” held to validate an assessment of a railway company then on file which had been corrected by the county court to correct a demonstrable mistake in mileage assessed.
    5. Highways — legislative assessment — sufficiency of evidence to invalidate. — Evidence held insufficient to show that an assessment of benefits from a road improvement against a railway company was so demonstrably erroneous and arbitrary as to invalidate a legislative act confirming such assessment.
    Appeal from Lawrence Circuit Court, Eastern District; Dene M. Coleman, Judge;
    reversed.

      Lester L. Gibson, W. P. Smith, and G. M. Gibson, for appellant.
    The motion of the road improvement district to dismiss the appeal of the plaintiff should have been sustained. 239 IT. S. 254; 239 U. S. 207; 251 U. S. 182. A legislative determination as to what lands within a local improvement district will be benefited by an improvement is conclusive upon the owner and courts, and can only be assailed where the legislative action is arbitrary, wholly unwarranted, a flagrant abuse, and, by reason of its arbitrary character, a confiscation of particular property. 125 U. S. 345; 239 U. S. 207; 239 U. S. 254. A legislative assessment must stand unless demonstrably wrong. 199 U. S. 203; 83 Ark. 60; 98 Ark. 116; 81 Ark. 562; 121 Ark. 105; 113 Ark. 364. The Legislature could, in the first place, have fixed the assessment,.and therefore it had the right to do so at a later date, and the curative act validating the assessment was retroactive and amounted to a making of the assessment' by the Legislature. 83 Ark. 344; 112 Ark. 357; 143 Ark. 270; 147 Ajrk. 112; 149 Ark. 491; 145 Ark. 51; 156 Ark. 116. The only remedy appellee has is in a court of equity. 239 U. S. 239; 181 U. S. 324; 181 U. S. 371.

      W. F. Evans and W. J. Orr, for appellee.
    The special act of 1921 is violative of the Fourteenth Amendment to the Federal Constitution. 275 Fed. 600. The Legislature cannot, by the enactment of a retrospective statute, exercise a power in its nature clearly judicial. 58 Ark. 1; 257 U. S. 547.
   Smith, J.

The appellant road improvement district was organized in 1917 under what is known as the Alexander road law. (Acts 1915, p. 1400). Under provisions of that act the commissioners filed with the county clerk of Lawrence County the assessment 'of betterments, and the required notice thereof was given to the property owners. Appellee railway company filed1 its objections and exceptions to the assessment made against its property, alleging, among other things, that the assessment of betterments was arbitrary, discriminatory and excessive, and that the proposed improvement would not, in fact, be of any value to it, and would result in no enhancement of the value of its property.

The property of the railway company was assessed on the mileage basis. The main line was assessed at $2,500 per mile, and the sidetrack at $1,000 per mile. The railroad was assessed as having 2.46 miles of main line, and .93 miles of sidetrack, and the showing was made that this mileage was erroneous, and that the correct mileage was 2.19 miles of main line and .82 miles of sidetrack, and a reduction in mileage was made to conform to the admitted facts, but no change was made in the assessment per mile of either main line or sidetrack. The railway company, insisting that its assessment per mile was excessive, both on the main line and sidetrack, appealed to the circuit court.

In the meantime the General Assembly passed, at the 1921 session thereof, special act No. 398 ('Special Acts 1921, page 828), § 5 of which reads as follows : “It is hereby found and declared that the assessment of benefits heretofore made by the assessors and now on file with the county clerk are equitable and just, and they are hereby confirmed and made the assessment of benefits in the district until a new assessment may be made as provided by law.”

The appeal remained on the docket of the circuit court until October 19,1923, at which time the court overruled a motion to dismiss the appeal, and, after hearing testimony, made a very substantial reduction in the assessment per mile of the betterments, against both the main line and the sidetrack, and1 the district has appealed.

Among other grounds assigned for the dismissal of the company’s appeal was that the curative act of the General Assembly was conclusive of the validity of the assessment.

The judgment of the circuit court is defended upon the grounds (1) that the General Assembly could not by this act deprive the company of its right to a de novo hearing on its appeal; (2) that it was not the intention of the Legislature so to do; and (3) that the testimony shows that the assessment was, in fact, excessive and arbitrary, and the company was entitled to the relief granted even as against a legislative assessment.

We have in many cases decided that the General Assembly could in the first instance have made an assessment of the benefits in an improvement district, and it had the right, therefore, to do so at a later date, and the confirmation of the assessments was retroactive in effect and amounted to the making of the assessment by the General Assembly, and this is true, although the act of the Legislature so doing afforded no opportunity to the owners of property in the district to contest their assessments. This statement of the law is subject to the qualification, however, that the Legislature cannot, in the exercise of this power, make an assessment that is demonstrably arbitrary, unreasonable or confiscatory, and that, if this showing is made, relief will be granted by the courts, although the act making the assessment does not provide a forum in which the assessment muy be attacked. But such assessments are not subject to review for mere errors in judgment upon questions of fact in the decision of which different conclusions might be drawn.

It is true that, at the time the curative act was passed, the railway company had appealed from the judgment of the county court, and this appeal was pending in the circuit court, but this fact did not affecf the right of the General Assembly to make the assessment. In the case of Kansas City So. Ry. Co. v. Road Imp. Dist. No. 3 of Sevier County, 156 Ark. 116, we said: “There is no reason shown why the statute is not applicable, for we have decided that, even during the pendency of litigation, a-statute may be enacted ratifying and confirming assessments. Sudberry v. Graves, 83 Ark. 344; Tims v. Mack, 147 Ark. 112; Gibson v. Spikes, 143 Ark. 270; Burr v. Drainage District, 145 Ark. 55; Payne v. Road District, 149 Ark. 491.”

It is next insisted that, even though the General Assembly had the right to validate and confirm the assessments pending the litigation, it did not do so. This argument is based upon a reading of §'§ 3 and 5 of the special act. 'Section 3 provides that “the assessment of benefits heretofore made by the assessors of said district is hereby declared to be just, equal and proportionate, and the same is in all things confirmed, and declared to be the assessment of benefits for said district until a reassessment shall be ordered according'to law.” Section 5 of the special act reads: “It is hereby found and declared that the assessment of benefits heretofore made by the assessors and now on file with the county clerk are.equitable and just, and. they are hereby confirmed and made the assessment of benefits in the district until a new assessment may be made as provided by law. ’ ’

It is pointed out that, at the time of the passage of this act, no property owner except the railway company was resisting the assessments and that the railroad’s assessment had been reduced by the county court.

We do not think the action of the county court rendered the special act inapplicable to the company’s assessment, for, even though the county court had held that the company’s property would receive no benefit from the proposed improvement, thgt finding and judgment would not have precluded the Legislature from determining to the contrary. We so expressly held in the case of Payne v. Road Imp. Dist. No. 1 of Howard County, 149 Ark. 491.

But we do not think there is any conflict between the finding of the county court and that of the G-eneral Assembly, and the assessment validated was the assessment approved by the county court. This was the assessment made by the assessors and filed with the county court, corrected, it is true, by the county court to show that the mileage assessed was excessive, but the assessment per mile was not 'Corrected, and we think the special act validated the assessment of the assessors filed with the county clerk as corrected to remedy a demonstrable mistake, and the district had not appealed from the order of the county court.

It is argued on behalf of the district that the curative act, being valid1 and being applicable to the company’s assessment, and therefore open to attack only upon an allegation of being demonstrably arbitrary and unreasonable, relief even on this ground could be obtained only in a suit brought to set it aside in equity.

On behalf of the company, it is argued that one of the assaults made oh the assessment by the appeal of the company from the order of the county court is that its assessment was in fact demonstrably arbitrary, and that it had the right to attack the assessment on this ground, even though the assessment is treated as a legislative assessment, and its appeal did not therefore abate.

We do not regard it as essential to decide, under the facts of this case, whether the right of the company to attack its assessment upon the grounds stated should have been made in equity, and not elsewhere, or whether it had the right to prosecute its appeal from the judgment of the county court to have the question reviewed, as, in our opinion, a sufficient showing was not made to invalidate the assessment, even though the question had been raised in a suit brought in equity.

The burden was, of course, upon the company to show that its assessment was in fact arbitrary, and that it attempted to do by showing that the assessment per mile in the appellee district was much greater than the corresponding assessment in various other districts in the different parts of the State through which portions of its line ran. The testimony does tend to show that the assessment of the company in appellee district is above the average in other districts; but we do not understand it to show that it is higher than in any other district. On the contrary, it does not appear to be as high as some assessments which have been permitted by us to stand as not being unreasonable and arbitrary. The testimony here shows, as it did in the case of Kansas City So. Ry Co. v. Imp. Dist., supra, that a great benefit will accrue to the railroad property from the construction of the improvement. It is not a case of a parallel road, but one which runs into territory which will afford access to the railroad property and augment its business. It was shown that the road, which has been completed, has diverted considerable business to Portia, a town on the company’s road, which would otherwise have gone to a station on the.line of a competitor railroad.

We think it fairly appears that the circuit court on the hearing of the appeal assumed that the special act did not apply to the company’s assessment, and that its appeal was heard de novo as provided by the statute under which the district was organized; but this was error, for the reasons herein stated, and we think the testimony is insufficient to support the finding* that the assessment of benefits against the company was so demonstrably erroneous and arbitrary as to invalidate the legislative assessment.

The judgment of the circuit court must therefore be reversed, and the cause will be remanded with directions to set aside the judgment rendered, and to enter a judgment approving the assessment against the company as made by the county court.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    K. & S. Sales Company v. Lee.
    Opinion delivered May 26, 1924.
    1. Judgments — vacation—unavoidable casualty. — Where the trial court granted a continuance to defendant, a judgment rendered against him through oversight of the judge, and without setting aside the continuance and without notifying defendant or his counsel of such action, was, as to such defendant, “an unavoidable casualty” within Crawford & Moses’ Dig., §§ 6290 and 6293, and was properly vacated, upon a prima facie showing of a meritorious defense.
    2. Contracts — illegality.—Any act which is forbidden, either by common or statutory law — whether it is malum in se or merely malum prohibitum, whether indictable or merely subject to a penalty — can not be the foundation of a valid contract, nor can anything auxiliary to or promotive of such act.
    3. Judgment — vacation—meritorious defense. — In proceedings by defendant under Crawford & Moses’ Dig., § 6290 et seq., to vacate a judgment, his allegation and offer of proof that plaintiff’s cause of action was based on a contract made in the State for the purchase of a gambling device held a prima facie showing of a valid defense against such judgment.
    Appeal from Polk Circuit Court; B. 8. Isbell, Judge;
    affirmed.

      Minor Pipkin, for appellant.
    The defendant failed to allege any legal ground for vacating the judgment. C. & M. Digest, § 6290. A party moving to set aside a judgment rendered against him by default must state his defense and make prima facie showing of merit in order that the court may determine whether lie is injured by not being permitted to have the benefit of it. 123 Ark. 443. Defendant’s right to defend was lost by his own negligence. 93 Ark. 462; 114 Ark. 493.

      Norwood & Alley, for appellee.
    The legal effect of a judgment or decree of a constructive and unintentional fraud perpetrated on the court which rendered it, in order to obtain it, is the sanie as an actual purposed fraud. L. R. A. 1916D7. An act which is forbidden either by the common or statutory law, whether it is malum in se or merely •malum pro

      hibitum, cannot be tbe foundation of a valid contract; nor can anything auxiliary to or promotive of such act. 103 Ark. 288; 6 R. C. L. 220. Every material allegation in the complaint, not specifically denied' in the answer, will be taken as true. 85 Ark. 561; 91 Ark. 30; 32 Ark. 97; C. & M. Dig., § 1231.
   Wood, J.

This is an action to vacate a judgment under §§ 6290, 6292, and 6295 of Crawford & Moses’ Digest. The statute authorizes the court in which the judgment is rendered to vacate such judgment after tbe expiration .of the term: fourth, for fraud practiced by the successful party in the obtaining of the judgment or order; and seventh, for unavoidable casualty or misfortune preventing the party from appearing or defending.

The appellee, in bis complaint or motion to vacate, alleged that, at the April term, 1922, of the Polk Circuit Court, the above entitled cause was pending on appeal from justice court; that B. J. Stuart, attorney for the appellee, informed the court that appellee could not be present at that term of the court, and requested that the cause be continued; that the court granted tbe request, and the said B. J. Stuart notified the appellee that the cause had been continued for tbe term, and for that reason the appellee did not appear; that the court neglected to indicate upon the docket that tbe cause had been continued, and on April 22, 1922, the appellant took judgment against the appellee for the sum of $180; that the taking of this judgment, under tbe circumstances, was a fraud upon the rights of the appellee. The appellee alleged that the amount claimed by the appellant to be due him by the appellee was for what was known as a “punch-board” — a gambling device; that, after tbe appellee had received this board, he was notified by the district attorney that it was a violation of the law to use or operate the same, and appellee at once discontinued its use, and offered bo pay the appellant for the use of same for the time he had used it; that the sale of such board was against public policy, and that the appellee received no consideration for his. obligation to the appellant. Appellee prayed that the judgment be set aside, and that'he have an order restraining the appellant from enforcement of the judgment pending the hearing.

The appellant demurred to the complaint on the ground that the motion did not state facts sufficient to constitute a meritorious defense, or any defense whatever, to the appellee’s action. The appellant also answered the motion, and denied that it was by the neglect of the court that the continuance of the case was not indicated upon the docket, but alleged the truth to be that the appellee neglected and failed to pay the fees of the clerk for filing and docketing the cause, and that the cause was not upon the docket until the appellant, through its attorney, paid the fees and caused the case to be docketed; that the judgment sought to be vacated was rendered upon the appellant’s motion asking affirmance of the judgment of the justice court; that neither the appellant nor its attorney had any knowledge that Stuart had discussed said matter with the court until the filing of appellee’s motion herein.

B. J. Stuart testified that he was attorney of the appellee, and represented him in the justice court where the case was pending. He took an appeal for his client from the judgment rendered against him by the justice. At the April term, 1922, of the circuit court he received a letter from the appellee, saying that he was sick and could not attend the court, and requesting that the case be continued. Witness made application to the circuit court for the continuance, stating his reasons. The case had not been docketed, for some cause, and the circuit judge asked the clerk to docket same and let it be continued. Witness thereupon notified appellee, by letter, that the case had been continued. Appéllant afterwards came in and got a default judgment, affirming the judgment of the justice of the peace against the appellee.

Judge Steel, who was the presiding judge of the circuit court at that time, testified that he remembered that the attorney for the appellee made application to him for a continuance of the cause. The application was made while he was on the bench, the morning court convened. Witness did not find the case on the docket, but it was represented- to witness that the appellee was sick, and Stuart, his counsel, had a letter to that effect, and asked witness to continue the case, and witness announced that the case would be continued. Witness did not know why the order was not made on the docket, unless it was because the case was not on the docket at the time he made the order. Witness did not remember directing the clerk to put it on the docket, but did remember telling him that he would continue the case. After-wards the attorney for the appellant had the case docketed. He called witness’ attention to a case he wanted put on the docket. Witness did not notice the case, and counsel took a judgment. At the time witness put the case on the docket, counsel took a judgment on an appeal case in which he filed the transcript himself. Witness at the time had forgotten his conversation with Stuart about it — did not suppose that the attorney -for the appellant was present at the time witness told Stuart that the cause would be continued. Witness told Stuart that the case would be continued before counsel for the appellant put the cause on the docket.

The appellee testified that he was informed by his counsel that the case would not be called up at the April term, 1922, and the witness did not know that the case had been called until he got a letter from appellant’s counsel telling witness that a judgment had been rendered against him. Witness was present three days at the beginning of the court.

The clerk of the court testified that he recalled docketing the case. He had the papers in his office. The fees for filing and docketing the case had not been paid, and therefore he had not docketed it before being-requested to do so by appellant’s counsel. Appellant’s counsel paid the fees. Judge Steel was presiding. Witness placed the ease upon the docket, and appellant’s counsel called attention to the matter, stating the circumstances, and the circuit court rendered the judgment. For years all justice court cases were set for Tuesday of the court, and this case was not docketed on Tuesday because the fees were not paid. It was afterwards docketed on the 22d of April, 1922. Witness could not recall that the court told witness to put the case on the docket, and that it would be continued.

The attorney for the appellant testified that it.had been the custom in the circuit court for years to set cases appealed from the justice court for Tuesday of the first week of court. Witness knew that an affidavit had been filed for an appeal in the justice court, but did not see the case on the docket in the circuit court, and, toward the end of the week, witness inquired of the clerk, and he said that he had the transcript, but that the fees were not paid. Witness asked the clerk to docket the case and accept the fees from witness. The clerk accepted the fees, and docketed the case in the presence of the circuit judge, and the circuit judge made a notation of that fact on the docket at the time. Prior to that time the attorney for the appellee had said nothing to witness about the case, the court had said nothing to witness about it, and the clerk had said nothing to witness about it. Witness never thought about it until they were winding up the things in the court. Witness had seen the appellee at the court the first two days. Witness did not notify the attorney for the appellee that he was having the case docketed.

Upon the above facts the court granted the appellee’s motion, and entered an order vacating the judgment, from which is this appeal.

It clearly appears, from the testimony of the trial judge who rendered the judgment which this action seeks to vacate, that he would not have entéred such judgment if it had occurred to him at the time that it was rendered in the case which he had told the attorney for the appellee he would continue. He had forgotten about it at the time, but he testified that he told the attorney for the appellee that he would continue the case; and the attorney for the appellee testified that the judge asked the clerk of the court to docket the case and let it he continued. Thus it appears, from the undisputed testimony, that the ease was continued by order of the circuit court, and, after it had been continued, the appellee was notified of that fact by his counsel. After the case was thus continued by the court, the court could not render judgment in the cause in favor of the appellant without setting aside the continuance and without notifying the .appellee and his counsel of such action. The effect of rendering the judgment against the appellee, under these circumstances, was to deprive him of the right to be heard, and, so far as he was concerned, it was an unavoidable casualty. It was- not any neglect of the appellee, but the oversight of the judge himself, that caused the judgment to be rendered against the appellee. “An act of the court shall injure no man,” is an ancient maxim “founded upon justice and good sense; and affords a safe and certain guide for the administration of the law.” Broom’s Legal Maxims, p. 99; Thweatt v. Knights and Daughters of Tabor, 128 Ark. 269-272; Berringer v. Stevens, 145 Ark. 293-300.

The appellee alleged, in his complaint or motion to vacate, that appellant’s pretended cause of action was for the sale price of a “punch-board,” which was a gambling device. Appellee offered to prove that the contract for the purchase of the “punch-board” was made in this State, and asked to amend his motion so as to allege that the contract was made in this State. The court granted permission to amend. The appellant did not deny that the contract was made in this State.

This court, in Eager v. Jonesboro, L. C. & E. Exp. Co., 103 Ark. 288-298, quoting from Lindsey v. Rottaken, 32 Ark. 619-631, said: “Any act which is forbidden, either by the common or the statutory law, whether it is mal/um in se or merely malum prohibitum, indictable or only subject to a penalty or forfeiture, or however otherwise prohibited by a statute or the common law, cannot be the foundation of a valid contract; nor can anything auxiliary to or promotive of such act.” See also.other cases there cited.

The appellee, by the above averment and offer of proof, made a prima facie showing of a valid defense to the action in which the judgment which he here seeks to vacate was obtained. Citizens’ Bank of Lavaca v. Barr, 123 Ark. 443; Osborne v. Lawrence, 123 Ark. 447; Jerome Hdw. Lbr. Co. v. Jackson-Vreeland, 160 Ark. 303; McDonald Land Co. v. Shapleigh Hdw. Co., 163 Ark. 524, and cases cited in above oases.

The judgment of the circuit court is correct. It is therefore affirmed.


author: Hart, J.,

text:
    McDaniel v. Jordan.
    Opinion delivered May 26, 1924.
    1. Libel and slander — oral charge op unchastity.- — An oral charge of unchastity against a woman is actionable per se.

      2. Libel and slander — oral charge op falsehood.- — An oral charge of falsehood is not actionable per se, and can only be actionable by alleging some special damage which has resulted to the plaintiff as a consequence of speaking the words.
    3. Appeal and error — instruction—prejudicial error. — The prejudicial error of instructing the jury that an oral charge of falsehood is actionable per se was not eliminated by pleading and proof of special damage, as the instruction invades the jury’s province.
    4. Libel and slander — instruction as to charging woman as “bitch.” — An instruction that to call a woman a “bitch” is never actionable is erroneous, as the term may be used to indicate a lewd woman.
    5. Libel and slander — complaint.—rA complaint charging the use of words of doubtful or double meaning should, by innuendo and colloquium, charge the meaning which the pleader attributes to them.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    reversed.
    STATEMENT OF FACTS.
    This is an action of slander brought by Mrs. Buth Jordan against L. J. McDaniel. The complaint is in two paragraphs. In the first paragraph it is alleged that the plaintiff is a married woman, and resides in Groodrum Township, Lonoke County, Arkansas; that on the ...... day of August, 1922, in Lonoke County, Arkansas, the defendant, in the presence and hearing of several persons, falsely and maliciously stated that he had registered with the plaintiff as husband and wife at a hotel in Little Rock, Arkansas, and while there had had sexual intercourse with her.
    In the second paragraph of the complaint it is alleged that, on the......day of August, 1922, in Lonoke County, Arkansas, the defendant spoke of and concerning the plaintiff the following words, “that she was a damned little lying bitch.”
    The defendant filed an answer in which he admitted stating that he had registered at a hotel with the plaintiff as husband and wife, and while there had had sexual intercourse with her, and averred that said statement was the truth. He denied having said of the plaintiff that she was a “damned little lying ¡bitch,” or words of similar import.
    According to the testimony of the plaintiff, she was a married woman, and had lived about seven miles -south of Cabot, Lonoke County, Arkansas, for twenty-five years. She heard of the slanderous remarks which the defendant is alleged to have spoken of her, and detailed the pain and anguish which they caused her. -She denied that she had ever had sexual intercourse with the defendant, or that she had ever had any improper relations w-ith him.
    Another witness for the plaintiff testified that he had had a conversation with the defendant in August, 1922, in Lonoke County, Arkansas, in which the defendant told him that he had registered with the plaintiff as husband and wife at a hotel in Little Rock, Arkansas,. and had slept with her while there. In a few days thereafter the witness had another conversation with the defendant at the same place, and the defendant said of the plaintiff that she was the “lyingest damned little bitch that he ever talked to.”

      The defendant was a witness for himself. He denied that he had ever said of the plaintiff that she was the “lyingest damned little hitch that he ever talked to,” or that he ever spoke words of similar import about her. He admitted that he had stated that he had registered with the plaintiff as husband and wife at a hotel in Little Rock, Arkansas, and had had sexual intercourse with her while there. He testified that this was the truth, and introduced other witnesses whose testimony tended to corroborate his own in this respect.
    On the other hand, the plaintiff denied having registered with the defendant at a hotel in Little Rock, Arkansas, and testified that she had never had sexual intercourse with him, or any other kind of improper relations whatever.
    Other witnesses introduced by her tended to corroborate her testimony in this respect.
    The jury returned a verdict in favor of the plaintiff for the sum of $1,000, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Reed & Beard, for appellant.
    1. This being a civil action for slander, the‘plaintiff can recover only under the provisions of the statute, C. & M. Digest, §§ 2394, 2395, 2396. A statement charging a woman with being a “damned little liar and a little bitch, ’ ’ or that ‘ ‘ she was the lyingest damned little bitch he ever talked to,” is not actionable under the law, in the absence of allegations and proof of special damages. 89 Ga. 549; 50 Ind. 336; 104 Wis. 440. It has been held that the word “bitch” does not imply unchastity 101 Ky. 573; 19 R. L. 476; 114 la. 46; 27 111. App. 394. It wa,s not actionable per se to speak of the plaintiff as a liar. 31 Ark. 726. It has even been held that, where one charges another with having “sworn a lie,” the words are not actionable in themselves, and do not per se impute a charge of perjury, but there must be special allegations, and, to make them actionable, it is necessary to state the special circumstances in reference to which, they were spoken and in connection with which they impute the crime of perjury. 24 Ark. 602. See also 19 Ark. 364. - The alleged slanderous words complained of are to be given their common acceptation, and it was for the jury to determine, from all the facts developed in the testimony, what the common acceptation was, and the intention and meaning of the party uttering the same. 105 Ark. 254; 92 Ark. 487.

      Wm. J. Waggoner, .for appellee.
    The words uttered, which the appellant admits having uttered, that he had registered with plaintiff at a hotel in Little Rock, and that he slept with and had sexual .intercourse with her, are actionable per se. C. & M. Digest, § 2384; 84 Ark. 487; 36 Ark. 210; 54 Conn. 290; 92 Ark. 486; 121 Ark. 633; 66 N. E. 1042; 18 Ind. 21. The word “bitch,” when applied to a woman, is a term of opprobrium, one of the meanings of which is a lewd sensual woman. Oxford Diet.; Webster’s; Chambers’; March’s Thesaurus; Words & Phrases, vol. 1, 2nd series, p. 453. So also the word “liar” has a legal meaning, and it was the duty of the court to construe it, and not a question of fact for the jury. 10 Ark. 292; C. & M. Dig., §§ 2396, 2401.
   Hart, J.,

(after stating the facts). Under our statute, if any person shall falsely utter words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words, so spoken, shall be deemed slander, and shall be actionable as such. Crawford & Moses ’ Digest, § 2394.

In the construction of this statute it has been held that an oral charge of unchastity in a woman is actionable per se. Jackson v. Williams, 92 Ark. 486. The instructions of the court on this phase of the case were correct. It is contended, however, that the court erred in telling the jury as a matter of law that it is actionable per se to utter the defamatory words which charged the plaintiff with being a liar, and in this contention we think counsel are correct.

Under onr statute, oral charges of falsehood are not actionable per se, and can only be actionable by alleging some special damage which lias resulted to the plaintiff, as a consequence of the speaking of the.words, and the plaintiff’s chance of recovery depends upon his ability to prove the damage alleged. Studdard v. Trucks, 31 Ark. 726.

In this connection it may be stated that it is actionable per se at common law to charge one with having committed a felony; and, under § 2395 of Crawford & Moses’ Digest, to charge one with having sworn falsely, whether spoken concerning a judicial proceeding or not. Stallings v. Whittaker, 55 Ark. 494.

Counsel for the plaintiff defends the instruction on the ground that the complaint was amended so as to allege special damages, and .that special damages were proved by the plaintiff. This does not eliminate the prejudice which resulted to the defendant from the instruction. As we have already seen, oral charges of falsehood, are not actionable per se unless they charge a crime as provided in § 2395 of Crawford & Moses’ Digest, and the court erred in telling the jury as a matter of law that the words uttered in this respect were actionable per se. The instruction as given invaded the province of the jury by taking away from it the right to determine whether or not the words uttered were actionable. This necessarily resulted in prejudice to the defendant, and calls for a reversal of the judgment.

In this connection it may also be stated that the court erred in telling the jury that it is not actionable under any circumstance merely to call a woman a “bitch.” The word “bitch,” although a coarse expression and a term of reproach when applied to’ a woman, does not necessarily import adultery, fornication, or want of chastity. 25 Cyc. 322; 17 R. C. L., § 23, p. 283; case-note to 24 L. R. A. (N. S.) at page 613; case-note to 15 Ann. Cas. at 1247; Craver v. Norton, 114 Iowa 46, 86 N. W. 54; Warren v. Ray, 155 Mich. 91, 118 N. W. 741; Jacobs v. Cater, 87 Minn. 448, 92 N. W. 397; Blake v. Smith, 19 R. I. 476, 34 Atl. 995; Robertson v. Edelstein, 104 Wis. 440, 80 N. W. 724; Logan v. Logan, 77 Ind. 558; Stoner v. Erisman, 206 Pa. St. 600; Craig v. Pyles (Ky.), 39 S. W. 33; and Peters v. Barth (Ky.), 50 S. W. 682.

It appears from the cases cited above that one of the meanings given to the word “bitch,” as applied to a woman, is a lewd woman. The sense in which words are received and understood by the bystanders is the meaning which the courts ought to ascribe to them.

In the present case there should have been proper introductory averments to show the connection in which the word “bitch” was used. Therefore, where words may have a doubtful or double meaning, the plaintiff must, by innuendo and colloquium, charge which meaning he attributes to them, and it will be for the jury to find whether they were spoken with that meaning or not.

Other errors are assigned for a reversal of the judgment, but, inasmuch as they will not likely arise on a retrial of the case, we need not notice them.

For the error in instructing the jury as indicated in the opinion the judgment must be reversed, and the cause will be remanded for a new trial.


text:
    Nelson v. Forbes & Sons.
    Opinion delivered May 26, 1924.
    1. Mortgages — prior transfer. — A chattel mortgage is ineffectual if, before its filing, the mortgaged property was turned over to the mortgagor’s landlord in payment of rent.
    2. Appeal and error — admission of evidence — prejudice.— Improper admission of defendant’s evidence that, when he bought certain cotton, he did not know of plaintiff’s- mortgage thereon, vías harmless where, under instructions, the jury could not have regarded the matter as one of importance.
    3. Mortgages — removal of mortgaged chattel to this state. — A chattel mortgage, executed and valid in another State, and properly recorded there, will be enforced in Arkansas on removal to this State, even against an innocent purchaser.

      4. Landlord and tenant — extinguishment of relation by deed to tenant. — Where a landlord, without reserving the rent, executed an absolute deed to his tenant, his right to recover rent as such was extinguished, though it was agreed that the amount of the note for rent, when paid, should be credited as purchase money.
    5. Evidence — parol evidence to vary writing. — Where a landlord executed an absolute deed to his tenant, parol evidence is not admissible to prove a reservation of rents.
    6. Mortgages — description of property. — A description in an Oklahoma chattel mortgage of “12 bales of cotton of the 1920 crop now in my barn one mile west of Rock Island, Oklahoma,” held sufficient.
    7. Mortgages — validation of chattel mortgage — disinterested witnesses. — Under Comp. Stat. Okla. 1921, §§ 7650, 7655, providing for the validation of a chattel mortgage by two disinterested witnesses to entitle it to be filed, the filing of a mortgage till canceled is constructive notice, notwithstanding the disqualification of witnesses not appearing from the face of the mortgage.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      George W. Johnson and G. L. Grant, for appellant.
    The court erred in admitting testimony as to whether or not appellee had personal knowledge of the existence of the mortgage. The mortgage was executed and filed according to the statutes of Oklahoma (1921), §§ 7650, 7651, 7655. The lien of a mortgage in another State is not displaced by the wrongful removal of the property from that State to this. 73 Ark. 16. It was error to permit 'Smith to testify that Bromley was his tenant in 1920. Bromley held under a deed from Smith which contained no reservation of the rent, and Smith could not by parol testimony attach a condition or reservation that did not appear in the deed itself. See 122 Pac. 544; 10 Ark. 9; 51 Ark. 218. The cotton was not delivered to Smith prior to the execution of the mortgage, but was still in the possession of Bromley. 47 Ark. 210.

      Holland & Holland, for appellee.
    The question of whether or not the cotton was delivered to Smith prior to the execution of the mortgage was one of fact to be decided by the jury. 103 Ark. 545. There being sufficient evidence to sustain this finding, it should stand. 67 Ark. 531; 74 Ark. 478; 97 Ark. 486; 153 Ark. 614. Where the relation of landlord and tenant exists, it is immaterial that the landlord was not in fact the owner of the land as regards his claim to the statutory lien. 16 R. C. L. p. 985, § 488. Upon default in contracts of sale, the relation of landlord and tenant relates back to the time fixed for payment by agreement. 95 Ark. 32. The rent was to be paid as part of the consideration, and it was proper'to prove this by parol evidence. 150 Ark. 430. A vendor may make' a conditional sale and give the vendee an option to hold as purchaser or as tenant. 48 Ark. 416. The mortgage was improperly acknowledged. The witnesses were children of Bromley, and had an interest therein. 5 R. C. L. p. 393, § 13; see note 9 also. The recording of such a mortgage gave no notice to a stranger. 20 Ark. 190; 9 Ark. 112; 1 R. O. L. p. 265, §32.
   Smith, J.

Appellant Nelson brought this action against appellees Forbes & Sons to recover twelve bales of cotton which had been mortgaged to him in the State of Oklahoma by W. M. Bromley. The cotton was brought into this State and sold to appellees at ITackett, Arkansas, by Z. R. Smith, to whom it had been turned over by Bromley in payment of an alleged rent note.

Smith had contracted1 to sell Bromley the land ou which the cotton was grown, and on November 11, 1919, executed a deed to Bromley for the recited consideration of $7,500 cash in hand paid. This deed was not then delivered, but was placed in escrow until Bromley could raise a cash payment which was required. Before the delivery of the deed Smith rented the land to Bromley for a thousand dollars for the year 1920, and took a note for that amount, dated January 27, 1920, and due November 15 of that year. It was understood, however, when the deed was delivered, that the thousand dollars, when paid, should be treated as a payment of purchase money.

Bromley entered, into possession of the land and cultivated it for the year 1920, and the twelve bales of cotton involved in this litigation were a part of the crop grown that year.- All the cotton was sold by Bromley except the twelve bales, which were not sold because the price was not satisfactory, and the cotton was stored in a barn at Bromley’s house.

The mortgage from Bromley to Nelson was dated August 2,1921, and one of the disputed questions of fact in the case is whether the cotton so stored had been delivered to Smith prior to the execution and delivery of the mortgage, and the conflict in the testimony makes a question for the jury whether there had been a delivery to Smith prior to August 5, the date the mortgage was filed. Had that been done, this, of course, would be decisive of the case, as the title to the cotton would have passed to Smith upon its delivery to him. It is insisted, however, that the testimony shows that no delivery of the cotton to Smith had ever been made until after the execution of the mortgage, and that Bromley was in possession of it for himself, holding.it to be sold when the market price advanced.

Finally, in January, 1922, Smith took the cotton out of Oklahoma and sold it to appellees in this State. This was after the mortgage had been executed, and the suit was brought to recover the cotton under the mortgage.

When Will Forbes, one of the appellees, was on the stand the court permitted counsel 'for appellees, over appellant’s objection, to ask him if he knew of the mortgage when he bought the cotton, and he answered that he did not. This was an improper question, but we think no prejudice could have resulted from the action of the court in permitting it to be asked. The witness answered that he knew nothing of the mortgage, and there was no attempt to charge him with notice, but the instructions did not submit this question, and, under the instructions given, the jury could not have regarded the question as of any importance.

Appellant asked an instruction numbered 1 which presented his theory of the ease. It reads as follows: “If you find, by a preponderance of the evidence in this case, that 'Smith sold the land to Bromley and conveyed the title to same, and that, after doing so, Bromley grew the cotton on the land and then mortgaged the cotton to the plaintiff to secure an indebtedness which he, Bromley, owed to the plaintiff, and the plaintiff had his mortgage recorded in LeFlore County, and that the cotton, at the time of the execution of the mortgage, wa's in LeFlore County, Oklahoma, and that thereafter Bromley disposed of the cotton to Smith, or that Smith removed it from LeFlore County, Oklahoma, to Sebastian County, Arkansas, and the indebtedness secured by the mortgage is yet unpaid, then the plaintiff is entitled to the possession of the cotton, and your verdict should be for him.”

The court did not give the instruction as asked, but gave it after adding- the following proviso: “Unless you further find that Smith reserved the rent, and that the bales of cotton in controversy were turned over to Smith as rent, then and in that event defendant Forbes would take a title free from the mortgage of plaintiff Nelson, and you should find for defendant Forbes. ”

In the case of F. E. Creelman Lumber Co. v. Lesh, 73 Ark. 16, this court said: “In Hall v. Pillow this court held that the lien of a mortgage in another ‘State was not displaced by the wrongful removal of the property from that State to this. 31 Ark. 32. The authorities generally hold that a chattel mortgage, good according to the laws of the place where the mortgage is executed and recorded and the property is then situated, will be good, by comity, in any State to which the property may be afterward removed by the mortgagor, unless there is some statute in such State to the contrary; This, too, as against an innocent purchaser for value from the mortgagor. In some cases it is said the rule obtains, even though the property may have been removed with the consent of the mortgagee. Sheppard v. Hynes, 104 Fed. Rep. 449; Alferitz v. Ingalls, 83 Fed. Rep. 964, and authorities cited in both cases. See also authorities cited at p. 1061, Pingrey,. Chattel Mortg'., § 435; Jones, Chat. Mort. § 260.”

It was proper therefore for the court to instruct the jury that, if the mortgage was valid under the laws of Oklahoma, and had been properly recorded, it would be enforced in this State, even as against an innocent purchaser for value; but the instruction ignored the contention of the defendants that the cotton had been delivered to Smith before the mortgage was executed, which, as. we have said, is one of the questions of fact that cannot be treated as undisputed.

¥e think, however, that the modification of the instruction was erroneous. The undisputed evidence shows that, after the rent note was taken, the deed was delivered. Thereupon the character of Bromley’s possession was changed from that of tenant to purchaser, and the relation of landlord and tenant ceased, and there could thereafter be no lien for rent. The deed contained no reservation of the rents, and we said in the case of Barfield Mercantile Co. v. Connery, 150 Ark. 428: “It is well settled1 that a deed conveying the title to land in fee simple carries with it the right to collect the rents, and, ‘unless the deed reserves the right in the grantor to collect and use the rents, these pass as a necessary incident with the land to the grantee.’ Gibbons v. Dillingham, 10 Ark. 9; Latham v. First National Bank of Ft. Smith, 92 Ark. 315; Gailey v. Ricketts, 123 Ark. 18. Where the deed is absolute on its face and contains no reservation of the rents, proof of an oral reservation is not admissible. Gibbons v. Dillingham, supra; Hardage v. Durrett, 110 Ark. 63; Broderick v. McRae Box Co., 138 Ark. 215.” And this is true although the conveyance is to a tenant in possession who entered under a contract to pay rent. Barfield Mercantile Co. v. Connery, supra.

In the case just quoted from we recognize the fact that an agreement to pay rent for the year in which the conveyance was made might-be shown as a part of the consideration for the deed, and that the admission of oral proof of such an agreement would not offend against any of the established rules of evidence; but the testimony here shows no such agreement. It only shows an agreement to pay a thousand dollars rent, made before the deed was delivered, and, as we have said, the delivery of the deed merged the leasehold interest in the larger estate and extinguished the relation of landlord and tenant, and the thousand dollars, when paid, were to be credited as purchase money.

We have upheld contracts for the conveyance of land which provided that, upon the vendee’s failure to pay any installment of purchase money, the contract of sale should be void and the land revert to the vendor, and that the relation of landlord and tenant should then arise; but, in one of the cases in which it was so held, that of Murphy v. Myar, 95 Ark. 32, it was said that this was true because it was manifest that it was the intention of the parties to the contract that their relation should be determined by the performance or failure to perform the condition of payment named in the contract. If the condition was performed, then the relation of vendor and vendee would exist; but, if it was not performed, then the relation that would exist between them was that of landlord and tenant.

The deed to Bromley has no such conditions. It is a deed, and nothing else. The deed is absolute, and, upon its delivery, passed the title, and parol evidence was not admissible therefore to show that there had been a reservation of the'rénts.

It is finally insisted that the chattel mortgage was invalid for the reason that it was not properly attested, and therefore not entitled to be filed, as required by the laws of Oklahoma.

The mortgage was executed in the form prescribed by § 7644, Compiled Statutes of Oklahoma (1921), and the cotton is therein described as “twelve bales of cotton of the 1920 crop, now in my barn, one mile west of Rock Island, Oklahoma,” which was a sufficient description of the property to identify it.

Section 7650 of the Compiled Statutes of Oklahoma provides that mortgages of personal property are not valid against certain persons, including subsequent purchasers for value, unless the original mortgage or an authenticated copy thereof is filed in the office of the register of deeds of the county where the property is situated. And the mortgages which may be so filed are those which are executed or attested as required by § 7655 of the Compiled Statutes, which is as follows: ‘‘A mortgage of personal property must be signed by the mortgagor. Such signature may either be attested by acknowledgment before any person authorized1 to take acknowledgments of deeds, or it may be signed and validated by the signature of two persons not interested therein. Mortgages signed in the presence of two witnesses, or acknowledged before an officer, as herein provided, shall be duly admitted of record.”

The mortgage in question is attested by Thomas Bromley and Albert Bromley, and it is said that the attesting witnesses are the minor children of the mortgagor, and are not disinterested witnesses within the meaning of the statute quoted.

It does not appear by what authority this statement is made, as no testimony is abstracted or referred to upon which to base it. The fact may be as stated, but, if so, it does not appear from the record before us as abstracted.

Moreover, the relationship or interest or minority of the attesting witnesses does not appear from the face of the instrument which they witnessed, and we need not therefore consider whether the infancy of the witnesses or their relationship to the mortgagor is such as to render them ineligible as attesting witnesses under the statute quoted, because of the construction of this statute by the Supreme Court of Oklahoma.

The statute was construed in the case of Lankford v. First National Bank of Lawton, 75 Okla. 159, 183 Pac. 59. It was there insisted that the attesting witnesses to the mortgage in question were interested, but the interest did not appear upon the face of the mortgage. The court quoted the two rules on this subject as stated in 1 C. J., pages 772 and 773, and approved what was stated to be the majority rule, and announced its conclusion as follows: “The courts that are in accord with the Supreme Court of Oklahoma have adopted the rule that, where an instrument has been acknowledged or attested, which acknowledgment or attestation is regular upon its face, but the officer who takes the acknowledgment or witness who attests the same are disqualified by reason of their interest therein, but said fact does not appear upon the face of the instrument, the recording or filing of the instrument for record is voidable, and not void, and the same imparts constructive notice to every one until the recording of the same is canceled or set aside; and the same will support an action by the’ mortgagor therein to have the same canceled of record by reason of the interest of the witnesses, or the person who has taken the acknowledgment; but until the same is canceled, or proceeding brought to cancel the same, it is of the same binding force and effect as if said defect did not exist, and is constructive notice to all subsequent purchasers or incumbrancers. The courts holding to the contrary hold that the recording of said instrument, although regular on its face, is void, and is not notice.” See also Harney v. Montgomery, 29 Wyo. 362, 213 Pac. 378.

It follows therefore that the mortgage was valid under the laws of Oklahoma, and there is no question of priority between it and the lien of the landlord, for the reason that the landlord had no lien. Had the deed not been delivered until after the rent had become due, a different question would be presented, but the undisputed testimony is that the deed was delivered in the spring of 1920, and the note was not, by its terms, payable until November 15 thereafter.

The agreed value of the cotton is one thousand dollars, and we would render judgment for appellant for that amount but for the uncertainty as to the time of the delivery of the cotton to Smith.

The judgment of the court will therefore he reversed, and the cause remanded with directions to' submit the case under an instruction to the effect that a verdict should be rendered in favor of the plaintiff, unless the jury finds the fact to be that, before the filing of the mortgage, the cotton had been delivered to Smith.


text:
    Thompson v. Hickman.
    Opinion delivered May 26, 1924.
    1. Mines and minerals — oil lease — laborer’s lien against fee.— A lien, under Crawford & Moses’ Dig., § 6941, for labor furnished in drilling an oil well, was improperly declared against the fee, where the lienor was employed by one who was drilling a well under contract with lessees of the land.
    2. Appeal and error — judgment by default. — A judgment by default upon a complaint which fails to state facts sufficient to constitute a cause of action is reversible on appeal.
    3. Judgment — default judgment not sustained when. — A judgment by default against the owner of the fee in land for the amount of the lien of a laborer working- for a contractor employed by lessees to drill an oil well, was not sustained by a complaint which alleged that the owner accepted the benefits of the work and failed to allege that the lienor was employed by the owner, or that the owner promised to pay for the work.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    reversed.

      McKay & Smith, for appellant.
    Default after legal service is an admission of all the allegations made in the complaint, but not that the facts alleged entitled plaintiff to recover. 12 Ark. 599; 58 Ark. 39. If the allegations are insufficient to support the judgment, it will be reversed. 41 Ark. 42; 44 Ark. 56.

      P. C. Grumpier and Joe Joiner, for appellee.
    Every reasonable presumption should be indulged in favor of the bill. 183 S. W. 728. Where judgment is entered by default it will be presumed that the evidence was insufficient to support it. 87 Ark. 79. A judgment by default must be presumed to be valid until it is shown by the record to be to the contrary.
   Smith, J.

Appellee recovered judgment against appellant and certain other defendants, who have not appealed, for the sum of $550 alleged to be due him for drilling an oil well. The suit was filed January 6, 1923, which was prior to the passage of act No. 615 of the Acts of 1923, § 12 of which amends § 6941, C. & M. Digest, and this amendatory act has therefore no bearing on this case.

The complaint alleged that, on June 8, 1922, J. M. Stocks conveyed a forty-acre tract of land to John L. Thompson, but that prior thereto, on May 5,1921, Stocks had executed an oil and gas lease to F. W. Higgins, who, •on March 22, 1922, assigned the lease to the Pure Oil Company, a corporation, which company assigned a one-fourth interest therein to the Newblock Oil Company, a corporation, and these companies contracted with Harry C. Thompson to drill a well on the land, and H. C. Thompson employed appellee as a laborer at $10 per day, and, pursuant to this employment, appellee performed labor for fifty-five days.

The complaint alleged that the lease was in writing, and was in possession of the defendants, and had never been recorded, and there was a prayer that it be produced, but this was not done. The complaint alleged that John I. Thompson and the companies named “accepted the benefits of the work of the plaintiff.” There was a prayer for judgment for $550, and that this “judgment be declared a lien on the lease and the land above described,” and that the same be ordered sold in satisfaction of the judgment if the same was not paid.

John I. Thompson, though duly summoned, failed to answer, and a personal judgment was rendered ag’ainst him as well as the other defendants, and the amount thereof was declared to be a first and prior lien on the land, and a commissioner was appointed to sell the land if the judgment was not paid within ten days. It is from this judgment that Thompson has appealed.

This suit was brought under the authority of § 6941, C. & M. Digest, which gives every laborer and other persons who shall dig, bore or construct any well or cistern a lien upon the land or so much thereof as is necessary to cover the debt. Assuming, without deciding, that this section of the statute applies to an oil or gas well, we proceed to consider the validity of the judgment against Thompson, the only defendant who has appealed.

In the case of Meek v. Parker, 63 Ark. 367, Mr. Justice R-iddiok said: “The lumber company held the tract of land1, upon which their sawmill, boiler, engine, dry-house, etc., were situated, under a lease for a term of years. It is contended that the improvements for which the materials were furnished, being placed upon leased lands, must therefore be treated as personal property, and that no lien attaches to such land for materials furnished for the making of such improvements. Rut this contention cannot be sustained. ‘The estates of tenants for terms of years are liable for the improvements made by them upon the demised premises. The lien extends to their entire interest under the lease, but does not affect the reversion of the lessor, unless he, by some act of his own, has obligated his estate.’ Phillips, Mechanics’ Liens, § 191; White v. Chaffin, 32 Ark. 59; McCullough v. Caldwell, 5 Id. 238; Paulsen v. Manske, 9 A. S. R. 532, and note.”

In the note' to the annotated case of Showalter v. Lowndes, 3 A. & E. Ann. Cas. 1096, numerous cases, including that of Meek v. Parker, supra, are cited to the same effect.

In the case of Williams v. Vanderbilt, 21 L. R. A. 489, the Supreme Court of Illinois (145 Ill. 238) said: ‘ ‘ The party with whom the contract is made by the person furnishing the labor or materials is only regarded as owner, within the meaning of the law, to the extent of the interest which he owns. It is that interest which is subjected to the lien. Hickox v. Greenwood, 94 Ill. 266. A tenant for life or years cannot, by contract, create a lien upon the fee. He may, by contract, create a lien to the extent of his right and interest in the premises, hut no further.”

It follows therefore that a lien was improperly declared against the fee, unless John I. Thompson was under some contractual obligation to pay appellee his wages.

As has been said, judgment was rendered by default against John I. Thompson, and the question therefore arises whether the allegations of the complaint were sufficient to support the judgment.

“The rendition of a judgment by default upon a complaint which fails to state facts sufficient to constitute a cause of action is an error for which the judgment should be reversed on appeal. Benton v. Holliday, 44 Ark. 60; Railway Co. v. State, 58 Ark. 39; Elliott, Appellate Procedure, §'§ 471, 475.” See also Warner v. Hess, 66 Ark. 113; Barnhill v. Polk, 89 Ark. 117; Lindsey v. Bloodworth, 97 Ark. 541; Wilson v. Overturf, 157 Ark. 385; Koons v. Markle, 94 Ark. 572; Chaffin v. McFadden, 41 Ark. 42; American Freehold Mortgage Co. v. McManus, 68 Ark. 263; Pettus v. Bird, 136 Ark. 537; Neimeyer v. Claiborne, 87 Ark. 72; Sproull v. Miles, 82 Ark. 455.

The complaint contains no allegation that appellee was employed by Thompson or that Thompson promised to pay for the work. The only allegation is that he accepted the benefits of appellee’s work. This, however, is not sufficient to impose liability on appellant. It was the duty of the lessee to drill the well, and appellant was, of course, entitled to the benefits derived therefrom under the terms of the lease, whatever they may have been, and if he did no more than to accept these benefits — whatever they were — and the complaint alleges nothing else, no cause of action is stated against him, and no judgment should have been rendered against him.

The judgment against Thompson must therefore be reversed, and, if the complaint is not amended to state a cause of action against him, it must be dismissed.


author: Humphreys, J.

text:
    Commercial Credit Company v. Stanley.
    Opinion delivered March 31, 1924.
    1. Set-off and counterclaim — right to maintain. — Where, in a suit in replevin, a money judgment is sought as damages for detention of the chattel, a counterclaim may be maintained.
    2. Pleading — demurrer.—A demurrer will not lie to a counterclaim properly pleaded, nor to an answer which states facts sufficient to constitute a defense to the cause of action alleged.
    3. Appeal and error — failure to bring up evidence. — Where the testimony in a case is not brought into the record by bill of exceptions, it will be presumed on appeal that there was sufficient evidence to sustain the judgment.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge:
    affirmed.

      A. D. Whitehead, for appellant.

      Moore & Moore, for appellee.
   Humphreys, J.

On the 21st day of August, 1922, .Mott Motor Company sold a four-cylinder Ford truck to W. H. Stanley, retaining a title in itself and its assignees until the purchase money should be paid. On the same day the conditional sales contract and the note given by Stanley for the purchase money was assigned to appellant. Upon failure to pay the purchase money, appellant brought this .suit in replevin in the circuit court of Phillips County to recover the truck and $20 damages for the detention thereof.

W. H. Stanley surrendered his interest in the truck, and no summons was served on him.

Process was served upon appellee, iWill Bagsdale, who had possession of the truck, claiming a mechanics’ lien thereon for labor and material. He filed an answer and counterclaim, alleging that appellant was indebted to him in the sum of $62.70 for labor and material furnished to repair the truck. He attached thereto a copy of the mechanics’ lien he had filed against said truck in the clerk’s office on the 19th day of March, 1922.

Appellant filed a demurrer to the answer and counterclaim, which ivas overruled. It then filed a reply thereto, denying that it was indebted to said appellee for repairs upon the truck, and alleged that, if he had repaired same, he had done so without authority of appellant.

The cause was submitted1 to the court, sitting as a jury, which resulted in a judgment for the return of the truck to said appellee, from which is this appeal.

Appellant first contends for a reversal of the judgment upon the ground that the counterclaim is not allowable in a suit for the recovery of property. While this is a suit in replevin, a .money judgment was sought as damages for the detention of the truck. Where money judgments are sought, counterclaims may be maintained. Coats v. Milner, 134 Ark. 311; Smith v. Glover, 135 Ark. 531; Funk v. Young, 138 Ark. 38; Huggins v. Smith, 141 Ark. 87. Again, the matter set up in the answer was a good defense, if proved, against an action for the possession of the truck. Appellee alleged' in his answer that he had a lien on the truck paramount to the claim of appellant therein. It is true the conditional sales contract antedates the mechanics ’ lien, but the answer tendered an issue of whether appellant authorized appellee to repair the truck. .In appellant’s reply to the answer and counterclaim, denial was made that it authorized appellee to make said repairs. A demurrer will not lie to a counterclaim properly pleaded, nor to an answer which states facts sufficient to constitute a defense to the cause of action alleged.

Appellant’s next and last contention for a reversal of the judgment is that the undisputed proof shows it was entitled to recover the possession of the truck. This contention is based upon the fact that the contract retaining title is dated 'before the mechanics ’ lien. This may all be true, and yet the testimony may have shown that appellant authorized appellee to repair the truck. The testimony was not brought into the record by bill of exceptions, so we must presume, on appeal, that there was sufficient evidence to sustain the judgment.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J. McCulloch, C. J.,

text:
    Wilkinson v. James.
    Opinion delivered May 5, 1924.
    1. Mortgages — waiver of redemption. — Under Crawford & Moses’ Dig., § 7411, when a mortgage or deed of trust contains a waiver of the right to redeem, a decree of foreclosure cuts off the right of redemption, although not so declared in the decree.
    2. Logs and logging — sale of timber. — Where a deed reserved the timber rights, and, after the time limit for cutting the timber expired, the vendor foreclosed a purchase-money mortgage and purchased the land, his subsequent sale of the timber to defend-. ant conveyed title thereto superior to that of plaintiff, to whom he subsequently deeded the land.
    3. Frauds, statute of — part performance. — A verbal contract to sell timber was taken out of the statute of frauds by the purchaser entering and proceeding to cut and remove the timber, and paying for it as cut.
    4. Evidence — opinions of experts. — In an action for accounting for timber cut, the uncontradicted testimony of expert witnesses as to the value of timber in a certain river bottom is admissible though they never saw the timber involved in the action.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    reversed.

      W. J. Lanier, .for appellant.
    In order for one to maintain an action of trespass to realty he must either have actual or constructive possession. 65' Ark. 600. To maintain the action appellee must show that she is the owner of the land upon which the trespass occurred. 1 Ark. 448; 8 Ark. 470 ; 14 Ark. 433; 44 Ark. 74; 26 Ark. 505; 76 Ark. 428; 85 Ark. 208.

      Daggett & Daggett, for appellee.
   McCulloch, C. J.

This is an action instituted by appellee against appellant in the chancery court of St. Francis County to have an accounting of timber cut on a tract of land alleged to be the property of appellee, and to recover the value of the timber. There was a trial of the cause on the pleadings and proof adduced, which resulted in a decree in favor of appellee for the value of the timber in controversy, which the court found to be twelve hundred dollars.

The material facts of the case are undisputed. There is a conflict as to the value of the timber cut and removed by appellant, but the conclusion which we have reached with reference to appellant’s liability renders the conflict as to the value of the timber immaterial.

The land in question (a section of land in St. Francis County containing six hundred and forty acres) was originally owned by E. A. Rolfe and J. F. McDougal, who sold and conveyed the same to W. J. Moore by deed dated August 22, 1916, containing a reservation of the timber rights in the following language: “It being agreed and understood that E. A. Rolfe and J. F. McDougal reserve the right to cut and remove the timber on the above described land until January 1, 1918.” The nominal sum of ten dollars was paid on the consideration, and Moore executed to Rolfe and McDougal a mortgage on the land to secure the. payment of the purchase money, $3,840, evidenced by. installment ■ notes. The mortgage contained a clause expressly waiving the right of redemption under the statute. Moore sold and conveyed the land to. appellee, Mrs. James, by deed executed September 2, 1916, for the same consideration as expressed in the deed to him from his grantor. The deed recited a consideration of ten dollars, paid, and the assumption of the debt described in the mortgage from Moore to Rolfe and McDougal. The deed also recited that the conveyance was made “subject to certain timber right mentioned in deed to the said W. J. Moore, recorded in book 74, page 53, of the recorder’s office in Forrest City, St. Francis County, Arkansas.” No part of the mortgage debt to Rolfe and McDougal was paid, and they instituted an action in the chancery court to foreclose the mortgage. A foreclosure decree was rendered on August 20, 1918, and the land was ordered sold by a commissioner of the court. The sale was made on November 1, 1918, and Rolfe and McDougal became the purchasers, the sale was reported, and approved by the court, and deed was made under orders of the court,

On September 11, 1919, Rolfe and MeDougal conveyed the land to appellee for a cash consideration of $4,356.46, the deed containing the following recital: “This deed is executed for the purpose of perfecting a redemption of above land from a sale to grantors herein under a decree of the St. Francis Chancery Court, rendered July 20, 1918, in the case of E. A. Rolfe, J. F. MeDougal and Eugene Williams, trustee, v. W. J. Moore and Alma M. James, the consideration named above being the amount of the judgment, interest and costs in said case.”

Prior to January 1, 1918, Rolfe and MeDougal entered into an arrangement with appellant to cut and remove the timber from the land, and, pursuant to this arrangement, appellant entered upon the land and cut and removed a large quantity of timber prior to the date mentioned above. This was done under the reservation recited in the deed from Rolfe and MeDougal to Moore, and the timber cut at that time is not involved in the present controversy. Appellant quit cutting timber on the expiration of the time limit of the timber reservation (January 1, 191iS), but, after Rolfe and MeDougal received their deed from the court’s commissioner in November, 1918, they made a new contract with appellant whereby they sold him the timber on the land for the purpose of making’ railroad ties, 'at the price of ten cents per tie. The contract of sale was verbal. The evidence in the case shows that the timber on the land was small and inferior, and was only valuable for that purpose.

Under the new contract of sale appellant entered upon the land and cut 1,790* railroad ties, of which 343 were cut subsequent to the date of the conveyance by Rolfe and MeDougal to appellee, .but appellant had no actual notice of that conveyance until after he had cut the timber. The trial court held appellant- liable for the value of all of the 1,790 ties. The theory upon which appellant was held liable, for the timber is that appellee had the statutory right of redemption of the land for one year after the date of the foreclosure sale, that Rolfe and McDougal and their vendee, the appellant, were in possession as mortgagees after that sale, and were liable for the value of the timber cut during that time. Counsel for appellee defend the decree on that ground, hut we are of the opinion that the theory is unsound and is not justified by the law governing the redemption rights of a mortgagor. The governing statute on that subject reads as follows:

“Section 7411. In all cases where real property is sold under an order or decree of the chancery court, or a court exercising chancery jurisdiction in the foreclosure of mortgages and deeds of trust, the mortgagor, his heirs or legal representatives, shall have the right to redeem the property so sold at any time within one year from date of sale, by the payment" of the amount for which the property was sold, together with interest thereon at the rate borne by the decree or judgment, and the cost of foreclosure and sale; provided, that the mortgagor may waive such right of redemption in the mortgage or deed of trust so executed and foreclosed * * Crawford & Moses’ Digest, § 7411.

It is not contended that the waiver of the right of redemption is unenforceable, but the contention of counsel is that 'the decree of the court did not, in terms, cut off the right of statutory redemption after sale, and that this was essential in order to effectuate the waiver and to preclude the mortgagor’s right of redemption. We cannot agree to that view of the law, for there is nothing in the statute which, either in express terms or by implication, requires an adjudication by the court in its foreclosure decree of the waiver of redemption. When the mortgage or deed of trust contains the waiver, and the court renders a foreclosure decree, the right of redemption is gone by operation of the statute. In other words, the right of redemption after the sale is determined by the question whether or not there was in fact a waiver of the lien in the mortgage, and not by a recital of the waiver in the decree. It -follows therefore that appellee had no right of redemption-from the mortgage sale. The fact that the purchasers at the sale, Rolfe and McDougal, executed to appellant a deed of conveyance, containing a recital recognizing that appellee had the right of redemption, does not affect the rights of appellant as the purchaser of the timber prior to the execution of that deed. If there was in fact no right of redemption, Rolfe and McDougal were the owners of the timber, and their sale to appellee of the timber conveyed a superior title over the subsequent conveyance of the land to appellee. Nor can there be any distinction made as to the question of appellant’s liability between the timber cut before and that cut after the date of the conveyance by Rolfe and McDougal to appellee. The sale was verbal, but the question of the statute of frauds has not been raised either by special or general plea. However, if any such question had been raised, a sufficient answer to it is that the contract of sale was taken out of the operation of the statute of frauds by the fact that appellant entered into possession of the land and the timber and proceeded to cut and remove the timber, paying for it as cut. Carnahan v. Terrall Bros., 137 Ark. 407; Beattie v. Smith, 146 Ark. 532.

The contract of- sale having been made prior to the deed to appellee, and there having’ been part performance under continuous occupancy in the removal of the timber, appellant’s right to the timber under his purchase could not be taken away by a subsequent conveyance made by his grantors to another.

Our conclusion is that, under the undisputed facts of the case, appellant is not liable for any of the timber cut, so the decree is reversed, and judgment will be entered here dismissing the complaint of appellee. It is so ordered.

McCulloch, C. J.,

(on rehearing). On the original consideration of this case we overlooked a stipulation of counsel narrowing the issues in the case solely to the ascertainment of the amount and value of the timber cut on the land by appellant and conceding the liability of appellant for the reasonable market value of the timber. The stipulation reads as follows:

“That therefore the sole questions to be determined by this court in this action are as follows: ‘(a) The amount of timber, if any, cut and removed by the defendant, C. M. Wilkinson, or his agents, subsequent to the first day of January, 1918, and for the amount so cut and removed as may be found by the court, it is admitted that .the defendant is liable to the plaintiff for the reasonable market value thereof at the date of removal; (b) the reasonable market, value of such timber, if any, cut and removed by the defendant from said land subsequent to January 1, 1918; (c) whether or not the defendant, C. M. Wilkinson, or his agents by his direction, entered in and upon said lands and cut and removed such timber, if any, without color of right, title or authority so as to render the said C. M. Wilkinson liable to the plaintiff for treble damages by reason of the trespass, if any, committed by him.’ ”

Reference was made to this stipulation in the original brief of appellee, but we overlooked it, and determined the case upon another question. We .turn, then, to the question presented in the stipulation as to -the amount and value of the timber.

It is not contended that appellant was a wilful trespasser so as to render him liable for treble damages, and the contention of counsel for appellee is that appellant should only be liable for the value of the timber at the time it was cut, i. e., what timbermen call “stumpage value. ’ ’

There is really no dispute as to the amount of timber cut by appellant — 1,790 railroad ties — and the court based its finding on the value of that quantity of timber. According to the computation made by counsel for appellee, that number of cross-ties would amount, at thirty-two feet board measure per tie, to 57,280 feet. Appellant and witnesses introduced by him testified that the timber was only fit for making ties, and that the fair market value of the stumpage was ten cents per tie. Appellant introduced no witness whose testimony tended to fix the price of the timber for manufacturing lumber. On the other hand, all of the testimony adduced by appellee tended to fix the price of the timber as saw-timber and not as tie-timber. Two of the witnesses introduced by appellee— the two witnesses on whose testimony the court appears to have based its finding — never saw the timber, but merely testified as experts concerning the value of saw-timber in L’Anguille Eiver bottom. The testimony of these two witnesses is not contradicted, and must be accepted as true, but other testimony in the case shows that this timber was not situated in the L ’Anguille Eiver bottom, and that it was not fit for saw-timber — the greater portion of it, at least. Ajppellant and another witness introduced by him testified that this timber was not fit for saw-timber, and was only fit for making ties, but another witness introduced by appellant — Patterson by name — testified that this timber would average in size from twelve inches up to eighteen to twenty inches, and that the larger size used in making ties was from ten to twelve inches.

We are convinced that .the court’s finding as to the value of the timber is not sustained by a preponderance of the evidence, for the testimony of Houck and Yancey, 'the two witnesses on, whom appellee relies, does not justify a finding of a $1,200 valuation. They testified that the value of saw-timber on L’Anguille Eiver bottom was twelve dollars to fifteen dollars per thousand feet, board measure. At twelve dollars per thousand feet the aggregate value would be $687.26, and a finding as to this amount would 'be excessive in view of the uncontradicted testimony that much of this timber, if not all of it, was unfit for manufacturing lumber.

The difficulty in arriving at the value of the timber arises from .the fact that one side bases its estimate entirely on tie-timber, and the other side bases its estimate of value entirely on its being saw-timber, whereas the proof shows that much of it was only fit for making ties. E. A. Eolfe, who formerly owned the land, and who, together with McDougal, sold the timber to appellant, testified as a' witness in the case, and he places the value at ten cents per tie as tie-timber, but he also testified that, before he made the -trade with appellant, he offered to sell all the timber at a lump sum of $500. The clear inference from his testimony is that he considered the value of the timber to be $500, but that it was only worth ten cents per tie when used for making railroad ties. It becomes necessary to reconcile the conflicting statements of the witnesses- so as to arrive at some just measure for ascertaining the val-ue of the timber cut, and we have concluded that Rolfe’s estimate of $500 is about the proper amount to fix. It would not be fair to estimate all of the timber at the value fixed by Houck and Yancey for saw-timber, nor would it be fair to fix it on the basis of the price of tie-timber, for, as before stated, the evidence shows that some of it was fit for saw-timber.

The motion for rehearing will therefore be sustained, and the judgment will be modified by reducing the amount of recovery in favor of apiiellee down to the sum of five hundred dollars, to bear interest as prescribed in the decree below. It is so ordered.


author: McCulloch, C. J.

text:
    McClintock v. Bovay.
    Opinion delivered May 26, 1924.
    Toll-bridge — exclusiveness op privilege. — Under Crawford & Moses’ Dig-., § 10258, making the grant of a toll-bridge franchise exclusive, the rights conferred, under such a franchise are superior to ferry privileges, and the county court could not grant a ferry privilege which would interfere with the exclusive privilege to build and operate a toll-bridge.
    Appeal from Prairie Chancery Court, Southern District; John E. Martineau, Chancellor;
    affirmed.

      Gregory & Iloltzendorff and Emmet Vaughan, for appellant.
    Where one owns- land on both sides or banks of a river or stream, he shall be entitled to the. sole and exclusive right of ferriage at such place. C. &. M. Dig. § 4694; 26 Ark. 466. A ferry franchise is a privilege to take tolls for transporting men, horses, cattle and vehicles with or without their loading, across a lake or stream or some other body of water. 44 Ark. 188. When the county court has once granted the privilege of keeping a public ferry, the privilege is exclusive within the distance, so long as it is exercised under the annual grant of license provided for. 94 Ark. 193; 20 Ark. 561; 20 Ark. 572; 44 Ark. 184. A free ferry or bridge may be established, provided there is no regularly established bridge or ferry within one mile above or below the ferry. 65 Am. Dec! 535; 17 W. Va. 396.

      Chas. B. Thiveatt and Cooper Tlnueatt, for appellee.
    Appellant’s ferry rights are vested for the year 1923 alone, and it does not appear that the bridge will be built or those ferry rights interfered with during that time. 95 Ark. 342; 130 Ark. 299. The toll-bridge franchise is valid and binding, the building and operation of the bridge 'are lawfully authorized, and cannot be enjoined by any one. 52 Ark. 61; 159 Ark. 652. Even though the order granting the franchise was erroneous, the judgment is conclusive on appellant, on the principle of res judicata. Appellant’s only remedy would be by appeal, and injunction will not lie. 20 Ark. 573; 151 Ark. 393; 19 Cyc. 496.
   McCulloch, C. J.

Appellant is the owner of the land on both sides of White River for a certain distance southward from a point where the line of the Chicago, Rock Island & Pacific Railway Company crosses the river near Devalls Bluff, and he has for many years operated a public ferry across the river, connecting an improved' public highway which runs from the bank of the river on each side a short distance south of the railroad crossing. Appellant has procured a license from the county court from year to year to operate the ferry, and, at the time of the commencement of this action, in December, 1922, lie was operating the ferry under a license issued that year, and also procured a license for the year 1923.

On December 19, 1921, the county court of Prairie County granted to Harry E. Bovay, one of the appellees, an exclusive franchise to build a toll-bridge across White River near Devalls Bluff. The consent -of Congress to the construction of the bridge across White River, as a navigable stream, was obtained by the enactment of a statute, and the Secretary of War located the site of the bridge at a point about fourteen hundred feet south of the railroad crossing. The site was located on appellant’s land on both sides of the river. Since that time the county court has opened up laterals on each side of the river from the public road and established a public highway to the bridge site. Appellee Bovay assigned his franchise to a corporation known as the White River Bridge Company, and that corporation is proceeding to construct the bridge at the designated site. Appellant’s ferry is' located about midway between the railroad bridge and the proposed bridge to be constructed under the franchise referred to.

Appellant instituted this action against appellee Bovay and his successors, alleging that, by reason of being owner of the land on both sides of the river, he had a continuing right to exercise the ferry privilege, and that he was operating the ferry under the annual license granted him by the county court, and that the construction of the bridge constituted. an interference with his ferry privileges. The prayer of the complaint is that appellees be restrained from proceeding with the construction of the bridge. .

Appellees filed an answer, setting forth the franchise granted by the county court, and pleading, as an adjudication of appellant’s right to controvert the power of appellees to exercise the franchise, the fact that appellant had appeared in the county court and made himself a party and resisted the issuance of the franchise. The court overruled appellant’s demurrer to the answer, and, on the hearing of the cause, rendered a final decree dismissing the complaint for want of equity.

The contention of appellant is that, on account of the fact that he owns the land on both sides of the river and has been exercising his ferry privilege, he has a continuing right to operate the ferry so long as he elects to exercise the right and complies with the law with respect to obtaining a license from year to year, and that the construction of the bridge is an interference with his ferry privileges which should be prevented by the chancery court. He invokes the rule, laid down in controversies between rival ferry owners, that a person owning land oh both sides of a river has the exclusive ferry rights for a distance of one mile on each side of Ms ferry, and that a court of chancery should protect him from interference, even by one operating a ferry under a license obtained from the county court. Finley v. Shemwell, 94 Ark. 190; Crane v. Jackson, 116 Ark. 100. This is not a controversy between rival claimants of ferry privileges as to the superiority of their rights, but is one between a claimant of an exclusive ferry privilege and the other claiming exclusive privilege under a franchise to construct a toll-bridge. The statute authorizing the granting of franchises for the construction of toll-bridges provides that the privileges thus granted are exclusive (Crawford & Moses’ Digest, § 10258), and we decided, in the recent case of White River Bridge Co. v. Hurd, 159 Ark. 652, that the rights conferred under a franchise to build a toll-bridge were superior to ferry privileges, and that the county court could not grant a ferry privilege which would interfere with the exclusive privilege to build and operate a toll-bridge. The effect of that decision was to hold that a franchise to build a toll-bridge is superior to a ferry franchise, for the reason that a bridge is more to the convenience and benefit of the public, and for that reason the statute, in express terms, had made the bridge franchise exclusive. The fact that appellant has obtained his license from year to year does not deprive the county court of the power, under the statute, to grant an exclusive privilege in that territory to construct and operate a toll-bridge. The county court has the power, until the exercise of the franchise is consummated by the construction and operation of the ■bridge, to continue the ferry privileges, but, as soon as the power, under the bridge franchise, is consummated by putting the bridge into operation, the privilege becomes, under the statute, exclusive, and cannot be interfered with by the granting of a ferry privilege within the prohibited distance of the bridge.

The question of appellant’s compensation for his property taken as a bridge site is not involved here, and his rights in that regard are not affected by the decree in this case, as this is not a suit to condemn the bridge site, as in the case of Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405. The effort in the present litigation is to prevent the interference with appellant’s ferry privilege by operating a bridge within a mile of the ferry.'. We hold now that the bridge privilege is superior to the ferry privilege, and that ends this controversy.

The decree of the chancery court was therefore correct, and the same is affirmed.