author: Hart, J.,

text:
    Oliver v. Howie.
    Opinion delivered March 15, 1926.
    1. Attorney and client—lien at common law.—'Independently of statute, an attorney at law who has performed services and expended moneys in prosecuting or defending a suit involving the title to or possession of real estate cannot sustain a claim to obtain compensation and reimbursement out of the specific property.
    2. Attorney and client—statutory lien.—Under Crawford & Moses’ Digest, § 628, an attorney bringing a suit to recover land for his client acquires no interest in or control over the cause of action, but has a lien only, which attaches to a verdict, decision or final order in his client’s favor.
    3. Vendor and purchaser—description op land in agreement to convey.—A description of land in an agreement to convey as the land conveyed in a certain deed on record is sufficient where the deed referred to correctly describes the land.
    4. Adverse possession—possession op cotenant.—Where a wife, in securing a divorce, is decreed a one-third interest in her husband’s homestead, she will be held to have abandoned her homestead right; but where she remains in possession of the entire tract, her possession will not become adverse until knowledge of her adverse claim is brought home to him or his assigns directly or by acts from which notice may be presumed.
    5. Equity—recovery op land from cotenant—laches.—Where a wife, by a decree of divorce, obtained an allowance of a one-third interest in her husband’s homestead, and, without allotment thereof, remained in possession of the entire tract for more than 20 years, a suit by the husband to recover his interest was not barred by laches.
    6. Husband and wipe—liability of divorced wife for rents of homestead.——Where a wife, in a decree of divorce, was allowed a one-third interest in her husband’s homestead, and «he remained in possession of the entire homestead without objection by the husband, and without any steps being taken by him to have her interest set apart, his assignee, in a suit to recover the husband’s interest, will not be entitled to recover rents from her.
    Appeal from Calhoun Chancery Court; J. Y. Stevens, Chancellor;
    reversed.
    statement by ti-ie court.
    On February 5, 1921, Ben Hemit brought this suit in equity against Bama Howie to quiet his title to certain land in Calhoun County, Ark., and to cancel whatever claim or interest the defendant may have in said land.
    Bama Howie defended the suit, and asserted title in .herself. Ben Hemit and Bama Howie are negroes, and were formerly husband and wife. They were married in 1891, and had three children. The land in question comprises 62 acres, and Ben Hemit acquired title to it by a warranty deed from John Oliver, in 1895. They lived on the land, and it constituted their homestead. Some time in 1896 Ben Hemit and Bama separated.' Ben left the neighborhood, and Bama continued to live' on the homestead, with their three children. She never heard from her husband, and did not know where he was, until a short time before this suit was instituted. She secured a divorce from him in 1897, on the ground of desertion, and the custody of the children was awarded to her. She secured service on the defendant in the divorce suit by publication of a warning order, and no defense was made to the action.
    It was decreed in the divorce suit that one-third of the 62 acres of land in question should be set aside to the plaintiff, and three commissioners were appointed for the purpose of making the division. No steps were taken, however, in the premises, and the plaintiff continued to reside on the 62 acres in question with her three children. Her daughter died when she was ten years of age, and her two sons are still living. On November 10, 1921, when the deposition of the defendant was taken, one of her sons was 26 and the other 27 years of age. In 1899, the defendant married a man named Neilon, and continued .to live on the 62 acres until his death, four years later. .She had two children by him. In 1908, the defendant married M. R. Howie, and is still living with him.
    The defendant has continuously lived" on the land in question from the time Ben Hemit acquired title until the present time. In 1916, one of the houses on the place was burned, and, in order to secure the money with which to rebuild it, she obtained a deed to said land from her two •sons, in February, 1917. In the deed they described themselves as the sole ‘heirs at law of Ben Hemit and his wife Bama Hemit. They had not heard from Ben Hemit, and it was supposed at the time that he was dead. At the present time there are two houses on the land. The defendant and her husband reside in one of them, and one of her sons has married, and lives in the other one.
    According to the evidence for Ben Hemit, Bama left him without cause and went to the home of her father, who lived on an adjoining place. In a short time Ben Hemit left the community, and his wife then moved back on the land. Ben made arrangements for the payment of the taxes on the land, but took no further action in the matter, because the taxes were paid by the father of the defendant.
    According to the evidence for the defendant, Ben Hemit deserted her and their three children without cause, and left her on the place. She continued to reside there with her children, and cleared and improved the place as best she could. She never heard from her husband, and finally supposed that he was dead, and took a deed to the land from her two sons. There, was a house and barn on the place, and four or five acres of the land were cleared when Ben Hemit left. Since that time the defendant has cleared additional land, so that there are now between 25 and 30 acres in cultivation.
    . Before the present suit was instituted, Ben Hemit entered into an agreement with J. R. Wilson, an attorney at law, which is as follows:.
    “Thornton, Ark., 11-30-20.
    “Ben Hemit agrees to give J. R. Wilson one-half of 62^acres of land deeded to him by John Oliver to recover for him, and agrees to pay said J. R. Wilson of Warren, Ark., $650 for said one-half of 62 acres, provided he be given five years to pay for same. Ben Hemit.”
    Ben Hemit died intestate oh the 29th day of March, 1922, after his deposition and the depositions of .other witnesses in his behalf had been taken. After his death the depositions of the defendant and her witnesses were taken, and the case was revived in the name of John Oliver, as special administrator of the estate of Ben Hemit, deceased, and J. R. Wilson. Other evidence will be stated or referred to in the opinion.
    Upon the final hearing of the case the chancellor found that, upon the death of Ben Hemit, the action abated, and that the employment of J. R. Wilson as attorney for the plaintiff terminated, and that neither John Oliver as special administrator nor J. R. Wilson as attorney for Ben Hemit, were entitled to recover anything in the action.
    It was therefore decreed that the complaint should be dismissed for want of equity, and to reverse that decree R. Wilson has prosecuted this appeal.

      Compere & Compere, for appellant.

      J. 8. McKnigM, for appellee.
   Hart, J.,

(after stating the facts). The record shows that during the pendency of the suit the plaintiff, Ben Hemit, died, and that the suit was revived in the name of a special administrator of his estate, and also in the name of his attorney, J. R. Wilson.

It is first sought to sustain the revivor on the ground that Wilson, as attorney for the plaintiff, had a lien on the fruits of the litigation, and was entitled to protect and enforce his lien. At the outset it may be stated that, independently of statute, an attorney at law, who has performed services and expended moneys in prosecuting or defending a suit involving the title to or possession of real estate, can not sustain a claim to obtain compensation and reimbursement out of the. specific property. Hershey v. DuVal & Cravens, 47 Ark. 86.

But it is insisted that Wilson had a lien under § 628 of Crawford & Moses ’ Digest. This statute does not give the attorney any interest in or control over the cause of action. He has a lien only, which attaches to a verdict, decision, or final order in his client’s favor. St. L. I. M. & S. R. Co. v. Blaylock, 117 Ark. 504. In the present case there was no compromise, verdict, or final order in the case. Hence Wilson was not entitled to a lien on the land involved in the suit.

This brings ns to a consideration, however, of a different question, and that is whether or not, by the terms of his contract with Ben Hemit, Wilson did not have an" interest in the land. Before the suit was commenced Wilson made an executory contract with Ben Hemit whereby the latter agreed to give him one-half of the 62 acres of'land deeded to him by John Oliver in consideration that Wilson should recover the land for him. In the same instrument, Hemit agreed to purchase back the one-half interest in the land acquired by Wilson. 'The instrument in question is copied in our statement of facts, and need not be repeated here. Reference to it will show that Hemit expressly agreed to give Wilson one:half of the 62 acres of land deeded to him by John Oliver. The record contains the deed from John Oliver to Ben Hemit, and the 62 acres of land involved in this suit is described by proper governmental subdivisions. It was the purpose of Ben Hemit to convey to J. R. Wilson an interest in the place he had purchased from John Oliver, and the deed from Oliver to Hemit correctly described the land. The description falls squarely within the rule announced in Martin v. Urquhart, 72 Ark. 496. To the same effect see Carson v. Ray, 52 N. C. 609, 78 Am. Dec. 267; Choteau v. Jones, 11 Ill. 309, 50 Am. Dec. 460, and 18 C. J., pp. 284 and 285.

J R. Wilson, having acquired an interest in the land itself, would have been a proper party when the -suit was originally brought, and his substitution as plaintiff after the death of Ben Hemit at least had the effect of beginning a new action by him for his interest in the land. The defendant acquiesced in this proceeding, and then took depositions in the case in her own interest. This amounted to an appearance to the suit by her. Of course; the suit as to Ben Hemit abated at his death; for his interest in the land descended to his two sons, and the defendant had acquired their interest in the land''by deed. The revivor in the name of the special ¡administrator of Ben Hemit’s estate was therefore improper, but it could result in”ho prejudice to the defendant. As we have already seen, Wilson had a right to bring suit to recover his own interest in the land, and the so-called revivor had the effect to make him a party to. the suit.

It is next insisted that Wilson’s right to recover is barred by the statute of limitations. We can not agree with counsel in this contention. The defendant secured a divorce from Ben Hemit in 1897, and in the decree one-third of the land in question was allotted to her, pursuant to the terms of § 3511 of Crawford & Moses’ Digest. Commissioners were appointed by the court to set aside one-third of the land in question to the plaintiff, but no action was taken by them in the premises. The defendant continued to reside on the land, and to control the whole tract. It is true that she had a homestead in the land, but her action in securing the allotment under the statute in the divorce case operated as an abandonment of her homestead rights. See Taylor v. Taylor, 153 Ark. 206, and Crosser v. Crosser, 121 Ark. 64.

By the terms of the decree, which she prosecuted herself, she became tenant in common with, her former husband, Ben Hemit. There is nothing in the record to show that she ever notified Ben Hemit that she was going to claim the whole 62 acres adversely to him, nor is there any fact in the record which would lead to such notice on his part. Therefore there is no bar of the statute of limitations, as insisted on by counsel for the defendant. The reason that the possession of the one tenant in common is prima facie the possession of all, and that the sole enjoyment of-the rents and profits by him does not necessarily amount to a disseizin, is because his acts are susceptible of explanation consistent with the true title. In order therefore for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be presumed. Singer v. Maron, 99 Ark. 446.

It is next insisted that Wilson is barred under the doctrine of laches as applied in Wilson v. Pannell, 149 Ark. 81. We can not agree with counsel in that contention. The facts are materially different. In that case the husband left, owing about $1,000, which the wife was compelled to pay in order to prevent the sale of the property, which was a blacksmith’s shop and therefore subject to his debts. 'There the wife never obtained any divorce, and never recognized that her husband had any interest in the property. The sum advanced by her for the payment of his debts amounted to about one-half of the value of the property. She might have had the debts transferred to her and caused the property to be sold for their satisfaction.

In the casé at bar, the defendant procured a divorce from her husband, and in that decree obtained a statutory allowance of one-third of his property. She thus recognized'her husband’s right to an interest in the property. In 1917, she secured a deed from her two sons to the property, and they are described in the deed as the sole heirs at law of Ben Hemit. Here again she recognized her husband’s interest in the property. There is nothing in the record which occurred after this time upon which to base a claim that the plaintiff is barred of recovery by laches. The defendant had recognized her former husband’s interest in the property as a tenant in common with her at least from the date of her divorce decree until she secured a deed from her two sons in February, 1917. The suit was'commenced on February 5, 1921, and, as we have just said, there is nothing in the record between the last two mentioned dates which would entitle the defendant to invoke the doctrine of laches as a bar to this suit.

Counsel for the plaintiff insists that he is entitled to rents; but this contention we cannot sustain. The plaintiff filed a reply to the answer and cross-complaint of the defendant. He denied that the court had any jurisdiction to grant the decree of the divorce, and further set up that, if the defendant was entitled to any interest in the land by virtue of that decree, it would only be for one-third of the land during her lifetime. The decree in the divorce case is regular on its face. No appeal was taken from it. It gave to Bama Hemit, the plaintiff in that action, one-third of the land in controversy absolutely. It was the duty of Ben Hemit to have set aside her allotment to her, and that duty was a continuing one. He not only made no offer to make the allotment in the present suit to the defendant, but denied her right to recover at all under that decree. Hnder these circumstances- the plaintiff would not be entitled to rents at all.

The result of our views is that the decree must be reversed, and the cause will be remanded with directions to enter a decree in favor of J. ft. Wilson for one-half of the land in controversy and for partition of said land. It is so ordered.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Blevins v. State.
    Opinion delivered March 22, 1926.
    1. Witnesses in civil cases—impeachment.—Under Crawford & Moses’ Dig., § 4187, a witness in a civil ease may be impeached by evidence that his general reputation for either truth or morality renders him unworthy of belief.
    2. Witnesses in criminal cases—impeachment.—At common law a witness in -a criminal case may be impeached by proving his general reputation for truth and veracity.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      John B. Gulley and Fred A. Snodgress, for appellant.

      H. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   McCulloch, C. J.

Appellant was separately indicted for the three offenses of possessing a still, making mash and manufacturing liquor, and by agreement all three of the cases were tried together, resulting in a conviction under each charge.

The officers testified that they found a still in full operation in the attic of the home of one Hallett, with whom appellant lived. They not only found the still in operation, but found a large amount of mash suitable for the distillation of alcoholic liquor, and also found a lot of whiskey. Appellant was found in the house at the time, and Hallett testified that he and appellant were jointly engaged in the operation of the still.

It is conceded that the evidence was sufficient to sustain the verdict in each case, and the only assignment of error relates to the ruling of the court in regard to the method of impeaching appellant as a witness. He testified in his own behalf, and on rebuttal the State introduced testimony to show that appellant’s reputation for truth and veracity was bad. The State had the right, of course, to impeach appellant’s credibility as a -witness after he had voluntarily taken the stand in his own behalf (Noyes v. State, 161 Ark. 340), and this much is conceded by appellant. But it is contended that, instead of asking the witness concerning the géneral reputation of appellant for truth and veracity, the inquiry should have included his reputation for morality. Counsel rely upon .the language of the statute (Crawford & Moses’ Digest, § 4187) which provides that a witness may be impeached “by evidence that his general reputation for truth or morality renders him unworthy of belief.” This statute, in its present form, is an amendment to a section of the Code which applied only in civil cases, but, even if we take the statute as controlling, it does not bear out appellant’s contention, for the words “truth” and “morality” are used- disjunctively, therefore testimony is admissible as to.reputation either for truth or morality. The decisions of this court since the enactment of the Code, beginning with the case of Hudspeth v. State, 50 Ark. 534, seem to have all referred to this statute as being applicable in criminal cases, without expressly so deciding. Under the common-law rules of evidence, the method of impeachment extended to reputation for truth and veracity, and that was the rule recognized by this court in the case of Pleasant v. State, 15 Ark. 624. The text writers on the subject of impeachment of witnesses in criminal cases state, as the proper formula, an inquiry as to the general reputation of the witness for truth and veracity. I Greenleaf on Evidence (15th ed.), § 461; I "Wharton’s Criminal Evidence (10th ech), § 486. It is thus seen that, either under the application of the common-law rule or of our statute, there was no error in permitting the State to confine its inquiry to the general reputation of appellant for truth and veracity, without including the element of morality.

Judgment affirmed.


author: Humphreys, J.

text:
    American Insurance Union v. Robinson.
    Opinion delivered March 15, 1926.
    Insurance—assumption of insurer’s liability.—Where appellant assumed the liability of an insurance association which had insured appellee’s wife for his benefit, and thereafter accepted her monthly payments, it became liable to her beneficiary upon her death in accordance with the terms of the original contract.
    Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson, Judg’e;
    affirmed.

      Basil Baker, for appellant.

      Jonas F. Dyson, for appellee.
   Humphreys, J.

This suit, which appellee brought against appellant in the circuit court of Woodruff County, was predicated upon the theory that appellant became the successor of the American Mutual Benefit Association of Jonesboro, Arkansas, and was liable to appellee, the beneficiary in a life insurance Certificate issued by said American Mutual Benefit Association of Jonesboro, to his wife, Mary S. Robinson. The certificate for insurance and application therefor constituted a contract between the American Mutual Benefit Association of Jonesboro and Mary S. Robinson, whereby it agreed in case of her death to pay her beneficiary, the appellee herein, the sum of $75 in case she should die within six months after the date of the policy; the amount of the payment, however, to increase on the first day of each calendar month in the sum of $12.50', after the expiration of six months for and during a period of 74 months, or until it reached the maximum of $1,000, upon condition only that prompt and due payment by certificate holders be made at the home office of the American Mutual Benefit Association of Jonesboro, for any and all assessments that might be made under the rules set forth in the application and by-laws of said association. Said association issued to Mary S. Robinson certificate No. 908 in class 4, which provided for payment to her beneficiary in accordance with the scale set out above within thirty days after satisfactory proof of her. death should be made to it. Prior to her death the American Mutual Benefit Association of Jonesboro was absorbed by the Home Protective Association of Springdale, Arkansas, which mailed the following rider to Mary S. Robinson, with directions to attach same to her certificate of insurance, which she did: “Please attach to your certificate. ‘The Home Protective Association of Springdale, Arkansas, hereby assume liability under certificate No. 908, class 4, issued to Mrs. Mary S. Robinson, by the American Mutual Benefit Association of Jonesboro, Arkansas, and this certificate will hereby be known and designated as certificate No. 43, roll No.-6, of the Home Protective Association of Springdale, Arkansas. In writing about this certificate in future always refer to certificate No. 43, roll No. 6. Dated this 19 th day of November., 1917. Signed: C. B. Dodson, President. Charles F. Renner, Secretary.’ ’’

Subsequently appellant took over the Home Protective Association of Springdale, and mailed notice to Miary S. Robinson, which it is admitted she received. This notice is as follows:

“Make all remittances to cashier Home Protective Chapters, American Insurance Union, Columbus, Ohio. Springdale office discontinued. ’ ’ This notice was received in December, 1918. All the premiums and assessments were paid by Mary S. Robinson to each of these associations in accordance with her contract with the American Mutual Benefit Association of Jonesboro, until the time of her death on the 30th day of September, 1923, under the terms of which said certificate of insurance had reached the value of $987.50. ÍWhen the proof of her death and a claim for said amount was presented to appellant, it refused to pay the amount, denying it was successor to the American Mutual Benefit Association of Jonesboro, and contending that its liability to appellee was limited by contract between'it and the Home Protective Association of Springdale, when it absorbed that company, to such amount as it should collect from the membership of roll.No. 6, less one-sixth of the amount collected as expenses for collecting same, during the month Mary S. Robinson died, which amounted to $237.23. A voucher for said amount was tendered to appellee in full settlement of his claim, which was refused, and this suit followed.

Appellant interposed its contract with the Home Protective Association of Springdale, limiting its' liability, as a defense to the action. The trial of the cause resulted in a judgment in favor of appellee for $987.50, from which is this appeal.

A reversal of the judgment is sought upon the theory that the insured, Mary S. Robinson, became a member of the Home Protective Association of Springdale, and subject to its by-laws and constitution by virtue of the merger of said last-named association with appellant. The rider which the Home Protective Association of Springdale, Arkansas, attached to the certificate of insurance issued to Mary S. Robinson by the American Mutual Benefit Association of Jonesboro was an absolute assumption of liability under certificate No. 908, class 4, issued by the latter fraternal organization to Mrs. Robinson. Her certificate and roll numbers were changed for the purposes of designation and reference, but the rider did not attempt to change her membership or the terms.of her original contract. It contained no provision requiring her to accept the rules and by-laws of the Home Protective Asssociation of Springdale, nor did it contain a notification that her certificate would be controlled or governed by them. The argument, then, that Mrs. Robinson was bound by the contract between appellant and the Home Protective Association of Springdale, relative to its liability upon the insurance certificates of the membership of the former, is without foundation in fact, and must fall. The Home Protective Association of Springdale could only bind its members to a merger contract, and had no authority whatever to commit Mrs. Robinson, without -her consent and knowledge, to an agreement impairing her original contract, which it had assumed and agreed to perform. It is true that appellant introduced testimony tending to show that it mailed a rider to Mrs. Robinson to be attached to her certificate of insurance, embodying the substance of its contract with the Home Protective Association of Springdale, limiting its liability in the payment of death losses, but appellee introduced testimony to the effect that Mrs. Robinson never received or heard of such a rider. This question of disputed fact was determined against appellant in the trial, and it is bound by the finding.

So far as Mrs. Robinson is concerned, appellant took the place of the Home Protective Association of Spring-dale, successor to the American Mutual Benefit Association of Jonesboro, and, having accepted her monthly payments, is liable to her beneficiary on the contract she made with the American Mutual Benefit Association of Jonesboro.

No error appearing, the judgment is affirmed.


text:
    Power Manufacturing Company v. Arkansas Rice Growers’ Cooperative Association.
    Opinion delivered March 22, 1926.
    1. Trial—when equitable case stands for trial.—Under Crawford & Moses’ Dig., § 1288, providing that equitable actions shall stand for trial when the pleadings “shall have been completed for ninety days,” held that, where the pleadings in such an action have been completed for ninety days, the case 'stands for trial, and the subsequent filing of a plea of intervention claiming an interest in the property involved does not postpone the trial of the action.
    2. Mortgages—description of crop.—A mortgage upon -a crop described as one to be raised “on a place known as the Perry farm” is sufficient, in connection with parol evidence identifying the farm intended, to convey the crop raised thereon.
    3. Judgment—collateral attack.-—-A decree of a domestic court of general jurisdiction is impervious to collateral attack, except upon a showing of merit.
    4. Appeal and error—matters not abstracted.—Where appellant’s abstract shows that a judgment in another case was relied upon by interveners as establishing their claims, but does not set out a complete transcript of all the proceedings, it will be presumed on appeal that the record of the judgment so relied on contained ■a complete transcript of such judgment.
    5. Appeal and error—matters not abstracted.—Where appellant has not abstracted the proof offered to establish the claims of certain interveners which were allowed by the trial court, it will be ■presumed on appeal that there was evidence sufficient to establish such claims.
    6. Appeal and error—right to complain of error.—Appellant cannot complain of error of the trial court in distributing funds in court between the appellees if appellant was not entitled to participate therein.
    Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    affirmed.

      George G. Lewis, for appellant.

      A. G. Meehan, W. A. Leach, R. D. Rasco and John W. Moncrief, for appellee.
   McCulloch, C. J.

This appeal involves a controversy concerning priority of liens on a crop of rice grown on a certain plantation in Arkansas County during the year 1922. Appellant is a foreign corporation, and Arkansas Rice Growers ’ Cooperative Association, one of the appellees, is a domestic corporation, organized as a cooperative marketing association. Flo3d E. James leased the lands in question from the owner for the purpose of growing a crop of rice thereon -during the year 1922, and he entered into a contract with R. A. Scott, one of the appellees, whereby -Scott should furnish his services in growing the crop and should receive the first 2,000 bushels of rice threshed. On March 21, 1922, James and Scott joined in executing a chattel mortgage to appellee H. B. Dudley to secure payment of the sum of $385. The mortgage to Dudley described the property as “the first 500 bushels of rice threshed now planted or to be planted by myself, tenants or hired labor, for the year 1922, on place known as Perry farm, situated in Arkansas County, Arkansas, containing..................acres of cotton, and..................acres of corn ..................acres of rice.”

On April 20, 1922, James executed and delivered.to appellant a mortgage on an undivided half interest in the rice to be grown by James on the leased land. Hugh Meloy -and certain other employees of James were made parties to the present suit as claimants of laborers’ liens for work and labor performed in cultivating and gathering the crop of rice.

Appellee Scott was a member of the Arkansas Rice Growers’ Cooperative Association, and, after gathering the crop of rice, delivered the same to the association, there being 2,029 bushels, which were afterwards sold, and net proceeds of $1,776.80 were realized on the sale. One-half of this amount was paid over tó the landlord under the lease contract, and the remainder, $8*93.40, is the amount involved in the present controversy.

This suit was instituted by appellant against Arkansas Rice Growers’ Cooperative Association and Dudley, James and Scott, and also a banking institution at the town of DeWitt, appellant claiming a superior lien under its mortgage on all the proceeds of the sale of rice except the one-half paid over to the landlord. The Arkansas Rice Growers’ Cooperative Association filed its answer admitting the receipt of the funds arising from the proceeds of the sale of the rice, but setting forth the prior claims of other parties to the funds, and asking that the court direct the distribution of the proceeds among the various claimants in accordance with their priority rights.

■On May 2, 1923, appellee Dudley answered, setting up his prior elaim under the mortgage referred to herein, and on April 17,1923, the Bank of DeWitt filed an answer claiming under a mortgage éxecuted by Scott on April 25, 1923. Scott answered, claiming the proceeds under a contract with, James.

On June 19,1924, Arkansas Rice Growers’ Cooperative Association filed an amended answer setting forth, as in its original answer, the receipt of the- funds and the claims of prior liens of the other parties mentioned, and also set forth in the answer that on January 11,1923, Meloy and the other claimants of labor liens instituted an action in the chancery court of Arkansas County against the association, and also against appellant, asserting their liens, and that there was a decree , rendered declaring a superior lien in favor of the laborers. The prayer of the amended answer was that' the claimants of laborers’ liens should be made parties to litigate their rights in the present action.

On November 28, 1924, appellant filed a reply to the' amended answer of the association, and denied that the claims of the other parties mentioned were superior to the claims of appellant under its mortgage.

On November 15, 1924, Meloy and the other laborers filed their intervention setting forth their superior liens on the erop as laborers, and exhibited with their plea the former decree referred to in the answer of Arkansas Rice Growers’ Cooperative Association. Appellant filed its answer to the intervention on December 8, 1924, denying that the liens of the interveners were superior.

The chancery court met in adjourned session on December 8, and appellant filed an affidavit asking for a postponement for thirty days to afford an opportunity to take the depositions o,f officers and agents of appellant corporation to show that none of them had been notified or served with process in the original action instituted-■by the*laborers against Arkansas Rice Growers’ Cooperative Association to establish the lien of the laborers. The request for postponement was Overruled, and on the hearing of the cause the court rendered a decree dismissing the complaint of appellant and distributing the funds to the other claimants, who were held to have superior liens.

. The first contention is that the cause was prematurely tried in the court below over appellant’s objection, and this contention is based upon the terms of the statute fixing the time when equitable proceedings shall stand for trial. The statute reads as follows:

“ Section 1288. Actions prosecuted by equitable proceedings shall stand for trial on any -day -that the court meets in regular or adjourned session where the pleadings are, or by the provisions of §§ 1208 and 1209 should have been completed for ninety days, but where they have not been so completed, though by the provisions of this act they should have been, the party in default, as to time, shall not -be entitled to demand a trial.” Crawford & Moses’ Digest.

The point sought to be made is that the time for completion of the pleadings in the case was thirty days after the interplea of Meloy and others, and that the case did not stand for trial until ninety days thereafter. This contention is unsound, for the reason that the filing of the intervention claiming an interest in the property involved did not postpone the trial of the action, for there is no statute fixing the time for answer to such intervention, and it was a matter within the discretion of the court. -Section 1208, Crawford & Moses’ Digest, specifies the time when a defense to a complaint or cross-complaint must be filed, but the intervention of the laborers was not a cross-complaint within the meaning of the statute. Section 1204, Crawford & Moses ’ Digest, provides that the filing and prosecution of a cross-complaint ‘ ‘ shall not delay the trial and decision of the original action when a judgment can be rendered therein that will not prejudice the rights of the parties to the cross-complaint.” The issues in the case had been made up completely more than ninety days prior to the date of the trial, and the filing of the intervention did not call for a postponement of the trial. The holder of the funds, Arkansas Rice Growers’ Cooperative Association, pleaded in its answer that the funds belonged to third parties, and the result of the trial would have been the same if the laborers had not. intervened at all. Appellant, even after the intervention, would have had no right to recover from the holder of the funds the distributive part to which the laborers were entitled, and whose liens had been established in apt time by their former suit in chancery against the holder of the funds. Nor was there any abuse of discretion in refusing a postponement of the. trial, as appellant had notice from the answer of the association that the judgment in favor of Meloy would .be involved in the trial.

The next contention is that the Dudley mortgage was invalid because it failed to sufficiently describe the crop embraced therein. The farm on which the crop in controversy was raised belongd to Mr. Yititow, who was James ’ lessor, and the crop described in the Dudley mortgage was one to be raised “on a place known as Perry farm.” There was testimony introduced in the trial of the case which was, we think, sufficient to identify the description “Perry farm” as being the one on which the crop was raised. The witnesses testified that the rice in controversy was raised on what is known as the Perry farm, and, there being no dispute on this point, it was sufficient to justify the holding that the farm in question was known as the Perry farm, so as to apply the description with certainty to the particular farm on which the rice was raised.

A reversal is asked of that part of the decree in favor of Meloy and others establishing mechanics ’ liens, on the ground that there was no proof in the case to establish the claims of those parties, in that appellant was not a party to the original action brought by the laborers, and that there was no proof to show that the laborers were in fact entitled to a lien. We are of the opinion that appellant-is mistaken in both of these contentions. In'the first place, it may be said that the former decree introduced in this case was rendered by a domestic court of general jurisdiction and is impervious to collateral attack except upon a showing of merit. Counsel argue that the judgment should not be , received in evidence because appellees failed to show a -complete transcript of all the proceedings, but the record is not abstracted, so that we can determine whether or not the transcript of the other proceedings was complete. Enough is abstracted, however, to show that the transcript of the proceedings on which the judgment was rendered was filed as an exhibit to the answer of Arkansas Rice Growers’ Cooperative Association, and we must assume, until it appears to the contrary, that the record was complete so as to show a former adjudication of the question of priority of the lien of the ¡laborers. Appellant has made no attempt to make a showing of merit to the effect that the laborers did not in fact have a lien, but it relies upon the technical point, that the transcript of the proceedings was not full and complete as required by the rules of pleading a former adjudication. The contention on this point is also untenable for the further reason that, even if the former decree had not been properly brought into the present record, there is proof sufficient to establish the claim of the laborers, or at least we must assume that the proof was sufficient. The abstract made by appellant’s counsel contains the statement that witness Dudley testified “about the Dudley mortgage and the laborers’ liens, and certain other matters, none of which testimony seems to be of any importance to this case.” The testimony on the issue as to the validity of the lien of the laborers cannot be put aside by a mere statement of the conclusion that it is not of importance in the case, and, since appellant has not abstracted the testimony, it cannot be heard to say that there is no testimony to sustain the decree.

It is argued also that the intervention of the laborers should be treated as an original proceeding which was after the time limit fixed by statute for enforcement of laborers’ liens. Crawford & Moses’ Digest, § 6862. The answer to this contention is that the original action against the Arkansas Rice Growers’ Cooperative Association as holder of the funds was sufficient compliance with the statute to sustain the lien, even if appellant had not been a party thereto, hence the plea of limitation against the assertion of the lien is not well founded.

Finally, it is insisted that the court erred in allowing payment of a part of the funds to Scott and in failing to award a-portion, at least, to appellant. It is unnecessary to discuss this feature of the case, for, if we were to find that appellant’s lien was superior to the claim of 'Scott, appellant could derive no benefit for the simple reason that the portion of the fund awarded to appellee Dudley and the laborers was more than sufficient to exhaust the funds derived from the sale of the rice after deducting the landlord’s portion. As we have already* seen, the amount involved is $893.40. Dudley was entitled to $435 and the laborers were entitled to $860.86, which more than exhausted the funds in the hands of the association. There was no prejudicial error therefore in refusing to award any of the funds to appellant, who has no right to complain of the action of the court in awarding funds to Scott which should have been applied to the claims of Dudley and the laborers.

'Finding no error in the decree, the same must be affirmed, and it is so ordered.


text:
    O’Connell v. St. Louis Joint Stock Land Bank.
    Opinion delivered March 22, 1926.
    1. Banks and banking—federal farms loan act—construction. —The Federal Farms Loan Act, § 24 (Barnes’ Fed. Code, § 9333), providing that a mortgagor borrowing from a Federal land bank shall have 30 days after notice of his default to make good said default, has no application to mortgage loans made by joint stock land banks directly to borrowers.
    2. Mortgages—acceleration clause—election of mortgagee.— Under the usual acceleration clause, a mortgagee may declare the principal debt to be due at once upon failure of the mortgagor or his assignee to pay any installment of the debt when due.
    3. Mortgages—appointment of receiver—notice.—Under Crawford &) Moses’ Dig., authorizing the appointment of a receiver in an action to foreclose a mortgage, “where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the conditions of the mortgage have not been performed, and that the property is probably insufficient to discharge the mortgage debt,” there is no requirement that notice of the appointment of a receiver ibe given, though it is desirable that it foe given.
    4. Mortgages—foreclosure—impounding of rents and' profits.— • While a mortgage on land does not include crops, the mortgagee is entitled to impound the rents and profits from the time of the commencement of a suit to foreclose, where it is shown that the value of the land is insufficient to discharge the mortgage debt.
    5. Mortgages—remedies for payment of taxes.—Taxes on mortgaged land are a paramount lien, and when paid by the mortgagee or the receiver, when appointed, they assume the same status as the mortgage debt, and the same remedies against the land and the impounded rents and profits thereof are available for the payment of the same.
    6. Mortgages—subsequent liens.—All subsequent mortgage liens, either on land or crops, are subordinate to the rights of the first mortgagee, as they stand in the same relation toward the latter as the mortgagor, to whose rights they succeed.
    7. Mortgages—future crops—construction of statute.—Crawford & Moses’ Dig., §§ 7391-2, authorizing mortgages on future •crops to be planted within the year, did not empower the mortgagor to create a lien on the property in excels of his interest therein.

      Appeal from Little River Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      DuLaney & Steel and Seth G. Reynolds, for appellant.

      W. E. Rhea, for appellee.
   McCulloch, C. J.

Appellee is a joint stock land bank, authorized to do business under the Federal statute approved July 17, 1916 (Barnes’ Federal Code, p. 2229), and it instituted this action to foreclose a mortgage on lands, and to impound the rents and profits during the pendency of the suit by the appointment of a receiver in order to subject the same to the payment of the mortgage debt.

On June 24,1922, Thomas ¡W. Lacy executed to appellee a mortgage on the lands in controversy to secure a debt in the sum of $30,000 for borrowed money, evidenced by semi-annual installment notes in the sum of $1,050 each, payable on the amortization plan on the first day of February and the first day of August of each year, the last payment to be made.in the-year 1955. The mortgage contained an acceleration clause to the effect that failure to pay any installment when due would render all of the installments due at the option of the holder. Lacy paid the semi-annual installments falling due and accruing up to and including August 1, 1923, and on October 23, 1923, Lacy conveyed the lands to appellant, M. J. O ’Connell, subject to the mortgage debt to appellee. The installment maturing February 1,1924, was not paid, and appellee elected to declare the whole • of the mortgage debt due according to the terms of the mortgage and instituted this action on March 5, 1924, to foreclose. Lacy and his wife, together with O’Connell, were .joined as defendants.

The mortgaged lands were situated in a levee district, and there was a default in the payment of the levee taxes for the year 1923 in the sum of $300.75.

Appellant O’Connell, soon after his purchase of the land from Lacy, took possession of the farm and made preparations to operate it by cultivating a portion of it himself, and renting the remainder, to tenants. He rented a portion of the land to J. F. DeLoney, who, prior to the commencement of the action, began farming operations by plowing some of the land. O’Connell also made similar preparations, but at the commencement of the action the chancellor, in vacation, appointed a receiver to take charge of the lands and impound the rents and profits during the pendency of the action. The appointment was made on application of appellee, and upon ex parte' showing that the lands were insufficient in value to pay the mortgage debt, and that the lands were deteriorating in value on account of lack of proper attention and ón account of the fact that a considerable portion of the levee which protected the lands from inundation had been broken, and some of the lands had caved into the river. The receiver immediately took.possession of the lands and operated the same during the year 1924, until the date of the foreclosure sale.

On January 15, 1924, O’Connell executed a mortgage to the First National Bank of Ashdown on all of his interest in crops to be raised during that year to secure a debt of $2,900 for borrowed money. On February 1, 1924, O’Connell executed a mortgage to the Commerce Trust Company of Kansas City to secure $10,000, and both of these concerns intervened in the action, claiming the crops under their respective mortgages. It appears from the pleadings and proof that the First National Bank of Ashdown furnished O’Connell $2,000 under the mortgage, and that the Commerce Trust Company of Kansas City furnished him $3,500. CFConnell did not, however, cultivate any crop on the farm, for the reason that possession was taken from him by the receiver.

On final hearing of the cause, there was a decree in favor of appellee for the amount of the debt, and a sale was ordered to pay the debt and the taxes, general and special, which had been paid by the receiver. The rents and profits of the land were collected by the receiver and accounted for to the court in his report, which showed that he had expended .in the payment of taxes, general and special, and in discharge of the salary of the receiver, and for mailing certain repairs, the total sum of $2,741.23. The court in its final decree directed the receiver to pay those items out of the rents and profits collected, and directed that the balance should be paid over to the First National Bank of Ashdown and the Commerce Trust Company of Kansas City on their respective mortgage debts, in the order named. Appeals have been prosecuted to this court by O’Connell, and 'by the First National Bank of Ashdown and the 'Commerce Trust Company of Kansas City.

The first contention is that appellee’s action to foreclose was premature. There is no controversy as to the validity of the mortgage or the terms thereof, nor is there any -dispute as to there being a default in the payment of the installment falling due February 1, 1924, but the contention of counsel for appellants is that the effect of the Federal statute, supra, under which appellee was doing business, allowed thirty days’ grace on the payment of installments and required thirty days’ notice to be given of default before there could be a foreclosure. Counsel rely upon section 24 of the Federal Farms Loans Act (Barnes’ Federal Code, § 9333), which reads as follows:

“If there shall be default under the terms of any indorsed first mortgage held by a Federal land bank under the provisions of this act, the national farm loan association or agent through which said mortgage was received by said Federal Land Bank shall be notified of gaid default. Said association or agent may thereupon be required, within thirty days after such notice, to make good said default, either by payment of the amount unpaid thereon in cash, or by the substitution of an equal amount of farm loan bonds issued by said land bank, with aU unmatured coupons attached. ”

Counsel are mistaken in assuming that the statute nuoted abov§ has any application to the operation of a joint stock land bank, for it applies exclusively to loans made by Federal Land Banks. It is true, as contended by counsel, that the operations of joint stock land banks are authorized and controlled by the Federal Farm Loans Act, the same as the operations of Federal Land Banks. There is a provision in the statute that joint stock land banks “shall be organized subject to the requirements and under the conditions set forth in section 4 of this act, so far as the same may be applicable.” It does not follow, however, that § 24, supra, has any application, for it is manifest that it has none. It will be noted that § 24 merely provides for notice by a Federal Land Bank to “a national farm loan association or agent through which said mortgage was received” of any default, and that this requirement applies only to “any indorsed first mortgage held by a Federal Land Bank.” The mortgage in question was not made to a Federal Land Bank, nor was it indorsed by any national farm loan association or agent, but it was a loan made directly by appellee tó the borrower. Under the Federal statute loans are made by Federal Land Banks through. local associations known as national farm loan associations, or, in a locality where no such association has been organized, loans may be made through incorporated banks, trust companies, mortgage companies or savings institutions which have been employed as agents by the Federal Land Bank. The mortgages executed to the Federal Land Bank are indorsed by the national farm loan association or agent through whom the same is made. Barnes’ Federal Code, § 9323. On the other hand, loans are made by joint stock land banks directly to borrowers, and not through agents or associations specified in the statute.

It necessarily follows from this analysis of the statute that the section relied on by counsel for appellant has no application whatever to a foreclosure of a loan made by a joint stock land bank. Under the accelera-tion clause in the mortgage appellee had the right to exercise the option to foreclose the whole of the debt, and this was done. Therefore the action to foreclose was not prematurely instituted.

It is next contended that the receiver was wrongfully appointed. There'is a charge that the appointment was procured through fraud, hut we discover no evidence whatever to justify the charge. The statute (Crawford & Moses’ Digest, § 8612) authorizes the appointment of a receiver in an action to foreclose a mortgage ‘ ‘where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the conditions of the mortgage have not been performed, and that the property is probably insufficient to discharge the mortgage debt.” The statute does not require notice of the application for appointment, though it is desirable practice for the chancellor to require notice to be given. It appears that grounds were shown for the appointment in that the value of the lands was deteriorating, and was insufficient to pay the mortgage debt. The receiver was therefore legally appointed, and appellee was not responsible for his conduct in the management and operation of the impounded property. If there were any just complaints against the action of the receiver, the remedy was solely against him and the sureties on his bond. Robinson v. Ark. Loan & Trust Co., 74 Art. 292.

It is contended by the appellants, who were interveners claiming the proceeds of the crops under mortgages executed by O’Connell, that they are entitled to priority in the distribution of the rents and profits collected by the receiver, and that the court erred in appropriating the same, first to the payment of taxes on the lands, and to the expenses of the receivership. The contention is that Lacy’s mortgage to appellee did not embrace the-crops produced on the land; that the taxes on the land, general and special, were not liens on the crops, and that the holders of the chattel mortgages on the crops were entitled to the proceeds. This contention ignores settled principles of law. It is true that a mortgage on land does not include crops, but the mortgagee is entitled to impound thet rents and profits from the time of the commencement of the suit to foreclose where it is shown that the value of the land is insufficielit to cover the mortgage debt; and the taxes on the land, being paramount liens,, the payment thereof by the mortgagee or by the receiver, when appointed, assumes the same status as the mortgage debt, and the same remedies against the land and the impounded rents and profits thereof are available for the payment of the same. Gailey v. Ricketts, 123 Ark. 18; Osburn v. Lindley, 163 Ark. 260; Oliver v. Deffenbaugh, 166 Ark. 118; Bank of Weiner v. Jonesboro Trust Co., 168 Ark. 859; Deming Inv. Co. v. Bank of Judsonia, ante p. 65; Wood v. Bigham, ante p. 253.

In Osburn v. Lindley, supra, we said: “The bringing of this action and the petition asking for the appointment of a receiver to take charge of the rents and profits of the lands on which the vendor’s lien existed had the effect of impounding the proceeds of those rents and profits in the hands of the receiver for the benefit of the vendor, to be appropriated in satisfaction of the decree in his favor for the purchase money. The rents and profits of the lands, after their sequestration by the institution of this suit and the appointment of a receiver, stand in the same category as the land itself. A vendor’s lien in equity is of the same nature as a mortgage, and is treated and enforced as such.” This rule was repeated in the more recent case of Bank of Weiner v. Jonesboro Trust Co., supra, which was a suit to foreclose a mortgage, and in the opinion it was said: “Appellee was entitled, under the allegations of the complaint, to have a receiver appointed to take charge of the land (§ 8612, Crawford & Moses’ Digest), and when he did so this action resulted in impounding the unsevered crops then growing on the land.” It is true that in that case there was no valid intervening chattel mortgage, but the effect is the same, even though there be a valid chattel mortgage, unless the mortgagor is permitted to remain in possession and cultivate the crop in the same relation as when the mortgage was executed. All subsequent mortgage liens, either on the lands or crops, are subordinate to the rights of the first mortgagee, the holders thereof standing in the same relation toward the latter as the mortgagor, and succeeding only to his rights. The facts in the present case are that O’Connell did not remain in possession of the lands and cultivate a crop, hut was legally ousted hy the receiver, who took possession as an officer of the court. There was no crop made by O’Connell for the respective chattel mortgages to cover, for the crops on the place were raised, not by O’Connell, but by the receiver and his tenants.

Counsel for appellant attach too much importance to the statute of this State (Crawford & Moses’ Digest, §§ 7391-73'92) authorizing mortgages on future crops to be planted within the year. The only effect of this statute is to render such a mortgage a valid lien at law, and the statute does not have any further effect than that. It does not work any change in the law with reference to the subject-matter of the chattel mortgage, so far as the enlargement of the power of the mortgug’or to create a lien on the property in excess of his interest therein is concerned. The fact that the mortgagor was, at the time of the execution of the chattel mortgage, in actual occupancy of the land on which the mortgaged crop was to be grown did not afford grounds under the statute to extend the lien to crops grown by other persons after the mortgagor had been legally dispossessed. In other words, the mortgage executed by O’Connell did not extend to crops raised by other persons after the receiver took possession of the land. There are none of our decisions which conflict with the views now expressed, and those cited by counsel for appellant are inapplicable.

The distribution of the rents and profits by the court in its decree was more favorable to the interveners than they were entitled to in giving them the surplus over and above the taxes and expenses of the receivership, but there has been no appeal prosecuted from that feature of the decree; hence we are not called on to review it.

Decree affirmed.


author: Hart, J.

text:
    Day v. State.
    Opinion delivered March 22, 1926.
    1. Intoxicating liquors—possession op still.—Evidence held to sustain conviction of possessing a still.
    2. Intoxicating liquor's—possession of still—competency op evidence.—On a prosecution for operating a still, evidence of a witness that he and two other officers lay close to the still for two hours, waiting for daylight, and could hear persons operating the still, and that when they crawled up to the still they saw the three defendants sitting on the ground, held competent.
    3. Criminal law—misleading instruction.—In a prosecution for possessing a still an instruction that “the mere fact that defendant with other persons were (was) found at the still while the same was in operation is not alone sufficient to warrant you in convicting them as charged in this indictment,” held properly refused as improperly singling out certain testimony and as tending to mislead the jury.
    4. Intoxicating liquors—possession op still—instruction.—In a prosecution for possessing a still, it wtas not error to instruct to the effect that defendants would he guilty if they were present and assisting the owner in the operation of stills.
    Appeal from Miller 'Circuit Court; J. E. McCollum, Judge;
    affirmed.

      J. M. Carter and B. E. Carter, for appellant.

      E. W. Applegate, Attornéy General, and John L. Carter, Assistant, for appellee.
   Hart, J.

Herbert Day, Bill "Ward and Jesse Johnson were jointly indicted for unlawfully possessing a still, and were convicted before a'jury. The jury trying them fixed tbeir punishment at one year in the State Penitentiary, and from judgment upon the verdict they have duly prosecuted an appeal to this court.

Clarence Beuhler, a Federal prohibition officer, was the principal witness for the State. According to his testimony, some time in the fall of 1925, in company with E. F. Barber, the sheriff of Miller County, and Bob ■Smith, his deputy, they left Texarkana about one o ’clock in-the night time to raid a still which had been located. After- driving about 25 miles, they left their car, and waited in the vicinity of the' still until daylight to raid it. They could hear voices at the still and could hear some one working at it. Soon after daylight the officers approached the still from different directions. There was a fence made out of hog wire around the still. Three men were sitting on the ground within the wire inclosure. There were two pots working. Bob Smith called to the three men, and they jumped up. The witness then recognized Bill Ward. Ward said, “All right, Mr. Barber, I won’t run.” Just at that time a gun was fired, and the witness saw Herbert Day fall down. The sheriff captured the defendant Johnson, and handed a pistol to the witness which Johnson said belonged to him. The defendant Day called the witness by name and said, “I did not recognize you all, and will you please take me to the hospital. ’ ’ This was just after he had been wounded by a shot fired by Bob Smith. The sheriff tried to capture another man who ran away. The witness proceeded to tear up the still. There were two 120-gallon copper pots fully equipped and running. There were about three gallons of whiskey in one, and the other one had been turned over, and the whiskey was running on the ground. There were 35 barrels of mash. That is, the beer had been taken out of the mash barrel, but the chops were still in the bottom of the barrels. Both pots were full of mash, and both stills were running at the time.. The fuel used was gasoliue. They found an automatic shotgun loaded with number 8 buckshot standing on thé inside of the wire fence. A pistol was found in a tree, and another pistol which the sheriff took from the defendant, Johnson. The witness recognized the defendants as the three men captured at the still. On cross-examination the witness stated that they lay close to the still for about two hours, waiting for daylight, and could hear persons operating the still. When they crawled up to the still, they saw the three defendants sitting on the ground. The still was iu Miller County, Arkansas.

It was shown at the trial that the sheriff was dead, and the testimony given by him at the examining trial of Herbert Day was read in evidence against the defendant Day. While waiting to raid the still, the sheriff heard the defendant Herbert Day say, “Jesse, go up the south side and watch, and you come up and watch the still.” Jesse Johnson and another party then started away. Jesse crawled straight towards the sheriff, and he stopped him.

- It was also shown that Bob Smith, the deputy sheriff, was dead, and the testimony given at the examining trial was read against the defendant Day. According to his testimony, the defendants Day and Ward were talking, and as the deputy sheriff approached them he told them to throw up .their hands. Ward stopped, and Day kept going. The deputy shot at Day with a shotgun and wounded him.

Herbert Day was the only one of the defendants who testified. According- to his testimony, he went down to the still with Bill Ward and Jesse Johnson to buy some whiskey. Ward lived near there, and they intended to take him home. They all went to the still from Texarkana. The two stills were running when the defendants got there, and there were three persons operating- them. They did not know who the persons operating the still were. The defendants asked them for some double-run whiskey. The persons operating the still told them that they would have to wait until they ran off the whiskey again. They were waiting there for them to run the whiskey -through the still the second time, when they were captured by the officers. The defendants did not have anything to do with operating the still, and did not know who the guns belonged to which were taken by the officers.

The evidence for the State, if believed by the jury, warranted it in finding that the defendants were in possession of the still and were operating- it; or- at least that they were assisting in the matter. The undisputed evidence shows that the two stills were in operation, and the defendants say that three men were operating them. Under the evidence for the State, the jury might have found that the defendants were the men operating the still and in possession of it. Hence the evidence was legally sufficient to support the verdict.

'The next assignment of error is that the court erred in permitting the witness Clarence Beuhler to testify that he heard the defendants working at the distillery. There was no error in this respect. Beuhler was waiting and watching the still with the sheriff and the deputy sheriff. They could hear some one working at and operating the stills. When they captured the still, the defendants were then apparently in possession of it. At least no one else was there, and the two stills showed that they had been recently operated. The officers did not see any other person near the stills, and they only heard one other person run away as they approached the stills. Hence it was competent for the witness to testify that he heard the defendants working at the stills.

It is next insisted that the court erred in refusing to give instruction No. A, which reads as follows: “The mere fact that defendant with other persons were found at the still while the same was in operation is not alone sufficient to warrant you in convicting them as charged in this indictment.” The court did not err in refusing to give this instruction. It singles out certain testimony, and by emphasizing it would tend to confuse and mislead the jury.

It is also insisted that the court erred in giving the following instruction: “If you find from the evidence in this case beyond a reasonable doubt that the defendants, in Miller County, Arkansas, at any time within three years before the indictment was returned into court, had in their possession a still for the purpose of manufacturing intoxicating liquor, or if you find from the evidence beyoud a reasonable doubt that some other person had in his possession a still for the purpose of using it in the manufacture of intoxicating liquors, and the defendants were present at the time and aided, assisted or encouraged by words or acts such person in the possession of said still, it will be your duty to convict defendants and assess their punishment at imprisonment in the penitentiary for some period of time not less than one year nor more than five years.”

We cannot agree with counsel in this contention. By their appearance, the two stills indicated that they had 'been recently operated. The Federal prohibition officer testified that he heard some one operating the stills.. When the officers slipped up to the still, after daylight, they found the. three defendants sitting on the ground, apparently in. possession of the stills. They heard another person run away. According to the testimony of the defendant Day, three other persons were operating the stills, and ran away when they heard the officers approaching.

Hence the jury might have found that the defendants, while not the actual owners of the stills, were present and assisting the owner in the operation of the stills. To that extent they would be in joint possession of the stills with the actual owner. The indictment was based upon § 2 of act 324 of the General Acts of 1921. Among other things, it provides that no person shall keep in his possession any still without registering the same with the proper United States officer. We have held that the language of the statute is directed against the possession of the still by two or more persons jointly as well as by one person alone. McGuffin v. State, 156 Ark. 392. Section 6 of the act provides that any person who shall violate any of its sections shall be guilty of a felony, and shall be punished by imprisonment in the State Penitentiary. Under § 2311 of Crawford & Moses’ Digest, all persons being present, aiding and abetting in any felony shall be deemed principal offenders, and indicted and punished as such. Therefore we are of the opinion that the court did not err in giving- this instruction.

The respective theories of the State and of the defendants were fully and fairly submitted to the jury by the court, and we find no reversible error in the admission of evidence.

Therefore the judgment of the circuit court will be affirmed.


text:
    New York Life Insurance Company v. Nichol.
    Opinion delivered March 22, 1926.
    Taxation—payment by stranger—subrogation.'—A stranger, having no interest in mortgaged land, who pays the taxes thereon at the mortgagor’s request, will not he subrogated to the lien of the State and county, as against the lien of the mortgagee.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    reversed.
    STATEMENT BY THE COURT.
    The New York Life Insurance Company brought this suit in equity against Reese N. Burks to foreclose a mortgage on real estate in Jefferson County, Ark. The complaint alleges that the delbt was past due, and asked for a sale of the land in payment of the mortgage indebtedness.
    Burks filed an answer admitting the allegations of the complaint. C. M. Nichol was allowed to intervene, and ask to be subrogated to the lien of the State for certain improvement district and county and State taxes levied on said land which he had paid.
    The record shows that on the 5th day of March, 1920, Reese N. Burks executed a mortgage on the land in question to secure an indebtedness due by 'him to the plaintiff in something over $40,000. At the request of thé mortgagor, C. M. Nichol, as sheriff and ex-officio collector^ of taxes in Jefferson County, paid the improvement district and county and State taxes on said land for the year 1922 in the sum'of $885.12. Reese N. Burks has failed and refused to pay said sheriff and collector the amount of taxes so paid by him on said land. The record shows that the mortgage was duly recorded, and was a prior lien on the land at the time the payment of said taxes was made.
    The chancellor.was of the opinion that C. M. Nichol, as sheriff and ex-officio collector of taxes, was entitled to be subrogated to the lien of the State for the amount of State, county and improvement district taxes paid by him, and that his lien was paramount to the mortgage lien of the plaintiff. A decree foreclosing the mortgagi was duly entered of record, and it was provided that tht proceeds of the sale of the mortgaged property should first he applied to the payment of the judgment in favoi of C. M. Nichol foro the taxes paid 'by him, and that the remainder should be applied towards the satisfaction of the mortgage indebtedness.
    To reverse the decree in favor of the intervener C. M. Nichol, the plaintiff, New York Life Insurance Company, has duly prosecuted an appeal to this court.

      II. II. Barker, for appellant.

      Roiuell <& Alexander, for appellee.
   Hart, J.,

(after stating the facts). At the outset it may be stated that the lien sought to be enforced by the tax collector does not derive its validity from § 10053 of Crawford & Moses ’ Digest providing that certain agents paying taxes upon the lands of their principal, of which such agents have the care, are entitled to the benefits of the State’s lien for taxes. See Peay v. Field, 30 Ark. 600, and Woodall v. Delatour, 43 Ark. 521. This court has also laid down the rule that a mortgagee or other lienor who, for the protection of his own interest, pays taxes assessed on the property, will be subrogated to the'tax lien for his reimbursement. Ringo v. Woodruff, 43 Ark. 469, and Lester v. Richardson, 69 Ark. 198. Then too subrogation is allowed where payment is made under a mistake'as to ownership. Kemp v. Cossart, 47 Ark. 62.

We do not consider that the case of Belleclair Planting Co. v. Hall, 125 Ark. 203, controls the present case. Tn that case there was evidence tending to support the finding of the chancery court to the effect that a tax collector paid the taxes at the request of the agent of the corporation owning the land, and under an express agreement upon its part that it would repay him'therefor. No right of a mortgagee or other lienor was involved. The court expressly stated that no prior equities intervened, and that no rights of a third party would be affected by charging the land with a lien in favor of the tax collector for the taxes paid by him. The court recognized that the tax collector was not entitled to enforce the lien of the State on the land by way of subrogation; but held that, under the peculiar circumstances, a lien existed in his favor against the land. It is evident,, from the language used, and from the reasoning of the court considered as a whole in that case, that the lien would not have been enforced if by any possibility the rights of third parties could have been affected. Thus it will be seen that, independently of statute allowing it, the right of subrogation must either arise out of the circumstances that the party asking subrogation was interested in, the property, and entitled to pay the taxes in order to protect his interest, or he must have made the payment at the request of the owner with the understanding that he should be subrogated, and that no rights of third parties intervened.

The case of Belleclair Planting Company v. Hall, 125 Ark. 203, was an extreme case, and the present case does not fall within it. It will be readily seen that it would not do to apply the principles of that case to one where the interests of persons having prior liens might be injuriously affected. The general rule is that, in the absence of a statute conferring it, the sheriff can not be subrogated to the rights and remedies of the State for the collection of taxes. The rule is clearly stated by the Kentucky Court of Appeals in Gibson v. Western & Southern Life Insurance Co., 161 Ky. 810, 171 S. W. 390, L. R. A. 1915D, p. 697. In that case it was expressly held that, in the absence of a statute permitting tax officials to assign tax claims, a property owner cannot by contract confer a right of subrogation to the claims of the public upon a stranger who pays his taxes at his request, which will preserve a lien superior to that of existing mortgages on the property, although the tax collector attempted to preserve the lien by assignment on the taxbooks. As sustaining the rule, see also Griffing v. Pintard, 25 Miss. 173; Hinchman v. Morris, 29 W. Va. 673, 2 S. E. 863; Repass v. Moore, 98 Va. 377, 36 S. E. 474; Wallace’s Estate, 59 Penn. 401; Mercantile Trust Co. v. Hart, 35 L. R. A. 352, 76 Fed. Rep. 673; and Aetna Life Ins. Co. v. Middleport, 124 U. S. 534.

If the taxes are paid by the owner of the land, the lien is discharged. If paid by a stranger, the lien would continue in force. While not a volunteer in the ordinary sense of the word, the intervener was a volunteer in its legal sense; for his act in paying the taxes was not necessary to protect any interest which he had in the property, and might operate to the injury of the mortgagee.

• The result of our views is that the chancery court erred in decreeing that the amount of taxes paid by C. M. Nichol as sheriff and collector of Jefferson County was a superior lien on the land to the mortgage of the New York Life Insurance Company.

It follows that the decree in this respect will be reversed, and the cause will be remanded with directions to the chancery court to dismiss the intervention of C. M. Nichol for want of equity.


author: Smith, J.

text:
    McElroy v. Underwood.
    Opinion delivered March 22, 1926.
    1. Appeal and error—order vacating judgment—necessity of stipulation.-—Crawford & M-oses’ Dig., § 2129, providing that on appeal from an order granting a new trial the appellant must stipulate that, if the order be affirmed, judgment absolute against himself shall be entered, has no application to an order vacating a judgment rendered at a former term of the court.
    2. Judgment—vacation—unavoidable casualty.—-On a petition to vacate a judgment rendered at a previous term, a finding that defendant was prevented by unavoidable casualty from appearing and defending was sustained by proof that defendant was misled by a statement of plaintiff’s attorney that he was going .to dismiss the action.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      D. E. Howell, for appellant.

      E. L. Matlock and Starbird & Starbird, for appellee.
   Smith, J.

Appellee filed in the Crawford Circuit Court a petition to vacate a judgment rendered against her at a former term of the court in a suit wherein the appellant here was the plaintiff. As ground therefor, appellee alleged in her petition that the cause was pending in the circuit court on the............day of December, 1923, at which time appellee’s husband, who was representing her in the matter, had a conversation with plaintiff’s attorney, in the course of which the attorney said he could not hear from the plaintiff, who would not write him the facts in the case, and that he could not go on with the case unless plaintiff would do so. Appellee’s husband stated to the attorney that the suit had been brought only to annoy the defendant, and the attorney stated that the plaintiff did not answer his letters, and would not pay the retainer which he had demanded, and that he was going to drop the suit. This conversation, which was repeated to defendant by her husband, led her to believe that the suit would not be prosecuted, and, if so, that she would be advised of the fact. The attorney for the plaintiff frequently visited at the home of defendant, and she saw him on numerous occasions, and the attorney said nothing to her or to her husband about having changed his mind. She had a good and meritorious defense to the action, which was set out in her petition, and, relying on the representations made to her husband, she filed no answer, and did not know that a judgment had been rendered against her until after the final adjournment of the court for the term. The testimony of defendant and of her husband and that of another witness sustained the allegations of the petition.

The attorney for the plaintiff admitted that he had a conversatioD- with the husband of defendant in which he stated that, if the retainer fee and court costs were not advanced, he would uot prosecute the case, but he also testified that he later received a check from the plaintiff, and then advised defendant’s husband of that fact, and told Mm that, if he had a defense, he had better consult his attorney and have an answer filed, as the case would be for trial on its merits, and that, after this conversation and during the session of the court at which the judgment was rendered, he spoke to defendant’s attorney, and advised him that a judgment would be taken if n o answer was filed. The attorney referred to, who was called as a witness for plaintiff, did not deny that this conversation occurred, but he did not’ file an answer because he was not in possession of the necessary facts. The defendant’s husband, in rebuttal, testified that he had spoken to the attorney he expected to employ if it became necessary to file an answer, but he had not perfected Ms arrangements with his attorney, and had not told Mm the facts upon which his wife based her defense, and that he did not do so because he had been led to believe by plaintiff’s attorney that no action would be taken unless he was notified.

After hearing the testimony, the court found the fact to be “that there had been a mistake whereby the defendant was prevented from filing answer, and that the defendant has a good defense to the cause filed,” and upon, this finding it was ordered that the judgment be set aside, and the cause set down for a new trial, and the plaintiff has appealed from that order.

It is first insisted that the judgment of the court below vacating its former judgment should be affirmed, because the appellant has not stipulated that, if the order granting a new trial be affirmed, judgment absolute should be rendered against appellant, pursuant to $ 2129, C. & M. Digest.

It was held, however, in the case of Ayers v. Anderson-Tully Co., 89 Ark. 160, that the above statute has no application to an order vacating- judgments rendered at a former term of the court, and this is a proceeding of that kind. The statute referred to does not apply for that reason.

In passing upon the question presented we must, of course, give to the testimony which tends to support the finding of the trial judge its highest probative value, and, when the testimony is thus viewed, we are unable to say that the court did not have the right, under § 6290, C. & M. Digest, to grant the relief prayed by setting aside the former judgment. There was such a misunderstanding as constituted unavoidable casualty or misfortune which prevented the defendant from appearing and defending. There is no room to suspect—and the lower court did not find—that plaintiff’s attorney had intentionally misled the defendant, but the defendant and her husband, who was her representative in the matter, did testify that they were misled, and, because of that fact, had not arranged with the attorney they intended to employ to file an answer presenting a defense which, if true, would defeat a recovery, and had not furnished the attorney the information needed to prepare the answer.

The judgment of the court below must therefore be affirmed, and it is so ordered.


text:
    Thomas v. Schaad.
    Opinion delivered March 22, 1926.
    1. Sales—remedy on warranty.—'Under a contract for the sale of machinery which contained a warranty that it would do its work properly, and .provided that, upon a failure to do so, immediate notice should be given to the seller and an opportunity afforded to remedy any defect, and that ten days’ use of same will be conclusive evidence of fulfillment of warranty and acceptance,” held that, where the purchaser retained the machinery for more than a year without making complaint, it was not error to direct a verdict in favor of the seller for the purchase money.
    2. Replevin—delivery bond.—liability of sureties.—'Where the defendant in replevin retained the property by executing a delivery bond, under Crawford & Mtoses’ Dig., § 8649, upon affirmance of an adverse judgment against him, a judgment against the sureties thereon will be entered.

      Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Henry Stevens and J. E. Haw-kins, for appellant.

      McKayS Smith and Joht'b W. Newman, for appellee.
   Smith, J.

Appellees brought suit in replevin to recover certain sawmill machinery which they had sold under a written contract dated July 11, 1919. The writing referred to described the property sold, which was a part of a sawmill outfit, and retained title until the purchase money was paid.

Appellant—the defendant below—filed an answer, in which the execution of the writing evidencing the sale of the machinery and the reservation of the title was admitted, but alleged that defendant had bought other machinery from plaintiffs, which was sold under a warranty, and that the machinery so sold did not comply with the warranty. The answer specified the various pieces of machinery so bought, alleging its contract price, and its actual value by reason of alleged differences between the articles bought and the articles received, and the sum total of these differences in value was alleged to 'be $2,042.89, and for this sum the defendant prayed judgment, less the amount of the contract sued on, which was in the form of a note.

The 'defendant admitted that the machinery which he had bought from the plaintiffs had been purchased under a written contract which he had signed. The contract covering this machinery contained the following express warranty:

“Warranty. This machinery is fully warranted to be good material, and well made, and with proper management to perform what is claimed for it in printed circulars or catalogues of manufacturers making the machinery specified herein. But if, upon a full and fair trial, it should not properly do its work, then immediate notice must be given Ben D. Schaad Machinery Company, at Little Block, Ark., and reasonable time allowed to send a competent man to remedy the defect, and in case the trouble be caused from a clearly defined original defect in the machine itself, then Ben D. Schaad Machinery Company will furnish the defective part without charge; defect in any part not to condemn other parts: And if, on trial, the machine can not be made to perform the work of a capacity for which it was sold, as per this order, then B'en D. -Schaad Machinery Company agrees to take said defective part of machinery back, and refund so much of cash payment and notes as applied to the defective machinery. The purchaser agrees to properly put up and operate the machinery according to-the printed or written directions furnished by the manufacturers, and that, if the fault be traceable to not putting up or operating according to printed or written directions, purchaser agrees to pay all expenses incurred in rectifying it. Ten days’ use of same will be conclusive evidence of fulfillment of warranty and acceptance. Any failure on the part of the purchaser to comply with his contract releases this warranty entirely.”

Defendant admitted that he had not complied with this warranty, and that he had received the machinery covered by the warranty and had set it up in September, 1919, and had since that time been operating it. The suit was commenced in December, 1920, and defendant retained the possession of the property which plaintiffs sought to replevy. Defendant executed a delivery bond in the sum of $3,000, conditioned that the defendant “shall perform the judgment of the court in this action.”

At the conclusion of all the testimony the court directed the jury to return a verdict in favor of the plaintiffs for the amount of the purchase price of the machinery in question, and this was done, and judgment was rendered against defendants and the sureties on the bond for the -sum named in the jury’s verdict.

Under the facts stated, the plaintiffs were entitled to a judgment, and there was no. error therefore in directing the jury to- return a verdict in their favor. The execution of the contract and the nonpayment of the specified purchase price were admitted, as well as the retention of the title, and the defendant sought only to set-off against that demand a certain claim arising out of an alleged breach of warranty of other machinery. But the contract of' sale of that machinery itself provided what the purchaser’s ■ remedy should be in the event the machinery did not measure up to the standard of the goods sold. This was, that, the plaintiffs should be notified of any trouble, and to be given a reasonable opportunity to remedy any defect, and if any of the machinery was defective and did not perform its work, the defective machinery was to be returned, and the purchase money paid for any defective machinery was to be returned to the purchaser. Appellant failed to pursue the remedy contracted for under the warranty herein set out, and appears to have used the machinery for a number of years without complaint. Crockett v. McClure Co., 136 Ark. 128; Southern Eng. & Boiler Works v. Globe Cooperage & Lbr. Co., 98 Ark. 482; Duffie v. Pratt, 76 Ark. 74; Pratt v. Meyer, 75 Ark. 206; Heer Engine Co. v. Papan, 142 Ark. 171.

•Gomplaint is also made of the form of the verdict returned. But no objection appears to have been made to the form of the verdict at the time it was returned, the objection being that a verdict should not be directed, and we think the judgment rendered was a proper one. A delivery bond was given, under which the defendant retained and used the machinery for a total period of about five years, nearly three years of which expired after the execution of the bond. The bond was conditioned as required by law “that the defendant shall perform the judgment of the court in the action.” Section 8649, C. & M. Digest. It was proper therefore to render a judgment against the sureties thereon. Dillard v. Nelson, 78 Ark. 237; Rogers v. Tri-State Motor Sales Co., 165 Ark. 590; Schneider v. Coker, 115 Ark. 490.

We conclude therefore that the court properly directed the verdict which was returned, as no legal defense to the action was shown, and the judgment rendered thereon is affirmed.


text:
    Booth v. St. Louis Southwestern Railway Company.
    Opinion delivered March 22, 1926.
    1. Appeal and error—necessity of bill of exceptions.—Error in giving or modifying an instruction cannot be brought into the record by recital in the motion for new trial; the court’s action must appear in the bill of exceptions.
    2. Evidence—admissibility of writing.—Where a witness for •defendant testified that plaintiff made a certain statement in the nature of an admission, which witness immediately reduced to writing, the statement was admissible, though plaintiff at the time refused to sign it, and at the trial denied having made it.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Wade Kitchens, for appellant.
    J. R. Turney, T. J. Gaughan, J. T. Sifford, J. E. Gaughan and E. E. Godwin, for appellee.
   Smith, J.

Appellant, who was the plaintiff below, sued the appellee railway company to recover damages to compensate a personal injury sustained by himself, and also for damages to a wagon which he was driving at the time of his injury. At the trial there was a verdict land judgment for tíie defendant, and the plaintiff has appealed.

On August 9, 1923, plaintiff was hauling wood with a wagon and team of mules, and he undertook to drive across the railroad at a place where there were three tracks. There was a slight embankment on both sides of the crossing, and the railroad tracks are located in a shallow cut. The wagon had no brakes, nor were the mules harnessed with breeching, and they were therefore unable to hold the wagon back as it rolled down the incline to cross the railroad tracks, and as the wagon rolled down this incline the top hamestring on the right mule broke, on account of the weight of the wagon pressing forward, and the team was unable to stop the wagon until it ran on to the track. A train was switching at the time, and it is the theory of appellee that appellant never stopped his team, or attempted to do so, until he had reached a point on the incline beyond the track known as the house track, where the cars were being switched, and that the rear end of the wagon passed far enough beyond this track to clear the cars, when appellant permitted the wagon to suddenly run backward down the incline until the rear end of the wagon would not clear the cars which were being switched on that track.

It was appellant’s theory that, because of the broken hamestring, only one of the mules could pull, and that his wagon stalled, and, while he was trying to help the harnessed mule to pull the wagon out of danger, the train ran into the wagon and inflicted the injury to him and 'the damage to his wagon for which he sues.

It was the theory of appellant that a proper lookout was not being kept, and that the collision would have been averted, had this been done. It was the theory of appellee that a proper lookout was being kept, and that the collision was caused by the wagon rolling backwards after it had reached a place of safety.

The court gave numerous instructions at the request of both parties, and, without reviewing these instructions, it may be said that they present full and accurate declarations of the law as applied to the respective theories of the case.

As will appear from the above statement of the case, the comparative negligence of the parties became an issue, and on this issue an instruction was given which, after stating hypothetically appellant’s theory of the case, concluded with this declaration of law: “and if such negligence directly caused the injury of the plaintiff, your verdict will be for the plaintiff, unless you find that the plaintiff himself was guilty of contributory negligence equal to or greater in degree than the .negligence of defendant.”

It is insisted that the court erred in striking from this instruction, following the words, “and if such negligence directly caused the injury,” the phrase, “or contributed thereto.”

An inspection of the bill of exceptions shows that the instruction was given as requested, and does not show any modification thereof by the court. We need not therefore consider whether the omission of this phrase was erroneous. It is true that in the motion for a new trial it is recited that the court modified the instruction as requested by striking therefrom the phrase “or contributed thereto,” but error in giving an instruction cannot be brought into the record by any recital contained in the motion for a new trial. The court’s action and the ruling thereon must appear in the bill of .exceptions itself. DeQueen & E. R. Co. v. Pigue, 135 Ark. 499.

Exceptions were properly saved to the refusal to give certain instructions asked by appellant. But these appear to have been fully and properly covered by other instructions which were given. These instructions related to very familiar principles, and no useful purpose would be served by a discussion of them.

An exception was also saved to the giving of a certain instruction at the request of appellee upon the ground that it was abstract, but we do not concur in that view.

The most serious question in the case, and the one upon which appellant apparently relies for a reversal of the judgment of the court below, arose over the admission in evidence of a statement alleged to have been made by appellant to W. F. Woodard, a claim agent of the defendant railway company, some time after the collision. This statement was in the nature of a declaration against interest, and tended to contradict the testimony given by appellant at the trial. The evidence in regard to this statement is in irreconcilable conflict. Appellant testified that he was called upon by Woodard and asked for a statement. That Woodard went to the depot of the company at Waldo, and commenced writing on a typewriter what purported to be a statement as to the circumstances of the collision. Appellant stated that his answers were not being written down as he made them, and he asked if he would be given a copy of the statement, and when Woodard told him that he would not, he refused to sign the statement or to assent that it recited the facts.

Appellant objected to the admission of this statement in evidence for any purpose when it was first offered in evidence by Woodard, when the latter was called 'as a witness for appellee. Woodard testified that he called upon appellant for a statement of the facts, and, after discussing the matter for some time, they went to the depot, where a typewriter could be found, to reduce the statement to writing, and that he wrote correctly the answers which appellant made to his questions, and that, after the statement had been reduced to writing, it was read over to appellant, who also examined it himself and said it was correct, but appellant,refused to sign it, for the reason, then stated, that his attorney had told him not to sign any statement. Woodard testified that, after the statement had been assented to by appellant as being correct, although appellant refused to sign it, he then wrote at the bottom thereof the words, “ Refused to sign,” and called three persons, who were present, to witness the statement. The persons who signed the statement as witnesses were called as witnesses in the case, and their testimony substantially corroborates that of Woodard.

It may be conceded that the statement, of itself, has no‘probative value, but we think its admission in evidence was not erroneous. According to the witnesses for appellee, it contained the statements made by appellant at the time, and might have been used by these witnesses to refresh their recollection as to what appellant’s statements were. Without this paper the witnesses could have testified what their recollection was as to what appellant had said. There was a question whether appellant had made the statements contained in the writing, but this was, of course, a question for the jury.

A very similar question arose in the case of Petty v. State, 76 Ark. 515. In that case a witness named Hughes ■had testified in the examining trial before a justice of the peace. Hughes’ testimony was taken down in writing by a witness who was present at the examining court, and this witness testified that it was a correct 'statement of the testimony of Hughes and contained the substance of all his testimony given at the trial. The presiding judge allowed the statement to he read to the jury, and the defendant duly excepted. This testimony was held to have ¡been properly admitted upon the appeal to this court. The reasoning.of the court, as expressed by Mr. Justice Riddick, is so entirely in point that we quote at length from what was there said: ‘ ‘ Counsel admit that it was proper to prove the testimony of a witness who is beyond the jurisdiction of the court, when a proper foundation has been laid; but they contend that it was not proper to introduce this statement as evidence. We admit that of itself the writing was of no probative force, and that, even if it had been made by the magistrate, it would not of itself have been competent evidence. Payne v. State, 66 Ark. 545. But the testimony of this ¡absent witness might have been proved by any one who heard him testify, and could remember the testimony. And when a person who heard him testify reduced the testimony of the witness to writing at the time of the trial, and knows that it contained the substance of all his testimony, he may be allowed to refresh his memory by looking at the writing. When the testimony is too long for the witness to repeat accurately, but he is able to testify that the writing is an accurate statement of it, he may read the writing to the jury as his testimony of what the absent witness testified on the former trial. Wilkins v. State, 68 Ark. 441. There are many cases which hold that this may be done, even though the witness has no present recollection of the former testimony, if he knows that the writing was made by him at the time of the former trial, and that it is a correct státement of the testimony of the absent witness. The weight of authority seems to support that view. 16 Cyc. 1106. The testimony goes to the 'jury for their consideration, and may be contradicted by the testimony of any other witness who was present at the former trial and heard the testimony. Now, in this case, the witness who attended the former trial and took down the testimony of the absent witness, not only identified the writing, but, after examination of it, testified from the writing and from his present recollection that it was a correct statement of the testimony of the former -witness, though, on account of its length, he was doubtless unable to repeat the testimony accurately without the ¡aid*of the writing. Under these circumstances we do not think the court erred in allowing this writing to be read as a part of the testimony of the witness.” See also 4 Wigmore on Evidence, § 2134.

We conclude therefore that no error was committed in permitting the introduction of this statement in evidence.

Upon a consideration of the whole case, we find no error prejudicial to the appellant, so the judgment of the court below must he affirmed, and it is so ordered.