author: Humphreys, «J.

text:
    Roberts v. Miller.
    Opinion delivered March 7, 1927.
    1. Executors and administrators — settlement—collateral attack. — yhe final settlement and discharge of an administratrix is a final accounting of decedent’s estate, and is a judgment of a court of record, which is impervious to collateral attack, and, if not appealed from, can only be investigated for fraud or some ground of equitable jurisdiction.
    2. Descent and distribution — actions by heirs. — Heirs of a decedent, whose estate has been settled, are the proper parties to bring a suit to subject certain land of a decedent to payment of a probate judgment obtained by the former decedent against the estate of the latter decedent, and, the latter’s estate having been likewise settled, the action was properly brought against the wife and children of the latter, where the land had been the latter’s homestead.
    3. Homestead — liability to decedent’s debts.- — Chancery has jurisdiction to subject the homestead of a decedent to payment of a probated claim after death of his widow or her abandonment of the homestead, and after decedent’s youngest child has attained the age of 21 years, but suit must be brought within three years thereafter.
    4. Taxation — persons who may purchase at tax sale. — Where a mother residing with decedent’s children on his homestead bought the homestead at tax sale, her title so obtained was a redemption from the tax forfeiture.
    5. Taxation — duty to pay taxes. — Minor children of a decedent residing upon his homestead and his rightful widow have the duty to pay the taxes on the homestead.
    6. Taxation — tax sale — right to purchase. — One cannot occupy and enjoy the use of premises and at'the same time acquire a valid tax title by permitting the lands to be sold for taxes and purchasing at the sale based upon a forfeiture during the time he was so occupying and enjoying the premises.
    Appeal from Scott Chancery Court; J. V. Bourland, Chancellor; reversed on appeal;
    -affirmed on cross-appeal.

      Bates & D%mcan and Daniel Hon, for appellant,

      tJo]m P. Roberts and Evans ■<£ Evans, for appellee.
   Humphreys, «J.

The questions necessary to he determined on this appeal and croás-appeal, arising out of the pleadings filed and testimony adduced, are, whether appellants had a right to bring the suit, and, if so, whether Lidmilla Miller’s purchase of the lands involved in the action at tax sale, and from a purchaser at tax sale, amounted to a redemption of said lands from-tax sale. The contention of appellees is that she was a stranger to the title and acquired the absolute ownership of the lands under tax deeds; whereas appellants contend that, on account of her fiduciary relationship to her children, with whom she resided on the lands, she could not acquire ownership of them by purchase at tax sales, or from purchasers at tax sales, based upon tax forfeitures during the period of their occupancy and enjoyment of said lands.

The purpose of the suit was to subject the lands in question to the payment of a probate judgment in the sum of $2,599.35 obtained by M. C. Miller on July 13, 1914, against the estate of Frank Miller, deceased. After securing the judgment, M. C. Miller died intestate on •February 26, 1916, leaving him surviving his widow, A.rizona Miller, now Arizona Roberts, and his children, Joseph Miller, Margie Miller, Antone Miller, Louie Miller, and Carroll Miller, all being minors except Joseph. Prior to the institution of this suit J. M. Roberts purchased Joseph Miller’s interest in the judgment made the basis of the action. The minors are represented in the suit 'by. their guardian and next friend. Joseph Miller was subsequently made a party plaintiff in the action. All of the appellants, plaintiffs below, are the sole and only heirs of M. C. Miller, deceased. Frank Miller, Jr., was an older son of M. C. Miller, and adjninistered upon his father’s estate. Pending the administration he died, and Arizona Roberts was appointed administratrix in succession, on November 21, 1916, made final settlement and was discharged on April 15,1920. In her final settlement she mentioned the fact that the bondsmen of Frank Miller, Jr., claimed her husband’s estate was indebteded to him in the sum of $424.69, and that there was no money to pay it. The administrator of the estate of Frank Miller, Jr., did not present a claim and obtain a .judgment for it. Rudolph Shiel, claiming to be the administrator of the estate of Frank Miller, Jr., procured an execution against the estate of M. C. Miller, deceased, after the institution of this suit, in an effort to collect said claim. The record is silent as to what became of the execution.

Appellees contend that, under these circumstances, the proper and only remedy of appellant was to move in the probate court to set aside the order closing the' estate and to request the appointment of an administrator to further administer same. This is not correct. The final settlement and discharge of the administratrix was a final accounting of the estate. It was the judgment of a court of record, and, no appeal having been taken from it, it was impervious to collateral attack, and can only be investigated for fraud, or some other ground of equitable jurisdiction, in a court of equity-. Stokes v. Pillow, 64 Ark. 1, 40 S. W. 580 ; Beckett v. Whittington, 92 Ark. 230, 122 S. W. 623; Day v. Johnston, 158 Ark. 478, 250 S. W. 532. The appellants herein are the proper parties to bring the suit. Chancery has jurisdiction to subject the homestead lands of a decedent to the payment of probate judgments, after the death of the widow or the abandonment of the homestead by her and after the youngest child of the decedent has attained to the age of twenty-one. Parks v. Murphy, 166 Ark. 564, 266 S. W. 673. The statutory bar had not attached when the suit was instituted. It was brought within three years after the youngest child of Frank Miller became of age.

Preliminary to determining the second question it will be appropriate to state some of the salient facts revealed by the record. On April 11, 1911, Frank Miller died seized and possessed of the lands sought to be subjected to the payment of the judgment aforesaid, obtained by M. C. Miller’s estate against Frank Miller’s estate. It was Frank Miller’s homestead. At the time of his death he and his supposed wife, Lidmilla Miller, had separated, and she and her children were residing- on forty acres of land owned by her a short distance from her husband’s homestead. Many years ago Frank Miller married Annie, an older sister of Lidmilla Miller, and a son named Antone Frank Miller was born to them. Shortly after the birth of Antone, Frank Miller deserted Annie, and married her sister Lidmilla, representing to the latter that ho had obtained a divorce from Annie. They immediately left Texas, remained in Oklahoma awhile, and later settled in Scott County, Arkansas, where they lived as man and wife until the separation. There were born to the latter marriage Mamie Trotter (née Mamie Miller), Flora Miller, Frances Miller, George Roy Miller. Both of Frank Miller’s families constitute the appellees herein and are the defendants in this actiou. The instant case, in the language of distinguished counsel for appellees, is, in a sense, a sequel to the case of Evatt v. Miller, 114 Ark. 84, 169 S. W. 817, L. R. A. 1916C, 759, wherein this court ' ruled that the children of Lidmilla Miller were legitimate and entitled to share in their father’s estate, but that Lidmilla Miller herself had no interest therein, Annie Miller being his lawful wife. The next year after the death of Frank Miller Lidmilla Miller and her children moved back to the homestead from the forty-acre tract, where the girls have continuously resided, end where Lidmilla Miller resided with hex' children until February, 1917, when she and Roy moved back to the forty-acre tract, where they lived until September, 1918, at which time they returned to the Miller homestead. During the entire occupancy of the homestead Lidmilla Miller utilized the homestead for farming purposes, and her children received one-half the rents and Annie Miller, the rightful widow, received the other half of them. On December 24, 1920, Annie Miller conveyed her interest in the homestead to John P. Roberts, who, in turn, conveyed same to Flora and Frances. Since that time Lid-milla Miller, Flora and Frances have occupied and used the homestead for farming purposes. In 1913, and again in 1917, they permitted the homestead lands to forfeit for taxes, and Lidmilla Miller bought a part of same directly at the tax sales and a part of them from C. E. Forrester, who had purchased some of them at the tax sales. Prior to the institution of this suit all of Prank Miller’s children had reached the age of twenty-one years. The estate of Frank Miller was administered upon in the probate court of Scott County, and closed on July 11, 1918. The administrator made final settlement, and was discharged at that time.

. It was the duty of the minors residing upon the property and the rightful widow to pay the taxes upon the homestead lands of Frank Miller. Even if the rightful widow neglected her duty to pay the taxes, Frank Miller’s children, who -resided upon the homestead and enjoyed the rents and the privilege of farming thereon, should have paid the taxes and collected the one-half due from the rightful widow out of her part of the rents. There was ample income or rents to pay the taxes and keep up the improvements. Lidmilla Miller was the natural guardian of these children, residing with them upon the property, farmed" it herself, and was therefore not a stranger to the title in the sense that she could buy tax titles in her individual name for the purpose of depriving her children of their rights, or for the purpose of preventing creditors from collecting their just claims against the estate. If permitted to circumvent creditors by purchasing outstanding tax titles of the land, she could subsequently use the same tax title to prevent her own children from claiming an interest in the estate. One cannot occupy and enjoy the use of premises and at the same time acquire a valid tax title by permitting the lands to be sold for taxes, purchasing at the sale, or purchasing from one who has purchased at the tax sale based upon a tax forfeiture, during the time he was so occupying and enjoying the premises. Sanders v. Ellis, 42 Ark. 215; Patterson v. Miller, 154 Ark. 124, 241 S. W. 875; Lefevers v. Dierks Lumber & Coal Co., 161 Ark. 67, 255 S. W. 554; Inmam v. Quirey, 128 Ark. 605, 194 S. W. 858; Hunt v. Gaines, 33 Ark. 267; Cotton v. White, 131 Ark. 273, 199 S. W. 116.

We think it clear, under the circumstances in this case, that it was “the duty of Lidmilla Miller to have paid the taxes out of th.e profits she received in farming the homestead and out of the rents which her children received while they resided thereon. Under the authorities cited above, even a stranger in possession of land and receiving rents and profits cannot acquire a title to it by a purchase for taxes, and such purchase would operate only as a payment of the taxes. We think the tax deeds she obtained amounted-to a redemption on her part from the tax forfeitures and tax sales.

We have refrained from setting out the tax forfeitures, tax sales or the tax deeds relied upon by Lid-milla Miller to prevent appellants from subjecting the lands to the payment of the judgment obtained by the estate of M. C. Miller, deceased, against the estate of Frank Miller, deceased, or from deciding the validity or the invalidity of the tax titles, because we regard her tax titles as redemptions .from the tax forfeitures and tax sales.

On account of the error indicated the decree of the court is reversed, and the cause is remanded with directions to enter a decree for the sale of the lands set out in the complaint of appellants for the payment of the judgment, and to cancel the deeds held by Lidmilla Miller under sales for taxes as a cloud on the title to said lands.


source: Caselaw Access Project

author: Hart, 0. J.,

license: Public Domain

text:
    Henry Quellmalz Lumber & Manufacturing Company v. Hays.
    tOpinion delivered March 14, 1927.
    3. MASTER AND SERVANT — SERVANT EMPLOYING BYSTANDER. — Where an employee had no authority, express or implied, to call on a bystander to help in discharging- a service which he can reasonably perform, a third person undertaking at his request to help him in performing his duties, when no emergency or pressing necessity exists, was a volunteer, to whom the employer owed no higher duty than to refrain from injuring him after discovering his peril.
    2. Master and servant — emergency employment.' — If an unforeseen emergency arises rendering it necessary in the employer’s interest that his employee have temporary assistance, the law implies authority to procure such necessary help, and an assistant so procured is entitled to the same protection as any other employee.
    3. Master and servant — emergency employment. — Whether circumstances constitute .an emergency authorizing an employee to procure temporary assistance, so as to .entitle the assistant to the same measure of protection as other employees, is generally a jury question.
    4. Master and servant — emergency employment — burden op proof. — To recover from an employer for injuries to plaintiff assisting an employee at the latter’s request, plaintiff must establish the relation of master and servant between himself and defendant by showing the employee’s authority to call for assistance. .
    5. Master and servant — emergency employment. — The mere fact that the employment of an assistant would facilitate the master’s ■business would not give an employee authority, in absence of an emergency, to employ an assistant.
    Appeal from Randolph Circuit Court; John C. Ashley, Judge;
    reversed.
    STATEMENT BY THE COURT.
    William Hays, a minor, by his next friend, John Hays, .and John Hays instituted this action against the Henry Quellmalz Lumber & Manufacturing Company to recover damages on account' of personal injuries which are alleged to have been received by William Hays while in the employment of the defendant. The suit was defended on the ground that William Hays was a volunteer at the time that he received his injuries, and that the defendant was not liable for damages therefor.
    According to the evidence of the plaintiff, William. Hays was eighteen years of age at the time he received the injuries sued for. On the morning in question he had been working for the railroad, loading cotton, at Datto, in Clay County, Arkansas. During the afternoon he went to the gin of the defendant. His uncle, Luther Denton, was running one of the gin stands, and asked William Hays to unchoke it. William Hays helped him lift the breast and then began to help unchoke the gin stand. He pulled out two or three little bunches of cotton* and reached back to pull out another one, and, while doing so, one of his hands was caught in the machinery and injured so that it had to be amputated. William Hays had never had any experience in operating a gin and did not know whether the saws were running or not when he began to assist his uncle in removing the cotton from the gin stand.
    According to the evidence for the defendant, Earl Day was the manager of the defendant’s gin at Datto and employed Luther Denton and the other employees. Luther Denton was a ginner, and did not ]jave authority to employ any one for any purpose. The defendant operated two gin stands, which were about three feet apart. If one of the gin stands became choked the gin-ner could call on the operator of the other gin stand to help him unchoke it. There was another employee who worked at the press who might have been called on to help unchoke either of the gin stands. On the day that William Hays was injured, the ginners were running damp cotton through the gin stands, and this had a tendency to cause them to choke. The capacity of the gin was twenty to twenty-five bales a day. When the gin stand became choked, the ginner might call one of the other employees to help him unchoke it. The breast weighed about 130 pounds, and was very bulky. While one man could lift it up, two could perform that service much easier and better. On the day in question the defendant did not have enough cotton to keep it going all day. It had been running all day, and the cotton that was ginned was wet. The defendant only ginned four bales the day that William Hays was injured, and this was all wét cotton. The other gin stand was not choked at the time William Hays was injured, and E. E. Hawkins, who operated it, could have helped unchoke the gin stand operated by Luther Denton if he had been called upon to do so.
    Prom a verdict and judgment in favor of the plaintiff, William Hays, the defendant has duly prosecuted an appeal to this court.

      Oliver & Oliver, for appellant.

      Walter L. Pope and T. W. Campbell, for appellee.
   Hart, 0. J.,

(after stating the facts). It is not claimed that Luther Denton had any authority, express or implied, to call upon bystanders to help him in the discharge of any service which he could reasonably perform. If a third person undertook, at his request, to help him in performing his duties as ginner, when no emergency or pressing necessity existed, such third person would, in the eyes of the law, be deemed a volunteer, and the defendant would owe him no higher duty than to refrain from injuring him after he discovered his peril. It is claimed, however, by counsel for the plaintiff, that, under the evidence • adduced by the plaintiff, he was what is called an emergency helper or employee at the time he was injured.

The law on the question in 18 R. C. L. § 85, page 58, is stated as follows: “If an unforeseen contingency or emergency arises, rendering it necessary in the employer’s interest that his employee have temporary assistance, the law implies authority to procure such necessary help; and a substitute or assistant procured under these circumstances is entitled to the same measure of protection as any other employee in the service. It is the emergency that gives rise to the implied authority, and if it does not in fact exist then neither does the implication of authority arise. Whether the circumstances of any particular case constitute what may be deemed an emergency is generally a question for the jury’s determination.” To the same effect see 39 C. J., page 554, § 662 (bb).

This view of the law has been substantially sanctioned and followed by this court. Railroad Co. v. Dial, 58 Ark. 318, 24 S. W. 500; St. L. I. M. & S. Ry. Co. v. Jones, 96 Ark. 558, 132 S. W. 626, 37 L. R. A. N. S. 418; and Yazoo & Mississippi Valley Rd. Co. v. Kern, 99 Ark. 584, 138 S. W. 938. In these cases the court recognized that the fact that no real emergency and no actual necessity for extra help existed may be taken into consideration by the court in deciding' whether or not the person injured was in the position of a servant.-

Tested by these principles of law, it was necessary for Williaip. Hays to establish as a basis of his recovery the existence of the relation of master and servant between himself and the defendant company; and this, in turn, depended upon the authority of the ginner, under the circumstances, to call him to assist in lifting up the breast of the gin stand and unchoking it. It was wholly immaterial whether or not the assistance of the plaintiff would tend to facilitate the business of the defendant or to make it easier for the ginner to unchoke the gin stand. Such facts would not give the ginner authority to employ additional help. There must be a sudden or unexpected emergency which would imperil the ginner or threaten harm to the gin stand in order to give implied authority to the ginner to employ temporary assistance.

The undisputed evidence shows that there was no sudden or unexpected emergency which would give the ginner the implied authority to employ a temporary assistant to help him unchoke the gin stand. If he thought that the breast of the gin stand was too heavy and bulky to lift up, he might have called to his assistance the other ginner, who was not more than three feet from him, or another employee who was working near by. The servant who had general control and management of the gin had not directed him to speed up his work. On the other hand, the undisputed evidence shows that there was no necessity to do that. The defendant was up with its ginning, and there was no necessity whatever to speed up the work. The evidence does not show that the gin stand had been choked to an extent where it was dangerous to operate it or-where it was liable to break. The power might have been cut off at any time, and the ginner might have proceeded at his leisure to unchoke the gin stand. Hence there was no sudden or unexpected emergency calling for outside assistance, and the plaintiff, in helping in the work, was in law a volunteer and not entitled to recover damages against the defendant for injuries received, under the circumstances detailed by him in his testimony.

It is true that the plaintiff's hand was injured to such an extent that it had to he amputated. This of itself makes it a very hard case. The plaintiff, however, had arrived at the years of discretion, and knew what he was about. Our sympathy for him cannot cause us to override settled rules of law and to deviate from fixed legal principles, which those engaged in business have a right to rely upon in conducting it.

The result of our views is that the court erred in not directing a verdict in favor of the defendant, as requested by its counsel, and, for that error, the judgment must be reversed. Inasmuch as the plaintiff seems to have fully developed his case, his cause of action will be dismissed.


author: Hart, O. J.,

text:
    Foster v. Pollack Company.
    Opinion delivered March 14, 1927.
    1. Justices of the peace — jurisdiction in garnishment.' — Under Crawford & Moses’ Dig., §§ 4906, 6401, justices of the peace have jurisdiction coextensive with the county in garnishment proceedings.
    2. 'Garnishment — nature of proceeding. — A garnishment proceeding is in rem, analogous to an attachment, and is a provisional remedy within the meaning of Crawford & Moses’ Dig., § 6401.
    3. Courts — priority of garnishments. — Under Crawford & Moses’ Dig., § 6401, a garnishment issuing from a justice of the peace in a township other than that in which the defendant or garnishee resided was superior to a garnishment issued from a similar court in the township in which defendant and the garnishee resided.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    reversed.
    STATEMENT OE FACTS.
    This appeal involves the question of whether or not a justice of the peace has jurisdiction coextensive with the county in garnishment proceedings. Pollack Company sued Prince Thomas, in the municipal court of the city of North Little Rock and obtained judgment against him and the Buckeye Cotton Oil Company as garnishee. J. B. Foster sued Prince Thomas, and at the same time'caused a writ of garnishment to be issued against the Buckeye' Cotton Oil Company in a justice court of Eastman Township. The garnishment in the Foster case was issued and served before the garnishment in the Pollack Company case. Judgment was rendered in each case against the garnishee, Buckeye Cotton Oil Company, and it appealed each case to the circuit court.
    . In the circuit court both cases were consolidated and tried together. The facts as stated above were agreed to between the parties in the trial in the circuit court. It was further agreed that neither the defendant, Prince Thomas, nor the garnishee, Buckeye Cotton Oil Company, were- served with summons in Eastman Township. They were residents of another township in Pulaski County, and never entered their appearance to the action. Judgment was rendered against the defendant by default by the justice of the peace in Eastman Township. The circuit court rendered a judgment in favor of Pollack Company and against the Buckeye Cotton Oil Company as garnishee in that case. It álso rendered judgment against J. B. Foster and in favor of the Buckeye Cotton Oil Company as garnishee in that case.
    The consolidated case is here on appeal.

      Joe II. Thompson, for appellant.

      Mitchell Gockrill, E. R. Parham and Owens & E hr man, for appellee.
   Hart, O. J.,

(after stating the facts). , The issues raised by the appeal denend moon the construction'to be given to § 6401 and § 4906 of Crawford & Moses’ Digest. Section 6401 reads as follows: “Actions cognizable before a justice of the peace, instituted by summons or warrant, shall he brought before some justice of the peace of the township wherein the defendant resides, or is found, or, if there be one or more defendants in different, townships, then in the township where one of them resides or is found. Provided, action by attachment, actions for the recovery of personal property, actions for provisional remedies, and all criminal actions and proceedings, may be brought before any justice of the peace in the county.”1

Subsequently the Legislature of 1895 amended our garnishment statute so as to provide that an action may be commenced by garnishment process by giving the bond and otherwise complying with provisions of the statute. Orawford & Moses’ Digest, § 4906.

It is sought to uphold the judgment of the circuit court on the ground that a garnishment such as was resorted to in this case is not a provisional remedy within the,meaning of § 6401 referred to. In Ferguson v. Glidewell, 48 Ark. 195, 2 S. W. 711, it was expressly held that, under the Code, attachment is a provisional remedy and merely ancillary to the action in which it is sued out. In addition, the court said that its object, as expressly defined 'by the Code, is to secure the satisfaction of such judgment as may be recovered by the plaintiff. Again, in Ribelin v. Wilks, 135 Ark. 599, 205 S. W. 977, the court recognized that an attachment was a provisional remedy and that the jurisdiction of a justice of the peace in such cases is coextensive with the county and not limited to the township in which the defendant resides or is found. Thus we have an express holding of this court that an attachment is a provisional remedy under this section of the statute and that the jurisdiction of the justice of the peace is coextensive with the county in attachment cases.

In Eood on Garnishment, § 1, it is said that garnishment is a mode of attachment differing in no material respect from an attachment by actual levy and seizure, except in the mode of enforcement: Again, the same author says that garnishment is a mode of attachment, and that the specific right to a lien acquired by its issuance and service is substantially analogous to that acquired by an attachment of tangible property. Eood on Garnishment, §§ 192 and 193.

In Teague v. LeGrand, 85 Ala. 493, 5 So. 287, 7 Am. St. 64, the Supreme Court of Alabama held that garnishment, such las was resorted to in this case, is a species of statutory attachment, whose object is to reach debts owed the defendant and apply the proceeds in the discharge of the principal debt.

In American Life Ins. Co. v. Hettler, 37 Neb. 849, 56 S. W. 711, 40 Am. St. Rep. 522, the court said that garnishment is an attachment by means of which money or property of a debtor in the hands of third persons, which cannot be levied upon, may be subjected to the payment of the creditor’s claim. 'This case is cited with approval in 12 R. C. L., page 775, where it is said that the remedy of attachment is similar in many respects to garnishment.

In the Cyclopedic Law Dictionary it is said that preliminary injunction, attachment, arrest on mesne process, garnishment, etc., are provisional remedies. "We think tliis definition is in accord with the holding of our own court on the subject. The effect of the decision in St. Louis Southwestern Ry. Co. v. Vanderberg, 91 Ark. 252, 120 S. W. 993, is that a garnishment is in the nature of a proceeding in rem and that the service of process on the garnishee creates a lien in favor of the plaintiff on the money due from the garnishee to the defendant. Th6 decision in Hartford Fire Ins. Co. v. Citizens’ Bank of Booneville, 166 Ark. 551, 266 S. W. 675, 39 A. L. R. 1458, proceeds upon the theory that garnishment is a proceeding in rem.

The primary object of the garnishment statute under consideration is to reach money and ohoses in action in the hands of third persons and to subject them to the payment of the plaintiff’s claim by means of a delivery or payment by compulsion of law. The remedy is so nearly analogous to that of attachment that it would seem that garnishment of the sort resorted to in this action would be a provisional remedy, if attachment should be held to be a provisional remedy. The two remedies are so nearly alike that it would seem that there would be no reason for holding attachment to be a provisional remedy and garnishment of the sort resorted to in this case not a provisional remedy.

The argument that this holding would result in hardship in certain cases is no valid reason for departing from settled principles of law. It has been often said that hard cases make shipwreck of the symmetry of the law, and it is always better for the Legislature to relieve from such hardships than for the courts to do it by judicial interpretation.

The result of our views is that the court erred in not holding that garnishment is a provisional remedy within the meaning of § 6401 of Crawford & Moses’ Digest, and it should have held that the claim of J. B. Foster in the garnishment proceeding was superior to that of Pollack Company. The judgment will therefore he reversed, and the case remanded with directions to enter a .judgment in accordance with this opinion, and for further proceedings according to law.


author: Wood, J.

text:
    Ouachita Valley Bank v. DeMotte.
    Opinion delivered March 14, 1927.
    1. Guaranty — construction.—In ascertaining the meaning of a contract of guaranty, the same rules control as apply in other ■contracts, and the important question is to determine and give effect to the intention of the parties, as ascertained by a reasonable interpretation of the terms used when read in the light of the attendant circumstances and the purposes for which the guaranty was made.
    2. Guaranty — notice op acceptance. — Where a bank, pursuant to request, telegraphed that it would honor a draft for a shipment, this was not a mere offer of guaranty, but' an absolute undertaking, and no notice of acceptance was necessary.
    and consideration. — Where a bank guaranteed to honor a broker’s draft for goods shipped to the bank’s customer, the shipper’s aet in shipping goods according to the terms of the guaranty was itself an acceptance, and furnished a consideration making the guaranty binding.

      4. Guaranty — right to cancel. — Where a bank guaranteed to honor a draft in payment of a shipment of goods, it could not cancel the guaranty after the goods were shipped and the draft drawn in payment therefor.
    5. Guaranty — waiver.—After a bank had breached its guaranty to honor a draft for goods shipped, the shipper did not waive his rights under the guaranty by stopping the shipment in transitu, nor by-subsequently allowing the goods to go forward after assurance of payment by the 'bank.
    Appeal from Ouachita Circuit Court, Second Division; W. A. Speer, Judge;
    affirmed.

      Gaughan & Sijforcl, for appellant.

      J. Bruce Streett and W. Garland Streett, for appel-lee.
   Wood, J.

The facts are correctly .stated by counsel for appellee as follows: About May 26,1923, the Camden Tool & Supply Company applied to one C. 0. Gillman, a broker in Texas, for quotations on two carloads of 15y2-inch iron pipe, approximately 1,200 feet, f.o.b. cars at point of shipment. Gillman applied to the Acme Supply Company to purchase such pipe, and they agreed to sell it to him at $3.15 per foot, taking his draft on the Camden Tool & Supply Company in payment, provided he secured a guaranty from a Camden hank that the draft would he paid.

Gillman thereupon quoted the pipe to his customer at $3.40 per foot, allowing him 25 cents for his profit. A. C. Page, doing business under the trade name of Camden Tool & Supply Company, hereafter called Page, accepted this offer, and, at his request, the Ouachita Valley Bank sent to the Commercial State Bank of 'Cisco, near where the pipe was to be shipped, the following telegram: “Commercial State Bank, Cisco, Texas. Will honor C. 0. Gillman draft hill of lading' attached on Camden Tool & Supply Company for two cars of approximately twelve hundred feet fifteen hal'f seventy-pound three dollars forty cents per foot f. o. b. ears, subject' to C. 0. Gill-man inspection and indorsement of shipper’s order hill of lading. (Signed) Ouachita Valley Bank.”

Upon receipt and inspection of this telegram, plaintiff agreed to sell and have shipped the amount and kind of pipe required. The carload in controversy was loaded and shipped out of Gorman, Texas, on June 12. Page wrote Gillman, on June 11, to hurry up the shipment, and received a reply about that time notifying him that one car had been shipped. About this time Page and the Ouachita Valley Bank had gotten into a lawsuit involving a car shipped to Page from Pioneer, Texas, and the defendant bank decided to cancel all guaranties on pipe shipments from Texas points, and, on June 15, 1923, wired the Commercial State Bank canceling its guaranty of May 26. About three days before this notice of cancellation was sent one carload of 600 feet of pipe had been shipped and a draft was drawn by C. 0. Gillman in favor of the Commercial State Bank, with shipper’s order bill of lading attached. This draft was forwarded by the Commercial State Bank to the Ouachita Valley Bank for collection, for account of the Acme Supply Company. Payment was refused, and the draft and bill of lading returned to the Cisco Bank and by it turned over to the plaintiff.

Thereupon, on June 16, plaintiff, as holder of the bill of lading, stopped the car at Port Worth, and notified Gillman of the refusal of the defendant to honor his draft and of plaintiff’s action in stopping the shipment. The guaranty having been canceled, the second car was not shipped out. After stopping the car, plaintiff called the defendant bank over the telephone and asked for an explanation of its refusal to pay the draft, and Mr. Brown, president of the said bank, told him. that it had had trouble over the title to another car shipped by Gill-man, and had canceled all guaranties in consequence. Plaintiff told him that this shipment had been made before such cancellation, and Brown then told him to let the shipment'come forward and bank would pajr the draft on arrival of car. Plaintiff then explained to the bank, since the draft had been turned down, he was already out the freight from Gorman to Fort Worth, and loading charges, and that he stood on his original contract. Gill-man then had a conversation with Brown, pursuant to which the bank wired him a guaranty that it would pay $600 to cover freight from Gorman to Camden and return if he would have plaintiff permit the car to come forward. Thereafter, on June 25, the car was „ released, and reached Camden July 6. When the car reached Camden, Mr. Sayles, for the plaintiff, presented the original draft with bill of lading attached, to the defendant, and W. W. Brown, the president, refused payment upon the ground that the bank’s guaranty was canceled before the shipment. Payment of the $600 to cover freight to return the car to Gorman was then demanded and refused. Effort was-then made to sell.the pipe in the Camden territory, and, failing in this, it was reshipped to El Dorado, and finally sold there for $1,410.30, entailing a loss to plaintiff of the amount alleged in its complaint as amended on the trial.

. Thereafter Paul DeMotte, doing business under the firm name of Acme Supply Company, instituted this suit. The cause was submitted to the court, and judgment rendered for plaintiff, and defendant appealed.

The rights of the parties ,to this action depend primarily upon the construction of the telegram above set forth. In 28 C. J., at page 930, Mr. Skyles, the author of the article on “Guaranty,” lays down the following rule for the construction of such contracts: “In ascertaining the -meaning of the language of a contract of guaranty, the same rules of construction control as apply in the case of other contracts. In accordance with such rules the important question is, if possible, to determine and give effect to the intention of the parties, as ascertained by a fair and reasonable interpretation of the terms used and the language employed in the contract of guaranty, as read, when necessary, in the light of the attendant circumstances and the purposes for which the guaranty was made.” Numerous authorities are collated in the footnotes to the text.

The telegram .under review, though addressed to the Commercial State Bank of Cisco, Texas, is in the nature of a general guaranty that appellant will pay the draft of C. 0. Gillman on the Camden Tool & Supply Company to any one who will furnish or sell to C. O. Gillman for the Camden Tool & Supply Company the goods therein mentioned, after the same had been inspected by Gillman under the terms therein expressed. It is in the nature of a letter of credit by Avhich the appellant proposes to stand as surety or guarantor for Gillman for the purchase price o.f two cars of approximately 1,200 feet of 1514-inch seventy-pound iron pipe at $3.40 per foot f.o.b. cars, after Gillman had inspected the same and indorsed the shipper’s order bill of lading attached. As we view the telegram, appellant undertakes to honor or pay Gill-man’s draft to ai>y one Avho Avill furnish Gillman the goods specified for the Camden Tool & Supply Company. The manifest purpose of the telegram was to enable Gill-man to procure and have shipped to the Camden Tool & Supply Company, the appellant’s customer, the goods mentioned in the telegram. Doubtless the appellant had in mind to enable Gillman to refer the dealers with Ayhpm he was negotiating for the purchase of the iron pipe to the Commercial State Bank of Cisco, Texas, as to his reliability and solvency. This is evidenced by the original undertaking of the appellant to pay Gillman’s draft for the iron piping purchased by him to any one AAdio might furnish him such piping for the Camden Tool ,& Supply Company, for whom Gillman, the broker, was negotiating the purchase. The telegram was not in the nature of a special guaranty addressed only to the Commercial State Bank of Cisco, for that .bank AAras not engaged in the business of buying and selling iron pipe, and the telegram was not couched in language AAdiich indicated that the appellant would honor the draft only if draAvn in favor of the Bank of Cisco. Appellant ev-identlv did uot expect the Cisco bank to furnish the money to Gillman to pay for the piping, nor was the telegram couched in language that indicated that Gillman was expected to buy the piping from any particular dealer, but it was an original undertaking to pay any shipper or dealer who, as we have already stated, would furnish the goods to Gillman upon the terms mentioned in the telegram. There is nothing in the telegram to indicate that appellant intended to repose any special confidence or trust in the Commercial State Bank of Cisco in connection with the negotiations and that it intended to be responsible alone to that bank. It follows from what we have said that the appellant, by reason of this telegram, rendered itself liable to appellee, who, as the proof shows, acted upon the telegram and complied strictly with the conditions in selling and shipping the piping.

In Falls City Construction Co. v. Boardman, 111 Ark. 415, 163 S. W. 1134, we quoted from 20 Cyc. p. 1407 (3) in parts 'as follows': “Where the trgyis-aetion is not merely an offer to guarantee the payment of debts and amounts to a direct promise of guaranty, all that is necessary to make the promise binding is that the promisee should act upon it; he need not notify the promisor of his acceptance.” And further, at page 1409, “where there has been a-precedent request for the guaranty, notice of its acceptance need not be given to the guarantor.” Here the promisee, under this instrument, as we have seen, was any one who acted upon the instrument and sold the goods in reliance upon the good faith of the promise. The promise on the part of the appellant was not a mere proposal, but an absolute guaranty to pay, and the draft for the amount of the purchase price of the piping was drawn in favor of the Commercial State Bank of Cisco with shipper’s order bill of lading attached, and forwarded to appellant hank for collection. No further notice therefore to the appellant was necessary of the acceptance of the promise by the appellee. ■ Appellee’s act in selling and delivering the piping, according to the terms of the guaranty, was itself an acceptance, and furnished the consideration on appellee’s part essential to make the promise binding on tbe part of appellant to pay the purchase price. See Beeson v. La Vasque, 144 Ark. 522, 223 S. W. 355; York v. Powell, 125 Ark. 597, 187 S. W. 628; McCarroll v. Red Diamond Clothing Co., 105 Ark. 443, 151 S. W. 1012, 43 L. R. A. N. S. 475; American National Bank of Macon, Ga., v. Pillman, 176 Mo. App. 430, 158 S. W. 433, 2 Cyc. 1405.

The appellant had no right to cancel the guaranty after the appellee had shipped the goods and the draft had been drawn in payment therefor and sent to appellant. The guaranty took effect and became enforceable and complete after it was acted upon by. the appellee in selling and shipping the goods specified according to the terms as therein expressed. After the appellee had thus accepted the guaranty on his part, the appellant could not cancel and revoke the same. This was not a continuing guaranty, but one that was fully consummated by the acceptance and shipment of the goods by appellee. We are convinced that the appellee did not waive his right to recover on the guaranty by stopping the car in transitu after he ascertained that the draft for the purchase price would not be honored by the appellant. After the appellant had thus breached its contract with the appellee, the latter was justified in stopping the car in transitu in order to minimize, as far as possible, the damages that had accrued to him by reason of the violation of the contract on the part of appellant. Neither did appellee waive his right of action on the original guaranty by permitting the car to go forward after he had been advised by the appellant to let the shipment proceed and that the appellant would honor the draft when the shipment reached its destination. The appellee testified on this issue as follows: “After payment of the draft was refused, I stopped the car about June 16. We had notice verbally from the Ouachita Valley Bank, in a conversation with-Mr. Brown, that he was not paying the draft, and, acting upon that, I stopped the car. I told Mr. Brown that he could not cancel the guaranty, as there was no time limit. He stated tliat it was due to a misunderstanding’ with Mr. Gillman on another shipment, which had been attached by some other firm. He stated that they were not going., to make any more bank guaranties, but he said if we would allow our shipment to come forward he would pay oii arrival. We stopped the car at Fort Worth to minimize our prospective loss. Under the contract of sale we delivered thé pipe f.o.b. cars, Gorman, Texas. Mr. Gillman was in receipt of a wire sent to Dallas guaranteeing the freight to and from Camden from Gorman, Texas, dated June 21, 1923. I received that telegram,, and then allowed the shipment to go forward. After we received notice that the car was in Camden, we sent a representative, who presented the original draft to Mr. Brown of the Ouachita Valley Bank, and the draft was not paid on this presentation, nor> was the freight paid by the bank.” '

This testimony by the appellee was clearly sufficient, to warrant a finding that he had not waived his right of action for damages for breach of the original warranty. The right of the appellee against the appellant, under the contract of guaranty as we construe it, became complete after.ho had sold and delivered the piping free on board the cars at Gorman, Texas, consigned to the Camden Tool & Supply Company at Camden, Arkansas, the same being inspected by Gillman and a draft drawn on the Camden Tool & Supply Company for the purchase price with shipper’s order bill of lading attached to the draft, the bill of lading being indorsed by Gillman, evidencing the fact that he had inspected and accepted the piping. The appellee had then complied with the contract of guaranty on his part, and the appellant, by refusing payment of the draft, violated its contract, and was liable to the appellee, the only-party in interest, for the resultant damages.- The amount of the judgment for such damages, as entered by the court, is warranted by the evidence adduced.

We find no reversible error in the record, and the judgment is therefore affirmed.


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    McElhannon v. Coffman.
    Opinion delivered March 14, 1927.
    1. Sunday — affirmance of Sunday contract. — While a contract of sale made on Sunday is'void, the parties may affirm or adopt the terms thereof on a subsequent week day, and so become bound to perform them.
    2. Sunday — affirmance of Sunday contract. — One who purchased ■ an automobile on a Sunday, and retained possession and used it constantly until it was taken from him by the sheriff, cannot subsequently repudiate the contract on the ground that it was executed on Sunday.
    3. Sunday — disaffirmance of contract. — The fact that the vendors of an automobile sold on Sunday transferred the purchase notes to an innocent purchaser for value did not excuse or exonerate the buyer for failure promptly to notify the vendors and the purchaser of the note that the contract was void because executed on a Sunday nor for his failure to offer to return the car before he used it.
    Appeal from Montgomery Chancery Court; W. R. Duffle, Chancellor;
    reversed.

      John Ii. Craivford, Dwight H. Crawford and D. F. McElhannon, for appellant.
    Appellee, pro se.

   Wood, J.

On December 15,1924, Jack Coffman .purchased from Fleming & McElhannon an automobile for which he paid the sum of $522.25 and executed his note in the sum of $1,045.34, to be paid in equal installments of $87.12 on the 15th day of each month thereafter. Coff-man and Fleming also on that day entered into a written contract of sale, by the terms of which the title to the car was retained in the vendors until the purchase price was paid in full. The note provided that, if any installment was not paid when due, the remaining installments would then become due' at the option of the holder. The notes and written contract evidenced the-contract of sale. This note and contract were transferred to the Commercial Credit Company, a Louisiana corporation, for valuable consideration before maturity. Nothing Avas paid on the note by Coffman, Fleming & McElhannon,’ and this action was instituted by the credit company against the appellants to recover the balance due on the note, and the plaintiff prayed that a vendor’s lien be declared on the automobile and that same be held subject to the orders of the court, and that plaintiffs have judgment against the defendants in the sum of $1,045.34, and that' the automobile be sold to satisfy such judgment if same were not paid. Appellant Fleming died before the institution of the action, and the action proceeded against Mrs. Fleming, as the executor of-Fleming’s estate, and McElhannon.

Jack Coffman, in a separate answer, denied the exe-cutidn of the note and contract, and that- same had been assigned to the credit company, and denied liability. He alleged that the car in controversy was purchased by him from Fleming & McElhannon on December 14, 1924, and that the note and contract upon which the action is predicated were executed on that day, which was Sunday. He therefore alleged that the contract was void. He alleged that he paid to Fleming & McElhannon the sum of $600 on that day on the purchase price of the automobile, »and he prayed that the note and contract be declared void and that he have judgment against Fleming & McElhan-non in that sum.

The answer of the appellants admitted the execution of the notes and contract by the appellee and that the credit company' was the holder thereof for value. They alleged that Coffman was primarily liable on the note, and prayed that, if judgment he rendered against them and their codefendant, Jack Coffman, that the automobile be sold and the proceeds applied to the payment of the judgment, and that they have judgment against Coffman for any balance which they might be compelled to pay, after the proceeds of .the sale were applied to the satisfaction of the judgment.

In answer to the cross-complaint of Jack Coffman they denied that the automobile was sold and delivered to Coffman on Sunday, December 14, 1924,. but alleged that, if the sale had been made on Sunday, Coffman thereafter, on a week day, had ratified the same by promising to pay for the car and by retaining possession and using the same from the time of his purchase. They denied that Coffman had paid more than had been credited on the note, and denied liability to Coffman in any sum.

The undisputed testimony was to the effect that the note and contract evidencing the sale of the car in controversy were executed on Sunday. It also showed that appellee, credit company, was a bona fide holder of the note, and that the note Was past due. The testimony of Coffman was to the effect that, at the time he purchased the car, he paid the sum of $200 in cash and an old car, and that he should have had a credit of $600 on the note instead of $522.25. ITe kept the car five months. It was in good condition when the sheriff took it from him. He had not paid the note. He ran the car a couple of thousand miles. Something was the matter with it, and the sellers came up and fixed it, and he then stated to them that the car was too big and he wanted them to take it back. He offered to give them his old car and pay the $200 note to let him out. He sent the credit company a check, but stopped payment on same before it was presented. - He did not tell the sellers of the car that, if they would fix it up, he would keep it. He wrote to the credit company that he would not pay ¡any more, and wanted it to take the car. At the time -he signed the note he expected to pay for the car, but changed his mind the next morning, which was Monday, and then told the sellers of the car, a week or two later, that he wanted them to take the car back. He ran the car in the meantime. He continued to run the car after the credit company asked him to pay for it, which was in January, and was running it when the sheriff came for it. Witness never had any agreement with the credit company to pay them anything at any time.

A witness on behalf of Coffman testified that he was present when Coffman and McElhannon traded cars. Coffman traded a Baby Overland which he priced to them at $400. Witness supposed they agreed to give it, as they took it away and left the new car.

"Witness Ross testified for the appellees in substance that bo wag working for Fleming & McElhannon at the time of the sale of the car in controversy to Coffman. Coffman agreed to give his car, and executed his note for $200 for the first payment. "Witness asked Coffman four or five times, at a later date, about paying- for the car, and insisted on his making- the payments. The first time witness saw him, Coffman had written the credit company that he was not going to keep the car, and witness was sent up there to see Coffman about it. He talked to Coffman, and Coffman agreed that he would keep it and pay for it. A few days later McElhannon had word from Coffman that something was wrong with the car, and witness and a mechanic went to see what was the matter with it, and fixed the car, and it seemed to be all right. Coffman then told witness that he would send a check the next day for what was due. On another occasion, after talking- with Coffman, Coffman told witness he was going to keep the car and pay for it. In another conversation, in regard to the check which Coffman had given the credit company and which was turned down, Coffman stated that he didn’t know much about the cheek business, and thought the checks,*vere paid. He. asked witness to have the checks sent back, and stated that he had just put-$700 in the bank, and that the checks would be paid. On cross-examination witness.stated that he kept after Coffman to make his payments on the car until he said that he would “just keep the damn thing and pay for it.” Ho never seemed angry; — just made that expression, and the last time witness was at his place he said he would not pay for the car.

McElhannon testified that he sold Coffman the car in controversy, the contract of sale being evidenced by the written contract and the note. Coffman was to pay $522 cash, and he made this payment by giving a Baby Overland and his note for $200. Coffman’s testimony to the effect that he traded in the car for $400 was not correct. He turned in the old car and signed a personal note for $200 and .executed the note held by the credit company in the sum of $1,045.34. Witness saw Coffman after the trade twice. Witness went to his place of business to fix. the car. He talked to Coffman about keeping the car, and Coffman stated that, if they could get it fixed up in first-class condition, he guessed he might as well go ahead and pay for it. On the second trip witness talked to Coffman about keeping the car and paying for same, and Coffman stated that it was more car than he needed. Witness told Coffman that the credit company would not take the car back, but would sue him for the difference, and witness told him that it was best for him to go ahead and pay for the car. Coffman, in reply, stated that he was under the impression that the car was all that they could get, but if he knew they would give him trouble over the note, he would go ahead and pay for it. The last time witness went to see Coffman about the car Coff-man drove the car all the way from his home to Caddo Gap. Coffman stated to witness that he felt like we ought to be able to handle the car out to good advantage, as it had been driven very little, showing only between four and five hundred miles on the speedometer.

Coffman was called as a witness by the credit company, and they handed him a check, dated Feb. 25, 1925, on the Bank of Caddo Gap, payable to the credit company for $174.84, and was asked if that was the cheek about which he had testified, and he answered that it was.

The court found that the contract was void, and that same was not ratified by the interested parties, and that the transfer of Coffman’s paper to the credit company, an innocent purchaser for value, resulted in taking it out of Coffman’s power to disaffirm or to recover the property. The court thereupon entered a decree in favor of Jack Coffman against the appellants in the sum of' $522.56, with costs, and entered a decree in favor of the credit company against the appellants in the sum of $400, the same being the balance due the credit company on the deficiency judgment, after the application of the proceeds of the sale of the car.

This court has held that, while a contract of sale made on Sunday is void, nevertheless the parties to the contract may, on a subsequent week day, affirm or adopt the terms of the previously inoperative contract, and so become bound to perform them. Tucker v. West, 29 Ark. 386-405; McKinney v. Demby, 44 Ark. 74-78; Fire Ins. Co. v. Ford, 106 Ark. 568-570, 153 S. W. 810, 44 L. R. A. N. S. 289. In the last case we said: “In the instant case, while appellee denies that he promised to pay the note on a week day, after it was made, he does admit that, the note was given in payment of a premium for a fire insurance policy issued by appellant in his favor, and that he retained the policy of insurance from the date of its issuance until the present suit was commenced. This amounted to a ratification of the contract, and appellant was entitled to recover on the notes.”

Under the doctrine of these cases it was the duty of Coffman to have acted promptly if he intended to repudiate the contract for the purchase of the car on the ground that the contract was executed on Sunday, and therefore void. He could not retain possession of the car and use the same constantly, as his own testimony shows he did, from the time of his purchase until the car was taken from him by the sheriff, and then claim that he was not liable under the contract. His own testimony shows that he had run the car something like 2,000 miles in daily use of it going to and from his mill. Coffman cannot escape liability on the ground that the vendors of the car, by selling the note for the car in controversy to an innocent purchaser for value, had put it beyond his power to defend the note and therefore he was under no obligation to offer to return the car. This conduct on the part of the vendors only proved that they were treating the contract as valid and binding, and it could not excuse or exonerate appellant for his failure to act promptly in notifying his vendors and the credit company that the contract was void, nor for his failure, at least, to have offered to return the car to his vendors before he had used the same. Prompt action on his part might have enabled the vendors to make a satisfactory adjustment with the credit company and save a loss to either. At any rate, so long as the vendors and the credit company were treating the contract of sale as valid, it certainly was incumbent upon Coffman, if he intended to repudiate such contract, to do so promptly. He could not receive the benefits of the- deal and at the same time escape the burden of paying for such benefits.

The decree is therefore reversed, and the cause is remanded with directions to enter a decree in favor of the appellant against Coffman for the balance due on the note.


text:
    Ross v. Stroud.
    Opinion delivered March 14, 1927.
    1. Infants — proof of service of process. — In the absence of a showing that a minor defendant was properly served with process in a second action, it was prejudicial error to allow such action to be consolidated with a prior action in which the defendant had appeared and to proceed to trial of the consolidated causes in the absence of the defendant.
    2. Continuance — refusal prejudicial when. — Where, in an consolidated action, there was no showing of service on a minor defendant in one of the causes, it was error to refuse a continuance requested by the defendant’s guardian ad litem in order to get in touch with the defendant, who was out of the State.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    reversed.

      V. James Ptak, for appellant.
   Wood, J.

An action was instituted by C. L. Stroud against Jack Ross, a minor, and Renzy Ross, his father. Stroud alleged that, while he was driving his Ford car, in the city of Fayetteville, at a moderate rale of speed, Jack Ross, who was driving another car at a high rate of speed, negligently collided with his car and injured the plaintiff, to his damage in the total sum of $744, for which plaintiff prayed judgment.

Renzy Ross, who was the father of Jack Ross, demurred to the complaint, and the demurrer was sustained by the court as to him. The defendant, Jack Ross, filed an answer, in which he denied specifically the allegations of negligence as set up in the complaint and the damages to the plaintiff as therein alleged; and he alleged that any injury or damage to the plaintiff was caused by his own negligence in driving his car in a reckless manner and with excessive speed.

The trial resulted in a judgment in favor of the plaintiff in the sum of $150. The judgment was afterwards set aside on the ground that no guardian ad litem was appointed for the minor. On September 5 the plaintiff filed another complaint against Jack Ross, in which substantially the same cause of action was set up as in the former action. On the 3d of • November, 1925, Irving Whitty was appointed guardian ad litem for the minor defendant. The guardian ad litem filed what is designated as a motion and acceptance of appointment, in which he set up that the defendant was absent from the State, and that it would require several weeks before the guardian ad litem could communicate with him and before he could ascertain the facts essential to present the defendant’s defense. The record shows that the guardian ad litem was directed to file an answer, and he filed same, reserving in his answer his alleged “want of reasonable notice and opportunity to defend.” The answer filed contained a formal denial of the material, allegations of the complaint.

The causes were consolidated for trial and were tried before a jury, resulting in a verdict in favor of the plaintiff in the sum of $894. On motion for a new trial the plaintiff offered to reduce the judgment to the sum of $400. The court entered a remittitur and rendered judgment in favor of the plaintiff in the .sum of $400, from which is this appeal.

In Pinchback v. Graves, 42 Ark. 222-227, we said: “No judgment should be rendered affecting the interests of an infant until after defense by guardian, and this defense should not he a mere perfunctory and formal one, but real and earnest. He should put in issue, and require proof of, every material allegation of' a complaint prejudicial to the infant, whether it be true or not. He is not required to verify the answer, and can make no concessions on his own knowledge. He must put and keep the plaintiff at arm’s length. * * * These are wise provisions, and they are so far imperative. I think, too, that a guardian ad litem fails in his duty, and does not appre-‘ hend the true obligation which he'voluntarily assumes, if he contents himself with simply putting in a general denial, as is commonly done, and then leaves the infant to the mercy of the rude stream of the ensuing contest. His interests, after issue, require protection as well as before. Proof may be required in his behalf; witnesses against him may. require cross-examination. Points on error must be duly saved.” See also Blanton v. Davis, 107 Ark. 1, 8 and 9, 154 S. W. 947.

According to the doctrine of the above cases, the minor defendant’s rights were not properly protected at the trial. The answer of the guardian ad litem recites that he was required to file the answer by the directions of the court, and this, too, after he had moved the court to grant him a reasonable continuance to get in touch with the minor defendant, who was then out of the State, and that it would require several weeks to communicate with him in order to ascertain the essential facts necessary for his defense. The recitals of the judgment show that the plaintiff was present and announced ready for trial, but that the defendant came not, and that the cause was heard upon the complaint of the plaintiff and the answer of the guardian ad litem and the evidence adduced by the plaintiff. The recitals of the judgment do not show that the guardian ad Utem was present at the trial. The record shows that the original action instituted by the appellee against Jack Ross, a minor, and his father resulted in a judgment in favor of the - appellee against Jack Ross in the sum of $150, which judgment was set aside and a new trial ordered. That action was docketed and proceeded as No. 40 on the docket of the circuit court. Another action, designated No. 72, was then instituted by the appellee against Jack Boss on September 5, 1925, and it is recited on the margin of the complaint that summons was served on the defendant Jack Boss on .September 12, 1925. But the record further recites that the minor defendant, through his guardian ad litem, 'appeared only for the purpose of objecting to the service, and moved to quash the same. The record does not show that this motion was acted upon by the court. There is no recital in the judgment of the court or in the record showing that the appellant had been duly served with process in the last action instituted against him, No. 72. Taking all the recitals of the record together, there is no showing that the appellant was ever properly served with process in the last action instituted against him. The court therefore erred in allowing this cause to be consolidated with action No. 40 and in proceeding to the trial of the consolidated causes without the presence of the minor defendant. Under the showing made in the answer of the guardian ad litem in action No. 72, in which he expressly reserved “to the defendant, Jack Boss, all his rights herein of reasonable notice and opportunity to defend,” we are convinced that the' trial court should have granted the motion of the guardian ad litem for a continuance of the cause. There is nothing in the record to show proper service on the minor defendant, Jack Boss. Even if it could be said that the minor defendant was served with summons, still the record does not show that the guardian ad litem appeared for him at the trial and made a real defense. Our conclusion therefore is that the judgment rendered by default against the minor defendant was erroneous and prejudicial to his rights. . The judgment is therefore reversed, and the cause will be remanded with directions to have service of summons upon the appellant, Jack Boss, in action No. 72, and for a new trial of the consolidated causes.


author: Smith, J.

text:
    Davis v. Hampton Stave Company.
    Opinion delivered March 14, 1927.
    1. Carriers — failure to ship over railroad — jury question.— Whether.a stave company’s failure to ship over plaintiif railroad the percentage of its finished product required hy a contract granting to such stave company a special rate on rough material was due to a lack of cars furnished by plaintiif held a question for the jury in a suit to recover the amount of an undercharge.
    2. Estoppel — responsibility for nonperformance, of contract.— He who prevents a contract from being performed can not avail himself of the benefit of the nonperformance which he has occasioned.
    3. Carriers — breach of contract.- — Where the Director General of Railroads, hy his failure to furnish cars, made it impossible for a stave company to comply with its contract to ship a certain percentage of its products over a particular dine, he could not recover for the breach.
    Appeal from Dallas Circuit Court; Turner Butler, Judge;
    affirmed.

      Thos. 8. Buzbee, Geo. B. Pugh and A. 8. Buzbee, for appellant.

      T. D. Wynne and Gharles A. Miller, for appellee.
   Smith, J.

This suit was instituted by James C. Davis, Director General of Railroads, as agent, against the Hampton Stave Company, to recover an undercharge growing out of the alleged failure of the stave company to ship out over the lines of the Chicago, Rock Island & Pacific Railroad Company the required percentage of finished products for the amount of rough material which had been shipped into the plant of the stave company over the lines of said railroad company, under the terms of a so-called “rough material” contract.

The complaint alleged that, on the 20th day of May, 1920, the stave company entered into a contract with J. M. Dickinson, receiver of the Chicago, Rock Island & Pacific Railway Company, to secure the benefits of the proportional rates on rough forest products, as provided in § E, columns A and B, Railroad Commission of Arkansas, Standard Freight Distance Tariff No. 5. A copy of the contract was made an exhibit to the complaint.

Under the terms of this contract the stave company agreed to ship out over the lines of the Chicago, Bock Island & Pacific Bailway Company finished products equal to the percentage of rough .forest products moving into its mill over the lines of said railrdad company, as required by the tariff, and that, upon failure so to do, the stave company would pay charges based upon local rates for such forest products for which it failed to ship out the required percentage of finished products.

The complaint alleged that, upon the discharge of the said Dickinson as receiver, the Chicago, Bock Island & Pacific Bailroad Company succeeded to all the'right, title and interest of the said receiver in said contract, and that, on December 17, 1917, the President of the United States took over the operation of certain railroads of the country, of which the Chicago, Bock Island & Pacific Bailroad was one, and that the same was operated by the United States Government from that date until February 29, 1920, and that the United States Bailroad Administration succeeded to all the right, title and interest' of the railroad company in the contract belween the receiver and the stave company.

The complaint alleged a deficiency of finished products shipped out by the stave company, and prayed judgment for the sum due for the alleged breach of the contract by the stave company.

The stave company filed an answer, in which it denied that it had failed to ship the required proportion of finished products over the lines of the Chicago, Bock Island & Pacific Bailroad Company, and, for further answer, alleged that, if it had so failed, its default was due to the failure of the railroad administration to furnish the necessary cars for that purpose;

The trial court submitted the question of the failure of the railroad administration to furnish cars to the jury, and instructed the jury to find for the plaintiff, Director General of Railroads, if there had been no such failure.-

On this issue the stave company offered testimony to the effect that, during- the period of Government control, the United States Government assumed control of and operated, not only the Chicago, Rock Island & Pacific Railroad Company’s line of railroad in the State of Arkansas, hut also the line of railroad belonging to the St. Louis Southwestern Railway -Company, both of which railroads enter'ed and operated lines into and out of the city of Fordyce, Arkansas, where the stave company’s mill was located, and that the Director General of Railroads, during the period of Government control, did not furnish cars when requested for the purpose of shipping out its finished-products over the Chicago, Rock Island &■ Pacific Railroad, -but did furnish cars enabling it to ship its finished products over the St. Louis-Southwestern Company’s lines.

The answer alleged, and testimony was offered to show, that the stave company stood ready to ship its finished products to the amount required by said contract. Objection was made to testimony offered by the stave company ¿0 the effect that the Director General of Railroads failed and refused to furnish cars when requested, upon the ground that it was incompetent, and excepted to the action of the court in permitting its introduction.

„ The jury returned a verdict for the stave company, which fact indicates a finding that the failure of the stave company to ship finished products was due to the failure of the Director General to furnish cars for that purpose. Judgment was rendered accordingly, and the Director General of Railroads has appealed.

We think the issue, whether the stave company’s failure to ship its finished products was due to the failure of the Director General of Railroads to furnish cars for that purpose, was properly submitted to the jury, and that the verdict of the jury, returned under proper instructions, is decisive of the question involved in this case.

The applicable principle of law controlling here was announced by this court in the case of Vaughan v. Odell & Kleiner, 149 Ark. 118, where it was said: “It is a well-settled and sound principle of law that he who prevents a thing from being done shall not avail himself to his own benefit of the nonperformance which he has occasioned. ’ ’

The Director General of Railroads, by his failure to furnish cars, made it impossible for the stave company to comply with the contract here sued on; he cannot therefore avail himself of the nonperformance of the contract which his own failure occasioned.

The judgment of the court below is correct, and is therefore affirmed.


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    Winn v. Dodge.
    Opinion delivered March 14, 1927.
    1. Prohibition — question raised. — The correctness of the court’s ■finding, in a suit to quiet title, that the plaintiff therein was the owner of the land from which it cut timber, is not open to review in a proceeding by defendants for a writ of prohibition against the entry of a decree quieting plaintiff’s title.
    2. Prohibition — petition for removal. — Filing of a petition and bond by defendants for removal of a cause of action to the Federal court on the same day that they filed a petition for prohibition in the Supreme Court will not be considered, both because it was filed too late ,vnd 'because they are asking affirmative relief in the Supreme Court.
    3. Judges — authority to enter decree rendered by predecessor. ■ — A chancellor has authority to order a decree rendered by his predecessor to be entered of record as of the date of rendition, and he will not be required to retry the case de novo.

    4. Prohibition — does not lie when. — Prohibition does not lie to prevent a chancellor from entering a decree rendered by his predecessor; the remedy of the petitioners being by appeal if the decree is erroneous.
    Prohibition to Pulaski Chancery Court; Frank M, Dodge, Chancellor;
    writ denied.

      Oscar II. Winn, for appellant.

      Sam T. & Tom Poe, for appellee.
   Smith, J.

Petitioners seek a writ of prohibition commanding the respondent, as chancellor of the Pulaski Chancery Court, to refrain from entering a decree in a cause pending in that court. The P. Burkhardt Manufacturing Company was plaintiff in that cause, and petitioners here were defendants there. The cause was filed May 19, 1925, and was heard by the Honorable John E. Martineau, the duly qualified and acting chancellor, on oral testimony, on November 9, 1926. The chancellor reserved his decision, and asked counsel for the. respective parties to prepare and file briefs. The briefs were prepared and submitted to the court.

On January 10, 1927, the chancellor handed doAvn his decision, and directed that a decree be prepared by counsel for the plaintiff quieting the title of the plaintiff to the land in. controversy. The defendants had filed an answer and cross-complaint, in which they claimed title to the land in question, and prayed that they be awarded damages for the value of certain timber cut on the land in litigation by the plaintiff company. The chancellor directed that, when the decree was approved as to form by counsel for the defendants, it should then be submitted to him for approval.

Counsel for plaintiff prepared a decree in accord-' anee with the findings of the chancellor, and, on January 12, 1927, submitted it to the attorneys' for defendants, who declined to approve it. The decree as prepared by counsel was filed with the clerk of the chancery court on January 17, 1927.

On January 22, 1927, while the court was legally in session, it was ordered that the decree be entered of record, and that it be entered as of the date of its rendition, to-wit, January 10, 1927. Before the order of January 22, 1927, was made, the decree was approved by Governor Martineau, but this was done after he had vacated the office of chancellor by becoming Governor.

Chancellor Martineau. was sworn in about 1:30 p. m. on J anuary 11, 1927, as Governor of the State of Arkansas, and, on the same day, appointed Frank H. Dodge as his' successor as chancellor.

On January 20, 1927, petitioners filed in this court a petition for an order prohibiting the Honorable Frank H. Dodge, as chancellor, from entering upon the records of that court the purported decree without giving petitioners a full hearing upon the merits of the cause.

It was insisted in the oral argument in support of the petition that Chancellor Dodge should have heard the cause de novo to ascertain what decree should, in fact, be entered, and that included in this hearing should be the claim of the defendants, petitioners here, for damages for the timber .cut by the plaintiff company from the land in controversy.

Petitioners insist that, as Chancellor Martineau had not approved the decree entered, it was not his decree, and that, as Chancellor Dodge had not heard the cause, he could not know what decree should be entered. Petitioners therefore urge that the cause has not been determined, and that there is no final decree from which they can appeal, and that they are without remedy unless, by prohibition, Chancellor Dodge is restrained from entering the decree which was not approved as to form by Chancellor Martineau while occupying the office of chancellor.

On the same day on which petitioners filed their petition in this court for a writ of prohibition they also filed in the chancery court a petition and bond for the removal of the cause to the Federal court.

It is true, as argued by petitioners, that the court below did not find the quantity of timber and the value thereof cut by the plaintiff, F. Burkhart Manufacturing Company, but that fact is unimportant and that finding was unnecessary, for the reason that the court found that the plaintiff company was the owner of. the land from which the timber was cut, and, upon that finding, rendered a decree quieting the plaintiff’s title. The correctness of that finding is not open to review in the present proceeding. The fact that petitioners have filed petition and bond for the removal of the cause to the Federal court is also unimportant, for the reason that it was not filed in time. Moreover, petitioners are asking affirmative relief at the hands of this court.

It is true, of course, as petitioners here insist, that Chancellor Martineau ceased to be chancellor when he became Governor, and that he thereafter had no right to make any order as chancellor. But he has not attempted to do this. The order directing the entry of the decree rendered by Chancellor Martineau was made by his successor in office after his successor had qualified and was acting as such.

It is not questioned that Governor Martineau was the chancellor on January 10, 1927, nor is it questioned that he had jurisdiction as such to render the decree which was later entered as having been rendered on January 10, 1927. Chancellor Dodge determined only what decree had been previously rendered, and, when he determined that fact, he ordered its entry as of the date of its rendition. There can be no question about his jurisdiction to do this.

Chancellor Dodge might, as petitioners insist (the term of the court not having expired) have reopened the entire cause and have heard it de novo, just as Chancellor Martineau might have done had he remained in that office, but Chancellor Dodge could not be required to reopen and rehear the cause, inasmuch as a final decree had been rendered by his predecessor.- The fact that the decree had not been spread upon the records of the chancery court did not make it necessary for Chancellor Dodge to again try the cause. Petitioners are not entitled to a second trial of the cause on its merits.

It was clearly within the jurisdiction of Chancellor Dodge to determine merely whether a final decree had been rendered, and, if so, what it was, and to order its entry. This he did, and this he had the' right to do.

In the case of Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59, it was held that the writ of prohibition lies where an inferior court has proceeded in a matter beyond its jurisdiction, 'and where the remedy by appeal, though available, is inadequate. Here, however, the chancery court did not proceed beyond its jurisdiction, and petitioners have a remedy by appeal if the decree entered was erroneous, and, for both these reasons, the petition for prohibition will be denied.


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    McDonald v. Heilbron-Palmer Tank Line Company.
    Opinion delivered March 14, 1927.
    Master and servant — negligence in furnishing a safe place — ■ jury questions. — Where an employee helping to pull a flywheel of a gasoline engine down to start the engine was hurt by his foot slipping off the sill on which he was standing and into the flywheel, and there was evidence that, without plaintiff’s knowledge, the foundation of the engine was insecure, causing excessive jerking and vibration, the questions of the employer’s negligence and of the employee’s negligence and assumption of risk were for the jury.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    reversed.

      HutcMns, Abbott, Allday & Murphy, for appellant.

      T. D. Wynne and Chas. A. Miller, for appellee.
   Smith, J.

Appellant, who -was the plaintiff- below, alleged as his cause of action against appellee the following facts: That he was employed by appellee as a common laborer to assist in drilling an oil well. He had never seen the machinery with which the well was being-drilled until a few minutes before his injury. He further alleged: “That he knew nothing from experience or previous observation about the condition of the machinery and equipment on said well; that, in fact, he had never seen the machinery on said lease until the day that the injury as hereinafter set out occurred; that, when he arrived at said well, under the direction of the foreman for the defendant company, he, together with the other employees and. in their presence, under the direction and supervision of the said foreman, set about the task of starting the engine on said well; that the particular job of starting the engine is known in oil vernacular as ‘kicking off’ the engine; that the foreman took his place at the engine itself and one of the employees got on one side of the wheel and this plaintiff on the other, to assist in turning the wheel over, in order to make the engine spark so that the same would ignite the flow of gas and thereby cause the engine to run. Plaintiff states that the work was being done under the personal supervision and direction of the foreman of the defendant company; that this plaintiff was standing on a sill which was adjacent to the wheel of the engine, which position was necessary for this plaintiff to take in order to perform the duties required of him at that time and place; that the sill was covered with oil; the said sill is a heavy piece of timber approximately twelve inches in width, and composes a portion of the foundation of the engine located on said well; that across the said sill, about the center, was a steel or wire cable, which was practically touching the sill at the point where this plaintiff was standing and where it was necessary for him to stand in order to perform the work required of him at the time and place; that the said cable, this plaintiff afterwards learned, was placed there for the purpose of making stationary and stable the engine and its foundation, and was tied around the foundation of the engine and to the brace of the engine in the opposite direction from the point at which it encompassed the foundation of the engine. This plaintiff ascertained, after the injury hereinafter described, that the brace was necessary for the reason that the engine was not securely bolted and fastened to its foundation; that six bolts and taps were-necessary to firmly attach the engine to the foundation, and that only two of the bolts were there, and only one of them had a tap on it; that, in addition to that, the brace which was supposed to support the engine and lend stability to the engine was wholly out of repair, and, in fact, at the point where the brace entered the ground, had rotted out. The result of the failure to securely attach the engine to its moorings, and the failure to have braces sufficient to hold the moorings of the engine solid in their place, was that the engine, when it was running, violently shook on its. foundation, a portion of which was the sill above described, upon which this plaintiff was standing at the time and place when he was injured as hereinafter set out. That, in addition to that, the wholly unsafe condition in which the said engine was set up caused the engine, when it was running, to shake and quiver the cable on the sill above described upon which this plaintiff was standing. That these facts were unknown to the plaintiff at the time of the injury hereinafter described, and such facts could not have been ascertained by the plaintiff; that the conduct of the engine could not have been ascertained in any manner except by observation of it and experience with-it, neither of which this plaintiff had any knowledge of, and the defects of the engine above set out and the other serious defects of the engine were not then at all apparent to this plaintiff, nor were they patent or open or visible.”

The complaint further alleged that, “at the time and place above set out, the persons hereinbefore referred to, under the direction of the foreman of this defendant company, proceeded to start the engine by causing the same to ignite as above described; that, in turning the wheel, the engine ignited and the wheel began to revolve; that, as a result of the ignition and the starting of the engine, the engine violently shook on its foundation and shook the foundation and the cable in such a manner and with such violence as displaced this plaintiff, from the firm foothold secured by him for the purpose of performing the duties required of him by his foreman. In other words, the violence of the jar of the engine and its foundation and the cable above described and the shaking of the sill upon which this plaintiff was standing caused this plaintiff to slip, lose control of himself, and to be hurlea against the framework of the machinery and his leg thrown into the spokes of the revolving wheel of the machinery; that, as a result of the hurling of this plaintiff into the framework and his leg into the revolving wheel, one of his legs was crushed and broken. That said engine was not in any sense safe machinery, was not in any sense attached in .the manner and form required by good and careful workmanship, and the machinery and brace with it on which this plaintiff was required to work was wholly unsafe, and was known by the defendant company to be in the condition herein-above described.”

Plaintiff offered testimony tending to sustain all these allegations.

The engine in question was a four-cycle gasoline engine, and had connected with it two large flywheels located on each end of the engine shaft. These flywheels were 5 or 5% feet in diameter, and were separated by a space of 4 or 4y2 feet. The shaft in its boxes rested on the sills and the foundation in question. Three men were assisting plaintiff in starting the engine, and the testimony shows that these men, including the plaintiff, selected their positions at said engine of their own choice or volition. The plaintiff got in between the flywheels, and was standing on the sill of the engine, engaged, at the time of the accident, in pulling down upon one of the flywheels thereof. One or two efforts had been made to get a shot without success. Another effort was made in the same manner, when the plaintiff’s foot slipped off of the sill into the flywheel, when and where his leg was broken.

Upon his cross-examination, in detailing the exact manner in which he was injured, the plaintiff testified as follows: “I had about six and-a-half inches, I guess; I got my foot on that side of the cable (indicating-) and when I pulled down I never noticed where my foot was. I never put my foot on the spoke; I just pulled down. The other men was kicking, and I pulled hard — I always try to do my part — and when the engine -made a good kick, when it made a full shot, my foot slipped off, and the next I knew they were taking me out of the flywheel.”

At the conclusion of the introduction of the testimony in plaintiff’s behalf the court directed the jury to return a verdict for the defendant, which was done, and judgment was rendered accordingly, from which is this appeal.

In support of the action of the court in directing a verdict, appellee insists that*appellant’s own testimony shows that the 'injury to him was not caused by any negligence on the part of appellee, and that the injury was a mere accident for which it is not responsible.

It is insisted that the instant case is governed by the opinion of this court in the case of Hunt v. Dell, 147 Ark. 95, 226 S. W. 1055. There are points of similarity in the two cases. 'But, in the case cited, the only defect in the engine which was alleged to constitute negligence on the part of the master was the absence of a compressed air starter; but it was said that, if the absence of a starter was a defect in the machinery, it was patent to any one of reasonable intelligence exercising ordinary care for his own safety, land that the danger in going between the flywheels to assist in turning them so as to crank the engine was likewise obvious to such an employee. We held, under those facts, that the law attributed to the employee knowledge and appreciation of the danger incident to the work in which he was engaged, and exempted the employer from any liability to him on ¡account of the injury received under the circumstances stated.

In the instant case there were, in the opinion of the majority, dangers which were not patent and obvious and of which the plaintiff was not advised or warned. These dangers 'arose out of the insecure foundation on which the engine was placed and the insecure manner in which the engine was fastened to its foundation, thus causing a greater jerking and vibration than would have otherwise occurred. The majority are also of the opinion that the jury might have found, from the testimony quoted, that the excessive jerking and vibration of the engine caused plaintiff’s foot to slip when it might not otherwise have done so, and thus have found that the plaintiff’s injury was. caused, not by his own negligence or by accident, but as the result of -the defects and dangers arising out of the insecure fastening of the engine, of which plaintiff was not advised and the risk of which he did not assume, as they were not open and obvious, as was the case in Hunt v. Dell, supra.

For these reasons the Majority are of opinion that the court erred in directing a verdict" in defendant’s favor, and the cause will therefore be remanded, with directions to submit to the jury the question of appel-lee’s negligence, and also the questions of assumption of risk and contributory negligence on the part of the plaintiff.


author: Humphreys, J.

text:
    Lepanto Special School District v. Marked Tree Special School District.
    Opinion delivered March 14, 1927.
    1. Schools and school districts — recovery of taxes improperly distributed. — School taxes erroneously levied and distributed pursuant to levy to a school district and consumed in educational purposes by it cannot thereafter be recovered by the school district rightfully entitled to such taxes.
    2. Schools and school districts — improper distribution of taxes. —The rule that school taxes erroneously distributed, pursuant to levy, to a certain school district and consumed in educational purposes by it, may not be subsequently recovered by the district rightfully entitled to such taxes, does not conflict with Const., art. 14, § 3, providing that “no such tax shall be appropriated toi any other purpose nor to any other district than that for which it was levied.”
    Appeal from Poinsett Chancery Court; J. M. Futrell, Chancellor;
    affirmed.

      Gautney <& Dudley, for appellant.

      J. G. WasTcom, for appellee.
   Humphreys, J.

This is a suit on the relation of the prosecuting attorney of the 'Second Judicial District to recover from Marked Tree Special School District, for the-use and benefit of the Lepanto Special School District, $13,862.14 and legal interest thereon, alleged to have been erroneously assessed by the Tax Commission and Assessing Board of the State of Arkansas, for the Marked Tree Special 'School District against certain railroad, telegraph, and express company property located within the boundaries of said Lepanto Special School District. It was specifically alleged in the complaint that the erroneous assessment began with the year 1913 and continued through the year 1924; that the error was discovered and corrected in the year 1925; that, during the period aforesaid, the erroneous annual assessments were certified to the county clerk, extended on the records to the credit of the Marked Tree Special School District-, collected, placed to its credit, received and expended by it for school purposes,- that, after the discovery of the error, the Lepanto Special -School District made demand upon the Marked Tree Special-School District for payment of said taxes so erroneously received by it, which demand of payment was refused.

A demurrer was filed to the complaint upon the alleged grounds that it failed to state sufficient facts to constitute a cause of action, and that, if a cause of action was stated, it was barred by limitations and laches.

The demurrer was sustained, over the objection and exception of appellant, and, upon its refusing to plead further and electing to stand upon its complaint, the court dismissed the action for want of equity, from which is this appeal.

This court is committed to the doctrine that school taxes erroneously levied and distributed, pursuant to the levy, to a school district and consumed in educational purposes, cannot be recovered by the school district rightfully entitled thereto. The district to which the taxes rightfully belonged should have proceeded by injunction or other proper remedy to prevent the wrongful assessment, levy and distribution of taxes, or else have brought a suit for the recovery of such taxes before they were expended for educational purposes by the district wrongfully receiving them. Mabelvale Special School District v. Halstead Special School District, 169 Ark. 645, 276 S. W. 584. The instant case is ruled by the case cited.

Appellant contends, however, that the rule therein announced is in conflict with the last proviso of § 3, article 14, of the Constitution of the .State. The proviso referred to is as follows:

“Provided, further, that no such tax shall be appropriated to any other purpose nor to any other district than that for which it was levied.”

The reason that the rule does not contravene said constitutional proviso is that the taxes were appropriated and expended for the purposes and in the district for which they were levied, although the assessment of the land as being in the Marked Tree District was erroneous.

No error appearing, the decree is affirmed.

Kirby and Meháppy, JJ., dissent.