author: Kirby, J.

text:
    Hendrick v. Hendrick.
    Opinion delivered December 2, 1929.

      James B. Campbell, for appellant.

      Steel ■& Edwards, for appellee.
   Kirby, J.

Appellee, an old man 82 years of age, and virtually blind, brought this suit against appellant, his son, for an accounting of goods, merchandise and fixtures sold by appellant, as his agent, and for moneys alleged to have been collected by him on notes and accounts belong'ing- to appellee. The case was heard on oral testimony, and judgment rendered against appellant for $748, with interest at 6 per cent, from June 30, 1928, from which he prosecutes this appeal.

Appellant contends that the decree is contrary to the great weight of the testimony. The testimony is in conflict to some extent, but it was undisputed that appellee, who lived with his son, appellant, who was in business in the city of DeQueen, had loaned him about $4,000 to the time he failed in his business, and went into bankruptcy on October 13., 1927. This debt to appellee was scheduled as a part of his liabilities, and he received his discharge on February 21, 1928. At the sale of the stock of groceries, merchandise and fixtures of the bankrupt, appellee became the purchaser for $1,050, the business was reopened, and conducted for appellee by appellant for several months until closed out.

It was alleged that this stock so purchased was of the value of $1,800, and that appellee also purchased the notes and accounts of the bankrupt at such sale, of the value o'f $750.65. Appellant admitted that he had received, after his discharge in bankruptcy, checks exhibited in evidence from E. A. Bennett, payable to appellee’s order, indorsed and cashed them, amounting to $448, and also that he had collected $300 or $400 on the Listenbee notes belonging to appellee, and the chancellor only rendered .judgment against him for $300 collected on the Listenbee notes, $748 in all, awarding interest from June 30, 1928. Appellant testified that appellee gave him this money, and claimed credit for boarding and caring for him, although he admits that there was no contract or agreement for appellee to pay board, and appellee stated that he was not to pay appellant any board or charge him any interest on the money loaned, and that he sued for no interest, and the interest awarded was only from June 30,1928, long after appellee had ceased to live with appellant. Appellant stated that he had never kept any written account, but just went ahead and sold the stock, and had accounted for all the money received by him, according to his best recollection and belief.

A careful examination of the record discloses not only that the decree of the chancellor is not against the preponderance of the evidence, but is supported by it.

There is no merit in appellant’s contention that the collections on the notes cannot be considered, since there was no specific allegation made in the complaint relative thereto. It was alleged, however, that plaintiff had no knowledge of or means of ascertaining the amount that had been collected by defendant, J. E. Hendrick, on the notes and accounts belonging to him, but believes and states upon information and 'belief that he has collected more than $700 on said notes and accounts. This allegation warranted the admission of the testimony, and, it being unobjected to, the pleading would be considered amended to conform to the proof, anyway. Bennett v. Snyder, 147 Ark. 206, 227 S. W. 402; Henson v. Strickland, 152 Ark. 203, 238 S. W. 5, 21 A. L. R. 328; Jenkins v. International Life Ins. Co., 149 Ark. 257, 232 S. W. 3.

The decree is accordingly affirmed.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Union Trust Company v. Rossi.
    Opinion delivered December 2, 1929.

      Clayton ds Cohn, for appellant.

      Lee Miles, B. P. Taylor and 8. S. Jefferies, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists for reversal, first, that the court erred in holding that the election of the widow to renounce the provisions of the will and take her share of the estate as dower, etc., under the intestate laws instead, caused in legal contemplation a termination of her life estate and acceleration of the other estates dependent thereon, equivalent to its termination by the death of the life tenant.

The purpose of construction of a will is to ascertain the intention of the testator from the language used as it appears from consideration of the entire instrument, and, when such intention is 'ascertained, it must prevail, if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making; the will. Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; LeFlore v. Hamlin, 153 Ark. 421, 240 S. W. 712.

Our statute provides (§ 3528, C. & M. Digest) that jointures, devises and pecuniary provisions in lieu of dower may be forfeited by the woman for whose benefit they are made in such cases as would forfeit dower, and, upon such forfeiture, the estate conveyed for jointure and every pecuniary provision so made shall immediately vest in the persons or his legal representative' in whom they would have vested on the determination of her interest therein by the death of such woman.

In 28 R. C. L. 333, it is said: “Ordinarily the election of the widow to take against the will has the effect of accelerating any remainder limited to take effect after a life estate given to her. The election of a widow to take against her deceased husband’s will is equivalent to her death as respects the payment of legacies and the distribution of that part of the estate which is to be distributed under the will upon the happening of that event. ’ ’

In the note to Young v. Harris, 5 A. L. R. 477, it is said: “The doctrine of acceleration proceeds upon the supposition that, though the remainder is, in terms, not to take effect in possession until the decease of the tenant for life, it is, in point of fact, to be read as a limitation of a remainder to take effect in every event which removes the prior estate out of the way. When, therefore, it appears that possession of the remainderman is postponed solely for the purpose of letting in the life estate, it is presumably the intention of the testator that a renunciation of the life estate shall be considered as equivalent to its termination by the death of the life tenant, and that the beneficiaries entitled in remainder shall enter into its enjoyment at once. * * * In other words, where the purpose -of the testator in -postponing distribution is merely to let in the precedent estate, the premature determination of such estate will have the effect of also terminating the contingency to- which the gift over is subject, which, though nominally contingent upon surviving the life tenant, is to be read as contingent upon surviving the termination of the precedent estate.’’ See also Sherman v. Flack, and note, 5 A. L. R. 456, 283 Ill. 457, 119 N. E. 293; American National Bank v. Chapin, and note, 17 A. L. R. 305, 130 Va. 1, 107 L. E. 636.

The will devises a life estate, in clause 3, in the enjoyment of the home occupied by the wife and the testator at the time of his death, and directs that she shall have the use and enjoyment thereof, without any cost or expense to her, in addition to the $250 per month net directed to be paid her. It is true it also provides, in the last clause, that it is the testator’s desire that no part of his real estate be disposed of until after the death of his wife, Emma Rossi, and then only subject to the approval and direction of his adult male legatees or a majority of them, but that no such election shall operate to delay the -payment of or defeat any gift made in the will. The testator knew, however, that an election by the widow ag*ainst the will and a renunciation by her of its provisions would terminate the life estate he w-as creating in her by the will, and upon which the enjoyment of the remainders depended, and he made no provision to meet such contingency. The provision of the life estate was necessarily for the benefit -of the widow, rather than for any independent purpose of postponing the disposition of the estates dependent upon her death, and, although he expressed a desire that no part of his real estate should be disposed of until after the death of his wife, and then only subject to the approval and direction of his adult male legatees or -a majority of them, he also said: “But no such election shall operate to delay the payment of -or defeat any gift heretofore made herein.” It thus appears from the construction of the whole instrument that the enjoyment oif the estates by the remaindermen was postponed solely for the benefit of the widow, and, she having elected against the will and renounced its provisions made for her life, it must be held presumably the intention of the testator that such renunciation of the life estate is' equivalent to its termination by the death of the life tenant, and that the beneficiaries entitled in remainder should enter into its enjoyment at once. It follows that no error was committed in the holding of the court in that regard.

Neither was error committed in holding the provision of the will creating a trust fund for the perpetual maintenance of the graves of the testator and his wife void, notwithstanding the court gave as reasons for such holding that this was a provision for the benefit of the widow, who, having renounced the provisions of the will, was entitled to no benefit or enjoyment of it. Such provision was void as offending against the rule against perpetuities. Section 178, Sizer’s Pritchard, Law of Wills, etc; Read v. Williams, 125 N. Y. 560, 26 N. E. 730, 21 Am. St. Reports 748; Bates v. Bates, 134 Mass. 110, 45 Am. Rep. 305; Fite v. Beasley, 12 Lea 328. It is doubtless true, however, that the testator could have provided for the burial of his own and the body of his wife in a cemetery established for taking perpetual care of the graves of those interred therein, since that would not have involved an unlawful suspension of the ownership of personal property.

No complaint is made of the decree of the chancellor ordering the disposition of the share devised to Maria Menna in the estate of the testator, which also appears to be correct.

The court, however, erred in attempting to lift the estate out of the probate court, the debts of the estate'not being shown to have been paid or the administration dispensed with under the statute (sec. 1, O. & M. Digest), and proceed to the administration and disposition of it after the special matter which called into exercise its peculiar power was disposed of, and it should have ordered the remainder of the proceeds of the land sold, after the payment of the widow’s dower, paid over to the executor, and left the cause in the profbate court for further necessary proceedings in the regular course of the administration, in accordance with the law and decree construing the will. Robinson v. Black, 84 Ark. 92, 104 S. W. 554; Hawkins v. Lane, 48 Ark. 544, 3 S. W. 821; Laws v. Wheeler, 171 Ark. 514, 284 S. W. 775.

For the error designated the cause will be reversed, and remanded with directions to enter a decree not inconsistent with this opinion. It is so ordered.


author: Mehaeey, J.

text:
    St. Louis Southwestern Railway Company v. Vaughan.
    Opinion delivered December 2, 1929.

      Garter, Jones & Turney and Gaughan, Sifford, God-win & Gcmghan, for appellant.

      Saxon $ Warren and H. G. Wade, for appellee.
   Mehaeey, J.

This suit was begun by the appellee in the justice of the peace court for damages in the sum of $45 for the killing of three hogs by the operation of one of appellant’s trains. An appeal was taken to the circuit court, where appellant filed answer, denying the material allegations of plaintiff’s complaint. In the circuit court there was a verdict and judgment for appellee for forty dollars. Appellant filed motion for new trial, which was overruled, exceptions saved, and appellant prosecutes this appeal to reverse the judgment of the circuit court.

The undisputed evidence shows that the hogs were killed by the operation of appellant’s train. It is the established doctrine of this State, under § 8562 of C. & M. Digest, that, where an injury is caused by the operation of a railway train, a prima facie case of negligence is made against the company operating such train. Barringer v. St. L. I. M. & Sou. Ry. Co., 73 Ark. 548, 85 S. W. 94, 87 S. W. 814; L. R. & Ft. S. R. R. Co. v. Payne, 33 Ark. 816; St. L. I. M. & S. R. Co. v. Hendricks, 53 Ark. 201, 13 S. W. 699; K. C. Sou. Ry. Co. v. Drew, 103 Ark. 347, 147 S. W. 50; M. & L. R. Ry. Co. v. Jones, 36 Ark. 87; St. L. I. M. & S. R. Co. v. Tomlinson, 78 Ark. 251, 95 S. W. 470.

"When the evidence shows that an injury was caused by the operation of a train, the presumption is that the company operating the train was guilty of negligence, and the burden is upon such company to prove that it was not guilty of negligence. Appellant is correct in its statement that this presumption can be rebutted and overcome by testimony on the part of the defendant. The only question in this case is, did the appellant overcome this presumption by evidence? The Supreme Court of the United States recently said, in construing a statute similar to the Arkansas statute: ‘‘ The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for jury upon all the evidence.” Western & A. R. R. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445.

Appellant’s engineer testified that he was engineer on extra 760 south on the day the hogs were killed, and killed two hogs at the place where appellee’s hogs were killed. He said as he was approaching the crossing at Onalaska, he noticed some objects about six or seven feet from the track; that he did not know what they were till they started toward the track. He was about 500 feet from them when he first saw them, and was running about thirty or thirty-five miles an hour. When he got within 250 feet of them, they started toward the track. He then saw they were hogs, and sounded the whistle and applied air in emergency, and this was all he could do. According to his testimony, he saw the hogs when 500 feet from them, and they were at that time six or seven feet from the track, and he did nothing to avoid the injury until he got within 250 feet of them. He says he was approaching a crossing, but he does not say that he rang the bell or sounded the whistle, as required by § 8559 of C. & M. Digest. If he had done this, or if he had made any effort to avoid the injury when he first saw the animals within six or seven feet of the track, he might have avoided killing them. The engineer’s testimony is not sufficient to overcome the presumption arising from the killing by the operation of the train. The fireman testified, but he knew nothing about the matter.

There was however sufficient evidence to sustain the verdict in this case on the ground that the hogs were killed by a train going north. The engineer who testified was going- south when he says his engine struck the hogs. No one saw appellee’s hogs killed, unless the engineer who testified was operating the engine which struck them. The evidence of other witnesses is to the effect that two or three trains went north after extra 760 south had passed, and that the hogs were struck and knocked north. There is also evidence tending to show that the hogs were seen after extra 760 south had passed. The jury might have believed that a northbound train killed these hogs after extra 760 had passed. The track was straight for at least a mile on each side of the place where the animals were killed, and, while the engineer testified that-the hogs were along the edge of the grass, neither he nor any one else testifies that the grass was such as to obstruct the view.

There is substantial evidence to sustain the verdict, and the .judgment is affirmed.


author: Menaffy, J.

text:
    St. Louis-San Francisco Railway Company v. Burford.
    Opinion delivered December 2, 1929.

      E. T. Miller and King, Mahaffey & Wheeler, for appellant.

      E. F. McFaddin, for appellees.
   Menaffy, J.

This suit was brought by appellees against the appellant to recover the sum of $699.49, claimed as damages to a shipment of cotton from Idabel, Oklahoma, to Houston, Texas. The facts, so far as necessary to state them, are as follows:

The appellees were the owners of 208 bales of cotton purchased by them at Idabel, Oklahoma, in the fall of 1925. The cotton was purchased for the appellees at Idabel by L. L. Ruggles, and was bought the latter part or about the second week of October. Appellee Burford went to Idabel on Saturday night, and saw this cotton on Sunday morning, and classed it for grade and staple, and on Monday following appellee got out the invoices and gave shipping orders to Buggies, his buyer, and Buggies gave them to the weigher on Monday morning. The weigher transported the cotton from his platform to the railroad platform, about two or three blocks, and got hills of lading, which he took to the bank. The cotton had been sold to Alexander Sprnnt & Sons, in Houston, Texas, and at the time that appellee examined the cotton on Sunday morning it was perfectly dry, and the hales o'f cotton were on end, but Sunday night it rained, and again on Monday it rained, and the bill of lading showed that the cotton was wet when received by the railroad company. It 'was shipped by way of Hope to Houston, Texas. The distance from Idabel to Hope is 77 miles, and the usual time of shipping cotton from Idabel to Hope was one day, twenty-four hours. This shipment was about three days getting from Idabel to Hope. The cotton was put in the compress at Hope, remained there about 16 days, was compressed, and shipped to Houston, Texas, and was in transit from Hope to Houston, Texas, considerably longer that the usual time required. It was an interstate shipment.

The undisputed proof shows that the cotton was not damaged at the time it left Idabel, and the undisputed proof also shows that it could have been shipped from Idabel to Houston, without compressing, in three days, and that in .that time it would not have been damaged, although it was wet. The appellee testified that it was not damaged when it got to Hope. The testimony also showed that to compress cotton when wet would damage it. There is no dispute about the cotton having been damaged when it reached Houston, Texas. There is a conflict in the testimony about what took place and about the manner of handling the cotton at Hope, the appellees’ testimony tending to show that it was so handled that it could not dry out, and was therefore compressed while wet, and that this caused the damage. Appellees also testified that a proper handling of it would have been to take the hoops off and leave space so that it could get the air, and that neither of these things were done. The testimony of the appellant, however, was to the effect that the hoops were taken off, and that there was ample provision made for it to dry out.

The court submitted the question to the jury, and the jury found against the appellant for the amount sued for; motion for new trial was filed and overruled, exceptions saved, and appeal prosecuted to this court.

The appellant raises several questions in its motion for a new trial, but the only questions argued are, first, that the evidence was insufficient to show negligence on the part of the carrier, and, even if it showed negligence, that it does not show that this negligence was the proximate cause of the injury. We deem it unnecessary to set out the testimony more fully, because these are the only questions argued by the appellant. It is insisted that, because the evidence was not sufficient to justify the verdict, the peremptory instruction requested by the appellant should have been given. Appellant contends correctly that, this being an interstate shipment, the law as declared by the Federal courts must govern the liability and rights of the parties. This court, however, has recently decided three or four cases involving this question, and has followed the law as announced by the Federal courts.

The United 'States Supreme Court has said, in construing the statute:

“Chapter 176 requires any common carrier receiving property for transportation in interstate commerce to issue a receipt or bill of lading therefor, and makes it liable to the lawful holder thereof for any loss, damage or injury to such property, and contains certain provisos, the last two of which are: ‘Provided further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise, a shorter period for giving notice of claims than ninety days, and for the filing of claims for a shorter period than four ¡months, and for the institution of suits than two years: provided, however, that if the loss, damage or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. ’ ’ ’ Barrett v. Van Pelt, 268 U. S. 69, 69 L. ed. 857, 45 S. Ct. 437.

In the instant case no claim was made or filed within the time provided by the carrier, and, as no notice of claim was given as required, it was incumbent upon the appellee to show loss, damage or injury due to the delay, or damage by carelessness or negligence of the company. The contract in the-instant case provided, among other things: “Claims for loss, damage or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property, * * provided that, if such loss, damage or injury was due to delay or damage while ¡being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.”

We think the evidence in this case shows that a claim for the damage or injury was not made, as contemplated by the law and by the contract, within the six months, and that therefore the burden was on appellee to show the damages, and to show that the damages claimed were caused by the negligence of the carrier.

In the instant case the undisputed proof shows that there was unreasonable delay in the shipment, and that the carriers knew when it received the cotton that it was wet, and the evidence also shows that cotton compressed wet will damage; that this cotton was not damaged at the time it was received by the carrier; that the delay was unreasonable; and the testimony is conflicting as to whether the cotton was properly handled at the compress in Hope. The jury had a right to believe appellees ’ testimony that it was not properly handled, and that this improper handling or negligent handling caused the injury to the cotton.

This court has several times held that the law as declared by the Supreme Court of the United States must govern. C. R. I. & P. Ry. Co. v. Robinson & Co., 175 Ark. 35, 208 S. W. 873; St. L. S. F. R. Co. v. Rouw Company, 174 Ark. 1, 294 S. W. 414; St. L. S. F. R. Co. v. Cole, 174 Ark. 10, 294 S. W. 357.

While we have not set out the evidence, we have carefully considered the entire testimony, and have reached the conclusion that there was sufficient evidence to submit the question of negligence to the jury, and sufficient evidence to support the finding, not only that the negligence of the carrier caused the injury, but that it was the proximate cause of the injury. It would therefore serve no useful purpose to set out the evidence in full, and it is unnecessary to call attention to any other questions argued by counsel, because the appellant relies solely on the ground that the court erred in refusing to give its instruction No. 1, which was a peremptory instruction.

The evidence shows that the cotton was wet when received; that an unreasonable time was taken to transport it; and there is also evidence tending to show that it was negligently handled at Hope, and that this caused the damage. The undisputed proof shows that cotton compressed while wet will damage. There is no other damage claimed, and we therefore think that the evidence that the cotton was not damaged when received, was not damaged when it arrived at Hope, was improperly handled at Hope, and compressed while wet, is sufficient to show that the damage was caused by the negligence of the carrier, and that the carelessness and negligence was the proximate cause of the injury. At any rate there was sufficient evidence to submit these questions to the jury.

.This court does not pass on the -credibility of the witnesses nor the weight to be given to their testimony. This is the province of the jury.

In this case there is substantial evidence to support the verdict of the jury, and the judgment is therefore affirmed.


author: McHaney, J.

text:
    Southwest Power Company v. Price.
    Opinion delivered December 2, 1929.

      Evans & Evans, James B. McDonough and Frank L. Wolf, for appellants.

      Fuller, Porter & Fuller, Warner $ Warner and G. C. Ear din, for appellee.
   McHaney, J.

Appellee is the widow and administratrix of the estate of Henry Clay Price, deceased. She brought this action in her representative capacity to recover damages from appellants for the death of her husband, for the benefit of herself and minor child. The Southwest Power Company and O. B. Hanks will hereafter be referred to as the power company and Hanks.

Henry Clay Price was a lineman in the employ of the power company. In January, 1928, he was engaged with Hanks 'and other employees of the power company in rebuilding or repairing its high-powered transmission lines extending along the highway between Mansfield and Booneville. On January 26, 1928, while engaged in putting in a new pole in the place of an old one, and while removing the three wires, carrying 33,000 volts of electricity, from the insulators on the old pole, so that it could he removed, and the wires attached to insulators on the cross-arm of the new pole, he was electrocuted in the following manner: Price climbed up the old pole, and Hanks had climbed the new pole. They had detached the outside wires from the old cross-arm, attached jew-claws to them, and caused them to be pulled out of the way by ropes attached to the lower ends of the jew-elaws, and fastened to some.object on the ground, and were engaged in removing the middle or third wire from the old pole and elevating it so as to get it in the clear. This was done by Hanks passing a jew-claw up the new pole through a rope loop held open by Price, hooking the jew-claw on to the wire, pushing the wire up, then tying the rope in that jew-claw around the pole so as to hold it in the clear of the poles and the work to be done on them. This particular jew-claw is an instrument nine feet long, with a hook at one end, with a wooden handle attached to the hook, and with a threaded bolt that closes the hook by turning the wooden handle. The hook or claw is “U” shaped, and when the handle is turned to the right the threaded bolt is forced up into the hook or claw, and, when securely fastened on the wire, prevents the wire from falling out of the hook.

The evidence is in dispute as to whether Hanks or Price placed the jew-claw on the middle wire, and counsel for appellant concede that, since there is a conflict in this regard, the finding of the jury is against it. After the jew-claw had been placed on the wire, Hanks and Price pushed it up in the clear, and Price was in the act of tying the rope in the bottom end of the jew-claw to the pole to hold it in its then position, and, while holding to one of the braces on the cross-arm, the wire, heavily charged as aforesaid, fell out of the jew-claw and down on to the metal cross-arm, creating a short circuit, which communicated the whole force of the electric current into the body of appellant, 'killing him immediately.

The charge of negligence relied upon-, and the only one submitted to the jury in this case, was that Hanks, after attaching the jew-claw to the wire, negligently failed to close up the opening in the “IT” shaped hook or claw on the jew-claw ¡by turning the handle until the threaded bolt pressed tightly ag-ainst the wire. The case was tried to a jury, which resulted in a verdict and judgment against both appellants for $30,000.

Many errors of the trial court are assigned and urged for a reversal of this case. The first is that the court erred in denying the petition of the power company for the removal of this case to the United States District Court. The power company, a corporation, is a nonresident of this State, incorporated under the laws of Delaware. Hanks is a citizen and resident of the State of .Arkansas, and the appellee is a citizen and resident of the State of Oklahoma. • The suit was filed in the circuit court for the Greenwood District of Sebastian County, on August 21, 1928, and service was had on Hanks on August 24, and on the power company on August 29, 1928. The regular terms of the circuit court, as fixed by law, are held in the Greenwood District on the first Mondays of January and July of each year. On July 16, 1928, while the court was in regular session, it entered an adjourning order, adjourning court until September 27, 1928. On that date court was in special session, and, after completing the business before the court, it adjourned until court in course.

The petition and bond for removal were filed by the power company December 28, 1928, three months after the adjourned session of the circuit court in the Greenwood District. Section '29 of the Judicial Code of the United States provides that, where a party entitled to remove a suit from the State court to the District Court of the United ^States, and desires to do so, “he may make and file a petition, duly verified, in such suit in such State court, at the time, or any time before the defendant is required by the law of the State or the rules of the State court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the District Court to be held in the district where such suit is pending.”

The power company was therefore required to file its petition and bond for removal in the State court within the time it was required by the laws of Arkansas to plead, and it makes no difference that a default has not been taken. K. C. Ft. S. & M. R. R. Co. v. Daughtry, 138 U. S. 298, 11 S. Ct. 306; Southern Pacific Ry Co. v. Stewart, 245 U. S. 359, 38 S. Ct. 303; K. C. S. Ry. Co. v. McGinty, 76 Ark. 356, 88 S. W. 1001; Midland Valley R. R. Co. v. Hoffman Coal Co., 91 Ark. 180, 120 S. W. 380.

In the Daughtry case, supra, the court said: “The statute is imperative that the application for removal must be made when the answer is due, and, because a plaintiff in error does not take advantage of his right to take judgment by default, it cannot be properly held that he thereby extends the time for removal. ’ ’

In the Midland Valley Railroad Company- case, supra, this court said: “Assuming, that the case was removable, the petition was not filed in time. ‘A petition for removal of a cause to a Federal court, which is filed after the time allowed by the statutes of this State for filing of answers to complaints, is too late. ’ K. C. S. R. Co. v. McGinty, 76 Ark. 356, 88 S. W. 1001, and cases cited. ’ ’

The question then to be determined is, when was the power company required by the statutes of Arkansas to plead? Section 1139, C. & M. Digest, provides: “ Jn all civil actions the time fixed in the summons for the defendant to answer shall be within twenty days after service, when the summons is directed within the State, and thirty days when it is directed outside the State. ’ ’

Section 1208, C. & M. Digest, provides: “The defense to any complaint or cross-complaint must be filed before noon of the first day the e'onrt meets in regular or adjourned session after service. First. Where the summons has been served twenty days in any county in the State * *

In Tuggle v. Holman Real Estate Co., 126 Ark 25, 189 S. W. 169, this court said, speaking of the above sections of the statute: ‘ ‘ The effect of these amendments is to require the defense to any complaint or cross-complaint to be filed before noon of the first day the court meets in regular or adjourned session, where the summons has been served twenty days in any county in this State; and judgment by default may be rendered on 'any day of any regular or adjourned session when the defense has not been filed on or before noon of the first day of court, twenty days after the service of summons. ’ ’

The statute is clear. There is no room for construction. The language of the court in the above case is merely a repetition of the provisions of the statute. The power company contends that, because it is alleged in the petition for removal that the time had not expired in which to plead, answer or demur to the complaint, the circuit court had to pass on a question of fact to determine the question -of whether the petition was filed in time, and that the circuit court could not determine such question of fact. We do not think this allegation in the petition for removal created any issue of fact, but was purely a conclusion of law. The circuit court, in determining, which it did, that the petition and bond were not filed in time, did not determine any issue of fact, but a question of law only was presented and determined by the court. The trial court was required to take judicial knowledge of its terms, both regular and adjourned, the dates when it was in session, and of its own records, regardless of the allegations in the petition for removal. Riley v. First Trust Co., 65 Ind. App. 577, 117 N. E. 675. Therefore the court was required to take judicial notice of the fact that it was in session on September 27, 1928. It required no proof. The court knew that it was in session, on that date, and, under the statutes above mentioned, the power company was required to plead on or before noon of that date, and the fact that no judgment by default was taken against it cannot be held to extend the time to file the petition and bond for removal. K. C. & Ft. S. & M. Ry. Co. v. Daughtry, supra.

It can make no difference, so far as the power company is concerned, that the court was in session only one day, or the character of business transacted, if any, or that it had no actual knowledge that it would meet in adjourned session on said date. It is sufficient that the court was in adjourned session on that day, and'the petition and bond for removal were not-filed by noon of that day. More than twenty days had expired after service on September 27, and we therefore hold that the petition and bond were filed out of time, and that the circuit court correctly so held.

This view of the matter makes it unnecessary to discuss the other ground alleged in the petition for removal, that is, that Hanks was fraudulently joined as a party defendant with the power company for the purpose of preventing a removal. But we may say, in passing, that, even though the petition and bond for removal had been filed in time, the petition was insufficient to present a removable case on the ground of fraudulent joinder.

A second ground urged for a reversal, discussed under many headings, is that the verdict is not supported by substantial evidence. We cannot agree with appellants in this regard. As heretofore stated, the only allegation of negligence submitted to the jury was the failure of appellant Hanks to securely fasten the jew-claw on the wire at the time he placed it thereon. Paul Price,, foreman in charge of this work, and a brother of appellee’s intestate, testified that he saw Hanks place the jew-claw on the middle wire and tighten it. The witness could see, from his position on the ground, that the jew-claw was placed on the wire by Hanks, and that he tightened it by turning the handle, but just how much he tightened it he could not tell. And counsel for appellant urge that, since Paul Price testified that he saw Hanks tighten the jew-claw, this concludes appellee on any question of negligence, as the only question of negligence relied upon was his failure to tighten, and, having testified that he did tighten, this had the effect of destroying appellee’s allegation of negligence. We do not think so. The word “tighten” expresses a relative idea. 'By turning the jew-claw one turn to the right it might be said to have been tightened. In other words, what the witness Paul Price meant by saying that he saw Hanks tighten the jew-claw, but he did not know how much, was that he saw him turn the handle of the jew-claw, but he did not know whether it had been securely fastened on the wire. We think this is the way the jury accepted this testimony, and we think the jury were justified in so accepting it.

Without setting out all of the evidence touching on this question, and after a careful reading and examination of the testimony given by all of the witnesses, we are of the opinion that there was sufficient testimony to submit this question to the jury. Appellants concede the rule of this court, that the jury are the judges of the credibility of the witnesses and the weight to be given their testimony, and that this court will not reverse for insufficiency of evidence merely because we may think the preponderance of the evidence is against the finding and judgment, but, if there is any substantial testimony to support the verdict, this court -will not disturb it for insufficiency of evidence.

It is next contended by appellants that the deceased was guilty of contributory negligence, and that he assumed the risk. This court has many times held, so often that it is settled beyond all controversy, that an employee assumes the risks and hazards usually incident to the employment in which he is engaged, but that he does not assume the risk of the negligence of the master, nor that of a fellow-servant, unless they are obvious and patent. C. R. I. & P. Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. 197. He lias the right to assume that the employer will perform his duty and that each of his fellow-servants will perform his duty, and, if he is injured or killed while in the exercise of ordinary care for his own safety, either by the negligence of the master or any of his fellow-servants, he has a right to recover. Western Coal & Mining Co. v. Burns, 168 Ark. 976, 272 S. W. 357. Moreover, at the request of appellants the court instructed the jury fully on the question of assumed risk, in instructions 12 and 16. There is no evidence that the deceased was guilty of contributory negligence.

Numerous other errors are argued, including the alleged errors of the court in giving and refusing instructions, and improper remarks of counsel. To take them up and discuss them in detail would unduly extend this opinion. Suffice it to say that we have examined carefully all the assignments of error made, and find them without merit. The improper remarks of counsel charged arise in connection with the alleged excessiveness of the verdict and judgment. No objection was made at the time to the remarks of counsel in his closing argument, but they were presented to the trial court for the first time in the motion for a new trial. We do not think these remarks, which were made in the heat of argument, were so improper in themselves as to call for the interference of the trial court, when counsel for appellants did not think them of sufficient importance at the time they were made to object to them, or ask the court to exclude them. If counsel had deemed them prejudicial or improper, they should have objected at the time. Having failed to do so, they must.be held to have waived any prejudicial effect they might have had.

It is said that the verdict is excessive; and, while it is a very substantial sum, a question that has given us some concern, we have reached the conclusion that we cannot say as a matter of law that it is excessive. Deceased was a young man about 23 years of age, making $165 per month. He had a wife and one small child. The proof showed that he was contributing to their support from his wages $115 per month, and that he had an expectancy of 40 years. It is a simple matter in arithmetic to determine that the present value of an annuity of $1,380 a year for a period of 40 years would ibe a sum in excess of $27,000, depending upon the rate of interest. And in addition to the pecuniary loss sustained by the widow and child, the child is entitled to a reasonable sum for the loss of parental love, care and training. The verdict was for a gross sum, and we cannot tell how much was awarded for pecuniary loss and how much for parental care, but it certainly could not be said that a judgment of from $3,000 to $5,000 for this purpose would be excessive. Mo. Pac. R. R. Co. v. Bushey, ante p. 19. Nor do we think there is anything in the record to show that the verdict was the result of passion and prejudice, as argued by appellants.

The court fully and, as we view it, fairly instructed the jury, and since, as we have found, no error was committed, the judgment must be affirmed. It is so ordered.


text:
    T. M. Dover Mercantile Company v. Myers.
    Opinion delivered December 2, 1929.

      Alley & Olney, for appellant.
   McHaney, J.

Appellant sued appellee on a mutual open account current for a balance of $1,020.71 and interest, beginning in November, 1922, and running through the years to November, 1927, vfith items of debit and credit in nearly every month during that time. There is little dispute about the correctness of the account, except appellee claims some items of credit not shown on the itemized statement'. This case was submitted to the jury on an instruction from the court to the effect that, since appellee had pleaded the statute of limitations, they could not find for appellant for any of the items on the account which were purchased more than three years 'before the filing of the suit. 'This instruction was given over appellant’s objections and exceptions. There was a verdict and judgment for $63.05 in appellant’s favor.

We think the court was clearly in error in giving the above-mentioned instruction limiting the recovery to sales within three years prior to suit. The evidence, as well as the account, shows that appellant sold appellee sundry merchandise from its store, and that appellee sold appellant various articles of farm products, ties, gravel, etc., and paid appellant various sums in cash from time to time during the entire period. This constituted mutual accounts, mutual demands. See St. Francis Valley Lbr. Co. v. Orcutt, 174 Ark. 282, 295 S. W. 713. Our statute, § 6964, fixing- a limitation on “mutual account,” provides: “In actions of debt, account or assumpsit, brought to recover any balance due upon a mutual open account current, the cause of action shall be deemed to have accrued from the time of the" last item proved in such account. ’ ’

Therefore appellant was not limited to a recovery for items sold within three years prior to suit, but is entitled to recover any balance found to be due after allowing ail just credits due the appellee.

Reversed, and remanded for a new trial.


author: Butler, J.

text:
    Evans v. United States Anthracite Coal Company.
    Opinion delivered December 2, 1929.

      Pryor, Miles & Pryor and Patterson, Patterson S Patterson, for appellants.

      Paul McKeimon and Jesse Reynolds, for appellees.
   Butler, J.

On the 14tb day of May, 1927, the appellees brought 'suit in the Johnson Chancery Court for an order enjoining and restraining the appellants from entering into and upon certain lands described in the complaint, alleging that they held a lease executed, by which they were given the right to' mine the coal from the demised premises, and that the appellants (defendants in that suit) were claiming to be the owners of the tract of land leased, and that they had served notice upon the plaintiffs that the lease had been canceled, and they alleged that the defendants were trespassing upon the leased premises.

The defendants, Evans and Dowdy, answered, setting up that they were the owners of the land, and that the lease under which the plaintiffs were claiming had been executed by their predecessor in title. They exhibited the lease, and alleged that the lease had been forfeited and terminated by reason of the plaintiffs’ nonuser and failure to open and operate the coal mine in the manner provided for in the lease, setting up in detail the conduct of the plaintiffs (appellees) which they claimed had worked a forfeiture of the' same.

Much testimony was taken, and practically all of it was directed to the question of whether or not the defendants, appellees here, had complied with the terms of the lease. At the conclusion of the testimony the case was submitted to the court upon the pleadings and the testimony, and a decree was made and entered, which, after reciting’ the appearance of the persons, the submission on the pleading’s and evidence, concluded as follows: “It is therefore considered, ordered and decreed that the injunction and restraining' order heretofore issued herein be and the same is hereby dissolved, and the complaint of plaintiffs is dismissed for want of equity. It is further considered, ordered and decreed that the plaintiffs pay all the costs of this suit, and the plaintiffs praying an appeal to the Supreme ’Court, which is granted. Ninety days is given in which to file a bill of exceptions herein.”

Subsequent to the trial in the chancery court the appellees in this proceeding brought suit in the Johnson Circuit Court against the appellants here, alleging trespass on the property involved in the chancery court proceeding, and praying for damage in certain sums by the taking of coal therefrom. To this suit the defendants answered, setting np that the rights of the plaintiffs in that action had been adjudicated by the proceeding in the chancery court, and pleaded that proceeding and decree therein in bar. Thereafter, and after the lapse of the term, the appellees filed a motion and petition in the chancery court for an order nunc pro time to correct the record of the decree, alleging that the only issue before the court, and the one upon which the court rendered its decree, was that the plaintiffs had an adequate remedy at law. Testimony was taken on the petition and response thereto, and the court granted the prayer of the petition, and entered an order correcting the record nunc pro turne, making it read as follows: “It is therefore considered, ordered and decreed that the injunction and restraining order heretofore issued herein be and the same is hereby dissolved, and the complaint of plaintiffs is dismissed for want of equity, and the parties to this suit are left to their legal remedy in the court of law in the determination of the title to the land, the validity of the lease, or the damages sustained by them, or either of them. It is adjudged that the plaintiffs pay the costs, plaintiffs praying an appeal to the Supreme Court, which is granted. Ninety days is given in which to file bill of exception herein.”

Prom the judgment and order correcting the record of the decree, and from the decree as corrected the respondents have prosecuted this appeal.

The question presented for our determination is in what regard and to what extent can a court correct or amend its judgment after the expiration of the term at which the judgment was entered.

"We do not think it necessary to recite or discuss the testimony taken on the hearing for the order nunc pro tunc, for it is our opinion that the record made by the pleadings and testimony taken on the trial of the case settles the question presented. The court made no finding of fact or declaration of law, other than that contained in the decree, that the complaint was dismissed for want of equity. An inspection of the record discloses that the issues were within the jurisdiction of the chancery court, and that the rights of the plaintiffs and defendants were adjudicated on the question as to whether the plaintiffs in that case (appellees here) had the right to operate under the terms of their lease, or whether the lease was forfeited by nonuser or misuser, and whether the defendants there (appellants here) had a right to declare the same canceled, and to take possession of the property.

Any omission from the decree of a part thereof made by the court, and within the issues presented by the pleadings and testimony, might have been remedied by amending the decree, but the court had no power to change the decree after lapse of the term, except to make the record show what it should have spoken, but what in fact it did not speak. Tucker v. Hawkins, 72 Ark. 21, 77 S. W. 902; Lourance v. Lankford, 106 Ark. 470, 153 S. W. 592, 35 Ann. Cas., note p. 522; Bradley Lumber Co. v. Langford, 109 Ark. 594, 160 S. W. 866. It could not incorporate into' the decree at 'any time a matter not within the issues raised by the pleadings and proof. 33 C. J. Judgments, § 87.

The amendment to the decree at the hearing on the petition for order nunc pro tunc, “and the parties to this suit are left to their legal remedy at law in the determination of the title to the land, the validity of the lease or the damages sustained by them, or either of them,” was a substantial alteration both in substance and merit, which the court was without authority to make.

This court, in the case of Bouldin v. Jennings, 92 Ark. at page, 305, 122 S. W. 639, quoted with approval the rule laid down in 17 Am. & Eng. Enc. of Law, 2 ed., p. 816: “A court rendering a final judgment, as a general rule, is absolutely without authority to alter it in substance or merit after the expiration of the term at which it was rendered. ’ ’

“Amendments by order nunc pro tunc are not proper means of changing or revising a judgment. The power of the court to order the entry of a judgment mmc pro hmo is not to be used for the purpose of correcting errors, omissions or mistakes of the court, * * * nor to supply an order which it anight or ought to have made, but wholly omitted to make.” Black on Judgments, vol. 1, § 132.

It is obvious that, were courts clothed with authority to make such alterations, this would impair that absolute verity and sanctity with which, of necessity, judgments and decrees of courts are clothed, and render uncertain and indeterminate all litigation. Under the facts in this case it is our opinion that the court erred in amending its decree, and its order and amended decree is reversed, and the cause remanded with directions to deny the prayer of the appellees’ petition for order mmo pro tunc.


text:
    Bragg v. Adams.
    Opinion delivered December 2, 1929.

      Berry, Berry & Berry, for appellants.

      R. V. Wheeler, for appellees.
   Butler, J.

The appellees, plaintiffs, residents of the incorporated town of West Memphis, brought suit in the chancery court to enjoin the mayor and marshal from collecting a license on their hotel buildings, under the provisions of an ordinance passed some time previous to the filing of their complaint, on the ground that the ordinance was void because its purpose was to raise revenue, and because tbe town bad no authority to pass an ordinance licensing hotels.

The appellants, defendants, defended on the ground that the ordinance was not a revenue measure, and that it was a valid exercise of the police power of the town. There was a decree perpetually enjoining the appellants from enforcing or attempting to enforce the provisions of the ordinance, from which this appeal is prosecuted, the appellants relying for the authority to pass the ordinance on the general grant of police powers to municipal corporations, now found at §§ 7974 and 7529 of Crawford & Moses’ Digest.

The appellees contend, for an affirmance of ^the decree, that the ordinance which was exhibited with their complaint in the court below showed on its face that it was a measure for raising revenue, and further, that there was no authority given to municipal corporations to regulate hotels, but that such authority was taken away from municipal corporations and invested in the State Board of Health by the provisions of act No. 210 of the Acts of the General Assembly of 1917, creating a Bureau of Sanitation. The appellants contend that the language of § 7529, supra, gave the right to regulate hotels and other places of entertainment, and implies the power of restraining and regulating as to the manner of conducting that particular business, and also as to the building or erection in or upon which the business is to be conducted, and that this right is further given by § 7494 of C. &M. Digest. These two sections are as follows:

“Section 7529. They (municipal corporations) shall have the power to prevent injury or annoyance within the limits of the corporation from anything dangerous, offensive or unhealthy, * * * to establish and regulate markets, * * * to prevent any riots, noise, disturbance, or disorderly assemblages, * * * and to regulate or suppress bawdy or disorderly houses, houses of ill-fame or assignation.” ■
Section 7494. “It is made the duty of the municipal corporation to publish such by-laws and ordinances as shall ¡be necessary to secure such corporations and their inhabitants against injuries by fire, etc., * * ; for the suppression of riots, and gambling, and indecent and disorderly conduct; for the punishment of ¡all lewd and las,civious behavior in the streets and other public places; and they shall-have power to make and publish such bylaws ¡and ordinances, not inconsistent with the laws of this State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof. ’ ’

The appellants say that the purpose of § 5454 of Kirby’s Digest, in which the right to regulate hotels and places of entertainment was given, meant something more than a provision authorizing an inspection to see that the place was run in an orderly manner. Section 5454 Kirby’s Digest is as follows:

“'Section 5454. They shall have power to license, regulate or prohibit all theatrical exhibitions and public shows, and all exhibitions of whatever name or nature. Provided, lectures on science; historical or literary subjects shall not be included within the provisions of this section; to regulate or prohibit the sale of all horses or other domestic animals at auction in the streets, alleys or highways; to regulate all carts, wagons, drays, hackney coaches, omnibuses and ferries, and every description of carriages which may be kept for hire, and all livery stables; to regulate hotels and other houses for public entertainment, and to regulate or to prohibit ale and porter shops or houses, and public places of habitual resort for tippling and intemperance, and to declare what are such.”

These various sections were all parts of an act of the General Assembly, approved March 9, 1875, entitled, “An act for the incorporation, organization and government of municipal corporations.” Section 7529 of Crawford & Moses’ Digest was § 12, § 7494, Crawford & Moses’ Digest, was § 22, and § 5454, Kirby’s Digest, was § 17 of that act. Section 22 (§ 7494, C. & M.) provided for the enactment of ordinances to carry into effect the powers conferred by the provisions of the act, and did not enlarge the powers conferred by the special provisions of § 12 (§ 7529, C. & M.), Tuck v. Town of Waldron, 31 Ark. 462, or of § 17 (§ 5454, Kirby’s Digest), so that the power of municipal corporations to regulate hotels must be found in the provisions of § 12 and § 17, supra. By § 17, which gave municipal corporations the power to regulate hotels and other houses of public entertainment, the Legislature clearly recognized the fact that such power had not been given by § 12, ante.; by § 12 it was-only those occupations or conduct that were “dangerous, offensive or unhealthy, to establish and regulate markets, * * * to prevent any riots, noise, disturbances or disorderly assemblages; * * * and to regulate or suppress bawdy or disorderly houses, houses of ill-fame or assignation,” that were included within the general powers of municipal corporations to regulate or suppress; and, as by § 17 the Legislature gave municipal corporations the power to regulate hotels, it is clear that such did not come within the meaning or intention of the language used in § 12.

The appellants contend, however, that the case of Carpenter v. Little Rock, 101 Ark. 238, 142 S. W. 162, is authority for the contention that the ordinance in the case at bar comes within the scope and is authorized by §§ 7529 and 7494 of C. & M. Digest. In that case the court decided that an act of the General Assembly making it unlawful for any city council to impose a license or to hinder or interfere in any manner with those selling- products of the farm, including meats from domestic animals and live stock, did not prohibit the city of Little Rock, a city of the first class, from providing by ordinance for the proper inspection of milk and meats before they were sold, nor for a reasonable fee to be exacted to cover cost of inspection; that the act of the Legislature then under consideration did not cover the whole subject of powers of cities to prevent and regulate the carrying on of any trade of a tendency dangerous to morals, health or safety of its inhabitants, and held that, by § 5461 of Kirby’s Digest (§ 7494, C. & M.), the city had the right to enact an ordinance for the preservation of the health of its citizens under subdivision 4 of § 5648 of Kirby’s Digest (§ 7684, C. & M. Dig.), which provided that cities of the first and second class might “prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health or safety,” and that the inspection of milk and meat might well be said to be necessary for the public health, in that by that means the community was secured pure and wholesome food. As cities of the first class have enlarged powers over incorporated towns given toy § 7684, C. & M. Digest, and as the case of Carpenter v. Little Rock, supra, was controlled by that provision of law, its decision can have no application to the case at bar.

We think the cases of Trigg v. Dixon, 96 Ark. 199, 131 S. W. 696, Ann. Cas. 1912B, 509; Fort Smith v. Gunter, 106 Ark. 371, 154 S. W. 181; and Kirby v. Paragould, 159 Ark. 29, 251 S. W. 374, cited by the appellants, have no application to the issues presented in the instant case. In Trigg v. Dixon the right to license butchers was upheld under the grant by the Legislature to towns “to establish and regulate marketsin the ¡case of Fort Smith v. Gunter the authority upheld by the court for the city to regulate restaurants was shown.to exist under § 5454 of Kirby’s Digest; and in Kirby v. Paragould, an ordinance licensing soda fountains was held to be within the power of cities of the first class, which power is given under subdivision 4 of § 7684 of 'Crawford & Moses’ Digest. It is clear that the authority ¡of the incorporated town of West Memphis to license hotels, and to regulate same was not conferred toy § 7529 or 7494 of Crawford & Moses’ Digest, commonly called the general welfare statute, and that it did not have authority to pass the ordinance regulating hotels. That right was given to incorporated towns by § 17 of the act approved March 9, 1875 (§ 5454, Kirby’s Digest), but that provision was repealed toy the General Assembly in 1917 by act No. 376, by which § 5454, Kirby’s Digest was amended by reenacting the same as follows:

“Section 1. That § 5454 of Kirby’s Digest be amended to read as follows: ‘'Section 5454. They shall have power to license, regulate or prohibit all theatrical exhibitions and public shows, and all exhibitions of whatever name or nature. Provided, lectures on science, historical or literary subjects shall not be included within the provisions of this section; to regulate or prohibit the sale of all horses, * * * and every description of carriages which may be kept for hire, and all livery stables; provided, further, that all municipalities shall have power to define, license, regulate or tax transient and itinerant vendors or transient dealers in merchandise or transient dealers in horses and mules, but no one who conducts the same business in the same municipalities for six consecutive months shall be classed as a transient. Section 2. All laws and parts of laws in conflict with this act are hereby repealed,” etc.

It will be seen that by the act as amended the’ authority to regulate hotels was divested from municipal corporations. This is made more apparent by the Legislature at the same session by act 210, providing that the hotels should come within the jurisdiction of the State Board of Health, that they should be licensed ¡by the State, and conducted under such rules and regulations as the State Board of Health ¡might from time to time promulgate.

Since we have concluded that the ordinance is invalid in so far as it undertakes to license or regulate hotels, it is unnecessary for us to discuss or pass upon the question first raised by the appellees, i. e., that an inspection of the entire ordinance would show that it was adopted for the purpose of raising revenue.

It is our opinion that the decree of the chancery court was in all things correct, and it is therefore affirmed.


author: Hart, C. J.

text:
    State v. Taylor.
    Opinion delivered December 9, 1929.

      Hal L. Norwood, Attorney General, and Guy E. Willirnns, Prosecuting Attorney, for appellant.
   Hart, C. J.

Charley Taylor was indicted for the crime of murder in the second degree, charged to have been committed by killing George Lewis by striking him with a blunt instrument. According to the testimony of the two principal witnesses for the State, Charley Taylor struck George Lewis over the head with ¡a pistol, in Lonoke County, Arkansas, and knocked him down and killed him. They were at a dance, and George Lewis was standing near the fire-place. Charley Taylor was standing near him, and the witnesses saw him hit Lewis over the head with a pistol, which he was holding by the barrel. George Lewis had not said anything to Charley Taylor at all, and there was no provocation for the killing. On cross-examination the witnesses admitted that they had testified differently, ¡but stated they did not tell-the truth at the coroner’s inquest. Both of them admitted that the testimony given by them at the coroner’s inquest was false, but stated that the testimony that they were giving at the trial was true.

At the conclusion of the testimony for the State, the court instructed the jury as follows:

“The two negroes that testified at the coroner’s inquest swore on the witness stand here that they swore falsely at the inquest. I don’t (believe you gentlemen of the jury believe their testimony. I don’t believe it, and I don’t believe you do. The mother of the dead boy testified that she was an eye-witness to the killing, and she testified that she didn’t see the death blow, nor she didn’t know who struck the death blow. I will instruct you to return a verdict in favor of the defendant. ’ ’

The jury returned a verdict of not guilty, as directed by the court, and an order was entered of record discharging the defendant from custody.

Under the evidence adduced by the 'State, if believed by the jury, the defendant was at least guilty of manslaughter, which is a felony, and is punishable by imprisonment in the State Penitentiary. Under article 2, § 8, of the Constitution, which provides that no person for the same offense shall be twice put in jeopardy of life or liberty, the judgment discharging the defendant operated as a bar to a future prosecution, and cannot be reversed by this court.

This appeal has been taken under the provisions of §§ 3410 and 3411 of Crawford & Moses ’ Digest, which provide that the Attorney General may appeal, if satisfied from an inspection of the record that error has been committed to the prejudice of the State, and upon which it is important to the courts and for the uniform administration of the criminal law that the 'Supreme Court should decide. This court has held that the object of this provision of the statute is to obtain the decision of the court upon questions of the criminal law, so that it may serve to secure the correct and uniform administration thereof. So it has been held that the question of the legal sufficieney of the evidence in a given case constitutes a question of law. for the decision of the court, and it cannot become a precedent for application in another case because of the varying- state of facts in different cases, and is not important in the uniform administration of the criminal law. The reason is that it is hardly probable that the testimony that is adduced in any two cases will be so much alike that a decision upon the facts in one ease would serve as an authority in the other. State v. Smith, 94 Ark. 368, 126 S. W. 1057; State v. Speer and Boyce, 123 Ark. 449, 185 S. W. 788; and State v. Gray, 160 Ark. 580, 255 S. W. 304.

No such question is presented here, however. There can be no doubt but that the evidence adduced in favor of the State would be legally sufficient to warrant at least a verdict of manslaughter in any homicide case. The question presented for review in the case at bar is whether or not the circuit court has the power to direct a verdict of acquittal, not because the judge thinks the evidence is not legally sufficient to warrant a conviction, but because he believes the testimony of the witnesses is false, and that the jury should not give any credence' to it.

This he has no right to do. Article 7, § 23, of our Constitution prohibits judges from charging juries with regard to matters of fact, and he has no power to express to the jury any opinion whatever as to the innocence of the defendant, where the evidence adduced in-favor of the 'State would warrant a conviction if believed by the jury. The reason is that, under our 'Constitution, it is within the peculiar province of the jury to determine the facts, and the court shall only declare the law applicable to the facts.

In State v. Wardlaw, 43 Ark. 73, the court held that the circuit court committed error in advising the attorney for the State, in the presence of the jury, to drop the prosecution for want of evidence. The reason was that the provision of the Constitution just referred to forbids judges to charge juries with regard to matters of fact. It is true that was a misdemeanor case, but the principle would apply equally as well in a felony case.

The defendant is not without remedy where the jury finds against him contrary to the evidence. Under § 3219 of Crawford & Moses’ Digest, which is a part of the Code of Criminal Procedure, when a verdict is entered against a defendant by which his substantial rights have been prejudiced, it is made the duty of the trial court to grant him a new trial. One of the grounds provided in the statute is where the verdict is against the evidence.

In State v. Young, 119 Mo. 495, 24 S. W. 1038, the Supreme Court of Missouri, construing a similar provision of the statutes of that State, said that the statute made it the duty of the circuit court to grant a new trial to the defendant if, in the opinion of the trial judge, the verdict was against the evidence, and that the practice was as old as the common law itself. In that case the court pointed out that the appellate court had no power to grant a new trial, in opposition to the opinion of the trial court, on the ground that the verdict was against the evidence, when there was evidence from which the jury might have found the defendant guilty. That rule is founded upon the consideration that the circuit court .judge saw the witnesses, observed their character, capacity and demeanor, and has found the correctness of their verdict by overruling a motion for a new trial.

This court has held that it is within the discretion of the circuit court to grant a new trial in a felony ease. State v. Walker, 122 Ark. 574, 184 S. W. 38. Hence the circuit court erred in acting in the matter in advance of the verdict of the jury. He had no right to assume that the jury would return a verdict of guilty where the testimony of the witnesses was not worthy of belief. It was within the peculiar province of the jury to judge of the credibility of the witnesses. It will also be within the province of the court to grant a new trial, upon the motion of the defendant, if, in its opinion, the verdict was against the evidence. This course is necessary for orderly procedure in the administration of justice.. Neither the court nor the jury has the right to assume in advance that the other will not properly discharge its duty.

We can only declare that the circuit court erred in its ruling, as above stated. The acquittal of the defendant in this case operates as a bar to his further prosecution for the same offense, and therefore the judgment cannot be reversed.


author: Hart, C. J.,

text:
    Clifford v. Walker.
    Opinion delivered December 9, 1929.

      Carmichael <& Hendricks, for appellant.

      Cockrill & Armistead, for appellee.
   Hart, C. J.,

(after stating the facts). Where the president or other officer of a corporation performs services not within the scope of his duties as an officer, -for instance, that of general manager, under circumstances authorizing an inference that he is to be paid therefor, he is entitled to compensation on an implied contract. Mt. Nebo Anthracite Coal Co. v. Martin, 86 Ark. 608, 111 S. W. 1002, 112 S. W. 882; Red Bud Realty Co. v. South, 96 Ark. 281, 131 S. W. 340; Corning Custom Gin Co. v. Oliver, 171 Ark. 175, 283 S. W. 977; and Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98, 11 S. Ct. 36; Corinne Mill, Canal & Stock Co. v. Toponce, 152 U. S. 405, 14 S.Ct. 632.

In the Red Bud Realty Company case the court said that, in considering' whether or not there was an implied contract to pay the president of a corporation, the nature of the corporation and its business, the character and extent of the services, the value thereof, and all other attendant circumstances, must be considered. The court further stated that, in determining the matter, it would consider whether or not the services were rendered under circumstances tending to show that it was understood or that it was intended that the services were to be p'aid for.

It is conceded that the services were outside of Clifford’s duties as president and director, and that the services of a general manager of the corporation were worth $400 per month.

This brings us to a consideration of whether the services for the first eighteen months of the business were rendered under such circumstances as to raise an implied promise on the part of the corporation to pay Clifford a salary as general manager. With reference to this question of fact, it may be said that Clifford organized the corporation, and owned substantially all its stock. The shares were of the par value of $25 each. There was a paid-up capital of about $44,00-0. Clifford owned all of it except $'2,500, sold to Burns, to be paid out monthly, and one share which was owned by Whitten to enable him. to qualify as a director. Burns and Whitten were employed by Clifford to help in running the business. Clifford had entire -charge of the business, and told Burns that he did not mean to charge the corporation with any salary for himself until he got the business on a paying basis. Clifford said he had other means out of which to live until the corporation was placed on a paying- basis. The fact that Clifford, who had charge of the books, did not charge the corporation with any salary for himself for the first eighteen months, and during that time sent out financial statements to the creditors of the corporation which did not contain any s-alary -charge for himself, tends strongly to show that the claim for back salary was an afterthought.

Under all the circumstances, we cannot say that the chancery court erred in finding that there was no implied contract to pay Clifford for his services -as general manager for the first eighteen months; and in this connection it may be stated that no express contract is claimed. We also think that the chancery court properly denied the assignee of the corporation the right to recover on his cross-complaint. Clifford denied that he was indebted to the -corporation, and the chancery court was justified in finding that his testimony in this respect was not overcome by that of appellee.

Therefore the decree of the chancery court will be affirmed. °


author: Smith, J.

text:
    Gilbert v. Gilbert.
    Opinion delivered December 9, 1929.

      G. M. Wofford and Daily <& Woods, for appellant.

      A. A. McDonald and Cravens <& Cravens, for appellee.
   Smith, J.

The parties to this litigation were formerly husband and wife, and the subject-matter of the litigation is the amount of dividends for two years now due and payable on forty-five shares of the capital stock of the Arkansas Coffin Company, an Arkansas corporation.

Guy Gilbert, the plaintiff, brought this suit in the circuit court against the corporation to recover the dividends, each amounting to ten per cent, of the shares of stock, the certificates for which stood in his own name. Dividend checks had been tendered to him payable to the joint order of himself and Lillie Gilbert, but he refused to accept these checks because they were not payable to him alone. 'The coffin company filed an affidavit under § 1103, C. & M. Digest, in which it alleged that Mrs. Gilbert, without collusion on its part, claimed an interest in the subject-matter of the litigation, and by appropriate action she was made a party defendant. Thereupon the corporation paid the amount of the dividends into court and was discharged, and the litigation proceeded between Mr. and Mrs. Gilbert.

Mrs. Gilbert alleged that she and her husband had bought jointly ten shares of the stock under an agreement between themselves whereby they were to acquire equal interests, and that later they purchase! five additional shares under a similar agreement. A few years later there was a stock dividend of 200 per cent., amounting to thirty shares, and she alleged that this dividend stock was also owned by them jointly and equally. Upon these allegations she prayed that the cause be transferred to equity, where a trust in her favor might be declared and partition made of the stock, all of which had been issued to, and was outstanding in the name of, her husband.

The court overruled this motion, and proceeded to try the case before a jury. This was error, as the answer set up facts which, if true, would have entitled Mrs. Gilbert to relief which only a court of equity could grant.

In the case of Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848, it was said: “Courts of equity have inherent and exclusive jurisdiction over all kinds of trusts and trustees. They have full and complete jurisdiction of trusts independently of statute, whether the same arise by express declaration and agreement, or result by implication of law” (Citing authorities).

Under the allegations of the answer Mr. Gilbert, although the apparent owner of the stock in his own right, was, in fact, the owner of a half interest thereof as trustee for Mrs. Gilbert, who sought to have a trust declared and enforced, and for this reason the cause should have been transferred to equity.

The cause was submitted to a jury, and a nine-to-three verdict was rendered in Mr. Gilbert’s favor, and from the judgment thereon is this appeal.

For the reversal of this judgment it is insisted that the court erred in not transferring the cause to.equity, and in giving instructions numbered 7 and 10 to the jury. But appellee insists that, although error may have been committed in both respects, neither error was prejudicial, as the verdict returned was right, and the chancery court could not have decreed otherwise under the testimony.

Without reviewing the testimony, which we find it unnecessary to do, it may be stated that the testimony is legally sufficient to support the finding- that Mr. Gilbert paid for the stock with his own money, except a part thereof, which he borrowed from his wife upon the promise to repay — which promise does not appear to have been kept. But the testimony of Mrs. Gilbert and that of other witnesses who testified in her behalf is to the opposite effect. According to this testimony, the stock was purchased and issued in Mr. Gilbert’s name under an agreement that it should be jointly and equally owned, and that Mrs. Gilbert not only paid for all of her half, but that she actually loaned her husband a portion of the money which he used in paying for his own interest.

Instructions numbered 7 and 10, given over Mrs. Gilbert’s objections and exceptions, read as follows:

“7. You are instructed that, if a wife or husband advances money or property to the other and permits them to use it as his or her own, the presumption is that it was a gift, unless the contrary is shown. ” * * *
“10. You are instructed that, before you can find Lillie Gilbert a part owner of the stock in the Arkansas Coffin Company, held in the name of the plaintiff, by reason of the fact that she advanced part of the money for the purchase of the same, you must further find that there was a definite understanding between the plaintiff and Lillie Gilbert at the time that said money, if any, advanced by her to plaintiff was to be used for the purchase of stock for her.”

It may be stated that the rights of no creditors of either Mr. or Mrs. Gilbert are involved in this litigation, and we have no question of credit extended on the faith of apparent ownership. The sole question for decision is whether a trust arose in favor of Mrs. Gilbert on account of advances made by her to buy the stock.

We are of opinion that the instructions set out above are erroneous, and, in view of the conflict in the testimony, it cannot be said that they were not prejudicial. These instructions placed upon Mrs. Gilbert a burden of proof which, under the law, did not rest upon her, and this fact may have been responsible for the divided verdict of the jury which was returned.

The law of this case was declared by Chief Justice Cockrill in the case of Kline v. Ragland, 47 Ark. 111, 14 S. W. 474, where he said:

“And so, when the husband pays the purchase money and takes the conveyance in the name of his wife, the presumption that he intended it as a gift is raised from his obligation to provide for her, 'and there is therefore no presumption of a trust (Citing authorities). On the other hand, where the deed is taken in the name of the husband, the purchase money being- paid by the wife, no presumption of an intention to make a gift arises, but there is a resulting trust in favor of the wife, and the husband holds the propery thus acquired as trustee for her benefit, unless he is able to overcome the presumption by establishing a different intention (Citing authorities). When it is shown that she intended the purchase for herself, and made the cash payment of the purchase money from her separate means, the fact that the husband takes the conveyance to himself and executes his individual notes for the unpaid purchase money does not defeat the trust that arises in her favor to the extent of the payment made by her (Citing authorities). The burden is still upon the husband to repel the presumption” (Citing authorities).

The case of Spradling v. Spradling, supra, quoted and approved this language which declares the settled law of this State. See also § 5594, C. & M. Digest; Wood v. Wood, 116 Ark. 142, 172 S. W. 860; Keith v. Wheeler, 105 Ark. 318, 151 S. W. 284; Wyatt v. Scott, 84 Ark. 355, 105 S. W. 871; Brown v. Wright, 58 Ark. 20, 22 S. W. 1022, 21 L. R. A. 467.

For the errors indicated the judgment will be reversed, and the cause remanded with directions to transfer it to the chancery court. It is so ordered.


text:
    Moss v. Chitwood.
    Opinion delivered December 9, 1929.

      Starbird & Starbird, for appellant.

      Dave Partain, for appellee.
   Smith, J.

Appellant Moss brought suit on a note executed by C. C. Fine to the order of the Bank of Dyer, and indorsed by Chitwood and Bushmaier, which he alleged he had purchased from the bank. The note was for the sum of $1,603.42, and was dated June 4,1922, and was payable four months after date, but certain credits were admitted, which reduced the amount to $1,508.96, 'and judgment was prayed for this amount.

An answer was filed by the defendants, Chitwood and Bushmaier, which alleged that, on the day of the execution of the note, plaintiff Moss was the president of the Bank of Dyer, and one Morse was its cashier, and that Morse requested them to indorse the note as sureties and accommodation makers for Fine, who was engaged in the mercantile business at Dyer, and had been permitted to overdraw his account at the bank in the sum of $1,-603.42, and the State Banking Department had required that the overdraft be secured, and they were urged to sign the note on behalf of the bank, and as an inducement so to do they were assured by Morse that the bank would retain the note in its possession, and would under no circumstances permit it to get beyond its control, and that the bank and its officers would see that they (the defendants) did not lose anything, and would not have the note to pay, and, relying upon this assurance, they signed the note. Defendants, as witnesses, gave testimony in support of these allegations.

Defendants alleged that Fine had made payments on the note while it was in the possession of the bank which are not credited thereon, and that in December, 1925, the Bank of Dyer failed, and was succeeded by the Farmers ’ State Bank, which assumed all the liabilities and took over all the assets of its predecessors, including the Fine note, and that the Farmers’ State Bank later failed, at which time Fine had on deposit the sum of $646.43, and it was prayed that the amount of this deposit be credited upon the note. Defendants further alleged that Moss had obtained possession of the note by fraud, and the answer denied that Moss was an innocent holder thereof, wherefore it was prayed that plaintiff take nothing by his suit.

The cause was transferred to the chancery court, where it was tried, and upon a general finding in favor of the defendants the suit was dismissed.

The undisputed testimony shows that Fine was not overdrawn at the Bank of Dyer at the time of the execution of the note, and that the purpose of its execution was not to take care of an overdraft, as the answer alleged, but that it was executed for the purpose of enabling Fine to purchase a stock of goods; and there is no question but that the bank advanced in cash the face of the note at the time of its execution.

Moss testified that he purchased the note from the Bank of Dyer on June 9, 1922, which was, of course, before its maturity, and that he paid its face value, less the credit indorsed thereon, and he was corroborated by Morse, the cashier, and the books of the bank show that Moss’ account was charged on that day with the face of the note. It appears certain therefore that Moss was the actual purchaser of the note before its maturity, and that he paid full value therefor, and we think the testimony also shows that he was an innocent purchaser thereof.

Moss testified, in effect, that the bank was overloaded with paper, and that he regarded the note as good, made so by the indorsements of the defendants, and that he bought it for full value, and paid his own money for it, and the records of the bank, made at the time, corroborate this last statement, and that he was not advised that there was any agreement between the cashier and Chitwood and Bushmaier whereby the note should not .have the binding obligation which upon its face it appeared to have.

If this testimony Is true, the plaintiff’s right to recover on the note is not, and cannot be, questioned, for Morse, the cashier, had the right to sell the note. Arrington v. King, 179 Ark. 504, 17 S. W. (2d) 302; Winer v. Bank of Bytheville, 89 Ark. 435, 117 S. W. 232, 131 Am. St. Rep. 102.

It is true that Chitwood and Bushmaier gave testimony tending to sustain the allegations of their answer that they signed the note for the accommodation of the bank, and were induced to do so only upon the assurance of the cashier of the bank that they would not be called upon to pay it, and that they were thereby enabling the bank to cover up a transaction which was entered into to deceive the State Banking Department. In this connection they testified that Morse represented that he would take a chattel mortgage upon the stock of goods which Fine proposed to buy, and which he did -buy, with the proceeds of the note, and that this mortgage was taken by Morse and filed by him with the circuit clerk and recorder, and that it was done to indemnify them against their indorsement.

It appears now to be conceded by both parties that this mortgage, taken, as it was, upon an open stock of goods, which was being sold and replenished, was void, and, although it may be said that the State Banking Department would not have approved a loan made upon a security of that kind, the parties themselves regarded the security as valid. This is evidenced by the fact that Chitwood and Bushmaier later took charge of the stock of goods under the mortgage and disposed of it, and it is not made clear wliat disposition was made of the proceeds. Their liability to account to Fine for the stock of goods appears to be clear, but this feature of the case was not developed.

The assistant Bank Commissioner testified that, when the Bank of Dyer went into liquidation and was succeeded by the Farmers ’ State Bank, which was organized for that purpose, and of which institution Moss and Morse became president and cashier, respectively, a list of all the assets of the Bank of Dyer was prepared, and the note in suit was not included, and it was never at any time carried as an asset of the Farmers’ State Bank.

Upon a consideration of all the testimony we have concluded that Moss was an innocent purchaser of the note for value and before maturity, and, having made this finding, it is unnecessary to determine whether defendants were induced to indorse the note upon Morse’s representations that they would not be held liable thereon, or the effect of that representation, if made. Coffman v. Bottoms, 179 Ark. 264, 15 S. W. (2d) 404; Blanks v. American Southern Trust Co., 177 Ark. 832, 9 S. W. (2d) 310.

Appellees have cited cases from this court to the effect that parol testimony is admissible to show that a note or other contract was signed upon condition that no delivery of it should be made as a valid and subsisting contract until certain precedent conditions had been performed, and, when this fact is established, the contract, even though it were a promissory note, is not enforceable, where it is not also shown that the conditions upon which it was to be delivered had been performed. Among these cases the latest is that of Taylor, Bank Commissioner, v. Deese, 179 Ark. 39, 14 S. W. (2d) 255. But the opinion in that case makes plain the law that this defense would not be available against an innocent purchaser of such a note for value and before maturity. .Moreover, there was no attempt here to show that there were any unperformed conditions which should have preceded the delivery of the note. On the contrary, the defense is that it was understood that the note should not have the obligations ordinarily incident to a writing of that character after its delivery to the payee.

The decree of the court dismissing the cause as being without equity is therefore reversed; but there remains to be determined the number and amount of the credits to be applied upon the note.

Upon this question we have first to say that the Farmers’ State Bank had no authority, as appellees insist, to credit the amount of Fine’s deposit on the note, for the reason that the Farmers’ State Bank never owned this note.

It appears, however, that Moss kept this note and other valuable papers in the vault of the bank, and that Morse had access to them, and had authority from Moss to make collections upon paper held by Moss, and that, while the note in suit was so owned and held, payments were made upon it, one of which, at least, is not disputed. Any payments so made should be credited upon the note, although Moss was the owner thereof. It is true, of course, that the maker of a note must make payments thereon to the holder thereof, and payments otherwise made are made at his peril, but the testimony shows that the maker and indorser's of the note did not know that Moss had become the owner thereof, and the note was payable at and to the order of the Bank of Dyer, and if, when the payments were made, the note was in the possession of the cashier of the Farmers’ State Bank, which had taken over the assets of the Bank of Dyer, they had the right to assume, in the absence of knowledge to the contrary, that Morse had authority to receive payments thereon. This is true because Morse was the holder of the note, and, while defendants knew that Morse held the note as agent, and not as owner, they had the right to presume that Morse held it as the agent of the true owner, and that he was authorized to receive the payments made.

The decree is therefore reversed, and judgment will be rendered upon the remand for the amount of the note and interest, less such sums as may be shown upon the new trial to have been paid Morse.


author: Humphreys, J.

text:
    Meehan v. Road Improvement District No. 7 of Woodruff County.
    Opinion delivered December 9, 1929.

      Roy D. Campbell, for appellant.

      Ross Mathis, for appellee.
   Humphreys, J.

On the 15th day of January, 1926, appellee instituted suit in the chancery court of Wood-ruff County, Southern District, to enforce a lien for delinquent taxes for the years 1921 to 1925, inclusive, against certain lands in Road Improvement District No. 7, describing the lands owned by the estate of Charles Meehan, deceased.

Appellant, John R. Meehan, executor of said estate, filed an intervention, controverting the right of appellee to enforce a lien against said lands for the alleged reasons: That the taxes for the year 1921 on the land of the estate were barred; that suit for the taxes of 1925 was prematurely brought; that the required statutory notice was not given of the; filing of the original assessment of benefits in 1920; that the required statutory notice was not given of the new assessment of benefits made in 1921; that the county court failed to make an order levying* an annual tax upon said lands under the new assessment of benefits made in 1921; and that the reduction and extension of taxes against said lands after the reassessment of benefits in 1921 were not made by the commissioners of the district, but upon the letter of the attorney, an acting secretary thereof.

Appellee filed an answer to the intervention of appellant, denying the several allegations therein.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a lien being declared upon the lands for the taxes of the various years as follows: “1921, $1,331.66; 1922 and 1923, the sum of $1,174.16 for each year; 1924 the sum of $1,038.39, and 1925 in the sum. of $992.92.”

Appellant contends for a reversal of the decree upon the several grounds set out in his intervention, attacking the validity of the taxes and appellee’s right to enforce a lien against said lands for the collection thereof. We will review and determine the alleged grounds in the order mentioned above.

1. We agree with, appellant that the action for the taxes of 1921 was barred by § 4 of act No. 534 of the General Acts of 1921. The section referred to is in part as follows: “No suit for the collection of such delinquent taxes shall be brought after three years from date same became delinquent.”

This court ruled in the case of Western Clay Drainage District v. Wynn, 179 Ark. 988, 18 S. W. (2d) 1035, that the act quoted barred the collection of special improvement district taxes after the expiration of three years in a district which had been created by special act. The trial court erred in adjudging a lien against the lands for the taxes of 1921.

2. Appellant is in error in the contention that the action was prematurely brought for the enforcement of taxes of 1925. Act No. 194 of 1920, creating the district, provided for the collection in each year of a certain percentage of the assessed benefits. The necessary implication is that the taxes levied for each year became due and payable in that year. The taxes levied for the year 1925 were payable 'between the first Monday in January, 1925, and the 10th day of April, 1925. The taxes for 1925 were delinquent therefore when the action was commenced on January 15, 1926.-

3. Appellant is also in error in the contention that the required statutory notice was not given of the filing of the original.assessment of benefits in 1920. This contention is based upon the erroneous assumption that notice to the landowners was issued on June 15, 1920, when, as a matter of fact, that was the date provided in the notice when the complaint of landowners against the assessment should be heard. Act No. 194 of 1920, creating the district, required two weeks’ notice by publication to landowners wishing to be heard on the assessment. The notice stated that the assessment of benefits had been filed in the office of the county clerk of Wood-ruff County, at Cotton Plant, Arkansas, and that the commissioners of the district would meet in the county court room in Cotton Plant, Arkansas, to hear all persons wishing to he heard on the assessment, on the 15th day of June, 1920. The proof of publication 'of the notice shows that it was published on May 27 and again on June 3,1920, so the fact is that the assessment was filed on or before May 27, 1920, for more than two weeks before the commissioners met to hear complaints of landowners against the assessment.

4. Appellant is also in error in the contention that the required statutory notice was not given of the new assessment of benefits made in 1921. This contention is based upon the erroneous assumption that the assessment was filed on November 5,1921, whereas that was the time specified in the notice for a meeting of the assessors to hear any complaint of landowners against the assessment. When the notice and proof of publication are read together, it is apparent that the notice was filed on or before October 21, 1921, and was published for two consecutive weeks in accordance with act No. 454 of 1921, providing for the assessment.

5. Appellant is also in error in the contention that it was necessary for the county court to make an order levying an annual tax upon said lands under the new assessment of 1921. There is nothing in act No. 454 of 1921, providing for the reassessment, requiring the county court to make another levying order, and act No. 194 of 1920, creating the district, only provided for one order levying the taxes. The rate fixed in the levying order became a judgment which could not be changed except to raise it, if necessary, to pay the bondholders. According to the amended record, the .county court was properly in-session on September 8, 1920, when the levying order was made.

6. Appellant is also in error in the contention that it was necessary for the commissioners themselves to notify the clerk of the reduction of the taxes against said lands after the reassessment of benefits in 1921. The reduction is authorized by act No. 5 of the extraordinary session,pf 1923, commonly known as the Harrelson Act, and that act provided that the commissioners should take appropriate action to reduce the taxes. It did not provide that the commissioners should notify. the county clerk themselves of their action. We think it was perfectly proper for the attorney of the district to give this notice to the county clerk, which he did by letter on the 20th of December, 1923, as acting secretary of the commissioners. The reduction of the taxes was for the benefit of appellant and other landowners in the district, and they cannot be heard to complain. The act did not provide for a further levying order by the county court.

On account of the error indicated, the judgment will be modified to the extent of eliminating the amount of taxes adjudged against the land for 1921, affirmed in other particulars, and, as modified, remanded to the trial court for further proceedings not inconsistent with this opinion.