text:
    Wisconsin & Arkansas Lumber Company v. Montgomery.
    Opinion delivered October 13, 1924.
    1. • Negligence — mistake op judgment. — Where one is called upon suddenly in an emergency to do something for a person in a perilous position, a mere mistake of judgment does not constitute negligence as a matter of law.
    2. Master and servant — negligence of fellow-servant. — A fellow-servant engaged in operating a machine for loading logs on cars was not guilty of negligence where, on hearing cry of distress from plaintiff, whom he could not see, he reversed the machine, instead of stopping it.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    reversed.

      E. B. Kinsworthy and B. S. Kinsworthy, for appellant.

      Where one is placed in a position where he has to act in a certain emergency, he is not liable for a mistake of judgment. 25 N. Y. Supp. 91; 104 Va. 400; 51 S. E. 731; 37 L. R. A. (N. S.) 43. Especially so where the peril has been caused by the fault of another. 91 Ark. 388 ; 67 Ark. 209; 84 Ark. 241; 102 Ark. 499 ; 153 Pa. 117; 25 Atl. 994; 113 111. App. 312. There was no evidence to show any negligence on the part of the defendant. 105 Ark. 364.

      H. B. Means, for appellee.
   McCulloch, C. J.

Appellee received. personal injuries while working in the service of appellant, and he sues to recover damages, claiming that his injuries occurred by negligence of other servants of appellant.

Appellee and other servants of appellant performed services in connection with the operation of a machine used in the loading of logs on flat-cars, lifting the logs from the ground and placing them on the cars, to be hauled to the mill. The machine consisted of a cab inclosing an engine and hoisting apparatus, and the lifter, or “boom,” as it is called, swung out of the front end of the cab. The logs on the ground were picked up with tongs attached to the end1 of the boom, and, as the cab with the boom attached to it swung around, the log was hoisted and carried to the ear in front of the cab. The cab rested on a frame which rolled along the track running along the string of cars to be loaded. As a car was loaded, the loading machine would be moved back to the next car, and this process was continued until all the cars in the string were loaded. Appellant was engaged in hooking the tongs, that is, in attaching the tongs to the logs as they were loaded. There were four men employed in that work, and they worked in pairs on alternate days. The men would work one day and rest the next, with no duty to perform except to be present and assist in moving the loader from one car to another after the car had been completely loaded.

The day on which appellant was injured was a rest day for him and his co-worker, and, according to the testimony, appellant had. placed himself on the opposite .side of the cab from the pile of logs on the ground which were being loaded on the car. He was waiting there to assist in moving the loader to the next car, and, with a cross-bar in his hand, he sat down on the axle of the car. Nichols was the foreman of the crew and had charge of the loading machine. He also operated the loader, his position being in the cab, which was inclosed on two sides.

Appellee, as before stated, had a cross-bar in his hand while he was sitting on the axle waiting for orders to transfer the loader, and he testified that he had the cross-bar for the purpose of pushing the wheels of the frame of the loader over to the next car and transferring it, and that, when he got up from his sitting position, he slipped and fell, and the corner of the cab, which was then swinging around with a log on the boom, caught him and drew him under the cab between it and the frame on which it rested. He testified that, as soon as he was caught, he hollered, and so did another operative, named Shinn, who was standing to. one side. Nichols, who was operating the loader at that time, heard the distress call, and immediately reversed the loader, and appellee was mashed and his collar-bone broken.

The undisputed testimony is that Nichols could not see the position appellee was in at the time, nor did he know that appellee was in a position of danger until he heard the voices of appellee and Shinn.

It is not contended that there was any negligence on the part of appellant or any of its servants in moving the loader and causing it to strike appellee, nor is there any evidence that Nichols knew or had reason to believe: that appellee would be injured by the moving of thé loader in its ordinary operation. The sole contention is that Nichols was guilty of negligence in reversing the loader after he received notice of appellee’s perilous position. In other words, the only theory upon which appellee seeks to sustain the recovery of damages is that his perilous position was discovered and that Nichols failed to exercise ordinary care to protect Mm after receiving notice of the danger. On the other hand, it is earnestly insisted on the part of counsel for appellant that Nichols was not guilty of any negligence in reversing the loader after hearing the distress call of ¡appellee from his position of peril.

The only testimony wMch tends in any degree to show negligence- on the part of Nichols is that of appellee himself, who stated in his testimony that, after he was caught and drawn in under the loader and the loader was brought to a stop, he believed he could1 have been pulled out without serious injury, ¡as he expressed it, except “a good tight mashing.” He expressed this merely as Ms opinion, but explained that he had never been in ¡such a situation before. Appellee stated the situation with respect to the injury as follows:

‘ ‘ Q. Now tell what happened after the foreman was notified that you were caught? A. Why, he turned and pulled1 the loader back. When he started turning back, I had tMs arm here, and when it turned back it pressed so tight that this elbow that the wheel was right over here, and this elbow hit the wheel, and it couldn’t slip any way, so it just pulled all of this part of my back up here, and it broke the collar bone and pushed all this side of me up under my ear. Now I could have rolled out of there without their moving the machine.”

We are of the opinion that it was purely a matter of speculation to say that the reversal of the loader was an act which contributed to appellee’s injury. It is clear that the act of Nichols in thus reversing the loader was, to say the worst of it, only a mistake of judgment. He was acting suddenly and in an emergency, and he was called on to do something for a person who was in a perilous position, and a mere mistake of judgment does not necessarily constitute negligence. We have often said that a mistake of judgment does not, as a matter of law, constitute negligence. St. L. I. M. & S. Ry. Co. v. Touhey, 67 Ark. 209; Woodson v. Prescott & N. W. Ry. Co., 91 Ark. 388; Kansas City Southern Ry. Co. v. Wat son, 102 Ark. 499. But we are convinced that the circumstances of the present case do not warrant the inference even that it was error in fact to reverse the loading machine, instead of stopping it and holding it in a stationary position, so as to let appellee crawl out from his position. The warning cry of appellee and his companion Shinn called for some action on the part of Nichols, who was operating the loader, and it called for action instantly. He could not see the injured man, and it was not unnatural for him to suppose, that, as the injury had in some way been inflicted by the forward movement of the rear end of the cab, further injury would be averted by reversing the movement so as to enable the injured man to get out of his perilous position. If Nichols saw, or could have ascertained at the moment, what the particular situation of appellee was, then the inference of negligence might be drawn from his failure to adopt a proper course to enable appellee to be extricated from his position of peril, but the undisputed testimony is that Nichols could not see the injured man and had no means of knowing just what his position was; but he knew, from the warning given him by appellee and Shinn, that appellee was in a perilous position and that some quick movement of the machine was called for, either to stop it and keep' it stationary or to move it backward. As before stated, it was a natural thing to suppose that the best way to avert further injury was to move the machine backward, as the injury had occurred by a forward movement.

Our conclusion therefore is that there was no negligence, and the court erred in submitting the question to the jury.

Reversed and remanded for new trial.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Wilson v. Danley.
    Opinion delivered October 13, 1924.
    1. Elections — primary election contest — sufficiency of affidavit. — The fact that an affidavit to a complaint in a primary election contest, under Crawford & Moses’ Digest, § 3772, does not recite that affiants are reputable citizens, is not fatal to its sufficiency, as the jurisdictional fact is that 10 reputable citizens have made the affidavit, not the mere recital of that fact.
    2. Elections — primary election contest — sufficiency of affidavit. — An affidavit in a' primary election contest which alleges that affiants are citizens of the county is prima facie a sufficient compliance with Crawford & Moses’ Dig., § 3772, requiring affidavits of 10 reputable citizens.
    3. Elections — primary election contest. — Persons qualified to vote at a primary election by reason of having the required residence were eligible to make affidavit in a contest of a nomination, though they were not entitled to vote because of failure to pay their poll taxes.
    4. Elections — qualified elector. — One who paid his poll tax in an adjoining county but has resided in the county of the venue for six months is a - qualified elector at a primary election.
    5. Elections — sufficiency of poll-tax receipt. — A poll-tax receipt which gave the taxpayer’s postoffice but did not otherwise state his residence, held sufficient to identify him.
    Appeal from Pope Circuit Court; J. T. Bulloch, Judge;
    reversed.

      E. A. Williams, for appellant.
    Tbe supporting affidavit was in due form. It would not bave added anything to tbe affidavit to have alleged that the affiants were “reputable citizens.” That is a matter subject to proof. See 145 Ark. 585. It is unreasonable to bold that an elector shall be deprived of bis ■right to vote, simply because tbe collector failed to make out bis poll-tax receipt in tbe exact form required by § 3777, C. & M. Digest. See 159 Ark. 199, and 160 Ark. 269.

      Ward & Caudle, and Hays, Priddy & Hays, for appellee.
    Tbe reference in tbe statute to a reputable citizen undoubtedly means citizens of honor and good repute, not merely electors. Tbe case relied on by appellant in 145 Ark. 585 is not in point, as there only tbe.meaning of tbe word “citizen” was discussed. The papers filed by contestant must affirmatively show every fact necessary to give the court jurisdiction. 136 Ark. 217; 148 Ark. 83; 159 Ark. 199. The poll-tax receipts of Chambers, Austin and Bradford were void under § 3777, C. & M. Digest, and they were not entitled to sign the affidavit, not being reputable citizens within the meaning of the statute. They were not even entitled to vote.
   Smith, J.

Appellant instituted this proceeding to contest the nomination of appellee as the Democratic candidate for county judge of Pope County. His complaint contained various allegations of fraud and illegal voting, of which appellee was the beneficiary and by means of which his nomination- was effected. The complaint was verified by ten persons, and the verification reads as follows: “Come John Chambers, Emmitt Austin, W. F. Bradford, * * * (and seven other persons there named), and each for himself says that they are citizens of Pope County, Arkansas, and members of the Democratic party, and that the statements made in the foregoing complaint are true to the best of their information and belief, said statements being made under oath.”

A demurrer was filed to the complaint upon the ground that it did not state a cause of action. Before passing upon the demurrer the court heard the following testimony:

John Chambers, one of the ten affiants, testified that- he voted in the primary election on August 10 in Burnett Township, Pope County, in which he had resided since the preceding December. That he had previously lived in Conway County, where he had been assessed, and that he paid the taxes thus assessed against him two or three or four days after April 10, including his poll tax, the receipt for which he exhibited and which reads as follows:

“No. 2067. Receipt for Poll Tax of 1923. Color W

“Received this 10th day of Apr., 1924, of John Chambers, residence................................................postoffice address Morrilton, R. F. D. No..................., voting precinct No................, school district No. 34, the sum of one dollar in payment of poll tax charged against said person in this county for the year 1923.

“(Signed) Jas. Guy Tucker, Auditor of State.

“(Signed) E. E. Bartlett, Sheriff & Collector, Conway County, Arkansas. By (signed) Mildred, D, C,

“If paid on or before Saturday next preceding the first Monday in July, 1924, will entitle the taxpayer, if . otherwise qualified, to vote at any election held in this State prior to the first Monday in July, 1925.”

The receipt was executed by the collector of Conway County on one of the official blanks prepared by fhe Auditor of State pursuant to that requirement of law.

The receipts of Austin and Bradford were also exhibited, and were substantially similar, except that they were executed by the collector of Pope County.

The receipt of Austin was executed in the name of E. Y. Austin, whereas he had signed the affidavit supporting the complaint as Emmitt Austin, but he testified that his name was Emmitt Young Austin, and that his custom was to sign his name as Emmitt Austin.

It is conceded that the names of Chambers, Austin and Bradford did not appear in the official list of voters of Pope County which the collector prepared and filed pursuant to law, and which was furnished to and used by the judges of election in holding the election, and that their receipts were not filed with the judges nor returned by the judges with the election returns, as required by § 3777, C. & M. Digest,' as interpreted by this court in the case of McLain v. Fish, 159 Ark. 199.

The court below held that the complaint was not supported by the affidavits of ten reputable citizens as required by law, and dismissed the complaint on that account.

In the casé of Logan v. Russell, 136 Ark. 217, it was held that the requirement of § 3772, C. & M. Digest, that the complaint in a proceeding to contest the certification of a primary nomination shall be supported by tlje affidavits of at least ten reputable citizens, was jurisdictional, and that if such affidavit was not filed, the proceeding would be dismissed. '.....'

It becomes necessary therefore in the instant case to determine whether the affidavit set out above meets the requirement of the statute.

It will be observed that the affidavit does not recite that the affiants are reputable citizens; but we do not think this omission fatal to the sufficiency of the affidavit. The recital that affiants, ten in number, were reputable citizens would not be conclusive of the truth of that recital. The thing which gives jurisdiction is that ten reputable citizens have signed, and not the mere recital' of that fact.

In the case of Ferguson v. Montgomery, 148 Ark. 83, we held that it was essential that the affiants should be members of the party holding the contested election, but •that it was not essential that the affidavit recite that fact.

In the case of Simmons v. Terral, 145 Ark. 585, we held that the word ‘ citizen, ’ as used in the statute, was synonymous with the word “elector,” and, in reviewing that case in the Ferguson v. Montgomery case, we said: “Now the object of primary election statutes is to give the electors of recognized political parties the immediate control in the selection of their own candidates. Therefore only those who are entitled to participate in the primary were directly interested in the election ¡and, cpuld be said to be reputable citizens or electors within the meaning of the statute.”

Here the affiants each alleged that they are citizens of Pope County and members of the Democratic party, and we think this prima facie is sufficient compliance with the statute.

It is urged, upon the authority of the case of McLain v. Fish, supra, that affiants could not be interested persons, because their names did not appear in the published official list of qualified electors and that the evidence of their qualification, to-wit, a poll-tax receipt, was not returned bv the election officers, as required by § 3777, C. & M. Digest. This requirement is that the elector whose name was omitted from the official list of voters should file the original, or a certified copy, of his tax receipt with the judges of the election, and the statute also provided that, if they voted without complying with this statute, their ballots should not be counted.

But we are considering now the question whether the affiants were eligible to make the affidavits, and not whether their votes should be counted. They may not have sufficiently complied with the law to have their ballots counted, and yet have been entitled to vote, had they complied with the law by filing their receipts with the judges. Now, if these affiants were qualified to vote at this election, they did not forfeit their .status as eligible affiants because their attempt to exercise the right to vote was abortive.

We proceed therefore to consider whether the affiants were entitled to vote. They were members of the Democratic party, and were residents of Pope County. Chambers had assessed and paid his poll tax in another county, but he had resided in Pope County for more than six months, and he had therefore resided long enough in that county to meet the requirement of the law in regard to residence. Section 1, article 3, Constitution. We think also that Emmitt Austin sufficiently identified himself as being E. T. Austin. The affiants were therefore qualified electors if they have properly paid their poll tax.

It is earnestly insisted that affiants were not qualified electors because the receipts for the payment of their poll tax do not meet the requirements of § 3777, C. & M. Digest. It is provided in this section of the initiated act controlling contests of primary elections that “it shall be the duty of each elector at the time of the payment of his poll tax to state, and it shall be the duty of the collector to record and certify in his receipt evidencing the payment of such poll tax, the color, residence, postoffice address (rural route, town or street address), voting precinct, and school district, of such person at the time of the payment of such tax, and all poll-tax receipts not containing such renuiremcnts shall be void and shall not be recognized bv the iudsres of election; provided, however, it shall not be necessary to state or have certified the street address of any such person in cities and towns where the numbering of houses is not required by the ordinances thereof.”

This section, further provides that the Auditor of State shall have the poll-tax receipts which the law requires him to furnish to the collectors so printed as to conform to the requirements of this section.

The receipts exhibited by the affiants were executed on blanks furnished by the Auditor of State. The blank space showing residence was not filled out, but the post-office address is given. The rural route is not shown, and there may have been none. The voting precinct is not stated, but the number of the school district is given. The color of the taxpayer was not stated, but the letter “W” appears in that space, which was, no doubt, intended as an abbreviation for the word “white.” The same omissions appear in all the receipts.

The evident purpose of this statute was to identify the taxpayer, so that he only, and not another, might use it as his authority for voting; and we think the collectors, ■ in issuing these receipts, sufficiently complied with the requirements of the statute to make the receipts valid.

The word “residence” is defined in Webster’s New International Dictionary as follows: “Act or fact of abiding or dwelling in a place for some time; act of making one’s home in a place; as, the residence of an American in France or Italy for a year.”

It is a matter of common knowledge that the great majority of the tax receipts are issued near the end of the time for paying taxes, and the collectors are pressed for time to serve the taxpayers, who have probably waited in line for the opportunity to pay, and the ordinary man would consider that he had sufficiently designated his residence when he had stated his post-office, and that he had sufficiently designated his voting precinct when he gave his postoffice address and the number of the school district in which he resides.

The possession of a poll-tax receipt by one liable therefor is made essential to the exercise of the duties and rights of -citizenship hy Amendment No. 6 to the Constitution; and we do not think there was any'intention to deprive a citizen of those rights, who had dis-. charged the duty of paying his poll tax, because, in paying it, he had failed to have the collector fill out all blank spaces in the receipt, when they were sufficiently filled out to identify him, thereby meeting the evident purpose of the statute.

We are reenforced in this construction of the statute quoted from when we read it in connection with-§ 3741, C. & M. Digest, which provides: 11 * * * Any person liable to pay poll tax, and who has paid the same at any time within the dates named, shall, if possessed of the other qualifications required hy law of an elector, be entitled to vote at any election held in this State at any time before the first Monday in July of the year succeeding that in which the payment is made.”

We conclude therefore that the affiants were qualified electors and were entitled to make the supporting affidavit to appellant’s complaint, and the court was therefore in error in dismissing the complaint for the want of a proper affidavit, and the judgment dismissing the cause will be reversed and the cause remanded, with directions to overrule the demurrer.


author: McCulloch, C. J.

text:
    Beloate v. New England Securities Company.
    Opinion delivered October 20, 1924.
    1. Mortgages — reassignment of debt — enforcement of acceleration clause. — Where default had been made in the payment of interest on a note secured by trust deed, the fact that the owner of the debt had assigned it and had not secured a reassignment before commencing a foreclosure suit did not prevent enforcement of the acceleration clause in the deed.
    2. Mortgages — parties to foreclosure. — The real owner of 'the debt secured by a deed of trust and the trustee therein are necessary parties to an action to foreclose such deed.
    3. Mortgages — foreclosure—defect of parties. — Though a mortgage foreclosure suit will be dismissed if the owner of the debt secured is not a party, such, defect may be cured by subsequently joining him as a party.
    4. Mortgages — right op mortgagee to recover taxes paid. — Where the owner of a debt secured by deed of trust assigned the debt and agreed to look after collections and report any tax delinquencies, in a subsequent suit by it after the debt had been reassigned to it, it -could recover for taxes paid by it before reassignment, such payment not being voluntary.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      E. H. Tharp, for appellant.
    While the trustee in a mortgage is a necessary party, he cannot bring suit in his own name, but in his trust capacity. 44 Ark. 314. Suit must be brought by the owner of the indebtedness. 159 Ark. 231. A trustee cannot assume any right not given him by the grantor. 27 Ark. 122. The power of the trustee^ to act is limited by the deed itself. 31 Ark. 400. The reassignment after suit gave appellee no right either in the deed or note. 8-5 Ark. 246. The trustee could only bring action jointly with the owner of the note or foreclosed under the terms of the deed of trust, after being requested to do so-by the holder of the note. 36 Ark. 17. Appellee was a volunteer in redeeming from the tax sale. One cannot make another his debtor without the latter’s consent or request. 17 Wallace 166. The trustee could not recover judgment. 43 Ark. 521; 30 Ark. 600.

      Ponder <£ Gibson, for appellee.
    The. suit was properly brought in the name of the trustee. The security company, although a proper party, was not a necessary party. O. & M. Dig., § 1092. See 30 Cyc. 85; 120 Wis. 405; 120 Ala. 449 ; 286 El. 606; 30 Ark. 249; 48 Ark. 355; 159 Ark. 231. -Section 10100, C. & M. Digest, affords authority to -appellee for the redempiion of the land from ta.x sale. Redemption laws will be liberally -construed. 39 Ark. 580; 113 Ark. 497. Almost any right, either at law or equity, perfect or inchoate, in possession or in action, or whether a charge or incumbrance, amounts to such ownership as will entitle the party holding to redeem. 39 Ark. 580; 42 Ark. 215. See also 74 Ark. 393. Any person may redeem lands from tax sale without authority, but such redemption inures to the benefit of the owner. 65 Miss. 516. Even if appellee -were a volunteer, the reassignment by Mrs. Cady operated as a ratification of the redemption.
   McCulloch, C. J.

This is an action to foreclose a mortgage, or deed of trust, on real estate. The land in controversy was owned by T. J. Draper and his wife, Anna, and on January 1, 1919, they borrowed the sum of $2,100 from appellee, New England Securities Company, and executed a note for the same, due and payable five years after date, with interest coupons payable annually. They also executed a deed of trust to appellee, T. C. Alexander, conveying the land in controversy, as security for the debt. Prior to the commencement of this action the Drapers sold and conveyed the land to appellant, W. E. Beloate, the latter assuming, as a part of the consideration for the conveyance, to pay off the mortgage. The action was instituted by the New England Securities Company and T. C. Alexander, trustee, against Beloate and the Drapers.

It is alleged in the complaint that the New England Securities Company is the owner of the note with interest coupons, that default had been made in paying some of the coupons when due, and that the lands in controversy had been sold for taxes and that the same had been redeemed by the New England Securities Company, the sum of $357.02 being paid out in effecting the redemption. The notes and deed of trust contained an accelerating clause providing that all of the debt should be- declared due on -default in the payment of any interest coupon.

On January 24, 1919, the New England Securities Company assigned the debt to Mrs. Mary E. Wells Cady, by indorsement and by a separate written assignment, in which the assignor undertook to “look after the collection of the interest as it' falls due, and the principal at maturity, and to remit same; to keep insurance in force for and on behalf of the holder thereof according to the provisions of the deed of trust securing the bond; to make an annual examination of the taxbooks, and to report any delinquencies, and to advise the holder hereof of the status of the borrower and the condition of the security, whenever deemed necessary, hereby guaranteeing the deed of trust securing this bond to be a first and valid lien upon the premises described therein.” Appellant Beloate filed an answer in which he denied that the New England Securities Company was the owner of the debt, and denied the right of the company to declare maturity.of the same, or to pay the taxes on the land and assert a lien therefor, pleading that the New England Securities Company was a mere volunteer in the payment of the taxes. Thereafter, and before the trial of the cause, the New England Securities Company obtained a reassignment of the debt from Mrs. Cady. The instrument reassigning the debt was dated prior to the commencement of this action, but it was not acknowledged until a date subsequent to the commencement of the action. It appears that, in anticipation of the commencement of this suit, the reassignment was prepared by appellee New England Securities Company and forwarded to Mrs. Cady, and that the forfeiture was declared and this suit instituted before the assignment was actually executed by Mrs. Cady. The proof shows that the taxes were also paid by the New England Securities Company before the reassignment. In the final decree the court awarded a foreclosure for the full amount of the debt, as well as for the amount of taxes paid, and ordered a sale by the commissioner.

It is insisted, in the first place, that the suit was premature for the reason that, a declaration of maturity of the debt was not made by the real holder; in other words, that the New England Securities Company was not the holder of the debt' at the time it declared the maturity. It is sufficient answer to this contention to say that default had been made in the payment of interest which fell due prior to the commencement of the suit, and it was the right of the owner of the debt, whoever that might be, to declare maturity under the acceleration clause and institute an action for the whole debt. The fact that the New England Securities Company had not secured a reassignment of the debt at the time it commenced this suit does not prevent an enforcement in this suit of the acceleration clause in the deed.

It is further insisted that the New England Securities Company was not the owner of the debt at the commencement of the suit, and could not be brought into the action .after its commencement. The real owner of the debt, as well as the trustee in the mortgage, were necessary parties in the action to recover the debt and foreclose the mortgage. Boyd v. Jones, 44 Ark. 314; Snider v. Dennis, 159 Ark. 231. If the plea of appellant that the New England Securities Company was not the owner of the debt'had been made good by proof, the suit should have been dismissed on account of defect of parties (Boyd v. Jones, supra), but the proof of the reassignment.of the debt to the New England Securities Company subsequent to the commencement of the action was tantamount to an establishment of its rights to maintain this suit and to be brought in .at that time as a necessary party-plaintiff, and, with that proof in the record, it would have been improper for the court to dismiss the action. Where one of the necessary parties has brought the action without joining the other party, the defect may be cured by bringing in the other party. Snider v. Dennis, supra. It is not like a case where there is an effort to substitute parties who have a right of action for other parties who instituted the action without right.

The same reasons stated herein for sustaining the decree with respect to the parties also sustain it as to the recovery of the taxes. In addition to those reasons, it may be said that the New England Securities Company was not a volunteer in paying the taxes, as it was under obligation to its assignee of the debt to protect the property from tax liens.

We think the decree was correct in all things, and it is affirmed.


text:
    Plum Bayou Levee District v. Pocket Cypress Drainage District No. 1.
    Opinion delivered October 20, 1924.
    1. Drains — time for appealing cases. — A provision in a special act creating a drainage district that in cases “involving the validity of this district, or the assessment of benefits, and all suits to foreclose the lien of taxes * * * all appeals therefrom must be taken within thirty days,” has no application where none of the above matters are involved, in which case the general statute of six months governs as to the time for appealing.
    2. ' Drains — engineer’s disapproval of plans. — Under Special Acts 1923, p. 1745, § 12, creating a drainage district, which provides that the drainage ditch may pass through a levee at a designated point, and that the engineer of the levee district shall' approve the plans and specifications of the floodgates to be installed, held that, where the engineer disapproved such plan? upon the ground that the place designated for passage of the ditch was inappropriate, his decision was erroneous, the statute being conclusive on that question.
    Appeal from Lonoke Chancery Court; John E. Martinean, Chancellor;
    affirmed.

      Colemcvné Gantt, for appellant.
    The decision of the chief engineer is binding, and cannot be questioned except for fraud, or for such gross mistake as implies bad faith, or a failure to exercise an honest judgment. 83 Ark. 136. The fact that the court 'might differ with chief engineer in his conclusions will not warrant setting aside his findings. 17 How. 344. The burden was upon the plaintiff to show that the chief engineer’s requirements were made in bad faith. 112 Ark. 83.

      Gray & Morris, for appellee.
    Where an arbitrator is selected by the Legislature, strong and satisfactory evidence only is required by the 'plaintiff. 43 L. R. A. 843. Where the plans and specifications have been approved by the chief engineer, his decision upon other matters is not material to the issue nor binding upon appellee. 88 Ark. 214.
   McCulloch, C. J.

Under authority of a special statute enacted by the General Assembly in' the year 1905, Plum Bayou Levee District, created by that statute, constructed a levee along the east bank of the Arkansas River in Pulaski, Lonoke and Jefferson counties, to protect the adjacent lands from flood waters of the river. The levee begins at a point near Old River, in Pulaski County, and extends southeasterly along the bank of the river for a distance of about forty-three miles, ending at a point south of Rob Roy, and it protects an area of about 377,000 acres, the levee being maintained by the district.

The General Assembly of 1923 enacted a statute (Special Acts 1923, p. 1745) creating a drainage district known as Pocket Cypress Drainage District No. 1 of Pulaski and Jefferson counties, and it embraced an area of about 12,000 acres within the boundaries of the levee district for the purpose of draining that area. A section of the statute creating the drainage district reads as follows:

‘ ‘ Section 12. The commissioners are hereby granted the privilegie to pass through Plum Bayou at a point near the mile-post between miles 18 and 19, in section three (3), township three (3) south, range ten (10) west, Jefferson County. However, all plans, specifications and installation of the necessary floodgates to be installed through said levee shall be approved by the chief engineer of the Plum Bayou Levee District. ”

Plans and surveys were made by the drainage district, at considerable cost, to carry out the work of constructing the drainage canal or ditch, and also plans and specifications were made by the engineer of the drainage district for passing the drainage canal through the levee at the point designated in the statute and for the installation of neeessary floodgates. These plans were presented to the chief engineer of the levee district, who. declined to approve them, and this action was instituted in the chancery court by the drainage district against the levee district to obtain a mandatory injunction compelling the levee district to permit the passage of the ditch through the levee, and to enjoin the levee district from interfering with the prosecution of that work. ' An answer was filed by the levee district alleging that the plans and specifications for the passage of the drainage ditch through the levee and the installation of floodgates were inadequate to protect the levee, and that the engineer of the levee district had properly declined to approve them. The answer also attacked the validity of the statute creating the drainage district on the ground that it was an attempt to take property without compensation and without due process of law.

There was a trial before the chancery court on oral testimony of the respective engineers for the two districts, and other engineers, and also upon all of the maps showing the character of the area and the proposed plans and specifications for the work of passing the ditch through the levee and installing the floodgates. There were several sittings of the court and examinations and reexaminations of the engineers. In the beginning of the trial there were many points of difference between the opinions of the several engineers, but these differences were, to a considerable extent, eliminated .as the trial progressed, and there was an exchange of views as to the plans for this work. The issues of fact finally settled down to the question as to the place for cutting through the levee and the proper safeguards to be adopted for temporarily protecting the levee while the work of constructing a floodgate .and spillway was in progress. The main contention of the levee district and its engineer was that the point designated in the statute was not an appropriate one, for the reason that there was danger of the levee caving at that place on .account of the encroachment of the river. The chancery court rendered a decree granting the relief prayed for by the drainage district.

The appeal to this court was not perfected for nearly six months after the rendition of the decree, and the appellee moved to dismiss on the ground that the statute creating the drainage district provides that, in all cases “involving the validity of this district, or the assessments of benefits, and all suits to foreclose the lien of taxes, *** all appeals therefrom must be taken and perfected within thirty days. ’ ’ Appellant has abandoned the attack on the validity of the statute by failing to insist upon it here, and that strips the case of any of the characteristics which are embraced within the statute which shortens the time for appeal. The case, as it now stands, does not involve the validity of the district, or the assessments of benefits, and it is not a suit to foreclose the lien for taxes, hence the appeal may be prosecuted within the time specified by the general statute fixing six months as the time for appeal to this court. Davis v. Cook, 155 Ark. 613.

The contention of learned counsel for appellant is that, under a fair construction of § 12 of the statute creating the drainage district, the privilege of passing the ditch through the levee is conditional on the approval of the chief engineer of the-levee district as to the selection of the place, as well as to the -sufficiency and correctness of the plans and specifications. On the other hand, it is contended for the drainage district “that the statute itself fixes the particular point for the passage of the draim age ditch through the levee, and that the requirement for securing the approval of the levee district relates only to the plans and specifications for the construction of the work at the place mentioned in the statute. We are of the opinion that the construction contended for by appellee is the correct one. In fact, the language of the statute admits of no other interpretation, for it plainly and definitely specifies in absolute terms that the drainage district shall have the privilege of passing the ditch through the levee at a designated point. Of course, the use of the word “near” gives a little latitude, but it clearly means that the point of passage shall be approximately at the mile-post between the designated sections. If there was nothing more in this controversy than the question as to the particular spot where the ditch should pass through the levee, there would be room for contention that there should be approval by the engineer of the levee district, but the contention of that engineer is that no point anywhere near the one designated is appropriate, and, in order to carry out the views of the engineer, it would be necessary, to make a radical change in the location. In fact, he contends that the levee should not be cut at all, but that the ditch should be run into Plum Bayou, and that that stream should be straightened so as to carry the water into the Arkansas River. This, according to the proof, would entail large expense, out of proportion to cost of drainage improvement; but, without discussing that feature of the testimony, we find it sufficient to say that the Legislature itself has granted the privilege of passing the ditch through the levee and has designated the place where it should be done. The evidence adduced in the case is not sufficient to show that the statute selecting the place is arbitrary or demonstrably erroneous. With this point in the controversy settled, it is clear that the refusal of the engineer of the levee district to approve the plans was arbitrarily based on what he conceived to be a proper selection of the place. It is true, as contended by counsel for appellant, that the engineer was, by the statute, constituted the arbiter concerning the approval of the plans, and that his decision is binding, except for fraud or gross mistake (Carlile v. Corrigan, 83 Ark. 136), but the fact that the engineer based his disapproval wholly on the selection of the place for passing the ditch through the levee — a matter not involved in his decision — his determination is based on an obvious error, and is not binding.

The question of the selection of the place having passed out of the case, the only objections relate to the matter of temporarily protecting the levee during the period of cutting the ditch through the' levee and constructing the floodgate and spillway. On the final examination of the engineer he conceded that, if the work was to be done at that place, the plans and specifications met his approval, and were such as he would adopt himself. The temporary protection was afforded by the decree of the court in providing that the work should be done during the months of August, September and October, where there is no probability of high water interfering. With this and other safeguards specified in the decree to be thrown around the time and method of the construction of the work, any objections to the.construction of the work under those plans and specifications were captious. The real controversy in the case was, as before stated, in relation to the selection of the place. In the final analysis there has been no substantial controversy as to the plan nor as to the method and time for the work to be done.

The decree of the chancery court is therefore affirmed.


author: Wood, J.

text:
    Bostick v. Pernot.
    Opinion delivered October 20, 1924.
    1. Municipal corporations — improvement district — boundaries. —Where the original petition for creation of an inprovement district and the ordinance creating it correctly described the boundaries of the district, the ordinance was not invalidated by the fact that the published copy of the ordinance contained obvious clerical or typographical errors in the enacting clause in describing the boundaries of the - district, where the published preamble correctly described such boundaries.
    2. Municipal corporations — indefiniteness of plans. — Plans for a paving district which stipulated that a concrete pavement should .be laid, but left it to the discretion of the commissioners to select the type of concrete which, considerering its durability and cost, would conserve the best interests of the people of the district, held not too indefinite.
    Appeal from Crawford Chancery Court; J. V. Bomland, Chancellor;
    affirmed.

      George G. Stockard, for appellant.
    The difference in the description of the petition and ordinance passed by the city council and that in the ordinance published, is fatal to the validity of the district. Í04 Ark. 298; 67 Ark. 30. The failure of the commissioners to make definite plans renders all subsequent; proceedings void. 134 Ark. 315.

      G. M. Wofford, for appellee.
    Patent clerical or typographical errors in the description of the boundaries of improvement districts will not invalidate their formation. 148 Ark. 634. In determining boundaries of a tract of land it is not permissible to disregard any of the calls if they can be applied and harmonized. 4 R. C. L. 110. The county court has jurisdiction in all matters concerning the internal improvement and local concerns of the county. 43 Ark. 324.
   Wood, J.

This is an action by taxpayers in Paving District No. 4 of the city of Van Burén attacking the validity of an ordinance of the city council of Van Burén creating the district. The original petition for the creation of the district, signed by ten property owners of the district, and the ordinance creating the district, described the boundaries of the district as follows:

“Beginning at the southwest corner of block one (1) Knox Addition to the city of Van Burén, Arkansas, thence due east to the center of the main line, of the St. Louis and San Francisco Railroad, thence in a northeasterly direction along the center of the said main line to a point 140 ft. due east of the east line of Cane Hill Street; thence due north on a line 140 feet due east of the east line of said Cane Hill Street, through Drennen Addition, to the south line of William Penn Street; thence west along the south line of William Penn Street to a point due south of the line between lots two and three of Boatright & Ayers’ subdivision of Drennen Addition to the city of Van Burén, Arkansas; thence due north across William Penn Street and on the line between lots two and three of Boatright & Ayers’ subdivision of Drennen Addition to the north line of Peunywitt Street; thence due west along the north line of Peunywitt Street to the southeast corner of block thirteen, Knox Addition to the city of Van Burén; thence west to a point due north of the northwest corner of block nine, Knox Addition to said city: thence due south along the east line of Washington Street to the southwest corner of block one, Knox Addition to the city of Yan Burén, the place of beginning, ■and being wholly within the corporate limits of the city of Yan Burén, Arkansas.”

The boundaries of the district as above set forth in the original petition and in the ordinance creating the district are correctly described in the preamble to the ordinance, which was published in the Yan Burén Press-Argus as required by § 5650 of Crawford & Moses’ Digest. But, in the enacting clause of the ordinance as thus published, the words “thence west along the south line of William Penn Street” are omitted, and after this omission the description is “to a point due south of the line between lots one and two, block 4,” when, in order to conform to the description in the original petition and ordinance as passed by the council, the description should have been “to a point due south of the line between lots two and three” instead of lots one and two, and leaving out the words “block 4.”

The omission of the words in the correct description as contained in the original petition and in the ordinance as passed and in the preamble to the ordinance as published, and the insertion of the improper description in the enacting clause of the ordinance as published, creates an impossible situation. It was an error in the description so glaring that any property owner seeking to discover the true boundaries of the district as created by the ordinance could not be misled by this description. A property owner, when he compared the description in the original petition and ordinance as enacted by the council and as contained in the preamble to the ordinance as published, would readily perceive that the words omitted from the description in the enacting clause of the published ordinance and the words inserted therein were the result of a mere clerical misprision. The property owner, in reading the preamble to the published ordinance, would know that it contained a correct description, and he would also know that it was the intention of the typographer to follow such description, and that, in attempting to do so, he had made an impossible and erroneous description. Patent clerical or typographical errors in the published description of boundaries of improvement districts will not invalidate the ordinances creating them.

In B. C. L., vol. 4, p. 110 and 111, it is said: “In determining the boundaries of a tract of land it is not permissible to disregard any of the calls if they can be applied and harmonized in any reasonable manner; if there is an actual contradiction between calls in the description of land, the court may reject the one which is false or mistaken, and an unreconcilable call may be disregarded if it appears to have been inserted by mistake.” See Johnson v. Hamlen, 148 Ark. 634; Castle v. Sanders, 160 Ark. 391.

This case is clearly differentiated from the cases of Voss v. Reyburn, 104 Ark. 298, and McRaven v. Clancy, 115 Ark. 163. In those cases the publication of the ordinance failed to include lands that were embraced in the petitions for and in the ordinances creating the districts. It is not so here.

2. The appellant contends that the plans filed by the commissioners and approved by the city council are too indefinite in that they do not definitely describe the kind and type of paving to be constructed. The board of improvement, in reporting their plans to the city council, submitted, as a part of their report, the plans for the improvement as prepared by the engineer of the district. The engineer reports that it was advisable to use some type of concrete pavement. The board of improvement, in its plans, reported as follows: “While the estimated cost is based upon the use of plain concrete, we will advertise for bids upon this kind of paving both with separate and integral curb and gutter and also vibrolithic concrete paving. If the prices bid permit the use of vibrolithic concrete paving with the funds available, this type of paving will be selected, as we believe it will be for the district’s best interest.”

The estimated cost of the above types of concrete was set forth in the engineer’s report attached to and made a part of the report of the board of improvement. It will be observed “that the board definitely planned a concrete pavement, the type to be used depending upon the cost thereof and the funds available. Thus the plans for the improvement were not indefinite, and it was certainly within the discretion of the board of improvement to select the type of concrete which, considering its durability and cost, would conserve the best interests of the people of the district. Conway v. Commissioners of Board of Improvement Dist. No. 20, ante, p. 487, and cases cited.

The decree is in all things correct, and it is therefore affirmed.


author: Hart, J.

text:
    Brown v. Board of Commissioners of Paving District No. 3.
    Opinion delivered October 20, 1924.
    1. Municipal corporations — singleness of improvement. — Paving does not necessarily include curbing and guttering, as they are not convertible terms, and do not necessarily include each other, so as to constitute a “single improvement,” under Crawford & Moses’ Dig., § 5666, but distinct districts may be created for each, covering the same territory.
    2. Municipal corporations — conclusiveness op council’s finding.- — The determination of a city council as to the singleness and unity of an improvement project, as well as the selection ■of the property to be benefited thereby, is conclusive, except for fraud or demonstrable mistake.
    3. Municipal corporations — limit of cost of improvement— inclusion of courthouse. — In determining whether the cost of a proposed improvement exceeded the limit allowed by Crawford & Moses’ Dig., § 5666, the commissioners of the district properly included the value of the county courthouse and grounds.
    Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor;
    affirmed.

      Btarbird, £ Btarbird, for appellants.
    The plea of res judicata can only be available against one who was either a party or a privy to a party in the action pleaded, 96 Ark. 451; 105 Ark, 86, The organ'ization of two districts to construct a single improvement is illegal and void, regardless of the cost of the improvement. 123 Ark. 467. The commissioners erred in including the value of the courthouse and grounds in their assessment. 88 Ark. 406; 141 Ark. 186; 123 Ark. 467. Public property, not being assessable, should be excluded in determining- the value of the real property in an improvement district. 69 Ark. 69.

      E. L. Matlocli, for appellees.
    When one or more of the taxpayers in a municipal improvement district,. similarly situated, brings a suit attacking the legality of the formation of the district or its legal existence, or taxes and assessments levied by it, such suit is essentially a suit for. all the property owners and taxpayers in the district. A judgment against a county or its legal representatives, in a matter of general interest to all its citizens, is binding upon the latter, though they are not parties to the suit. Freeman on Judgments, 3rd ed., § 178. Where a citizen and taxpayer brings an action in behalf of himself and other taxpayers against a municipality every citizen is regarded as a party to the proceedings, and bound by the judgment rendered. 15 B. C. L. § 510; 107 Pac. 163; 28 Kan. 289; 26 Kan. 658; 123 111. 122; 13 N. E. 161; 13 S. C. 290 ; 35 Conn. 526; 16 How. 303; 14 L. ed. 942; 13 Wash. 141; 42 Pac. 541; 34 W. Va. 730; 12 S. E. i359; 133 N. Y. 187; 30 N. E. 965; 31 N. E. 334; 60 Yt. 1; 12 Atl. 224; 57 Ohio -St. 132; 48 N. E. 667. A former judgment is evidence of nothing in a suit between strangers to the record, except the rendition of the judgment. 96 Ark. 451; 105 Ark. 86. The findings of the city council that a majority in value signed the petition is final and conclusive. 131 Ark. '28; 132 Ark. 511; 131 Ark. 429.
   Hart, J.

This appeal involves the correctness of a decree of the chancery_ court in which the complaint of certain landowners attacking the organization of municipal improvement districts and seeking to restrain the commissioners from constructing the improvements was dismissed for want of equity.

On the 31st day of May, 1923, appellants brought this suit in the chancery court against appellees to restrain them from proceeding further in the construction of two local improvements.

Appellants allege that they are owners of real property within the limits of each of the improvement districts, and that appellees are the commissioners of both districts.

The complaint alleges that two improvement districts were formed in the city of Van Burén having the same commissioners, assessors, and engineers; that one of said districts was organized for the purpose of building pavements upon and along certain streets in the city of Van Burén, and that the other district was organized for the purpose of building curbs and gutters along the same streets; that the districts have the same boundaries and were organized at the same time, and therefore constitute a single improvement.

The complaint • also alleges that the cost of the improvement in one of the districts amounts to more than twenty per centum of the assessed value of the property therein.

It appears from the record that other owners of real property in the districts brought suit in the chancery court against the commissioners of the districts to enjoin them from proceeding further with the construction of the proposed improvements. One ground of attack was that the commissioners assessed and levied a tax of more than twenty per centum of the value of the real property of the districts according to the last county assessment. Another ground of attack was that the improvements constitute in fact a single improvement, the cost of which exceeds twenty per centum of the value of the real estate of the district. The chancery court dismissed these suits for want of equity, and an appeal was taken to this court. The decree was reversed because the cost of the improvement exceeded the twenty per cent, limit provided by statute, and the court also held that the assessments were void because they were not made upon a proper basis. In that case, as well as in the instant case, it was contended that the fact that the districts were organized at the same time, and that one was for paving and the other for curbing and guttering the same streets, showed as a matter of law that but a single improvement was intended. The court, following the case of Bottrell v. Hollipeter, 135 Ark. 315, held that, while the power to pave may include the cost of curbing and guttering, yet they are not convertible terms, and do not necessarily include each other so as to constitute a single improvement. Meyer v. Board of Improvement of Paving District No. 3, 148 Ark. 623.

In Cooper v. Hogan, 163 Ark. 312, this court held that the determination of a city council in including property in an improvement district as to the singleness and unity of the improvement project, as well as the selection of the property to be benefited thereby, is conclusive except for fraud or demonstrable mistake.

¡Precisely the same issue on this point is raised in the present case as was raised in the cases just referred to, and these cases, being against the contention of counsel for appellants in the present case, necessarily preclude them from a recovery herein.

The other ground of attack upon the district is that the cost of one of the proposed improvements will be greater than the twenty per cent, limit of the assessed value of the property provided by statute.

The commissioners, in determining whether the cost of the improvement was greater than the limit prescribed by statute, included the value of the county courthouse and grounds as shown by the last county assessment. If the value of the courthouse as placed upon the assessment book by the county assessor should be included, the cost will not exceed the limit prescribed by statute. If the value of the courthouse as fixed by the assessor and placed upon the assessment book should not be included in making the. estimate, the cost will exceed the limit prescribed by statute.

Section 5666 of Crawford & Moses’ Digest provides, among other things, that no single improvement shall he undertaken which alone will exceed in cost twenty per centum of the value of the real property in such district as shown hy the last county assessment.

Section 9935 provides that the assessor, at the time of making the assessment of real property subject to taxation, shall enter in a separate list pertinent descriptions of all burying grounds, public schoolhouses, houses used exclusively for public worship, and institutions of purely public charity, and public buildings and property used exclusively for any public purpose, with the lot or tract of land on which said house or institution or public building is situated, and which are by law exempt .from taxation, and the value thereof.

Thus it will be seen that the assessor is required to list all public buildings and to fix their value. There is no restriction in the Constitution as to the cost of the improvement, except that it shall not exceed the amount of the assessment of benefits. Therefore the Legislature had the power to provide that the cost of a single improvement should be twenty per centum of the value of the real property in the district as shown by the last county assessment. It also had the right to provide that the value of public buildings should be shown on the county assessment book. It follows that the value of the public buildings as shown by the-last county assessment would be necessarily included in making the total value of the property shown by such assessment.

This rule was recognized in the City of Malvern v. Nunn, 127 Ark. 418. In this connection it may be stated that the Legislature of 1921 amended § 5666 of Crawford & Moses’ Digest by taking away the twenty per centum limit as above set forth. General Acts of 1921, p. 416.

The improvement districts in the present case were organized before the passage of the act of 1921, just referred to, and the law as it stood before the passage of the act must govern. Hence what we have said above disposes of the case; but, if it should be held that the act of 1921 applied, the result would be the same.

Therefore the decree will be affirmed.


text:
    Rogers v. Tri-State Motor Sales Company, Inc.
    Opinion delivered October 20, 1924.
    Attachment — delivery bond — discharge op sureties. — Where , a delivery bond executed by defendant under Crawford & Moses’ Dig., § 8731, was not conditioned as required by § 8649, that defendant should perform the judgment, but provided that the property should be “forthcoming and subject to the orders of the court,” held that the sureties were discharged upon return of the property.
    Appeal from Cross Circuit Court; W. W. Bandy, Judge;
    reversed.

      8. W. Ogam, for appellant.
    The attachment must have been sustained before any liability is incurred against the sureties upon the retaining bond. The condition of the retaining bond was fully performed. The liability of a surety on an attachment bond is created by and rests alone on the stipulations of the bond. Cvc. 4, vol. L. 840; 34 Ark. 542.

      Giles Dearing, for appellee.
    There was no attachment to sustain. Where personal property is sold and title retained, upon default, the vendor may bring replevin, or he may waive this right and elect to sue for the balance of the purchase price. 156 Ark. 319; 148 Ark. 151. Appellee’s remedy is controlled by C. & M. Dig., § 87-29, and it was not necessary to allege the ordinary grounds of attachment. 45 Ark. 136. The action instituted was not to enforce a lien, but to create one. 52 Ark. 450. The sureties on this bond are liable for the amount recovered in the action, without reference to whether the attachment was wrongfully issued or not, and the attachment defendant is precluded from controverting the grounds of attachment. 39 Ark. 460; 48 Ark. 195.
   Smith, J.

The Tri-State Motor Sales Company, hereinafter referred to as the company, sold an automobile to L. C. Rogers for the sum of $1,079,. and, in payment therefor, Rogers executed two promissory notes, one for $359.72 and the other for $719.44. The title to the car was retained in the contract of sale and in the notes evidencing the debt.

Rogers failed to pay the notes when they fell due, and suit was filed to enforce payment, and it was there prayed: “That the sheriff of Cross County, Arkansas, attach and hold the said automobile herein described, and hold same subject to the orders of this court, and that a lien be by this court established upon said car, and that same be sold to satisfy the said debts.”

The sheriff took possession of the car, whereupon Rogers executed the following bond: “We undertake and are bound unto the plaintiff, the Tri-State Motor Sales Company, Inc., and Commercial Acceptance Trust, in the sum of two thousand ($2,000) dollars, that the defendant, L. O. Rogers, shall perform the judgment of the court in this action, or that the undersigned will have the property attached in this action, or its value, one thousand and seventy-nine dollars, forthcoming and subject to the orders of this court, and for the satisfaction of such judgment.” The sheriff approved this bond, and released the car to Rogers.

Upon the trial of this suit judgment was rendered in favor of the plaintiff for $1,018.86, and it was by the court adjudged that “a lien be and is hereby declared upon the said automobile, and that, if said debt be not paid, that said car be sold, * * *,” and the proceeds of sale be applied to the payment of the judgment.

The car was sold under the judgment, and brought only $275. Thereafter the company sued Rogers and the sureties on his bond, set out above, and, upon the trial of this cause, judgment was rendered against the sureties on the bond for the price of the car, less the proceeds from the sale, and the sureties have prosecuted this appeal.

Appellees rely on § 8731, C. & M. Digest, for the affirmance of this judgment. This section provides that the defendant in a suit of this character may give bond for the retention of the property as in cases of orders of delivery of personal property.' The statute referred to, which prescribes the form of bond in cases of orders of delivery of personal property, is § 8649, O. & M. Digest, and this statute provides that the bond shall be “to the effect that the defendant shall perform the judgment of the court in the action.”

It- is only upon the execution of a bond with this condition that the defendant is entitled to have the property redelivered to him, and it will be observed that the bond here sued on was not so conditioned. The sureties did not undertake to perform the judgment except as an alternative if the automobile was not “forthcoming and subject to the orders of the court.”

The auto was surrendered, and was sold under the orders of the court, and the condition of the bond was thus discharged. The company had the right to demand that the sheriff retain possession of -the automobile until a bond was executed which conformed to the requirements of the statute; but the bond here sued on is, of course, the one which was executed, and not the bond which should have been required before the property was released.

The principle which controls here was announced in the case of Fondren v. Norton, 86 Ark. 410. That suit, like this, was one to enforce payment of a note given for the purchase price of the attached property. The property was found by the officer in the hands of a third party, who claimed to have purchased from the maker of the note. In lieu of a bond, the party in possession deposited with the officer á sum of money exceeding the valu’éüdf ■ the property. The trial court declared the law as follows: “1. The money in lieu of bond became such bond as the statute required in such oases, and was an absolute and unqualified bond to perform the judgment of the court. 2. That, after the deposit and discharge of property, plaintiff relinquished all right to property, and could rely solely on the bond. 3. Plaintiff, having secured judgment against, the original debtor, was entitled to the deposit of the money in satisfaction of his judgment.” After rendering judgment in favor of the plaintiff for the amount of the note, the court directed that this judgment be satisfied out of the deposit in the hands of the officer. In reversing this judgment this court said: “The statute provides that, when the officer shall seize property in cases like this, the defendant may give bond for the retention as in cases of orders of delivery of personal property. Kirby’s Digest, § 4908. ‘ Such a bond, in effect, as well as in terms, is absolute, to perform the judgment of the court.’ Mayfield v. Creamer, 39 Ark. 460. The constable in this case was not authorized to receive money in lieu of such bond. He had no right to release the horse except upon the condition prescribed by the statute. The money being received without authority, it did not become a substitute for the bond prescribed by the statute.”

The court further said that the owner of the money deposited with the officer obviously intended that the money should be held for the return of the horse (the property there attached) in the event it should be held liable for any judgment that should be recovered for the purchase money for which the note sued on was given, and that, in making the deposit, no consent was given that the money should be applied to the satisfaction of the debt if the horse was returned.

So here, the bond given was not conditioned as the statute required to secure the return óf the property. The sureties obligated themselves to perform the judgment by paying the debt in the event only that the car was not returned, but, as the car was returned, the bond' was discharged, and the court was in error in rendering judgment against the sureties.

The judgment will therefore be reversed, and the suit against the sureties dismissed.


author: Humphreys, J.

text:
    Coston v. Kealy.
    Opinion delivered October 20, 1924.
    Attorney and client — liability for fee. — Where an attorney representing certain contractors explained to one holding an order from the contractors that the claim of the latter against an improvement district was unliquidated and that his fee must be paid before anything should be pnd on the order, and the holder of the order then filed it with the attorney for payment when the claim was collected, he will be held to have adopted the contract of employment of the attorney by the contractors, and the attorney’s claim is entitled to priority.
    Appeal from Mississippi Chancery Court, Osceola District; J. M. Futrell, Chancellor;
    reversed.

      James O. Coston, for appellant.
    The relation of attorney and client existed between Coston and Kealy, and the latter is estopped to claim priority over the former’s claim for services rendered. When Kealy was in Coston’s office, he knew at that time that there would not be enough realized on the claim of Sifers & Hunt to pay both himself and Coston in full, and when Coston told him that his fee must be paid first, that was the time for Kealy to object, if he intended to object at all. 103 Ark. 513, 145 S. W. 245; 22 Ark. 173. The instrument given to- Kealy by the contractors was not an assignment of any interest in the contract between them and the improvement district or in the funds due them, but merely a bill of exchange. C. & M. Digest, §§ 7892-7893. As to the status of Coston, it is settled that he not only has a lien on the securities in his hands, but also that he is virtually an assignee of a portion of the judgment, or of the debt or claim equal to his fee. 33 Ark. 234-235; 149 Ark. 11, 231 S. W. 195; 154 Ark. 302; 87 N. Y. 559-560.

      Driver <& Simpson, for appellee.
    There is no evidence that the relation of attorney and client existed between appellant and Kealy, and there is nothing to base a common-law lien upon, save a mere contract between the contractors and the district. Appellant was notified that the contractors had sold the debt to appellee long’ before the certificates were issued, and that they had no interest in the certificates when issued. Cases relied on by appellant are not in line with appellant’s contention and do not support his theory.
   Humphreys, J.

This suit was brought on July 2, 1923, by Sifers & Hunt, contractors, through their attorney, J. T. Coston, against the commissioners of. the Osceola Grading & Oiling District No. 1, and its collector, to enjoin them from making additional payments to a part of the creditors to the exclusion of plaintiff’s claim, alleging insolvency of the district. It seems that the commissioners and collector were paying all of the first collections from the assessments to some of the creditors whom they favored, instead of pro-rating the amount amongst all the creditors. The indebtedness of the district amounted to $15,000 and the aggregate assessment of benefits amounted to only $8,202.50, which represented the entire assets of the district with which to pay its liabilities.

On the 28th of July, 1923, Kealy filed an intervention, alleging that, on the 17th of February, 1923, the contractors made an assignment to him of their interest in the funds dué the contractors from the district to the extent of $5,789.70. He further alleged the insolvency of the district, and that the commissioners were paying some' of the creditors, with a prayer for a distribution of the funds of the district pro rata among the creditors.

On the 18th of September, 1923, Coston filed an intervention in the action, alleging his employment, the service rendered by him in adjusting the differences between the contractors and the district, the placing of the contract and certificates in his possession by his client, and that they were still in his possession, concluding with a prayer that his lien for services be protected.

The cause was heard upon the pleadings and testimony, which resulted in a decree enjoining the commisr sioners from making any additional payments to the favored creditors of the district until all other creditors were paid an equal percentage of their claim. There was no appeal from the decree on this branch of the case. The court, however, denied the petition of J. T. Coston for priority of his claim over that of Philip J. Kealy and other creditors of Sifers & Hunt, and ordered the sum, due said contractors to be distributed as follows:

Ben H. Green.........................................................$ 268.50

Chester Danehower ............. 72.00

Mrs. Electra Buck............................. 50.00

Philip J. Kealy...................................................... 5,789.70 then to

J. T. Coston I.....................................■..................... 1,500.00

From the order denying his intervention J. T. Cos-ton has prosecuted an appeal to this court. Kealy did not appeal from or attack the order of the court allowing the other creditors of the contractors to share and share alike with him.

Counsel for appellant has made a succinct statement of the facts in this case responsive to the issue of priority of claims presented by the intervention, so we adopt it, in the main, as a statement of the case by the court. It is as follows:

“An improvement district was organized for the purpose of doing certain work on the streets of Osceola.. The contract for the work was let to plaintiffs, Sifers & Hunt, and the work was done before the assessments were made. The total liabilities of the district aggregated about $15,000 and the total assessment of benefits-was only $8,202.50. A dispute arose between Sifers & Hunt, contractors, and the improvement district as to the amount due them. Thereupon the contractors employed appellant, Coston, an attorney-at-law, to represent them in making an adjustment of the differences between the contractors and the district, agreeing to pay him $1,500 for his services, and turned over to him the contract between the district and the contractors. Coston finally brought about an adjustment of the differences between the district and the contractors, and the district issued and delivered to Coston, as attorney for the contractors, fourteen certificates of indebtedness, aggregating the sum of $6,987.72. The original contract between the district and the contractors and the certificates issued by the district to the contractor in making the adjustment of their differences are still in Coston’s possession.

February 17, 1923, the contractors gave to Philip J. Kealy an order on Coston “for the sum of $5,789.70, or on the drawer of this order, out of the amount now due and payable for work performed.” Two days later the contractors issued the following order:

“ February 19, 1923.

“Judge J. T. Coston,

“Osceola, Arkansas.

“Dear sir: You are hereby authorized to pay to Col. Philip J. Kealy or order, the sum of $5,789.70 of the funds now due and payable to the Arkansas Good Roads Company for work performed for the city of Osceola, Arkansas. Yours very truly,

“The Arkansas Good Roads Company,

“By E. I. Sifers.”

When the above order was received by Coston, he wrote Kealy as follows:

“Mr. Philip J. Kealy, “March 12, 1923.

“221 Dwight Building,

“Kansas City, Mo.

“Dear sir: I beg to acknowledge receipt of your • favor, inclosing letter from the Arkansas Good Roads Company for work done in Os'eeola.

“This is to advise you that I have placed the claim among my files, and when these funds are collected, or as fast as they are collected, I will be glad to remit, first paying 'claims that are entitled to priority, of course.

“Yours very truly,

“J. T. Coston.”

A few days later Kealy made a visit to Coston, who explained to him the status of the claim of the contractors against the district, and also explained to Kealy that his fee for services must be paid first. Thereupon Kealy replied, ‘ ‘ Of course, yon will have to be paid. ’ ’

A little later Coston discovered that the commissioners of the improvement district were collecting the assessments and paying some of the creditors in full and nothing to others. Accordingly, on July 2, 1923, he commenced this action in behalf of the contractors against the commissioners, alleging the insolvency of the district and that the commissioners were paying the funds of the district to certain creditors and had announced their intention of paying all other indebtedness in full before paying the contractors anything, concluding with a prayer for an injunction, and that the funds of the district be paid out according to law and with due regard to the rights of the contractors and other creditors.

Appellant contends that he was entitled to deduct the amount of his fee from the sum due appellee on his order from Sifers & Hunt before paying any amount to appellee on said order. This contention is based upon the ground that the relationship of attorney and client existed between appellant and appellee. Appellee contends that no such relationship existed between him and appellant. We think the preponderance of the testimony establishes this relationship between them. When appellee -presented his order to appellant, there was no money in the hands of appellant to pay it. All that appellant had in his possession was a contract between Sifers & Hunt and the commissioners of the district, which Sifers & Hunt had performed before any benefits had been assessed against the property in the district. The claim was unliquidated, and had not at that' time been adjusted. The collection thereof depended largely on the ability and influence of appellant to induce the commissioners to make an equitable settlement with Sifers & Hunt. Appellant explained the nature and character of the claim to appellee, and informed him that his fee of $1,500 must be paid before he could pay anything on the order. With a full understanding of the situation, appellee filed his claim with appellant for payment when the claim was collected. Appellee permitted appellant to proceed with the adjustment and to receive certificates of indebtedness for the claim, and raised no objection until after this suit was brought to enforce a pro rata collection on said certificates. Appellee adopted the contract of employment between the contractors and appellant by knowingly accepting the benefit of his legal services and by permitting him to continue these services after being advised of the nature and character of the claim and the amount agreed upon as a fee for adjusting same.

The court erred in denying the petition of appellant for priority over Kealy and the other creditors of Sifers & Hunt.

• On account of this error the decree is reversed, and the cause remanded with directions to the court to allow appellant’s claim as a prior and paramount claim out of the sum due Sifers & Hunt to the claims of appellee and the other creditors of said contractors.


text:
    Lavoice v. Deloney.
    Opinion delivered October 20, 1924.
    1. Landlord and tenant — disposition op crop by landlord — . instruction. — Where a landlord, holding a mortgage on his tenant’s crops, agreed to hold the cotton crop until the market recovered, or until both parties should decide it best to sell, in •an action by the landlord to foreclose the mortgage, in which the tenant filed a cross-hill claiming damages by reason of the landlord’s failure to sell the cotton at a good price when requested to do so, an instruction ignoring the contract as to disposition of the cotton and permitting the jury to find the value of the crop in its own way was erroneous.
    2. Mortgages — duty op mortgagee to sell at highest price.— Where a landlord, holding a mortgage on the tenant’s crops, agreed to hold the tenant’s cotton until the market price recovered, or until both parties should decide to sell, such agreement did not obligate the landlord to sell at the highest price offered, irrepective of whether the offer would bring enough to pay his debt.
    Appeal from Little River Circuit Court; Ben E. Isbell, Judge;
    reversed.

      Otis Gilleylen, for appellant.
    It is conceded that appellant was lawfully in possession of the cotton. If therefore he was guilty of conversion, the measure of damages was the market price of the cotton at’ the time of sale, less the amount of the mortgage debt, and also less the amount of rents due appellant. 126 Ark. 554; 51 Ark. 19; 144 Ark. 547; 128 Ark. 232.
   Humphreys, J.

This is an appeal from a judgment in favor of appellees against appellant in the circuit court of Little River County growing out of a rental contract. Appellant was the landlord and appellees the tenants. The latter part of 1920 appellant leased a plantation in said county to appellees for the years 1921, 1922 and 1923, at a yearly rental of $3,300. Early in the year 1921 he furnished them corn to the value of $600, and took an interest-bearing note for same, payable in the fall. On April 1, 1921, he advanced them $800 in cash and took an interest-bearing note for same, due November 15, 1921. For the purpose of securing this note and all other indebtedness which was then due or might become due, appellees executed a chattel mortgage to appellant, covering the crops to be raised on the plantation and ten mules which appellees owned and were using in cultivating the place. A little later on appellant advanced appellees another $100, for which he took two interest-bearing notes in the sum of $50 each, payable in the fall. Appellant also advanced a small amount to appellees to pay cotton pickers. On November 29, 1921, the three-years’ lease was canceled, appellant agreeing, in consideration of the termination of the lease, to reduce the rent to $2,500 for the year 1921, to buy at least 1,600 bushels of corn from appellee, with an option to buy more, at fifty-five cents per bushel, for enough, to pay the $600 note, and sixty cents per bushel for the balance, and to hold the cotton which had not been sold until the market recovered, or until both parties should decide it best to sell, but in no event to hold same longer than January 1, 1922.

Appellees introduced testimony tending to show that, after the contract of cancellation had been executed, the market price of cotton recovered, and that they were offered twenty-three cents per pound for the whole lot of cotton; that they requested appellant to accept the offer, but he declined to do so, and, in December, sold it at a much lower price, without their knowledge or consent, and to their damage in a large sum.

Appellant introduced testimony tending to show that no such offer was made and refused, and that he sold the cotton for the best price obtainable in the market.

After selling the cotton and applying the proceeds thereof and accounting for the value of 2,000 bushels of corn at the price specified in the cancellation contract, appellant brought this suit to foreclose the chattel mortgage against the mules, to pay the $800 note and other indebtedness which he claimed appellees owed him.

Appellees filed an answer pleading payment, and a cross-bill claiming that appellant had received 2,800 bushels of corn instead of 2,000 bushels, and had damaged them in a large sum by refusing to sell the 'cotton at twenty-three cents per pound when requested to do so.

Appellant filed an answer denying the material allegations of the cross-bill.

The cause was submitted upon the pleadings, the testimony introduced by the parties and the instructions given by the court, which resulted in a verdict and judgment in favor of appellees for $510.45.

The first contention of appellant for a reversal of the judgment is that, under the most favorable interpretation which can be given the testimony, under any conceivable theory of the case, appellees would not have been entitled to a judgment of more than $251.09. We deem it unnecessary to outline and analyze the testimony, as the judgment must be reversed on account of erroneous instructions given by the court.

Appellant next contends that the court erred in giving instruction No. 3 requested by appellees, which is as follows:

“The court further instructs the jury that, if they find from a preponderance of the evidence that the defendants turned over to plaintiff the cotton raised by them on plaintiff’s place during the year 1921, it would devolve upon the plaintiff to account to the defendants for the value of said crop.”

This instruction wholly ignored the contract entered into between the parties for the disposition of the cotton, and permitted the jury to ascertain and determine the value' of the crop in its own way.

Appellant next contends that the court erred in giving instruction No. 4, requested by appellees, which is as follows: “The court instructs the jury that, if they find from .a preponderance of the evidence that the plaintiff, having taken possession of said cotton, refused to let defendants sell the same for the highest price, if you find defendants were offered the highest price, and after-wards, without defendant’s consent, sold the said cotton for a price less than the highest price, then the plaintiff would be liable to defendant for the loss sustained by reason of plaintiff’s selling same for less than the highest price. ’ ’

The contract for the sale of the property did not impose upon appellant a duty to sell the cotton at the highest price which might prevail between November 29, 1921, and January 1, 1922. It only imposed a duty upon appellant to hold the cotton until the market improved or until both parties should decide it was best to sell same. Of course, if appellees received an offer which would be sufficient to pay their entire indebtedness to appellant, then it would have been appellant’s duty to sell it, irrespective of the contract, because he could have no interest in the cotton, either under the contract or under his chattel mortgage, beyond an amount sufficient to pay what appellees owed him. If the instruction'had contained such a proviso, then it would have declared the law applicable to the case, but, as written, it imposed an absolute duty upon appellant to sell the. cotton at twenty-three cents per pound if such an offer was received and such a request was made upon him to sell same, irrespective of whether it would bring enough to pay his debt. If it would not have brought enough to pay the entire indebtedness then due him, he would have been entitled, under the contract, to hold same for a higher price. • .

Appellant’s last contention is that the court erred in giving instruction No. 5, requested by appellee, which is as follows: “The jury are instructed that, if théy find from a preponderance of the evidence that plaintiff has received in money or property, or because of the loss in selling cotton for less than the highest price, as herein defined, and the money or property and loss amounts to more than the notes and interest sued on herein, you will find for defendants for such excess, if you find there is an excess.”

This instruction would have been correct if the highest price of the cotton mentioned therein had been properly defined in instruction No. 4. As said in discussing instruction No. 4, appellant was not required, under the contract, to hold and sell the cotton at the highest price obtainable, unless it would have sold for enough at such price to pay his entire indebtedness.

On account of the errors indicated the judgment is reversed, and the cause is remanded for a new trial.


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

text:
    Missouri State Life Insurance Company v. Witt.
    Opinion delivered October 20, 1924.
    Insurance — foreign corporation — venue of ACTiON.-^-.Under Crawford & Moses’ Dig., § 1829, foreign corporations, including life insurance companies, may be sued in any county of the State, regardless of the residence or place of death of the insured.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    affirmed.

      C. E. Pettit and W. A. Leach, for appellant.
    The venue in this case is determined by C. & M. Digest, § 6151. The suit should have been brought in Monroe County. It is clear that, prior to the passag-e of the act of March 18,1899, the act of April 4,1887, had no application whatever to foreign insurance corporations, and that process could not be served on such corporations in any manner other than that pointed out by the statute relative to such insurance companies. 69 Ark. 396; 59 Ark. 593; 139 U. S. 233; 60 Ark. 578. The act of March 18,1899, was an amendment of the statute relative to corporations. generally; and foreign insurance companies not being- mentioned therein, and the act amended not having.any application to foreign insurance companies, the law relative to service of process upon such companies was not in any manner affected by that act. Attention is called to the fact that in the revision of 1904, that portion of the act of March 18, 1899, prescribing the manner of service, which was carried forward as § 839 of Kirby’s' Digest (now § 1829 of C. & M. Digest), viz., “service of summons and‘other process upon the agent designated under the provisions of § ,825” (C. & M. Dig., § 1826), was not contained in the act as originally enacted, and was not incorporated therein by any subsequent legislative enactment.

      T. J. Gaughm and Bogle <& Sharp, for appellee.
    The motion to quash the service was properly overruled. The statute relied upon by appellant, C. & M. Dig., § 6151, was the act of February 27, 1897, but a later act was passed, that of May 13, 1907, an act regulating foreign corporations in the State, and brought forward in Crawford & Moses’ Digest as § 1826, which specifically includes foreign fire and life insurance companies, and requires of each that it shall designate its general office or place of business in this State, and shall name an agent upon whom process may be served. See also the act of 1909, § 1174, C. & M. Digest, regulating the •service on foreign corporations, and the act of May 13, 1917, C. & M. Dig., § 1827. The foregoing acts unquestionably, we think, gave the court jurisdiction in this case; also that the question has been settled by this court in the case of Mutual Aid Insurance Company v. Blachnall, 123 Ark. 379. See also 140 Ark. 137; 150 Ark. 635; 156 Ark. 211.
   Humphreys, J.

Appellee recovered judgment in the circuit court of Ouachita. County upon a life insurance policy for $5,000, interest, the statutory penalty, and an attorney’s fee against appellant, which policy was issued by it upon the life of Charles A. Witt, naming appellee as the beneficiary therein.

An appeal has been duly prosecuted from the judgment to this court, and appellant seeks a reversal thereof upon three grounds, namely: (1). That the trial court was without jurisdiction. (2). That the answers made by the insured in his application for the policy were false, and rendered the policy void. (3). That the trial court erroneously instructed the jury.

(1). The insured resided in Monroe County, Arkansas, when he procured the policy, and continued to reside there until his death. This suit was brought in Ouachita County, and service was obtained upon appellant, a foreign corporation, in Pulaski County, by delivering á copy of the summons to its designated agent, Bruce T. Bullion, Insurance Commissioner. The appellant appeared specially and moved to quash the summons upon the ground that it was issued out of a court that had no jurisdiction over the 'cause of action. The trial court overruled the motion to quash the service, and the contention of appellant is that the court committed reversible error in doing so. Appellant insists that the venue of the cause of action was fixed by § 6150 of Crawford & Moses’ Digest, which requires actions on life insurance policies to be brought in the county of the residence of the insured, or in the county where the death of the insured occurred. In other words, appellant contends that the suit should have been brought in Monroe County, where the insured resided and died. Section 6150 of Crawford & Moses’ Digest became a law by enactment of the Legislature of 1897. The suit was brought under § 1829 of Crawford & Moses’ Digest, which is as follows:

“Service of summons and other process upon the agent designated under the provisions of § 1826 at any place in this State shall be sufficient service to give jurisdiction over such corporation to any of the courts of this State, whether the service was had upon said agent within the county where the suit is brought or is pending, or not.”

This section of the Digest was passed by the Legislature in 1899, two years later than § 6150, supra. Section 1826 of Crawford & Moses’ Digest, referred to in said § 1829, expressly embraces foreign life insurance companies. By carefully reading § 1829 we have concluded that it is a venue statute, and that its purpose is to give jurisdiction over suits against foreign corporations, including foreign life insurance cpmpanies, to any of the courts of this State. This was the effect of the ruling of this court in the case of the American Hardwood Lumber Co. v. Ellis, 115 Ark. 524. In that case the contention was made that a transitory action must be brought against a foreign corporation in the county where its designated agent resided. This court rejected the contention upon the ground that § 1829, supra, meant to add something to the law as it then existed, “in saying that the service should be sufficient to give jurisdiction to any of the courts of this State, whether had in the county where the suit is brought or is pending, or not.” In construing the statute in question this court said: “We conceive it to be onr duty to give effect to the language used by the lawmakers, and, when this is done, it means that, under the statute now in force, service on the designated agent, even outside of the county where the suit is brought, is sufficient. We have nothing to do with the harshness of the statute nor the inconvenience which is likely to follow from it. That is a matter which addresses itself entirely to the lawmakers.”

It is true that the court had under review a transitory action, but the statute in question makes no distinction between transitory and local actions. It relates to both kinds of actions, so, if the statute changed the venue with reference to transitory actions, it had the effect of changing the venue of any action brought against a foreign corporation which had designated an agent in this State for the purpose of service. Moreover, a suit upon an insurance policy against a foreign insurance company is in its nature a transitory action. We think § 18'29 had the effect of changing the venue in suits against foreign insurance corporations from the county of the insured’s residence, or the county where his death occurred, to any county in the State.

The court did not therefore commit error in overruling the motion to quash the service.

(2-3). The two other questions presented on this appeal, and relied upon for reversal of the judgment by appellant, were involved in a companion case between the same parties reported in volume 161 of the Arkansas Reports, at page 148. There is no material difference between the facts in the two cases or in the theory upon which they wére submitted, so the instant case is ruled by the case of Mo. State Life Ins. Co. v. Witt, 161 Ark. 148.

No error appearing, the judgment is affirmed.

McCulloch, C. J.,

(dissenting). The statutes of this State localize actions on insurance policies by providing that actions on life insurance policies shall be maintained “in the county of the residence of the party whose life was insured, or in the county where the death of such party occurred.” Crawford & Moses’ Digest, § 6150. Such, action is thus made local and not a transitory one.

I am quite unable to understand what the majority mean by saying that “a suit upon an insurance policy against a foreign insurance company is in its nature a transitory action. ’ ’ The character of an action — whether transitory or local — is determined altogether by the statute which authorizes its maintenance. Nothing in the Constitution fixes the venue in civil actions, and that is fixed by statute. The power of the Legislature in fixing venue in civil actions is unrestricted. That power has been exercised in the statute referred to above (§ 6150), and the question presented in this case is whether it has been repealed or amended by § 1829 so as to make an action against a foreign corporation on a policy of insurance a transitory one. I do not think such is the effect of the later statute, which does not deal with the matter of venue in civil actions, but merely with place of service of process. The words in the statute, “give jurisdiction over such corporation’to any of the courts of this State,” relate to jurisdiction to persons and not to subject-matter.

The case of American Hardwood Lbr. Co. v. Ellis & Co., 115 Ark. 524, does not, I think, support the views of the majority, for it involved a purely transitory action and was confined to the question of effect of the later statute on transitory actions against foreign corporations,

The effect of the present decision holding that § 1829 is a venue statute in actions against foreign corporations leads to the result that all venue statutes as to such corporations are repealed by the later statute and that such a corporation may be sued in Ashley County to recover possession of land in Washington County, or that the chancery court of Lafayette County may appoint a receiver to wind up such a corporation doing business and having property situated exclusiyely in Clay County. 1 cannot believe that such was the intention of the lawmakers as expressed in the language used.