author: Hart, J. Hart, J.

text:
    Blair v. Clear Creek Oil & Gas Company.
    Opinion delivered April 18, 1921.
    1. Mines and minerals — oil and gas lease — abandonment.—If it was the duty of an oil and gas lessee to drill a protection well on the leased land to prevent it from being drained by wells on adjoining tracts, his refusal to drill would constitute an abandonment of the contract, and equity would afford relief.
    2. Appeal and error — objection to jurisdiction not raised below. — The objection that equity had no jurisdiction can not be raised for the first time on appeal.
    3. Equity — administering complete relief. — When equity has acquired jurisdiction of a matter in a suit for one purpose, all matters in issue will be adjudicated and cúmplete relief afforded.
    4. Mines and minerals — oil and gas lease — duty to explore.— Where an oil and gas lease authorizes the lessee to elect to pay a yearly rental, instead of drilling a well, the lessors can not recover damages for failure of the lessee to commence exploration for gas; but, where the lessee commences to explore for gas, it must exercise due diligence in drilling, and there is an implied covenant on its part to do so.

      5. Mines and minerals — acceptance op rental. — Acceptance of delayed rental by an oil and gas lessor precludes him from forfeiting the lease for failure to develop the lease during the term covered by the delayed rental.
    6. Mines and minerals — oil and gas lease — implied covenant to protect LESSOR. — Where a landowner leases to another the exclusive right to drill for oil and. gas for a stipulated period of time, there is an implied covenant on the part of the lessee to protect the lessor against drainage, at least by wells drilled by him on adjoining property which will necessarily draw the gas from the lessor’s land, and, in default of such protection wells being drilled by the lessee, the lessor may recover damages.
    7. Mines and minerals — oil and gas lease — failure to sink wells — damages.—Though the damages recoverable by an oil and gas lessor from their lessee on account of draining the land of gas through wells on adjoining property without drilling protection wells on the leased lands may be difficult of determination and ascertainment, this fact is no bar to relief. .
    8. Mines and minerals — liability por proportionate share op gas. — An oil and gas lessee which violated its implied covenant to drill protection wells on the leased land to prevent its drainage through wells drilled by lessee on adjoining tracts is liable to the lessors for their proportionate share of the gas taken from the wells drilled by the lessee so near the boundary of the lease as to draw off the gas underneath their land.
    9. Appeal and error — reversal—reopening for further testimony. — Where a chancery case was not fully developed, the cause will, on reversal, be remanded with directions to take additional testimony.
    10. Mines and minerals — failure to sink wells — measure of damages. — In a suit by oil and gas lessors to cancel the lease on the ground that the lessee was drawing off the gas from their land through wells drilled on adjoining land, without drilling protection wells on the leased lands, the measure of damages is the amount of royalty that the lessors should receive from the quantity of gas drawn from the leased premises.
    Appeal from Crawford Chancery Court; J. V. Bow-land, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    Appellants brought this suit in equity against ap-pellees to cancel a gas lease on the ground that appellees were drawing off the gas from appellants’ land by means of wells drilled on adjacent lands near appellants’ boundary lines, and for damages resulting tbereform. Appellee defended the suit on the ground that there was no liability under the terms of the lease upon which the suit is based.
    The material facts are as followsWhat is known as the Kibler gas field was explored in the fall of 1915, and the first well was drilled by appellee in November, 1915. On the 24th day of November, 1915, E. T. and Mary Blair leased to appellee, Clear Creek Oil & Gas Company, 27 acres of land to be explored for oil and gas in the center of what is known as the Williams field, which is adjoining the Kibler field. Appellants leased to appellee the twenty-seven acres of land for the term of five years and as long thereafter as oil or gas might be produced in paying quantities. Appellee had the exclusive right to explore the land for oil and gas. If gas was found, it was provided that the lessee should pay - the lessors one-eighth of the net proceeds of the sale of the gas. The lease further provides that, in case no well drilling operations for oil, gas, or other minerals is begun on the land within one year, all rights and obligations under the lease shall cease upon notice in writing being served on the lessee by the lessors, unless the lessee shall elect to continue the leasse in force by paying to the lessors an annual rental of $100, until a well is drilled, provided that when such well is drilled the above provided-for rental shall cease.
    The Kibler field was first developed and most of the gas drawn from it. In the fall of 1918, the Williams field was explored for gas, and the first producing well was brought in some time in November or December of that year. Appellee had leases on the land west and north of the Blair land, known respectively as the Greig and Bryant lands. Appellee drilled two wells on the Greig land. The first well was drilled in the spring of 1919, and is about 400 feet northwest of the northwest corner of the Blair land. A second well was then drilled about 350 feet west of the Blair land and about one-quarter of a mile south of the first well. Appellee also, in the spring of 1919, drilled a well on the Bryant tract, about 500 feet north of the Blair land. All of these wells produce gas and draw gas from the Blair land.
    The testimony of experts shows that the Williams field is uniform in character, and that the gas producing sand is equally porous, and that gas will be drawn along all the radii of a circle of which the well is the center for a quarter of a mile.
    The lessors and the lessee construed their lease to mean that payment of the reserve rental for delay in drilling should be made quarterly in advance. On the 4th day of June, 1919, the lessors wrote the lessee a letter calling attention to the fact that they had drilled wells on an adjoining tract near the boundary line of the 27-acre tract in question, and that the wells were producing a large amount of gas; that much of the gas coming from these wells was drawn from under the land of the lessors, and they demanded that the lessee should protect them by drilling a well at an early date on their land. The lessee failed or refused to comply with this demand, and on the 28th day of July, 19191, the lessors wrote the lessee another letter that the lease on the land in question had been canceled, because of the failure of lessee to drill protection wells on the land of the lessors as requested in their former letter.
    Testimony was also introduced by appellants tending to show the amount of gas taken from the wells on the adjoining lands.
    According to the testimony of appellee, it did not drill the wells on the adjoining lands for the purpose of drawing gas from the land' of its lessors. In developing a gas field, it is necessary to take leases on large areas of land, and the drilling must necessarily be delayed on some of the land, and for this reason the leases provide for an annual rental for the delay. Appellee had only two sets of drilling machinery and was drilling wells on the land leased by it in the Williams field as fast as- it was practicable after gas had been discovered in that field and a producing well brought in.

      On tiie 3d day of November, 1920, the chancellor found the issue as to the cancellation of the lease in favor of appellants, but found against them on the question of damages. A decree was therefore entered of record, canceling the lease of appellants to appellee, but dismissing their cause of action for taking gas from their land through wells on the adjoining land by appellee.
    The appellants have duly prosecuted an appeal to this court.

      G. M. Wofford and E. L. Matlock, for appellants.
    The court erred in refusing to allow appellants to recover damages for breach of the implied covenant to drill protecting wells against drainage. Thornton’s Law of Oil and Gras, §§ 104, 121; 176 Pa. St. 502; 49 Ind. App. 602; 96 N. E. 19; 238 Ill. 397; 87 N. E. 381; 107 S. W. 609; 162 Ind. 395; 68 N. E. 1020.

      Hill & Fitshugh, for appellees.
    Appellants had no remedy in equity, and their remedy, if any, was an action at law for damages. The lessor (plaintiff) could not claim and receive royalty under the lease and claim damages for alleged violation thereof during the same period.
    The acceptance of rentals shows she was relying on the lease and is estopped from claiming that the lease was violated, or that she was entitled to damages during the period covered. 11 L. R. A. (N. S.) 419, note; L. R. A. 1917 A, p. 171.
    That lessor can not complain of failure to drill during the period that he has accepted rentals for delay is well established by all the Federal authorities. 140' Fed. 801; 237 U. S. 856. Under these authorities plaintiff can recover no damages, and the court erred in canceling defendant’s lease.
   Hart, J.

(after stating the facts). The record in this case shows that appellee drilled three wells which produced gas on adjoining tracts of land so near to the boundary lines of appellants that the wells are drawing the gas from underneath, their land and in time will draw it all away. The only, practical way to offset this is to drill protection wells on the land of- appellants. It made no effort to drill protection wells. The lease does not contain any protection clause. The doctrine of protection is new in this State and arises from the fluid underground situation of either oil or gas.

On the part of appellants, it is claimed that when oil is drawn from underneath land by wells drilled near the boundary line which will obviously drain the land, there is an implied obligation on the part of the lessee to sink the number of wells necessary -to protect the demised tract.

Counsel for appellants insist that, appellee having failed and refused to drill the protection wells as requested by appellants, or to account to them for the gas drawn from their land, the refusal constitutes a breach of the contract and entitles appellants to declare a forfeiture and to sue for the damages resulting therefrom.

Counsel for appellee contend that appellants had no remedy in equity, and that their remedy, if any, was an action at law for damages. In the first place, it may be said that, if it was the duty of appellee to drill a protection well, and it refused to do this, its refusal would constitute an abandonment of the contract, and "equity would afford relief.

In the case of Mauney v. Millar, 134 Ark. 15, the court held that where the sole benefit of a contract results from a continued performance of the contract (such as to develop a mine, to operate it, pay royalties or to divide the proceeds), where one party completely abandons the performance thereof, equity will give relief by canceling the contract. For a partial breach the parties will be remitted to their remedies at law.

Moreover no objection was made or exceptions saved to the jurisdiction of the chancery court, and, under the repeated decisions of this court, the objection that equity had no jurisdiction can not be raised for the first time on appeal. Apple v. Apple, 105 Ark. 669, and cases cited.

It is well settled that, wlien equity has acquired jurisdiction of a matter in a suit for one purpose, all matters in issue will be adjudicated and complete relief afforded. Horstmann v. LaFargue, 140 Ark. 558.

This brings us to the question of whether there was an implied covenant in the lease to protect appellants against drainage, and, if so, what is the measure of damages recoverable for drainage through wells operated on other lands adjacent to appellants’ boundary lines.

The lease provides for a term of five years, and as long thereafter as gas is produced in paying quantities. The consideration for the first year is $1, and for each succeeding year that operation or exploration is delayed the lessee shall pay a yearly rental of $100 for the delay. The lease expressly authorizes the lessee to elect to pay a yearly rental, instead of drilling. Hence, the lessors can not recover damages for failure of the lessee to commence exploration for gas. If, however, the lessee commences to explore for gas, it must exercise due diligence in drilling, and there is an implied covenant on its part to do so. Mansfield Gas Co. v. Alexander, 97 Ark. 167. See, also, Lawrence v. Mahoney, 145 Ark. 310.

In the application of this principle, counsel for ap-pellee contend that there was no implied covenant on the part of appellee to sink protection wells on the land of appellants. They contend that the rule only applies where the lessee has in part developed the leased premises and produced wells. To support their contention they cite the case of Carper v. United Fuel Gas Co. (W. Va.), L. R. A. 1917 A, p. 171. In that case it was held that the lessor is not entitled to recover damages for failure to drill offset wells to prevent drainage, while the lessee exercises his optional right to pay money in lieu of drilling, and the lessor accepts it.

The court did hold, however, that there was an implied obligation on the part of the lessee to drill a well for protection against drainage, upon necessity therefor, and tlie lessor’s demand for such, action, within any rental period for which rent has been paid, with notice of intention to refuse to accept further rentals, and the right in the lessor to declare a forfeiture of the lease for noncompliance with such demand would afford full and ample protection from such losses. .

We think it perfectly sound to, say that the acceptance of delayed rental precludes the lessor from forfeiting the lease for failure to develop during the term covered by the delayed rental. In such a case the lessor still has the gas and has received the reserved rent for the delay in drilling.

In a case like the present one, however, the facts are essentially different, and a forfeiture of the lease would not afford adequate protection to the lessor. The lessee has the sole and exclusive right to drill. Should the lessee fail to drill a protection well after a producing well has been brought in near the lessor’s boundary lines on adjacent lands, such well might draw off a material portion of the gas under the lessor’s land before he could declare a forfeiture and procure some one else to drill an offset well.

The record shows that drilling wells is very expensive, and is only undertaken where the lessee has a large area of acreage in a block. It is a matter of common knowledge that the landowner is not equipped with machinery for drilling and could not purchase such machinery on short notice, if able to do so. Hence, when he leases his land to another with the exclusive right to drill for oil and gas on it for a stipulated period of time, there is an implied covenant on the part of the lessee to protect the land at least from wells drilled by him on adjoining property which will necessarily draw the gas from the lessor’s land. If there had been no lease on his land, the lessor could have had all the time during which the wells were drilled on adjoining land to have arranged for the drilling of an offset well on his land in case a producing well was brought in on the adjoining land which'would draw the gas off his own .land.- Of course, if lie failed to make such an arrangement, the loss would fall upon himself. In case, however, he has leased his land to another and has given the lessee the exclusive right to drill on his land for gas, it is obvious that the mere right of forfeiture in case the lessee would not drill a protection well would not afford him adequate relief. The practical test is to be found in the question, are the outside wells, as for example, the wells on the Grieg and Bryant tracts, draining the Blair land to such an extent that, if the wells on the Grieg and Bryant tracts were operated by a third party, appellee as lessee of the Blair tract, would find it good management to put down protection wells to save its own leased territory from exhaustion? If so, then good faith to its lessors would require it to put down the protection wells that the lessors might get their royalties under the lease, or at least be protected from having the gas drawn from their lands. In this connection we quote with approval from the case of Carper v. United Fuel Gas Co., supra, the following: “To say the lessor intended-to permit the oil and gas in his land to he withdrawn from it otherwise than through wells drilled on it under the lease, and thus to let it go to other persons for nothing, as an incident of his procurement of a small money rental for two, five, or ten years, would ho inconsistent with reason, and contrary to the legal principles governing the relation of landlord and tenant or licensor and licensee. For the rental reserved, he is neither selling his oil or gas, nor relinquishing his ownership thereof, nor consenting to severance or abstraction thereof. He expects it to remain in the land until the rental period ends, whether it ceases by the drilling of a well or expiration of the term. Nor can it be doubted that the lessee contemplated the same result. Neither could have intended that he should take out the mineral through wells on other lands. The words of his lease contemplate his extraction of the oil and gas through wells to be drilled by him on the land, and so emphatically deny any such intent on his part. The rental is for' delay, not destruction. If, by the negligence or misfeasance of a tenant, the demised property is materially injured, he is liable for the resultant damages, and the landlord may recover the amount thereof from him within the term, notwithstanding he has paid the rent or is bound to pay it. Moses v. Old Dominion Iron & Nail Works Co., 75 Va. 95, 102. If a tenant commit waste, an action lies against him. The landlord is not limited to his rent as, compensation. In these cases there need not be an express covenant against waste, nor an express agreement to pay the resulting damages. They are implied, if not expressed.”

The contract is a lease of the land for the purpose of drilling for oil and gas for the period of time designated therein, and the lessee has a vested right to the possession of the land to the extent reasonably necessary to perform the terms of the agreement on his part. Therefore there is an implied covenant on the part of the lessee to protect the lessor against drainage, and, in default thereof, the lessor may recover damages.

We think this view is supported by the authorities cited below, and in any event that it is in accord with the better reasoning on the question. J. M. Guffey Petroleum Co. v. Jeff Chaison Townsite Co. (Tex. Ct. Civ. App.), 107 S. W. 609; Powers v. Bridgeport Oil Co. (Ill.), 87 N. E. 381; Kleppner v. Lemon (Penn.), 35 Atl. 109; Culbertson v. Iola Portland Cement Co. (Kan.), Ann. Cas. 1914 A, p. 610; Harris v. Ohio Oil Co. (Ohio), 48 N. E. 502; Kelley v. Ohio Oil Co., 57 Ohio St. 317, 39 L. R. A. 765; Kellar v. Craig, 126 Fed. 630 and Thornton on Oil and Gas (3 ed.), vol. 1, par. 109 and vol. 2, par. 882.

What is the measure of damages recoverable for drainage through wells operated by defendants on their lands near the plaintiffs’ boundary line may b^ difficult of determination and troublesome to ascertain, but that is no bar to relief in such cases. For example, suppose in the present case the record should show that appellee had drilled wells on the adjacent lands near to the boundary lines of appellants for the very purpose of drawing the gas from underneath their lands through these wells, it is obvious that such conduct of the appel-lees would be fraudulent and actionable. Or suppose,/" as in the case of Millar v. Mauney, 142 Ark. 486, the evidence had showed that the formation on the leased land was of such a character that it was not practicable to drill through it, but that the gas could be best drawn from underneath the land by drilling a well on the adjacent land outside of the leased premises and the wells on the Bryant and Greig tracts has been drilled by appel-lees there on this account, the failure on the part of the lessee to pay the royalty agreed upon would be actionable. In either of the supposed cases the measure of damages would be the same as in the cases of a breach of an implied covenant to protect the demised premises against drainage. To hold otherwise would to be deny relief in a just case because of the difficulty of ascertaining the amount of loss suffered by the wrongful action of the offending party.

It appears from the record that expert witnesses acquainted with the gas field may testify with reasonable accuracy as to the number of wells which should have been drilled on the leased land for protection from drainage. Such witnesses might also testify with reasonable accuracy as to the quantity of gas obtained from the wells. They did say that the sand in which the gas was found was sufficiently porous that a well would draw from underneath the ground gas for a distance of a quarter of a mile in all directions. The record in the case also shows that the three wells operated by appellee on the adjacent tract will in due course of time draw all the gas from underneath the land of appellants. The lessee under the facts disclosed by the record, is liable to the lessors for their proportionate share of the gas taken by the wells drilled so near their boundary lines as to draw off the gas underneath their land. There is no reason why it can not be ascertained with reasonable certainty what quantity and quality of gas has been and will be taken from appellant’s land through the wells drilled and operated by appellee on the adjoining land. Culbertson v. Iola Portland Cement Co. (Kan.), Ann. Cas. 1914 A, p. 610, 125 Pac. 81.

This is a new question in this State, and it does not appear that the testimony on the measure of damages was fully developed. Therefore, upon the remand of the case, the chancery court is directed to allow either party to take additional testimony on this point within a reasonable time to be allowed by the court or the chancellor thereof, if the parties shall be so advised. Tankersley v. Norton, 142 Ark. 339; Rushing v. Horner, 135 Ark. 201; Bank of Des Arc v. Moody, 110 Ark. 39, and McClintock v. Robertson, 98 Ark. 595.

For the error in refusing to allow appellants to recover damages against, appellee for the breach of the implied covenant to drill protection wells against drainage, the decree will be reversed and the cause remanded for further proceedings in accordance with the opinion.

OPINION ON REHEARING.

Hart, J.

We adhere to our original opinion that there was an implied covenant on the part of the lessee to sink a protection well or wells on the land of the lessor, and that it can not escape liability for the breach of its-implied covenant to protect the lines of the leased premises on the ground that the damages for the breach are difficult of exact ascertainment. Because the nature of the inquiry makes it practically impossible to ascertain with certainty the exact amount of the lessor’s damage, is no reason why the lessor should not have an action for damages for breach of the implied covenant. It is true the law does not permit a witness to speculate or conjecture as to probable damages-, yet experienced persons who are acquainted with the gas-bearing conditions of the lands in the locality of the leased premises can give an opinion as to the amount of gas drawn off the premises and lost by the failure of the lessee to comply with its implied covenant. The rule is that, while the law will not permit witnesses to speculate or conjecture as to possible or probable damages, still the best evidence of which the subject will admit is reasonable, and there is often nothing better than the opinion of well-informed persons upon the subject under investigation. Chamberlayne on Modern Evidence, vol. 3, §§ 2331-32, and St. L., I. M. & S. Ry. Co. v. Brooksher, 86 Ark. 91.

From the evidence already taken, it would seem that the sand-producing gas on the leased premises and the land adjacent thereto is of uniform character, and that, expert witnesses can with a reasonable amount of certainty tell the amount of gas that will be drawn from the leased premises by the wells dug near the boundary line by the lessee on the adjacent premises. When the amount of gas that will be drawn from the leased premises is ascertained, the amount of damages to be recovered can be readily fixed by the royalty that the lessor was to receive.

The evidence in the record shows that the lessee never intended to sink protection wells, and it claims that, under the terms of the lease, it was not renuiml to do so. The lessee drilled three gas wells, one after the other, near the lessor’s boundary lines on adjacent nrom-ises. This shows that it never intended to drill a protection well or wells on the leased premises. The evidence also shows that these wells would draw gas from a quarter of a mile in all directions, and that the character of the gas-bearing sand was such that the gas would all be drawn off of the leased premises by these wells. Hence, under the evidence disclosed by the record, the measure of damages in the present case will be the amount of royalty that the lessors should receive from the quantity of gas which has been or may hereafter be proved to have been draivn from the leased premises. The question of what time would constitute due diligence or delay in drilling protection wells does not arise in the present case, because, as we have already explained, the record shows that the lessee never intended to sink such wells.

It follows that the motion for rehearing will be denied.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Edgar v. Brown.
    Opinion delivered July 1, 1918.
    1. Appeal and error — necessity of entry of judgment. — Where no judgment has been” entered dismissing an appeal from the county to the circuit court, it devolves on aggrieved party to see that the judgment is entered in order to appeal therefrom.
    2. Appeal and error — dismissal of appeal — presumption.—Where a judgment of the circuit court dismissing an appeal from the county court does not recite the matter set up in the motion nor whether the hearing was on the motion or testimony adduced at the hearing, but simply states that after hearing the court, being sufficiently advised, doth adjudge a dismissal of the appeal, and the motion to dismiss is not brought into the record by bill of exceptions, it will be presumed that the dismissal was upon facts which justified it.
    Appeal from Craighead Circuit Court; W. J. Driver, Judge;
    affirmed.

      E. M. Mayes, for appellants.

      La/mb & Frierson, for appellees.
   Humphreys, J.

Appellants prosecuted an appeal to the Craighead Circuit Court from the Craighead County Court establishing Drainage District No. 13 in Craighead County, Arkansas, on the 2d day of July, 1917. The transcript was filed in the circuit court on November 22, 1917, and on November 23 thereafter a motion was filed by appellees to dismiss the appeal. It seems that the motion was sustained, and the appeal dismissed, but no formal judgment of dismissal was entered .of record.

Appellants also prosecuted an appeal from the judgment of the Craighead County Court, rendered September 5, 1917, fixing the assessments on the property in the district. The transcript was filed in the circuit court of said county on January 2, 1918. A written motion was filed on January 3, 1918, to dismiss the appeal from the judgment fixing said assessment. The formal judgment was entered .on January 3, 1918, dismissing the appeal. In the judgment dismissing the appeal it was recited that the motion and arguments thereon were heard. The record fails to show whether it was heard upon the face of the motion or upon evidence. The motion itself does not appear in the transcript.

Appellees insist, with reference to the first appeal, that, no judgment having been entered dismissing same, there was nothing to appeal from. This court has said that: “If the judgment or decree has been omitted from the record, it is within the rights of the losing party to move for an entry of it, and it is his duty to do so if he desires to appeal from it. It devolves upon him to take whatever steps are necessary to perfect his appeal.” Chatfield v. Barrett, 108 Ark. 524.

Appellees have called the court’s attention to the fact that their written motion to dismiss the second appeal does not appear in the transcript. The judgment of dismissal does not recite the matters set up in the motion, nor whether the hearing was on the face of the motion or testimony adduced at the hearing. It simply states that, after hearing, the court, being sufficiently advised, doth adjudge a dismissal of the appeal. If the motion had been brought into the record, it may have shown that the parties appealing were not aggrieved or may have set up some other matter which warranted the court in dismissing the appeal. If it was heard upon evidence, the facts may have warranted a dismissal of the appeal. In the case of Armstrong v. Lawson, 128 Ark. 39, a motion was filed to dismiss an appeal prosecuted to the circuit court from the probate court of Cross County. The motion in that case did not appear in the record. Time was given to prepare and file a bill of exceptions, presumably because the case was heard upon evidence. The bill of exceptions was not filed. This court ruled: “In the state of record just prescribed, we are compelled to indulge the presumption that the court’s ruling in dismissing the appeal was based upon facts which justified it.” We think the rule applied in that case is applicable to the case in hand. It is impossible to tell on the record before us whether the dismissal was warranted. Appellants should have perfected the record by incorporating the written motion for dismissal, and, if heard upon evidence, should have brought the evidence into the record by hill of exceptions.

On the state of record before us, we must presume in favor of the orders of dismissal and affirm the case. It is so ordered.


author: Smith, J. Smith, J.

text:
    Hale v. Road Improvement District No. 1.
    Opinion delivered April 18, 1921.
    1. Appeal and error — contents op bill of exceptions. — On appeal from a judgment dismissing a cause, the hill of exceptions should incorporate the motion to dismiss and any testimony thereon.
    2. Appeal and ERROR — presumption prom silence op bill op exceptions. — Upon appeal from a dismissal of a cause, where the bill of exceptions does not show the motion to dismiss and what, if any, evidence was heard in the court below, it must be assumed that the trial court’s ruling is correct.
    3. Appeal and error — questions not raised by briefs. — Though appellee does not call attention to the absence of a motion for new trial and bill of execptions, the rules of the court require that error assigned for reversal be properly presented by the record.
    Appeal from Mississippi Circuit Court, Osceola District ; B. R. Dibdley, Judge;
    affirmed.

      J. T. Goston, for appellant.
    Sections 4 and 11 of act No. 380, Acts 1919, p. 1666, are to be read and construed together. It was the duty of the board to assess damages, and the landowner to commence an action for damages within twelve months for damages. The act should be construed as a whole and the purpose of the Legislature carried into effect. 158 S. W.. 962-3; 202 Id. 833; 25 R. C. L., § 285; 56 Ark. 137.
    Davis, Costen & Harrison, for appellee.
    It was the duty of the board to assess, not only the ■benefits accruing to the land, but all damages. Act 380, Acts 1919, §§ 4 and 9. See, also, 212 S. "W. 366; 215 Id. 614; 140 Ark. 241, 249-50. The court was correct in holding that section 4 was only to provide a remedy for the landholder where the change was made after the assessment of benefits to the land.
   Smith, J.

Appellant is the owner of lands in Road Improvement District No. 1 of Mississippi County, which was created by act 380 of the-Acts of the General Assembly of 1919 (volume 2, Road Acts, page 1666). The commissioners of the district filed a petition in the county court, praying authority to open a road through one tract of appellant’s land and to widen an old road through other tracts of his land. The county court made the order prayed for, and at the same time approved the plans of the commissioners for the improvement and the assessments of benefits. In returning the assessments of benefits the commissioners awarded no damages for the new road or for the additional right-of-way taken in widening the old road. Within six months thereafter appellant commenced this action by presenting a claim for damages in the county court, and upon the hearing of the claim the county court awarded compensation for damages to the land traversed by the new road, but denied compensation for the additional right-of-way taken in widening the old road. An appeal was prosecuted from that order to the circuit court. The judgment of the circuit court is as follows:

“On this day, January 11, 1921, this cause coming on to be heard on the motion of the defendant to strike this cause from the docket, and the court, being sufficiently advised, doth sustain said motion.

“It is therefore considered, ordered and adjudged that this case be stricken from the docket. To which ruling and judgment of the court the plaintiff excepted at the time and prayed an appeal to the Supreme Court, which was granted.”

The motion to dismiss, which the court below sustained, does not appear in the transcript, and there is no motion for a new trial or bill of exceptions. We do not know, therefore, upon what allegations or testimony the court’s action was based. The motion itself, aiid any testimony which may have been offered on the hearing thereof, should have been incorporated in a bill of exceptions. Adkinson v. State, 142 Ark. 34; Johnson v. State, 142 Ark. 402.

We must assume that some showing was made to invoke a ruling of the court; and we must presume that a correct ruling was made in the absence of the motion to dismiss and a bill of exceptions showing what was heard in the court below. Van Hoozer v. Hendricks, 143 Ark. 463; Armstrong v. Lawson, 128 Ark. 39; Billingsley v. Adams, 102 Ark. 511; Laramore v. Radford, 135 Ark. 494; St. Louis, I. M. & S. Ry. Co. v. Murphy, 38 Ark. 456.

Appellee does not' call attention to the absence of a motion for a new trial and bill of exceptions; but the rules of procedure of this court require us, before reversing a judgment of the court below, to see that the error assigned for the reversal is properly presented by the record in the case.

The record in the case of Edgar v. Brown, ante, p. 314, was identical with the one now before us. In that case we said: “The judgment of dismissal does not recite the matters set up in the motion, nor whether the hearing was on the face of the motion or testimony adduced at the hearing. It simply states that, after hearing, the court,'being sufficiently advised, doth adjudge a dismissal of the appeal. If the motion had been brought into the record, it may have shown that the parties appealing were not aggrieved, or may have set up some other matter which warranted the court in dismissing the appeal. If it was heard upon evidence, the facts may have warranted a dismissal of the appeal. * * * It is impossible to tell on the record before us whether the dismissal was warranted. Appellant should have perfected the record by incorporating the written motion for dismissal, and if heard upon evidence should have brought the evidence into the record by a bill of exceptions. ’ ’

On the state of the record before us we must presume in favor of the order of dismissal and affirm the case, and.it is so ordered.

OPINION ON KEHEASING.

Smith, J.

Counsel, in petition for rehearing, attempts to distinguish the instant case from that of Edgar v. Brown, supra, by stating that here the motion to dismiss was oral, while there it was in writing. It does not appear from the record before us, whether the motion was oral or in writing; but, assuming that the motion on which the court acted was oral, the reasoning of the court in Edgar v. Brown is still applicable. The point is that there was a motion to dismiss the appeal, and some showing must have been made to have invoked that action by the court. Testimony may have been 'heard which warranted that action. Counsel says that no competent testimony could have been heard on that motion; but in this he is mistaken, as appears from what we said in Edgar v. Brown, supra.

Looking only to the record before us, it appears that the appeal from the county court was dismissed, and, as it does not affirmatively appear that the court erred in making that order, the petition for rehearing is overruled.


author: Smith, J.

text:
    Bolton v. Missouri Pacific Railroad Company.
    Opinion delivered April 18, 1921.
    1. Judgment — RES judicata — pleading.—A plea of former adjudication, to be available,’should be pleaded by answer as a defense, and should set out the facts upon which it is based, and the issue is not properly raised by a motion to dismiss which does not recite the facts upon which the plea is based.
    2. Judgment — res judicata. — In a suit against a railway company for personal injuries sustained by plaintiff prior to the passage of the Federal Control Act, a former judgment holding that the government was not liable for a claim against a railroad company accruing prior to the time when the Director General took possession of the railroads did not bar a subsequent action against the railroad company to recover for such injuries.
    3. Evidence — judicial notice — judicial proceedings. — Courts can not take judicial notice of their own records in other causes pending therein, even between the same parties, and of course will not take notice of the records of other courts.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      Oscar H. Winn, for appellant.
    The motion to dismiss on ground of former adjudication should not have been sustained, because (1) the defendant here is not the same party as in the former case. Walker D. Hines, Director G-eneral of Railroads, and the Missouri Pacific Railroad Company are not the same parties defendant, and (2) it does not affirmatively appear that the matter in dispute was the same issue tried. 13 N. W. 708; 59 Iowa 545; 94 U. S. 608 (Law. Ed.), vol. 24, 214; 34 Cyc. 1666.
    The case was never tried on its merits; in the former case the question only as to proper parties was determined. 61 N. E. 954. To make a matter res judicata, there must he a concurrence of four conditions — identity of the thing sued for, identity of cause of action, identity of persons and of quality in the persons for or against whom the claim is made. 34 Cyc. 1666 (foot note); 216 S. W. 3; 91 Ark. 394. None of the cases cited by ap-pellee are in point.

      Thomas B. Pryor and Ponder & Gibson, for appellee.
    1. The court properly sustained the motion to dismiss on the ground of former adjudication; the cause of action, the subject-matter and the parties are the same and the issues the same. 23 Cyc. 1215; 20' Ark. 85; 23 Cyc. 1253.
    2. The judgment on demurrer is conclusive. 2 Black on Judgments, §§ 707-8; 91 Ark. 394; 97 Id. 450; 96 Id. 87. See, also, 66 Ark. 336; 41 Id. 75.
    3. Appellant can not recover for alleged injury which happened while the railroad was in hands of a receiver. 18 Am. St. Rep. 60 ; 69 Id. 206; 22 Id. 56; 164 Ark. 366; 1 Elliott on Railroads, § 526; 33 Cyc. 338.
    4. No motion for new trial was filed, and there is no bill of exceptions. The appeal should be dismissed. 21 Ark. 398; 27 Id. 506; 64 Id. 483; 93 Id. 85.
   Smith, J.

On May 17,1920, Clifton Bolton, a minor, by'Robert Bolton, his father and next friend, sued the Missouri Pacific Railroad Company for damages for personal injuries received by him. The injury complained of occurred July 6, 1916. The following motion to dismiss was filed by the railroad company:

“Motiok to Dismiss on Geound of Fobmer Ad judication.

“Comes the defendant and moves the court to dismiss the action of the plaintiff herein, because it was a party to a former suit filed in this court in which all the matters that are now set up and complained of were in issue, and the court sustained a demurrer to that complaint, which was affirmed by the Supreme Court of this State; and that there are no new matters arising, and that all of the issues and questions have been adjudicated, and the plaintiff is bound thereby.”

This motion was sustained, and the cause dismissed, and this appeal is prosecuted to reverse that action.

The plea of former adjudication is one which, to be available, should be pleaded by answer as a defense. Adams v. Billingsley, 107 Ark. 38. The answer tendering that plea should set out the facts upon'which it is based, and the issue is not properly raised by a motion to dismiss which does not recite the facts upon which the plea is based.

The case which is said to be determinative of the instant case is that of Bolton v. Hines, found reported in 143 Ark. 601; the insistence being that in the former case both Walker D. Hines, as Director General, and the Missouri Pacific Railroad Company were parties defendant. Such, however, is not the fact. The only defendant in that case was Walker D. Hines, who was sued in his capacity of “Director General, Missouri Pacific Railroad Company, Successor of B. P. Bush, Receiver St. Louis, Iron Mountain & Southern Railroad Company.”

The fact alleged in the complaint, as shown in the opinion in Bolton v. Hines, supra, was that Bolton was injured before Hines, as Director General, assumed charge of the railroad, and the point decided was that the act of Congress giving the government control of the railroads of the county did not make the government liable for a claim against a railroad accruing prior to the time the Director General took possession; that the railroad company was liable on canses of action accruing prior to that time.

.It is insisted for the affirmance of the judgment of the court below that on the date of the alleged injury the railroad was being operated by the St. Louis, Iron Mountain & Southern Railway Company, and that subsequent to said injury that road was sold under a decree of the United States District Court within and for the Eastern District of Missouri, Eastern Division, in a cause therein pending wherein Commonwealth Steel Company was plaintiff and the St. Louis, Iron Mountain & Southern Railway Company was defendant. No such showing is made in the record before us. But it is insisted that this court will take judicial notice of the decree and of the orders thereunder. Counsel is mistaken in this contention. We do not take judicial notice of the decrees and orders of other courts. In 7 Enc. of Evidence, page 1003, it is said: “The general rule is that a court will not taire judicial notice of its own records or proceedings in another independent case or proceeding unless required to do so by statute.”

We do not have a statute requiring us to take judicial notice of the proceedings of other courts; and in the case of Murphy v. Citizens’ Bank of Junction City, 82 Ark. 131, 11 L. R. A. (N. S.) 616, this court held that-“Courts can not take judicial notice of their own records in other causes pending therein, even between the same parties. Gibson v. Buckner, 65 Ark. 84; Watkins v. Martin, 69 Ark. 311; Hall v. Cole, 71 Ark. 601; 16 Cyc., p. 918, and cases cited.” See, also, Fry v. Chicot County, 37 Ark. 117; Adams v. Billingsley, 107 Ark. 38.

It follows, therefore, that the action of this court, in affirming the decision of the lower court, which sustained a demurrer in favor of the Director Genéral of Railroads, is not an adjudication of the right to sue the railroad itself for an injury which occurred before the Government assumed control of the railroads.

The judgment of the court below will, therefore, be reversed and the cause remanded.


text:
    Curators of Central College v. Bird.
    Opinion delivered April 18, 1921.
    PARTIES — necessity op. — A suit brought by the “Curators of Central College,” without alleging that they constitute a corporation, and without setting out the names of such “curators,” should be dismissed for want of proper parties plaintiff.
    Appeal from Clay Circuit Court, Western District; R. II. Dudley, Judge;
    appeal dismissed.

      C. L. Darnel, for appellants.
    This is a Missouri contract, and the laws of that State govern. Plaintiff signed the note, and appellants were plaintiffs below and appellants here, and appellee is bound, as appellants are the legal holders of the note and entitled to sue. 106 Ind. 523; 47 Id. 1; 20 Yt. 509 ; 8 C. J. 1003, § 1309;; 96 Ark 416; Rev. Stat. of Mo. of 1899, § 894.
    Where several promise to contribute to a common object desired by all, the promise of each is good consideration for the promise of the others. 6 N. H. 164; 46 Ill. 377; 5 Pick 506; 9 Yt. 289; 1 Parsons on Cont. 399-401. The consideration was sufficient, as expenditure of time, labor and money in securing other subscriptions is sufficient consideration. 72 Ill. 247 ; 57 la. 307; 103 N. Y. 600; 48 N. C. (3 Jones L.) 152; 24 Yt. 189. See, also, 24 Mich. 403; 24 Yt. 477 ; 59 Id. 419; 64 Ark. 427.

      G. T. Bloodworth, for appellee.
    This was a mere offer to make a gift, and neither the subscriber nor the beneficiary were bound until the offer to make the gift is accepted and acted upon by the donee in such manner as to raise a consideration. 64 Ark. 627; 30 Id. 186; 25 R. C. L., § 14, p. 1408.
    The endowment fund was never raised, and there was no consideration. 8 C. J. 411; 112 N. Y. 517. On the whole ease the judgment is right. The church never proved that they complied with the conditions of the offer.
   Humphreys, J.

This suit was commenced by “Curators of Central College” against appellee, on September 6, 1920, before L. L. Shemwell, a justice of the peace of Carpenter Township in Clay County, Arkansas, by filing with the justice the following instrument:

“$25.00. Doniphan, Mo., April 19, 1915.

“For the endowment of Central College, Fayette, Mo., in consideration of subscriptions by others to the same fund, I hereby promise to pay to the Curators of Central College the'sum of twenty-five ($25.00) dollars, in five equal installments, beginning September 1, 1915.

“L. E. Bird.”

“Curators of Central College” failed to appear and prosecute, and the justice of the peace dismissed the suit on the 24th day of September, 1920, from which judgment of dismissal an appeal was taken by “Curators of Central College” to the circuit court of said county.

The cause was submitted to the circuit court sitting as a jury upon the written instrument filed before the justice of the peace and the testimony of appellee, which was as follows:

“I signed the instrument of writing now shown me, and which was sued on in the justice of the peace court. I received no consideration whatever for the contract or agreement. I know that Central College is a school for the education of preachers. I do not know whether any other person or persons signed agreements similar to the one sued on. I never heard of such, and do not know whether any other person or persons paid such subscriptions, if made. I never talked with any one else about the subscription. ’

The court, adjudged that “Curators of Central College” take nothing by reason of the action. From that judgment, “Curators of Central College” have prosecuted an appeal to this court.

Appellee makes the point that suit has not been brought against him by any proper party. It is not alleged that “Curators of Central College” is a corporation, nor are the names of the Curators of Central College set out. It goes without saying that suits must he instituted or defended by persons, either natural or artificial. “Curators of Central College” is not a designation or description of any person either natural or artificial. There being no party plaintiff or appellant, there is no cause of action or appeal therefrom pending in this court. The appeal must therefore be dismissed.


author: Per Curiam.

text:
    Feild v. Waters.
    Opinion delivered April 18, 1921.
    1. Judgment — vacation after lapse of term. — A court with terms fixed by law has no power to vacate a judgment after lapse of the term at which it was rendered, except on the grounds specified in Crawford & Moses’ Digest, §§ 1316, 6290.
    2. Judgment — omission to rule on motion for new trial. — The fact that the court has omitted to rule on a motion for new trial, or has made an order extending the time for presenting or considering a motion for new trial, does not continue the power of the court over its own judgment to the next term, so as to authorize the court to vacate the judgment.
    3. Appeal and error — time for appealing. — An appeal not taken within six months from the rendition of the judgment appealed from, as required by Crawford & Moses’ Digest, § 2140, will be dismissed.
    Appeal from Pulaski Circuit Court, Second Division,- Guy Fulh, Judge;
    appeal dismissed.

      Oscar H. Winn, for appellant.

      J. G. Marshall, for appellees.
   Per Curiam.

This is a motion made by appellees'to dismiss the appeal on the ground that the same was not taken within six months from the rendition of the judgment appealed from, the time prescribed by statute for taking appeals to this court. Crawford & Moses’ Digest, § 2140. The action was instituted in the circuit court of Pulaski County by appellees against appellants to recover possession of a certain tract of land, and there was a trial of the issues before a jury, which resulted in a verdict and a judgment against appellants for the recovery of the land in controversy. The judgment was rendered on January 16, 1920, and appellants immediately filed a motion for a new trial on numerous grounds, among which was an allegation of newly discovered evidence.

That term of the court ended without appellant’s motion for a new trial having been ruled on by the court, nor does the record show that any further order was made by the court in the cause until September 25, 1920, a day of the succeeding term, when appellants filed a motion to set.aside the judgment on account of the delay of the court in acting on the motion for new trial and the failure of the court to rule on that motion during the-former term at which it was rendered. The court thereupon entered the following order:

“On this day the motion in the above cause asking that the judgment therein rendered on the 20th day of January, 1920, be set aside on account of delay in the hearing of the motion for new trial, and the court, being fully advised in the premises, doth find that the hearing of said motion for new trial was delayed on account of an agreement between counsel for plaintiffs and defendants that the trial judge should visit the land in controversy in person before the said motion should be passed upon, and the said delay has been the cause of the statutory time within which defendants have to perfect their appeal in this cause to the Supreme Court.

“It is therefore considered, ordered and adjudged by the court that the said judgment rendered and entered in this cause on the 14th day of January, 1920, be set aside, canceled and held for naught, and the same judgment so entered on said day shall be re-entered as and of the date of September 25, 1920, and the said defendants herein are given five (5) days'within which to file their motion for new trial.”

On the same day (September 25, 1920) the court entered an order overruling the motion for new trial of appellants and granting time within which to present and file a bill of exceptions. The appeal was granted by the clerk of this conrt on March 19, 1921, which was within six months- after the rendition of the last order of the court setting aside and re-entering the judgment of the court, but not within six months of the original rendition of the judgment.

A court with terms fixed by law has no power to vacate a judgment after the lapse of the term at which it was rendered, for the court loses control over its own judgments at the end of the term. Walker v. Jefferson, 5 Ark. 23; Mayor v. Bullock, 6 Ark. 282; Rawdon v. Rapley, 14 Ark. 203; McKnight v. Strong, 25 Ark. 212; Brady v. Hamlett, 33 Ark. 105. After the lapse of the term the court can set aside its judgment rendered at a former term only on the grounds specified in the statute. Crawford & Moses’ Digest, §§ 1316, 6290; Turner v. Vaughan, 33 Ark. 454; Malpas v. Lowenstein, 46 Ark. 552; Johnson v. Campbell, 52 Ark. 316; Ayers v. Anderson-Tully Co., 89 Ark. 160; Terry v. Logue, 97 Ark. 314. The fact that the court has omitted to rule on a motion for new trial, or has made an order extending the time for presenting or considering a motion for a new trial, does not continue the power of the court over its own judgment to the next term so as to authorize the court to vacate the judgment. Joyner v. Hall, 36 Ark. 513; Brady v. Hamlett, supra; Siloam Springs v. McPhitridge, 53 Ark. 21; Stewart v. Wood, 86 Ark. 504; Corning v. Thompson, 113 Ark. 237.

It is not contended that the court set aside the judgment on either of the grounds specified in the statute cited above. The court’s order setting aside the judgment, and appellant’s motion which must be read in connection with it, show that the sole ground for setting aside the judgment was the fact that the court had not acted on the motion for new trial, which was tantamount to an order of the court at a former term postponing the time for considering the motion. The case of Corning v. Thompson, supra, is precisely in point in holding that the postponement to a succeeding term of the consideration of a motion for new trial does not preserve the power of the court over the judgment. It is clear, therefore, from the record before us that the order of the court attempting to set aside the judgment on September 25, 1920, was void, and that the appeal to this court was not granted within the time prescribed by the statutes. The appeal is therefore dismissed.


author: McCulloch, C. J.

text:
    State v. Roberts.
    Opinion delivered April 25, 1921.
    1. Criminal law — time op appeal. — On appeal of the State from a judgment sustaining a demurrer to an indictment for perjury, though the transcript fails to show the date of the judgment, yet where the opening order of court was dated January 3, 1921, and the transcript was filed in the Supreme Court on March 4 following, the appeal was in time.
    2. Criminal law — contents op transcript on appeal. — Rule 20 of the Supreme Court, prescribing the form of transcript in criminal cases, is inapplicable on appeals in criminal cases by the State, so far as it requires the inclusion of things specified in advance of the indictment, where the State is seeking merely to test the correctness of the judgment sustaining the demurrer to the indictment without bringing up the antecedent proceedings.
    3. Perjury — indictment—form op oath. — It is unnecessary, in an indictment for perjury to set forth the form of the oath, it being sufficient merely to allege in general terms that the accused was duly sworn, or sworn in accordance with law.
    4. Perjury — indictment.—An indictment for perjury which alleges in substance, though not in orderly form or apt terms, that defendant, being duly sworn before the grand jury, was asked whether on a certain day he gave a half-gallon jar of whiskey to one W., to which he answered “No”, and that such answer was material and was wilfully, unlawfully and corruptly false, was sufficiently definite to put the accused on notice.
    5. Perjury — indictment—charge of materiality op testimony.— An indictment for perjury on account of having sworn falsely before the grand jury touching violations of the liquor law was sufficient in charging that the alleged false testimony was material, without alleging facts showing the materiality of such testimony.

      6. Perjury — indictment—voluntary .testimony. — An indictment charging perjury before the grand jury in its investigation of violations of the liquor laws was not defective for failing to charge that defendant voluntarily appeared before the grand jury and gave the testimony alleged to be false, as the statute (Crawford & Moses’ Dig., § 3122) protects him from the use of his own testimony in the prosecution of a charge against himself.
    Appeal from Sharp Circuit Court; J. B. Baker, Judge;
    reversed.

      J. 8. Utley, Attorney General, and Elbert Godwin, Assistant, for appellant.
    1. The indictment is not defective, and it was error to sustain the demurrer to it. An indictment for perjury is sufficient when it alleges that the alleged perjured testimony was material, but does not specify how it was material. 110 Ark. 549; 97 Id. 203. In an indictment for perjury the false testimony for which the defendant is indicted may he shown by the indictment to be material, either by direct averment or by allegations from which the materiality appears. The rule of pleading is satisfied by a direct averment and with that the question of materiality becomes one of proof of that averment. It is only where there is no averment of materiality that the indictment is insufficient unless it alleges the facts from which the law infers the materiality. 152 Mass. 577; 110 Ark. 553; 137 Cal. 263; 35 Mich. 491; 182 Ill. 278; 1 Rus-. sell on Crimes (1896) 354; 30 Cyc. (Law and Proe.) 1435 ; 91 Ark. 200-3.
    2. The indictment states facts suffieent to give the court jurisdiction of the person of defendant.
    3. The indictment is not ambiguous or too indefinite and uncertain. The facts alleged are sufficiently definite, as the indictment contains allegations of the facts constituting the offense in ordinary and concise language such as to enable a person of common understanding to know what is intended, and is sufficient. 73 Ark. 487; 77 Id. 321; 93 Id. 406 ; 94 Id. 65; 33 Cyc. 1440; O. & M. Digest, § 3028.

      4. Tlie indictment alleges that defendant was duly sworn, and the demurrer admits it. 17 Ark. 332. It is not necessary to enter upon the record the form of the oath; it is sufficient if it shows that he was duly sworn. 34 Ark. 257. See, also, 21 St. Enc. of Proc. 320-1.
    5. Defendant can not complain of the failure of the indictment to allege that he voluntarily appeared as a witness before the grand jury or whether he appeared in obedience to a subpoena. C. & M. Digest, § 2588. The indictment is sufficient if the offense' is charged in the language of the statute or of similar import. 39 Ark. 216; 40 Id. 361; 47 Id. 476; 49 Id. 499; 71 Id. 80; 72 Id. 382.

      6. The indictment shows and alleges in what particulars the alleged statements were false and how they were material. The rule is satisfied by a direct averment, and the question of materiality becomes one of proof. 91 Ark. 203.
    7. The materiality of the testimony is sufficiently alleged. 91 Ark. 203. See, also, 21 St. Enc. of Proc. 322-3.
    8. The indictment does allege as a mutter of law that the statements were unlawfully and feloniously and wilfully and corruptly false. 91 Ark. 200; 110 Id. 554.

      David L. King, for appellee.
    1. Appellant has failed to file the transcript in time as prescribed by law, and it does not comply with the rules of this court. See rules 9, 14 and 18. The transcript was not lodged in this court in sixty days. 29 Ark. 115; 87 Id. 17; 94 Id. 368.
    2. The indictment is defective in not alleging the materiality of the false oath. False swearing about immaterial matters is not perjury. 64 Ark. 474; 61 Id. 599. Every material fact to constitute the crime must be alleged in ordinary and concise language so as to enable a person of common understanding to know what is charged. 29 Ark. 165; 38 Id. 519; 43 Id. 43"; 67 Id. 308.

      3. The indictment is ambiguous, vague and uncertain. It must be definite and certain. It does not allege that the grand jury were sworn according to law. C. & M. Digest, § 2979; 10 Ark. 607; 13 Allen 554; 23 N. J. L. 49; 1 Black 359; 12 Am. St. Rep. 905; 39 Ark. 180. .
    4. The indictment is insufficient in its allegations as to the crime.
   McCulloch, C. J.

The State appeals from a judgment of the circuit court of the Northern District of Sharp County sustaining a demurrer to an indictment against David E. Roberts for the crime of perjury, alleged to have been committed by giving false testimony before the grand jury of said county in regard to certain matters then under investigation. The indictment, omitting the caption, reads as follows:

“That the said David E. Roberts, in the county and 'State aforesaid, on the 14th day of July, 1920, then and there on said day at the courthouse at Hardy, Sharp County, Arkansas, being the time and place for the holding of the regular summer term of the circuit court of the Northern District of Sharp County, Arkansas, in July, 1920, the Hon. J. B. Baker, the regular judge of said court, being then and there presiding, and said court then and there duly organized, and said term of said court then and there beginning, and Noel Arnold and fifteen other men having been duly selected and examined on their oath as the law provides, and found competent and qualified as grand jurors, were duly empaneled by said court as grand jurors, by said court, as the grand jury of the said term, and said grand jury was then and there duly instructed as to their duties and charged concerning the criminal laws of the State of Arkansas, and the said Noel Arnold was then and there appointed as foreman of said grand jury and the said grand jury then and there retired to the grand jury room of said courthouse to consider of and perform their duties, and while said grand jury as a body was then and there performing their duties, and said David E. Roberts appeared as a witness before said grand jury on tlie 14th day of July, 1920, and it became material and within'the duty and jurisdiction of said grand jury to inquire of the said David E. Eoberts concerning the storing, having, procuring and giving away of certain intoxicating liquors in the town of Hardy, the Northern District of Sharp County, Arkansas, during the month of April, 1920,. and the said David E. Eoberts did then and there take his corporal oath and was then and there duly sworn as a witness before said grand jury, and said oath then and there duly administered to the said David E. Eoberts by the said Noel Arnold, the foreman of said grand jury, who was then and there authorized by law to administer said oath, and after being so sworn and taking said oath the said David E. Eoberts did then and there before and in the presence of said grand jury upon the investigation concerning the sale, storing,.having and giving away of intoxicating liquor at Hardy, in the Northern District of Sharp County, Arkansas, and being asked if he, the said David E. Eoberts, and Jim Wiseman did go to the stock pen in the towjn of Hardy, Arkansas, on the Sunday night that one Owen Billingsley died in April, 1920, where you, the said David E. Eoberts, got one half-gallon fruit jar containing some whiskey and gave it to Jim Wiseman, the said David E. Eoberts answered “No,” which statement and testimony by the said David E. Eob-erts in the investigation of the aforesaid was material in the investigation aforesaid, and which statements and answers so made and testified to by the said David E. Eoberts as aforesaid were feloniously, wilfully, unlawfully and corruptly false, and known by the said David E. Eoberts to be feloniously, wilfully, unlawfully and corruptly false when he, the said David E. Eoberts, so made them, against the peace and dignity of the State of Arkansas.”

The question first presented is whether or not the State has appealed within the time prescribed by statute — within sixty days after the judgment. The transcript fails to show-the date of the judgment, but it does contain the opening order of court on January 3, 1921, and the transcript was filed in the office of the clerk of this court on March 4, by the Attorney General, which was the sixtieth day after the judgment. The appeal was therefore in time.

It is next contended that the transcript is not complete under rule 20 of this court, which prescribes the form of transcript in criminal cases. This rule provides that in criminal cases the transcript “ shall begin with the return of the indictment into court, unless a motion shall have been made to set aside the indictment, in which case the proceedings empaneling the grand jury shall also be copied in the transcript,” and that this should be followed by “the indictment, the pleadings by the defendant and subsequent proceedings, as in civil cases.” This rule is inapplicable on appeals in criminal cases by the State, so far as it requires the inclusion of things specified in advance of the indictment to which the demurrer has been sustained. The State has a right to test the correctness of the judgment sustaining the demurrer without bringing up the antecedent proceedings, unless the demurrer or other pleading challenges the authenticity and regularity of the indictment.

We proceed then to an examination of the indictment to determine whether or not it is sufficient.

One of the grounds urged by counsel for the accused for sustaining the demurrer is that the indictment does not set forth the form of the oath, but merely states that the accused was “duly sworn as a witness before said grand jury, ’ ’ and that the testimony was given by the accused “after being so sworn and taking said oath. ” It is unnecessary,in an indictment for perjury, to set forth the form of the oath, it being sufficient merely to allege in general terms that the accused was duly sworn, or sworn in accordance with law. 21 Standard Encyclopedia of Procedure, p. 320. We have held that where the sufficiency of the record in regard to the swearing of the jury is challenged, it is sufficient merely to present a record showdug that the jury was duly sworn. Greenwood v. State, 17 Ark. 332; Anderson v. State, 34 Ark. 257. The same rule applies to an allegation concerning the oath of the accused in a perjury case.

The next ground urged is that the indictment is vague and ambiguous and fails to specifically set forth the matter about -which the accused is charged with having sworn falsely. It must be conceded that the indictment is not framed in orderly form or in very apt terms, but it is sufficient under the statute if it contains a statement of facts “in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.” Crawford & Moses’ Digest, § 3028. The substance of the charge set forth in the indictment is that in his examination before the grand jury the accused was asked whether or not he had on a certain occasion accompanied one Jim Wise-man to a place mentioned, and then and there procured a jar containing whiskey and gave it to Wiseman, and that the accused falsely and corruptly answered in the negative. It is expressly alleged that the testimony so given was material to the inquiry then being pursued by the grand jury. The gist of the inquiry, as set out in the indictment, concerned the “sale, storing, having and giving away intoxicating liquor ’ ’ and the alleged answer of the accused expressed a negative answer to the question propounded to him concerning his procurement of such liquor at the time and place and under the circumstances mentioned. We think that the allegations were sufficiently definite to put the accused on notice and to constitute a specific charge of perjury in regard to material matters.

The next question argued is whether or not the indictment is sufficient to charge the .materiality of the false testimony. The law is settled in this State that in framing an indictment for perjury it is not essential to set forth facts which show the materiality of the false testimony, and that it is sufficient if the indictment contains an express statement that the false testimony is material. Smith v. Smith, 91 Ark. 203; Loudermilk v. State, 110 Ark. 553.

Lastly, it is said that the indictment is defective in that it fails to charge that the accused appeared before the grand jury and voluntarily gave the testimony set forth in the indictment. Counsel rely, as sustaining this position, on the decision of this court in the case of Claborn v. State, 115 Ark. 387. In that case, however, the indictment charged that the testimony before the grand jury was given in an examination on a charge against the defendant himself. The court held that under those circumstances the indictment, in order to set out the offense of perjury, must contain an allegation that the accused voluntarily gave the tesimony. The gist of the charge there was that the accused gave false testimony in a case against himself, and we held that in order to constitute a charge of perjury under those circumstances it must affirmatively appear that he waived the privilege of refusing to give testimony which would incriminate himself. The charge, in the present indictment, presents altogether a different question. There is no charge, as in the Claborn case, that an accusation against this defendant was under investigation. Therefore, it was unnecessary to set forth the waiver of his privilege. Under our statutes the grand jury has general inquisitorial powers without being confined to any particular matters submitted for investigation, and, according to the allegations of the complaint in this case, the grand jury was pursuing such investigations in propounding the inquiry to the defendant. The question propounded might or might not have elicited information incriminating the defendant himself. But he could not refuse to answer on that ground, for the reason that the statute protects him from the use of his own testimony in the prosecution of a charge against himself. Crawford & Moses’ Digest, § 3122; State v. Bach Liquor Co., 67 Ark. 163; Ex parte Butt, 78 Ark. 262. The purpose of the inquiry was, as before stated, to ascertain whether or not liquor was procured on the occasion mentioned. If it developed from tlie inquiry that some person other than the defendant in this case was guilty of an offense, the testimony of the defendant would become material. But if it be proved that a truthful answer would have disclosed the fact that the defendant himself had committed an offense, or was the sole offender in the transaction, then his own testimony would become immaterial for the reason that it could not be used against himself. The grand jury, however, had the power to pursue the inquiry and propound the particular question to the defendant to ascertain whether or not it would disclose the commission of an offense by some other person, and, as before stated, the fact that it might develop the commission of an offense by the defendant himself does not make it necessary to allege in an indictment that the testimony was voluntarily given. Of course, on a trial of the case, it would devolve on the State to show the materiality; and if it appears from such proof that the accused himself was the sole offender in the transaction under inquiry, then his false testimony would not constitute perjury under the statute, unless it further appears that he waived his privilege by voluntarily giving the testimony.

Our conclusion, therefore, is that the court erred in sustaining the demurrer, and the judgment is reversed and the cause remanded with directions to overrule the demurrer.


text:
    Carrigan v. Nichols.
    Opinion delivered April 25, 1921.
    1. Insurance — delay in returning policy for misrepresentations. —In an action on a note for a premium under a life insurance policy, where defendant claimed that he was induced to apply for the policy by false representations of the insurer’s agent, and that he had returned it immediately upon discovering the falsity of such representations, where it appeared that defendant had delayed for more than three months after receiving the policy before returning it, he will be held as matter of law to have accepted it, and to be precluded from disputing his liability for the premium.

      2. Appeal and ERROR — prejudicial error — instruction.—Where several defenses were interposed in an action on a note, one. of which'defenses was improperly submitted to the jury, a judgment for defendant based on a general verdict will be reversed; there being no means of ascertaining what feature of the case controlled the jury in its findings.
    Appeal from G-rant Circuit. Court; W. H. Evans, Judge;
    reversed.

      E. E. Vance, Jr., and Andrew I. Rowland, for appellants.
    1. Under the law as'announced in 88 Ark. 284, it was the duty of the insured to examine the policy and reject. it, if he did not want it, and return it without unreasonable delay. Failing to do this, he is deemed to have accepted it. Under the evidence here, it was error for the court to modify appellants’ instruction No. 4 so as to leave it to the jury to say whether or not he had accepted the policy. 102 Ark. 150.
    2. Instruction No. 6 for appellee is misleading and prejudicial and conflicts with other instructions given by the court. It is error to give conflicting instructions. 83 Ark. 202; 93 Id. 152; II. 78; 123 Ark. 600; 128 Id. 341; 99 Id. 383. Sefe, also, 95 Ark. 506; 88 Id. 556. Under the law and the evidence, the delay was unreasonable.

      D. E. Waddell, Isaac McClellan and J. 8. Utley, for appellee.
    1. The appellee signed the note in controversy as the evidence shows.
    2. Appellants were not guilty of such fraudulent misrepresentations as to relieve appellee from payment. The jury found for Nichols, and as the evidence was conflicting the verdict must stand. 138 Ark. 613; 15. 1; 218 S. W. 375; 137 Id. 341; 135 Id. 499; 134 Id. 300; 203 S. W. 271.
    3. Under all the evidence the jury found that Nichols did not sign the note and also that appellants were guilty of fraudulent representations that relieved Nichols from payment and the instructions were not conflicting.
   McCulloch, C. J.

This is an action at law to recover the amount of a promissory note alleged to have been executed by appellee to cover the premium on a life insurance policy. Appellant T. D. Carrigan was the soliciting agent of the ¿Bankers’ Reserve Life Company of Omaha, Neb., a life insurance company, and he, in connection with his coappellant, A. C. Kennedy, solicited and obtained from appellee an application for a policy of life insurance on appellee’s life in the sum of ten thousand dollars. The premium on the policy was $326.10 and the note sued on is alleged to have been executed by appellee to appellants for The amount of said premium. Appel-lee denies that he signed the note, and that is one of the issues in the case.

The application was forwarded to the company by appellants,-and the policy was duly issued and delivered to appellee, who subsequently returned it to the company and refused to receive the policy again or to pay the note. Appellants were entitled to a portion of the first premium as commission for soliciting the insurance, and they paid to the company the amount of the premium to which it was entitled.

Appellee defends the action on the ground, in addition to the one before stated, that he had not signed the note, that appellants f alsely represented to him the terms of the policy, and that within a reasonable time after the delivery of the policy to him he discovered the falsity of said representations and immediately returned the policy to the company, refusing to accept it. On the trial of the case each of the appellants testified that appellee signed the note, but the latter testified that he did not sign it. According to the testimony of appellants, there were no misrepresentations concerning the contents of the policy. They testified that the policy was mailed to appellant Kennedy the latter part of August, 1919, and was immediately delivered by Kennedy to appellee, who accepted it without protest. Kennedy testified that he had several conversations with appellee in regard to the payment of the note, and that appellee made no objections to the policy until some time in February, 1920. Appel-lee testified that Carrigan represented to him, at the time the application was given, that the policy would contain a provision allowing an immediate cash surrender value “which would make the policy good as collateral security for a loan at any bank,” and also that the policy contained a provision for an immediate payment on total disability, and that the loss of an arm, or a leg or an eye would constitute total disability under the terms of the policy. He testified, on his examination in chief, that the policy was sent to him by mail from the home office of the company <at Omaha, Nebraska, some time during the month of October, 1919, and that he kept the policy two or three weeks before returning it, which he did by sending through the mail to the home office. He stated that he consulted a banker who told him that the policy was “not worth any more than a blank piece of paper.” On cross-examination, however, counsel for appellants produced an original letter of appellee in which he returned the policy to the company. Appellee identified the letter and admitted that lie wrote it or caused it to be written. This letter was dated January 22, 1920. Appellee made no attempt to explain the discrepancy between his original testimony in which he stated that the policy was returned in two or three weeks after he received it in October and the contents of this letter which shows that he did not return, it until January 22,1920. The effect of his testimony on cross-examination was to concede that he was mistaken about the time when he returned the policy. According to this view of his testimony, he retained the policy from the time he received it in October until-January 22, 1920, a period of more than three months. This, we think, constituted an unreasonable length of time, and he must be deemed to have accepted the policy, which specified on its face the conditions upon which payment would be made in case of disability, and also contained a statement in detail as to the loan and cash surrender values of the policy from year to year.

It was the duty of appellee to examine the policy within a reasonable time, and his failure to do so must, as before stated, be treated as an acceptance, which precludes him from disputing his liability for the premium. Griffin v. Remmel, 81 Ark. 269; Smith v. Smith, 86 Ark. 284. Under some circumstances, it would be a question of fact for the decision of the jury as to what constituted a reasonable time in which to examine a policy and return it if found unsatisfactory, but here we have a case, according to the undisputed proof, where the policy was retained more than three months, and we hold that that constituted, as a matter of law, an unreasonable delay. The court submitted to the jury whether or not the policy was examined and returned within a reasonable time, but we think that under the undisputed evidence, the period of delay being unreasonable, the issue should not have been submitted to the jury. „

There was sufficient evidence on the other issue as to whether or not appellee signed the note to justify a submission of it to the jury. We have no means of ascertaining what feature of the case controlled the jury in its findings, so the error in submitting the issue as to the misrepresentations is prejudicial and calls for a reversal of the judgment. The judgment is, therefore, reversed and the cause remanded for a new trial.