author: Hart, J.

text:
    Campbell v. State.
    Opinion delivered April 5, 1926.
    Intoxicating liquors—keeping liquor in store.—Evidence that defendant was keeping whiskey in a building used for the repair and sale of harness held to show a violation of Crawford & Moses’ Dig., § 6169, prohibiting the keeping of alcoholic and other liquors in a store.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    affirmed.
    Appellant, pro se.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, J.

Otto Campbell prosecutes this appeal to reverse a judgment of conviction against him for violating the provisions of § 6169 of Crawford & Moses’ Digest. The section in effect provides that it shall be unlawful for any person to store, keep, possess, or have in possession, or permit another to store, keep, possess or have in possession, any alcoholic, vinous, spirituous, or fermented liquors in or at any fruit stand, restaurant, store, etc.

It is earnestly insisted by counsel for the defendant that the evidence was not legally sufficient to warrant the verdict.

Charles Trammell, a deputy constable, was a witness for the State. According to his testimony, within the last year he raided the place where Otto Campbell was working, for whiskey. He was working at a filling station in Hot Springs, Garland County, Ark. There was a balcony extending around the room in which there was a harness shop. The witness and another person went upstairs into the balcony during the raid. The witness saw the defendant sitting up there reading. When the defendant looked up and saw the officers coming up the steps, he threw down his (book, and, grabbing a fruit jar, started to run with it. The witness said, “Now don’t do that.” The defendant ran to a tub with creosote water in it and threw the jar into the tub. The witness got the jar out. It was a half gallon fruit jar and was about half full of whiskey. The witness further testified that in the municipal court the defendant made a statement that the whiskey did not belong to John Ellis. The effect of his testimony in the lower court caused Ellis to be acquitted.

John Young, constable of the township, was also a witness for the State. According to his testimony, after the defendant was arrested, he told him that it was no use to arrest John Ellis, that the whiskey belonged to him, and that John Ellis did not know that it was there.

Charles Dodson was a witness for the • defendant. According to his testimony, he was the owner of the building which was raided by the officers. He had rented the balcony to John Ellis, who used about half of it for a repair shop for harness. - He also had quite á lot of harness of different kinds in the other half. He does not know whether the harness was for sale or hot.

The defendant was a witness for himself, and testified that the whiskey in question belonged to John Ellis. He admitted throwing a jar of whiskey in a creosote tub, and said that he supposed that he did so through natural fear of the officers. He said that he just went upstairs and took a drink of the whiskey. He admitted stating to the constable that Ellis had nothing to do with the whiskey, but denied having testified to that e^ect in the muuicipal court. He stated that he made the admission to the officers for the purpose of screening Ellis, who had been up before the court on liquor charges twice before.

" Under our rules of practice the jury were the judges of the credibility of the witnesses and the weight to be given to the evidence. Hence in testing the legal sufficiency of the evidence, to warrant the jury in returning a verdict of guilty, it must be viewed in the light most favorable to the State.

It is insisted that the evidence is insufficient because the building where the defendant was found with the whiskey was not a store within the meaning of the statute.

In Petty v. State, 58 Ark. 1, it was held that a butcher shop, where meats and vegetables were sold, was a store within the meaning of our statute prohibiting the keeping-open on Sunday of any store or place where goods, wares, and merchandise are retailed. It was there held that the word “store” had with us a popular meaning as a house where goods are bought, sold, or stored, and we are of the opinion that such is .its signification in the statute under consideration.

According to the testimony of a witness for the defendant, he rented the balcony to John Ellis and he conducted a harness shop in about half of it, and had quite a lot of harness of different Mnds in. the other half, which he supposed was for sale. The .jury might have legally found that he was conducting- a harness shop for repairing- and selling harness, and this would be a store within the meaning of the definition above given. It is true that the undisputed evidence shows that John Ellis was operating the store in question, but the provisions of the statute are not confined to the person occupying the store as a place of business. The purpose of the statute seems to have been to prohibit any one from keeping or possessing liquors in a store.

The officers found the defendant in the balcony reading, with a jar of whiskey close by him. The jury might have inferred from the circumstances attending the transaction that the defendant had not merely gone up there for the purpose of taking a drink, but that he was keeping whiskey there contrary to the provisions of the statute. Coley State, 160 Ark. 181.

We are of the opinion that the evidénce was legally sufficient to support the verdict, and in this connection it may be stated that the instructions given by the court were in accordance with the principles of law herein decided.

It follows that the judgment will be affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Hastings v. First National Bank of Corning.
    Opinion delivered April 12, 1926.
    Banks and banking—liability to depositor.—Plaintiff, having secured judgment against the estate of decedent for the value of chattels sold by decedent’s administratrix belonging to plaintiff’s intestate, is not entitled to hold the bank in which the proceeds of such sale were deposited liable for such proceeds, as the bank, not being a party, can not be made liable to another than the original depositor.
    Appeal from Clay Circuit Court, Western District; G. E. Keck,

    Judge; affirmed.

      Raley & Ashbaugh and C. T. Bloodivorth, for appellant. •

      F. G. Taylor,.for appellee.
   McCulloch, C. J.

Appellant’s .intestate, Anna Zuma, instituted an action in the circuit court of Clay County for the Western District against May Zuma to recover possession of a lot of personal property held by said defendant in her possession as administratrix of the estate of John Zuma, deceased. During the pend-ency of that action the plaintiff and defendant entered into an agreement whereby certain property involved in the controversy was to be given to the plaintiff, and the remainder retained by the defendant as such administratrix. The defendant, May Zuma, sold all the property as administratrix of the estate of John Zuma and deposited the proceeds of the sale (notes and cash) with appellee, First National Bank of Corning, to the credit of the administratrix of the John Zuma estate.

The plaintiff, Anna Zuma, died, and appellant became the administrator of her estate, and the cause was revived in his name, and proceeded to final judgment.

When the cause came on for trial, the agreement referred to above, between the original plaintiff and the defendant, was exhibited to the court in evidence, and upon this agreement the court rendered a judgment in favor of appellant as administrator of the estate of Anna Zuma against, the defendant, May Zuma, for the value of the property, found by the court to be the sum of $800.70. Appellant afterwards filed the judgment of the circuit court in the probate court, where the administration of the estate of John Zuma was pending, for allowance as a claim against that estate, and he also instituted the present action against appellee to recover the amount of the* deposit with appellee to the credit of the John Zuma estate. Appellant alleged ,in his complaint that the deposit belonged to the estate of Anna Zuma, deceased, hut that appellee had refused to pay the same over to him as administrator of said estate. Appellee filed an answer denying that it had any funds on deposit belonging to plaintiff, and upon the issue thus tendered the cause was tried before the court sitting as a jury. The court, after hearing the evidence, rendered judgment in favor of appellee, and an appeal has been prosecuted to this court.

It .is conceded that the funds in the bank were credited to the estate of John Zuma, deceased, as a general deposit, and it follows under the law that the relation of debtor and creditor was thereby established between the depositor and the bank. Counsel for appellant concede the correctness of this rule of law, but they invoke, in behalf of appellant’s right of action, the further rule that, where a bank holding funds as a general deposit, receives actual notice that the funds belong to some person other than the depositor, it can only pay the funds out upon order of the true owner. Carroll County Bank v. Rhodes, 69 Ark. 43. The difficulty with the application of this exception to the general rule is that the funds deposited were not the property of appellant’s intestate. The original action by appellant’s intestate against May Zuma was to recover possession'of specific articles of personal property, and the court rendered final judgment for the value of the property. That was a personal judgment against the defendant, May Zuma, not for specific funds but for the recovery of the value of the property sued for in the action. The bank was not a party to that action, and no process* garnishment or otherwise, has ever brought the bank into court to answer for funds belonging to May Zuma. There is no theory of the law upon which the bank can now be made liable for the funds to other than the original depositor. The right of third persons to sue a bank for a deposit is discussed in the case of Arkansas National Bank v. Martin, 110 Ark. 578, where we allowed the real owner of funds deposited in a bank to recover from the bank the amount wrongfully deposited by another person in his own name. The opinion in that case excludes the right to recover under circumstances such as are involved in the present case. Appellant’s intestate was not the owner of these funds, therefore she had no right to recover the identical funds deposited in the bank to the credit of another.

Judgment affirmed.


text:
    Arkansas Telephone Company v. Sells.
    Opinion delivered April 12, 1926.
    Electricity—negligence in stringing wires.—In an action against a telephone company for negligence causing injury to an adult pedestrian, evidence that plaintiff, while walking along a street, had his foot caught in a wire stretched in the usual manner along the street preparatory to lifting it to the cross-arms of the poles, held insufficient to establish negligence in failing to warn him of the presence of the wire, in the absence of evidence that he seemed to defendant’s watchman to be unaware of its presence.
    Appeal from Clay Circuit Court, Eastern District; G. E. Keck, Judge;
    reversed.

      Murphy, McIIaney é Dunaway and Hunter S Hunter, for appellant.

      Ward & Ward, for appellee.
   McCulloch, C. J.

Appellant is a domestic corporation and operates a telephone system in Clay County, including the city of Piggott. Appellee resides at Piggott, and he instituted this action against appellant to recover damages on account of alleged negligence in permitting an unguarded wire to be laid along the street, and in which he became entangled, fell down, and received personal injuries. Appellee alleged in his complaint that appellant was engaged in erecting a new line of posts and wires along one of the streets in Piggott, and that in so doing it negligently permitted the unguarded wire to be left on the grouiid across the street and sidewalk for a time and without warning to pedestrians, and that he (appellee), while passing down the sidewalk, became entangled in the wire and was thrown to the ground with great force, and received severe injuries. Appellant denied the charge of negligence, and upon the issues thus joined there was a trial, which resulted in a verdict in favor of appellee for the recovery of damages in the sum of $100.

It appears from the testimony that appellant was erecting a new telephone line along one of the streets of Piggott, and, in accordance with the customary methods of that kind cf construction, the wire was laid along- the street after the erection of the poles and then drawn tant and lifted to the cross-arms of the poles. Appellee is a man well along in years, though still active in business affairs, and he testified that, while walking along the pavement across Front Street, across which the wire was stretched or laid along the ground, his foot became entangled or hung under the wire and he was thrown down, and received serious injuries to his hand, as well as a severe blow on his head, when he fell. He testified that he did not see the wire or receive any warning of its presence. He also testified that he did not see any watchman there at the crossing, and was not warned in any way, but he admits that he saw a young man standing there, who said nothing to him.

According to the testimony adduced by appellant, the wire was laid in the ordinary way, it being shown that it was the best practicable way to construct the new line. The witnesses testified that appellant employed a watchman to stand at the crossing. Parker, the watchman, testified that appellee came along the street en route to the business portion of the town, and that he (the watchman) directed appellee’s attention to the fact that the wire was stretched along the ground, but that when appellee came back on his return the watchman was out in the street holding down the wire flat on the ground for a team of mules to pass over. Appellee denied that Parker called his attention to the wire, either when he passed along there going up town or when he returned.

The issues were submitted to the jury upon correct instructions in regard to the law of negligence and contributory negligence, and the only ground asserted here for reversal of the .judgment is that the evidence was not sufficient to sustain the verdict, in that there was no actionable negligence proved.

After careful consideration of the testimony, we are of the opinion that the contention of appellant is sound, and that the charge of negligence against appellant is not sustained. Certainly there was no negligence in the method of carrying on the work, for it is undisputed that it was done in the customary way, and was. the only practicable way of erecting the line without causing it to sag. The wire was laid along the ground, and it may be assumed that it was not entirely flat on the ground, even though appellee did state in his testimony that such was the case. In the very nature of things the loose wire would kink to some extent and rise from the surface, and it was possible for a pedestrian passing along there to get his foot entangled or hung under the wire, unless he observed precautions to prevent it. There was no negligence, however, in laying the wire along the street for a short time before lifting it to the cross-arms of the poles, for, as before stated, that was the proper and usual way to do the work. If there be any negligence at all, it must be found in failing to properly guard the wire so as to protect pedestrians and other travelers from danger. The undisputed evidence is that the wire was a bright, new one, and could be easily seen by any one walking along there. If we were dealing with a ease of injury to a passing team or to a child of tender years, it would be proper to- say that the danger to passing animals or to children was reasonably to be anticipated, but as to adults it can scarcely be-said that danger should be-anticipated,, the wire being so easily discovered that a prudent person would not anticipate that a man of full age would permit himself to become entangled in the wire. Appellant appreciated the fact that it was necessary to have a watchman there to warn pedestrians, but this fact cannot serve as a basis f-or imposing liability, unless danger from the failure to give warning could reasonably be anticipated. There is a conflict in the testimony as to whether or not appellee was actually warned of the presence of the wire, but there is no testimony tending to show that appellee gave any indication of being unaware of the presence of the wire so as to attract the attention of the watchman and to call for a warning of danger. Of course, if the watchman knew that appellee had not detected the presence of the wire, and failed to give warning thereof, then there might be a right of recovery for the negligence. But, where the danger was not to be anticipated and there was nothing in the conduct of appellee to give notice of his being unaware of the danger, we cannot perceive any just ground upon which appellant can be held liable for failure of the watchman to give warning of the presence of the wire.

Our conclusion is therefore that the right to recover damages has not been established by the evidence, and, as the case is fully developed, the judgment will be reversed, and the cause dismissed. .. It is so ordered.


author: Hart, J.,

text:
    Austin v. Hemphill.
    Opinion delivered April 12, 1926.
    1. Justices of the peace—filing statement of facts.—Crawford & Moses’ Dig’., § 6412, regulating the practice in courts of justices of the peace, in requiring that, “before summons is issued, the plaintiff shall file with the justice the account or the written contract or a short written statement of the facts on which the action is founded,” is intended for the benefit of the defendant, that he may not be surprised, and to protect him from a second suit on the same ground.
    2. Justices of the peace—recital of jurisdiction.—A judgment in the court of a justice of the peace against a defendant and a garnishee, which recites that the cause of action is on an open account for $180, and that the parties were present in court, and that evidence was heard in the case, held to show jurisdiction of the subject-matter and of the parties.
    8. Justices of the peace—filing statement—waiver.—Failure of the plaintiff in an action before a justice of the peace to file “a short written statement of the facts” before summons was issued, as required by Crawford & Moses’ Dig., § 6412, was waived by going to trial without bringing the matter to the court’s attention.
    4. New trial—surprise—discretion of court.—It was a matter within the discretion of the court to refuse a new trial to defendant upon the ground of surprise where plaintiff, suing upon an open account, proved that the running of the statute of limitations as to the account was prevented by a payment made by another who was jointly liable with defendant, as it was defendant’s duty to have the other present at the trial.

      Appeal from Little River Circuit ‘Court; B. E. Is-bell, Judge;
    affirmed.
    STATEMENT OP PACTS.
    This suit was commenced before a justice of the peace by A. T. Hemphill against Cato Austin to recover $180 alleged to be due him on account. The plaintiff also obtained a writ of garnishment against John Carlstead. Omitting the style of the case, the body of the judgment in the justice court against the defendant reads as follows : «
    “■Cause of action, open account for one hundred eighty ($180) dollars with accrued interest. Summons issued, returnable on the 17th of October, 1924, at 10 o’clock a. m. And on this day come the plaintiff and defendant into court, and, after hearing all evidence in case, judgment was given plaintiff for amount claimed.”
    The body of the judgment against the garnishee is as follows:
    “Cause of action, open account for one hundred eighty ($180) dollars. Summons issued, returnable on the 17th day of October, 1924, at 10 o’clock a. m. On this day comes the garnishee into court and testifies that he had one-half bale of cotton raised on his farm by said defendant, garnishee having sold said cotton for about fifty-seven dollars and paid the money to J. W. McCuller, after garnishment was served on him. Thereupon judgment was given the plaintiff against the garnishee for fifty-seven ($57) dollars.”
    The case was appealed to the circuit court.
    According to the testimony of A. T. Hemphill, Cato Austin owed him $180, balance due for supplies furnished him.
    J. F. Smith, the justice of the peace before whom the case was tried, testified that the defendant did not deny the indebtedness in his court, and that the garnishee admitted that he owed the defendant $57.
    Cato Austin was a witness for himself and John Carlstead. According to his testimony, he had not sold Ms cotton at the time he left A. T. Hemphill’s place and turned it over to John Williams in settlement of his account. He never knew that A. T. Hemphill claimed any balance until he was sued in the justice court.
    John Carlstead testified that he did not owe Cato Austin anything at the time the writ of' garnishment was served on him. On cross-examination, he admitted that he took charge of Cato Austin’s cotton and had possession of it at the time the writ of garnishment was served upon Mm.
    A. T. Hemphill, being recalled, testified that he sold the cotton which Cato Austin turned over to John Williams for him and gave him credit for the proceeds.
    Counsel for Cato Austin and John Carlstead moved to dismiss the case in the circuit court because the account sued on was not filed in the justice court. There was a verdict in favor of the plaintiff, and judgment was rendered against Cato Austin for $180 and against John Carlstead for $57.
    The case is here on appeal.

      June B. Morrell, for appellant.

      DuLaney & Steel, for appellee.
   Hart, J.,

(after stating the facts). The first ground relied upon for a reversal of the judgment is that the circuit court erred in refusing to dismiss the plaintiff’s cause of action for the reason that the justice’s court was without jurisdiction, and therefore the circuit court could not acquire jurisdiction on appeal. In making this contention, counsel relies upon § 6412 of Crawford & Moses’ Digest, and Little Rock Brick Works v. Hoyt, 87 Ark. 313, and cases cited. Section 6412 reads as follows:

Ordinary actions shall be commenced by summons,but, before summons is issued, the plaintiff shall file with the justice the account, or the written contract, or a short written statement of the facts on which the action is founded.”

We cannot agree with counsel in this contention. In the first place, our statute regulating the practice in justice ’s courts is for the benefit of the defendant, so that he may not be surprised, and to protect bim from a second suit on the same ground. The plaintiff is required to indicate the matter upon which the claim is founded. Jacks v. Nelson & Hanks, 34 Ark. 531. In the case at bar, the judgment against the defendant as well as the judgment against the garnishee shows that the cause of action was on an open account for $180. This was a short written statement of the facts, and each judgment reads, respectively, that the defendant and the garnishee were present in court and that evidence was heard in the case. The court had jurisdiction of the subject-matter of the action, and the parties, by entering their appearance to the proceedings, gave the court jurisdiction over their persons. The facts recited in the judgment entry show that they were not misled in preparing their defense. The judgment against the garnishee expressly shows that he appeared in^court and testified that he had a half of a bale of a cotton belonging to the defendant, worth $57. The judgment against the defendant shows that he appeared in court and that evidence was heard before judgment was rendered in favor of the plaintiff.

The Hoyt case has no application. There the suit was commenced by Hoyt against Arch Reddick and the Little Rock Brick Works upon an instrument in writing that was filed as the plaintiffs’ cause of action. It showed that Arch Reddick was in account with Hoyt, but did not show any account against the Little Rock Brick'Works. Judgment was rendered by default in the justice’s court against the Little Rock Brick Works. In the circuit court a motion to dismiss was sustained because no account, or short written statement of facts on which the account was founded, was filed in the justice’s court, as required by the statute, before the summons was issued. The case was dismissed because the statement of facts filed contained no reference ,whatever to any claim against the Little Rock Brick Works, and it did not enter its appearance in the action. Actions may be commenced either by summons or by the voluntary appearance of the parties. Here the parties appeared in court and contested the claim of the plaintiff, and the circuit court properly overruled their motion to dismiss the appeal.

The alleged defect in the issuance of the summons before filing the account or a short written statement of facts was waived by going to trial and judgment without at any stage of the cause bringing the matter to the attention of the justice.

It is also insisted that the .judgment should be reversed on account of surprise at the testimony of the plaintiff to the effect that John Williams had made a payment on the account sued on, which prevented the statute of limitations from running. Cato Austin admitted that he did not pay the account, and testified that John Williams was jointly liable with him on it. Hemp-hill having sued him on the account, he was put upon notice that Hemphill claimed that the account had not been paid, and it was his duty to have had John Williams present at the trial as a witness if he wished to contest the account. The matter, under the circumstances, was in the discretion of the court, and the court did not abuse its discretion. Augusta Cooperage Co. v. Plant, 163 Ark. 49, and cases cited.

No other grounds are relied upon for a reversal of the judgment, and it will therefore be affirmed.


text:
    Miller v. Brown.
    Opinion delivered April 12, 1926.
    1. Judgment—foreign judgment—conclusiveness.—A judgment of a justice of the peace of another State, who had jurisdiction of the subject-matter and of the person of the defendant, either by personal appearance or by due service process upon him, is conclusive as to the merits of the demand on which it is founded, unless it was obtained by fraud.
    2. Judgment—collateral attack on foreign judgment.—A foreign judgment may be attacked collaterally in an action thereon in a State other than that in which it was rendered by showing that the defendant has not been served with process and did not enter his appearance.

      3. Judgment—inferior court—collateral attack.—Even in the ease of a domestic judgment of a justice of the peace, the want of jurisdiction of defendant’s person may be shown collaterally.
    4. Judgment—filing justice’s judgment in circuit court.—The fact that the judgment of a justice of the peace was filed in the circuit court of the county in which it was rendered in another State did not render it a judgment of the latter court, as that was only a means provided by statute for the better enforcement of the judgment.
    5. Pleading—new matter in answer.—Allegations in an answer, in a suit upon a judgment of a justice of the peace of another State that there had been no service of process upon defendant in that State, and that he had not entered his appearance therein, constituted “new matter” which defendant was required to plead in his answer, under Crawford & Moses’ Dig., § 1194.
    Appeal from Lonoke Circuit Court; George W. Clarkj Judge;
    reversed.
    STATEMENT OE EAGTS.
    J. T. Brown brought this suit in the circuit court against Frank Miller to recover $200 and the accrued interest. The cause of action is based upon a judgment in favor of J. T. Brown against Frank Miller on the 11th day of September, 1924, in a justice of the peace court of Kaw Township, Jackson County, Missouri. The facts of the rendition of the judgment and that said judgment was subsequently filed in the office of the circuit court of Jackson County, Missouri, are alleged in the complaint. A duly certified copy of the judgment is also filed as an exhibit to the complaint.
    Frank Miller filed an answer to the complaint in which, among other things, he pleaded that he was not served with process, and had no notice whatever of the pendency of the action against him in the justice court of Kaw Township, in Jackson County, Missouri, and that he never appeared thereto in person or by attorney.
    The plaintiff filed a demurrer to the answer on the grqund that it did not constitute a defense to his cause of action, and also moved to strike the defendant’s answer from the files.

      The circuit court sustained the demurrer and motion to strike the answer from the files, and the defendant refused to plead further, and elected to stand upon his answer. Whereupon judgment was rendered in favor of the plaintiff Brown against the defendant Miller, for the amount sued for. The case is here on anneal.

      Trimble $ Trimble, for appellant.

      Reed & Beard, for appellee.
   Hart, J.,

(after stating the facts). The judgment of the circuit court was wrong. It is true that a judgment of the justice of the peace of another State, who had jurisdiction of the subject-matter and also, of the person of the defendant, by voluntary appearance or by due service of process upon him, is conclusive as to the merits of the demand on which it is founded, unless it was obtained by fraud. Glass v. Blackwell, 48 Ark. 50, and Albright v. Mickey, 99 Ark. 147.

It is equally well settled that a foreign judgment can be attacked collaterally without violating the full faith and credit clause of the Federal Constitution in an action thereon in a State other than that in which it was rendered, by showing that the defendant had not been served with process and did not enter his appearance to the action in the State where the judgment was rendered. Pickett v. Ferguson, 45 Ark. 177; National Exchange Bank of Tiffin v. Wiley, 195 U. S. 257; and Chicago Life Insurance Co. v. Cherry, 244 U. S. 25.

Numerous other cases sustaining the rule that, if the court which' rendered the judgment has no jurisdiction of the person of the defendant, the judgment for that reason is not entitled to recognition or enforcement in another State, may be found in 34 C. J., § 1614, pp. 1138 and 1139.

Moreover, this court has held that, even in the case of a domestic judgment of a justice of the peace, the want of jurisdiction of the person of the defendant may be shown collaterally. O. T. Dixon Printing & Stationery Co. v. Plank, 144 Ark. 485, and eases cited.

The fact that the judgment of the justice of the peace was filed in the circuit court of the county in which it was rendered in the State of Missouri did not make' it a judgment of that court. This was only a statutory means provided for the better enforcement of the judgment, and it still remained a judgment of the justice’s court.

In this connection it may tie stated that the answer of the defendant alleging that there has been no service of process upon him in the justice’s court in the State of Missouri, where the judgment sued on was rendered, and that he did not enter his appearance to that action, constituted' new matter within the meaning of § 1194 of Crawford & Moses’ Digest, which the defendant was required to plead. The answer is not evidence of the new matter set up in defense of the original judgment rendered in the justice’s court in the State of Missouri, and the burden of proving its truth will devolve upon the defendant pleading it.

It necessarily follows from the views we have expressed that the circuit court erred in striking the answer of the defendant from the files of the court, and for that error the judgment will be reversed, and the cause remanded for further proceedings according to law.


text:
    Wallace v. Hammonds.
    Opinion delivered April 12, 1926.
    1. Mortgages—assumption op mortgage debt—enforcement.—• Where a purchaser of mortgaged lands from the mortgagor assumes and agrees to pay the mortgage debt, he becomes personally liable therefor, which liability inures to the benefit of the mortgagee, who may enforce it in an appropriate action.
    2. Mortgages—assumption of mortgage debt—release.—Under .the rule that a contract between a mortgagor and his grantee whereby the latter assumed the mortgage debt may be rescinded at any time before the mortgagee has accepted or asserted his rights thereunder, a grantee, having assumed a mortgage debt, is not released by a reconveyance to the mortgagor and reassumption of the debt, .unless the reconveyance was made before suit was brought by the mortgagee to enforce the grantee’s . liability.
    3. Mortgages—release—burden of proof.—Where, in a suit by a mortgagee against the mortgagor’s grantee, who assumed the debt, the grantee set up that he had ¡been released from such asumption by a resale of the land to the mortgagor and a reassumption of liability by him, the grantee had the burden of proving such release.
    Appeal from Sevier Chancery Court; G. E. Johnson, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    This is an action in the chancery court by Mrs. L. A. Hammonds against H. T. Hobbs and E. M. Hobbs, his wife, L. W-. Wallace and Effie Wallace, his wife, to foreclose a mortgage on a certain tract of land in Sevier County, Arkansas.
    The complaint particularly describes the land and alleges that the mortgage indebtedness is due and unpaid. It is further alleged that, on -the 18th day of July, 1921, the defendants, D. T. Hobbs and E. M. Hobbs, conveyed said land by deed to L. W. Wallace and Effie Wallace, and that, as a part of the consideration therefor, said L. W. Wallace and Effie Wallace assumed and agreed to pay said mortgage indebtedness. The mortgage is made an exhibit to the complaint, and shows that it was duly executed and recorded. The deed from D. T. Hobbs and E. M. Hobbs to L. W. Wallace and Effie Wallace was also made an exhibit to the complaint.
    L. W. Wallace and Effie Wallace filed an answer in which they admitted that they purchased the land from the defendants, D. T. Hobbs and E. M. Hobbs, on July 18, 1921, and assumed the payment of the mortgage indebtedness of H. T. Hobbs to Mrs. L. A. Hammonds. They alleged further in their answer that they resold the land to the defendant, D. T. Hobbs and E. M. Hobbs, and that, as a part of the consideration, the said D. T. and E. M. Hobbs released them from any liability from the' assumption of said mortgage indebtedness. In this connection it may be stated that the suit to foreclose the mortgage was commenced on the 24th day of March, 1924, and that the answer was filed on December 21, 1924.
    Mrs. Hammonds filed a demurrer to the answer of the defendants, L. W. Wallace and Effie Wallace. The court sustained the demurrer, and the defendants refused to plead further and elected to stand upon their answer. Thereupon a decree of foreclosure was entered of record, and it was also decreed that Mrs. L. A.' Hammonds recover of the defendants, L. W. Wallace and Effie Wallace, the sum of $699.10, which was the amount, of the mortgage indebtedness assumed by them. The case is here on appeal.

      McMillen é Scott, for appellant.

      E. K. Edwards, for appellee.
   Hart, J.,

(after stating the facts). It is well settled in this State that, where a purchaser of mortgaged lands from the mortgagor assumes and agrees to pay the mortgage thereon, he ' becomes personally liable therefor, which liability inures to the benefit of the mortgagee, who may enforce it in an appropriate action. Felker v. Rice, 110 Ark. 70; Walker v. Mathis, 128 Ark. 317; Kirby v. Young, 145 Ark. 507; and Beard v. Beard, 148 Ark. 29.

Counsel for the defendants recognized this as the rule laid down by this court, but claim that the personal liability of a grantee asuming the mortgage is sustained under the equitable doctrine of subrogation. It is pointed out that the cases cited in our opinion on the subject are from other States, where it is held that the grantee by his contract assuming the mortgage debt becomes the principal debtor, and his grantor, the mortgagor, 'becomes his surety. Hence the mortgagee is entitled to the benefit of this contract, though he was not a party to it, under th.e familiar doctrine that a creditor is entitled, by equitable subrogation, to all securities held by a surety of the principal debtor. See 21 A. L. R. 451, where our own decisions, the decisions of courts of last resort of other States, and of the Supreme Court of the United States, are cited. Hence they contend that, under these decisions, a contract between a mortgagor and his grantee, whereby the latter assumes and agrees to pay the mortgage debt, may be rescinded at any time before the mortgagee has accepted the agreement or asserted his rights thereunder. See cases cited in note to 21 A. L. R. at p. 462.

This doctrine however does not help the case of the defendants any. It is true that L. W. Wallace and Efiie Wallace allege in their answer that they resold and reconveyed said land to the defendants, D. T. Hobbs and E. M. Hobbs, and that, as a part of the consideration, said D. T. and E. M. Hobbs agreed to pay the sum due by them to the plaintiff, but the trouble is they did not allege or prove when this reconveyance was made.

The complaint seeking foreclosure of the mortgage was filed on the 24th day of March, 1924, and the answer of the defendants, L. W. and Efiie Wallace, was not filed until December 21, 1924. It may be that the resale by them to D. T. Hobbs and wife occurred after the present action was instituted. This was a matter peculiarly within their own knowledge, and, if they relied upon the release as a defense to the action, it was their duty to plead it. Swan v. Benson, 31 Ark. 728; Burke v. M. E. Leming Lbr. Co., 121 Ark. 194; and 23 R. C. L. § 44, pp. 414 and 415.

Section 1194 of Crawford & Moses’ Digest provides that the answer shall contain a statement of any new matter constituting a defense in ordinary and concise language. The plea that L. W. Wallace and Efiie Wallace were released from their assumption of the mortgage debt by their resale of the land to D. T. Hobbs and wife constituted new matter, and the burden of proof was on the pleader. The answer is not evidence of the new matter set up in defense of the action, and, in the absence of any proof to establish it, the chancery court properly entered a decree in favor of the plaintiff, when the defendants elected to stand upon their answer.

Therefore the decree will be affirmed.


author: Hart, J., McCulloch, C.J.,

text:
    Combs v. Gray.
    Opinion delivered April 12, 1926.
    1. Constitutional law—-construction op amendments.—In determining the intention of the framers of constitutional amendments, the courts must keep in view the Constitution as it stood at the time the amendment was made, the evil to be remedied, and the proposed amendment by which the evil was to be remedied.
    2. Constitutional law—construction op amendments—implied repeal.—A constitutional amendment, when fitted into the existing Constitution, displaces such provisions only as are found to be inconsistent with it.
    3. Constitutional law—adoption op amendments—majority required.—Amendment No. 7, adopted in 1910, providing that “any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon and not otherwise,” impliedly -amended art. 19, § 22, of the Constitution providing that amendments to the Constitution submitted by the Legislature shall become a part of the Constitution “if a majority of the electors voting at such election adopt such amendments,” -so that amendments thereafter proposed by the Legislature, as well as those initiated by the voters, become part of the Constitution when approved by a majority of the votes cast on the subject.
    4. Constitutional law—amendment—lieutenant governor.— Amendment No. 16 to the Constitution, creating the office of Lieutenant Governor, which was submitted to the voters by the Legislature, and received a majority of the votes cast on the subject at the general election in 1914, 'became a part of the Constitution.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    T. A. Gray filed Ms petition in the circuit -court against Harvey G. Combs, as Secretary of the Arkansas State Democratic Central Committee, to compel him to accept the pledge of the petitioner and the fee required to place his name on the Democratic ticket as a candidate for Lieutenant Governor.
    His cause of action is based upon the ground that the office of Lieutenant Governor was created by the adoption of proposed Amendment No. 16 of the Const!tution. The amendment was submitted to the voters by the General Assembly of 1913, and was voted on at the general election held in 1914.
    The record shows that a majority of the qualified electors who voted at said election upon the proposed amendment, voted in favor of it, but that it did not receive a majority of all the qualified electors of the State who voted at said general election held in 1914.
    Amendment No. 16 was proposed by the Legislature of 1913 as an amendment to the Constitution of the State of Arkansas to be submitted to the electors of the State for approval or rejection at the next general election, which was held in 1914. Inasmuch as only the question of whether the proposed amendment was adopted or not is an issue in this case, it need not be set out in full, but will be cited as being in the Acts of Arkansas 1913, p. 1527.
    The circuit court held that the amendment was legally adopted, and that it is now a part of our State Constitution. Judgment was rendered accordingly, and to reverse that judgment this appeal has been prosecuted.

      Harvey G. Combs and Tom W. Campbell, for appellant.

      T. A. Gray, E. L. McHaney and Walter J. Terry, for appellee.
   Hart, J.,

(after stating the facts). The correctness of the decision of the circuit court that proposed Amendment No. 16 was legally adopted and that it is now a part of our State Constitution depends upon the construction to be placed upon what has been commonly referred to as Amendment No. 10, or the Initiative and Referendum Amendment, in connection with our various decisions construing the same. Amendment No. 10 has been placed among the amendments to the Constitution in Crawford & Moses’ Digest, and called by the digesters Amendment No. 7.

Inasmuch as the amendment must be considered in connection with article 19, § 22, of the Constitution, for the sake of convenience both will be set out in this opinion. Art. 19, § 22, of the Constitution reads as follows:

“Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each House, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and, if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.”

Amendment No. 7 reads as follows:

Article 5, § 1, amended: “The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives; but the people of each municipality, each county, and of the State, reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls as independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than 8 per cent, of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the 'Secretary of State not less than four months before the election at which they are to be voted upon.

“The second power is a referendum, and it may be ordered (except as to the laws necessary for the immediate preservation of the public peace, health or safety), either by petition signed by 5 per cent, of the legal voters, or by tbe legislative assembly as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise. The style of all bills shall be, ‘Be it Enacted by the People of the State of Arkansas.’ This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for the office of Governor at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal votes necessary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he and all other officers shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially.provided therefor.”

In the early history of this court, in State v. Scott, 9 Ark. 270, a safe rule of constitutional construction with reference to amendments to the Constitution was stated as follows: “In determining the intention of the framers of the amendment, we must keep in view the Constitution as it stood at the time the amendment was made, the evil to be remedied by the amendment, and the amendment proposed, by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the proposed amendment. On the contrary, snch construction should be given as will, if possible, leave all the other provisions in the Constitution unimpaired and in full force.”

Practically the same rule was adopted in Hodges v. Dawdy, 104 Ark. 583, where what is commonly called the Initiative and Referendum Amendment now under consideration was before the court for construction. The court said: ‘ ‘ The constitutional amendment whereby the people of the State reserve to themselves the power to legislate directly by the initiative and referendum does not abrogate the existing Constitution and laws of the State,, except such provisions as are necessarily repugnant thereto (citing cases). The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must of course yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it.”

One or the other of these modes of expressing the same practical rule of construction has been cited with approval in all subsequent decisions relating to the amendment now under consideration.

In the cases of Ferrell v. Keel, 105 Ark. 380, and Brickhouse v. Hill, 167 Ark. 513, the rule in the Scott case was quoted with approval, and in the Keel case it was said that no better rule of construction has ever been proposed at any time or any place. Practically the same rule as expressed in the Hodges case has been approved in the cases of State ex rel. v. Donaghey, 106 Ark. 56; Grant v. Hardage, 106 Ark. 506; and Hildreth v. Taylor, 117 Ark. 465.

In the Donaghey case, it was held that the Initiative and Referendum Amendment now under 'Consideration did not abrogate § 22, art. 19, of the Constitution, which provides that no more than three amendments shall be proposed or submitted at the same time. The court was of the opinion that, in the absence of anything in the amendment conferring initiative and referendum powers indicating an intention to repeal the existing constitutional provision, the latter remained in force and governed in all cases relating to the submission of amendments to the Constitution.

In the Hardage case it was held that, because the Initiative and Referendum Amendment provided that initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted on, this language should be given its ordinary and natural meaning, and should govern in cases where amendments to the Constitution are submitted under the initiative. The court . expressly refrained from deciding whether this provision was inconsistent with or repugnant to the provision in art. 19, § 22, providing for.six months’ publication where amendments to the Constitution are submitted by the Legislature.

In the Hildreth-Taylor case the court had under consideration the question of whether the Initiative and Referendum Amendment changed the existing rule as to the number of votes necessary to the adoption of an amendment submitted under the initiative.

Under article 19, § 22, of the Constitution as construed in Rice v. Palmer, 78 Ark. 432, it was held that an amendment to be adopted must receive a majority not only of the votes cast thereon, but of all the votes recorded at the election at which the amendment was voted on.

In the Hildreth-Taylor case it was contended that the Initiative and Referendum Amendment provided a .different rule with reference to amendments initiated by a percentage of the people, and the contention was based upon the following found in the second paragraph of the amendment: “Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise.”

The court was of the opinion that the clause just quoted was applicable only to measures submitted; to the people under the legislative referendum, and that “referendum” in its technical sense is the referring of legislative acts to the electorate for their final acceptance or rejection, and that it had no reference whatever to constitutional amendments whether submitted under the initiative or by the intervention of the Legislature.

This same question was again presented in Brickhouse v. Hill, 167 Ark. 513, and the Hildreth-Taylor case was overruled in so far as it applied to amendments to the Constitution submitted under the initiative.

This much is conceded by counsel for appellant, but it is insisted that the ruling in the Hildreth-Taylor case is left unimpaired, in so far as amendments submitted by the Legislature are concerned.

The majority of the court does not agree with counsel in this contention. We believe that such a construction would be inconsistent with and contrary to the reasoning in both the Hildreth-Taylor case and the BrickhouseHill case and would leave the people of the State in the anomalous condition of having different rules for the adoption of amendments to the Constitution. In other words, an amendment to the Constitution submitted by the Legislature to be adopted would be required to receive a majority of the votes cast at the election at which it was voted on, while an amendment submitted under the initiative would be required to receive merely a majority of the votes cast thereon. This condition would result in the practical abrogation of submitting amendments by the Legislature; for persons interested in amending the Constitution, knowing that, where an amendment was submitted by the interposition of the Legislature the rule would be that all voters voting at the election, and not voting either for or against the amendment, would be counted against it, would, in the very nature of things, adopt the initiative method, where-the rule would be that only those votes should be counted where the voters expressed an opinion one way or the other on the matter at hand.

In the Hildreth-Taylor case this view was expressly recognized. It was said that it would be doing violence to the design of the framers of the amendment to attribute to them an intention to require a less number of votes to adopt an amendment proposed by the people under the power of the initiative than one submitted by the Legislature. The decision in the Hildreth-Taylor case is based entirely upon a line of reasoning that the sentence or clause under consideration did not refer at all to constitutional amendments, whether proposed through the intervention of the Legislature or directly by a percentage of the voters under the initiative.

In answer to the argument that, if the sentence under consideration should be restricted to legislative acts referred to the people, no rule would be laid down in the amendment for the adoption of acts initiated by a percentage of the voters, it was said that this is a government of majorities, or rather a plurality, of the votes cast on any given question, unless there is some contrary specification in the organic law; and that, when the framers of the amendment provided for the submission of acts under the initiative, it was necessarily meant that the majority of those voting on the particular act should control. If that was the rule with regard to acts under the initiative power of the amendment, we cannot perceive why it would not be the rule as to legislative acts under the referendum power of the amendment. Hence the sentence in question need not have been used at all, if it was intended to apply only to legislative acts referred to the people, or even to laws or acts submitted to the people under the initiative power of the amendment as well as the referendum power of the amendment.

Again, .it is said in the Hildreth-Taylor case that the addition of the words “and not otherwise” manifests the intention to mate the sentence in question apply only to legislative bills referred to the voters. It is said that otherwise the words would be meaningless, because an act under the initiative could not in any event become a law until it was approved by the people at an election. The same thing might be said with reference to ordinary legislation which is submitted by the Legislature to the people for approval or disapproval before it becomes a law. In short, according to the reasoning in the Hildreth-Taylor case, the sentence under consideration need not have been used at all, if it is to be confined to legislative measures submitted to the voters under the power of the referendum; for the mere fact that the framers of the amendment provided for the exercise of the initiative and referendum meant that the majority of those voting on the particular measure submitted, either under the initiative power or the referendum power of the amendment, should control. At least the views expressed by the majority herein are in accord with the reasoning of the majority in the Brickhouse-Hill case, and it is evident from the language used and the conclusions reached by the majority in that case that it not only did not adopt but entirely disapproved of the reasoning in the Hildreth-Taylor case.

In the majority opinion in the Brickhouse-Hill case it is expressly held that the words, ‘ any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon,” include amendments to the Constitution submitted under the initiative power of the amendment. In this view it would seem that the words, “and not otherwise,” were added by way of emphasis to show that each and every measure referred to the people included constitutional amendments as well as acts or laws submitted either under the initiative or referendum power of the amendment. If the amendment is to be fitted into the Constitution and become amalgamated in it, it must be read in the light of the existing provisions of the Constitution on the same subject, and should be construed so as to accomplish the end intended, if that can be done by giving the words used their just and legitimate meaning. The sentence in question is couched in general terms, and if the general words used are broad enough to include amendments to the Constitution under the initiative power of the amendment, as held in the Brickhouse-Hill case, they are equally comprehensive to.include amendments submitted by the Legislature.

The Initiative and Referendum Amendment in explicit terms enables a percentage of the voters to enact laws and propose amendments to the Constitution which the Legislature could enact and propose, but did not. It was not intended to confer greater power upon the.people acting under the amendment than that possessed by the Legislature, so as to enable the former to enact laws or propose amendments which the latter could not enact or propose, or which might be declared adopted by a method easier to execute. The procedure for direct legislation by the qualified electors is necessarily completed by popular vote, and to that extent the initiative is like the legislative referendum. From the beginning, our State Constitution and amendments thereto -have been referred to the voters of the State for ratification or rejection. The voters are not concerned with the question of whether a constitutional amendment originates within the Legislature or with a certain percentage of the voters. As it has been aptly stated, “it is not the origin- but the nature of the measure that concerns the voters, when it is submitted to them. ” If the voters can act intelligently on coristitutionál' amendments brought before them by means of the initiative, they can act with equal intelligence on amendments submitted to them by the Legislature. There is no reason to suppose, that the voters would be less capable of deciding wisely in the one case than in the other. ¥e can perceive no good reason of public policy that could - have been served by the framers of the amendment in requiring a different rule for the number of votes necessary to the adoption of an amendment to the Constitution proposed by the voters from an amendment submitted by the Legislature. Of course, what we have said applies to the first Initiative and Referendum Amendment. In this connection it may be stated that the decision in the Brickhouse-Hill ¿ase put into effect an amendment to the Constitution voted on in 1920 and submitted by an initiative petition as Amendment No. 13, or the second Initiative and Referendum Amendment.

The decision in the Brickhouse-Hill case is to the effect that the first Initiative and Referendum Amendment, which is the one under consideration in this case, substituted a new and different requirement as to the number of votes necessary to the adoption of an amendment to the Constitution, whether such amendment was submitted or referred to the electorate directly by the voters themselves or indirectly by the Legislature.

Article 19, § 22, of the Constitution provides that amendments to the Constitution proposed by the Legislature shall be submitted to the electors of the State for approval or rejection. This is but another way of saying that such amendments shall be referred to them for adoption. The Initiative and Referendum Amendment expressly provides that the people of the State reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the legislative assembly.

The second paragraph of the amendment provides for the referendum. Then comes the sentence that “any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise.” If it had been intended to limit the meaning of this sentence to legislative measures under the referendum, it would have been easy to have used words to that effect. The sentence might have read: “Any legislative measure under the referendum should take effect and become a law when it is approved by a majority of the votes cast thereon.” If it was desired to provide this rule for acts under the initiative as well as under the referendum, it might have read that any legislative measure submitted under the initiative or under the referendum shall become a law when it is approved by a majority of the votes cast thereon. If it was desired to leave the rule in force under the existing Constitution as declared in the Rice-Palmer case, it might have been provided that all legislative acts under the initiative and under the referendum and §11 amendments to the Constitution under the initiative shall take effect when approved by a majority of the votes cast thereon. In short, if the framers of the amendment had desired to exclude amendments submitted by the Legislature, they would have provided that “any measure referred to the people under this amendment shall take effect and become a law when it is approved by a majority of the votes cast thereon.” Instead of doing this, however, the framers of the amendment undertook to cover the whole matter by providing that any measure referred to the people shall take effect and become a law when .it is approved by a majority of the votes cast thereon, and not otherwise. As we have already seen, all constitutional measures are referred to the electorate for adoption, and the majority is of the opinion that the framers of the amendment meant that all constitutional measures, whether submitted by the Legislature or directly by the people, and all initiated meas-" ures as well as legislative measures referred to the people .should take effect when approved by a majority of the votes cast thereon.

The words, “any measure referred to the people,” are general words, and there is nothing in the words themselves or in the context to show that they were used in any technical or restricted sense. When these words are given their just and legitimate meaning, they are comprehensive enough to include each and. every measure which may be referred to the people for adoption or rejection. The words “and not otherwise” are words of emphasis, and indicate that no other rule is to be established either for the adoption of constitutional amendments or for the enactment of laws.

In this view of the matter, the I. & it. Amendment No. 10 (7) in this respect is .inconsistent with the provision on the subject in the Constitution as originally adopted, and, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of art. 19, § 22, of the Constitution.

It necessarily follows from what we have said that a majority of the court is of the opinion that the words, “any measure referred to the people,” include constitutional amendments, whether proposed and submitted by the Legislature or proposed by a percentage of the legal voters under the power of the initiative in the amendment, as well as to direct legislation by the voters under the initiative, and legislative acts under the referendum.

Therefore the judgment of the circuit court will be affirmed..

McCulloch, C.J.,

(dissenting). The measure now under consideration is one that was proposed by the General Assembly—not one initiated by the people under Amendment No. 7. In Rice v. Palmer, 78 Ark. 432, and in Railway Company v. Kavanaugh, 78 Ark. 468, it was decided that, in order to adopt an amendment proposed by the Legislature, it must receive a majority of all the votes cast at the election—not merely a majority of the 'votes cast on the question of adoption. We are asked to overrule those decisions, but I decline to do so—and the majority have refrained from doing so in the deci-. si on in the present case. The contention now sustained by the majority of the court is that Amendment No. 7, which was adopted in the year 1910, changed the rule both as to amendments proposed by the Legislature as well as those initiated by the petition of the people. In Hildreth v. Taylor, 117 Ark. 465, this court decided that the rule announced in Rice v. Palmer, supra, had not been changed as to amendments proposed in either manner. That case was overruled in Brickhouse v. Hill, 167 Ark. 513, so far as it applied to initiated amendments. That is as far as the latter decision extended, and I accept it as an established precedent to that extent. It was hot contended in Hildreth v. Taylor, supra, that Amendment No. 7 would change the rule as to amendments proposed by the Legislature. On the contrary, it was conceded that the change related only .to initiated amendments. The opinion in that case, and the accompanying briefs, show that court and counsel had in mind that the requirement of the Constitution, as interpreted in Rice v. Palmer, supra, with respect to amendments proposed by the Legislature, was unchanged. Such was, in effect, the decision in Hildreth v. Taylor, and I am unwilling to recede from it. I think that, when the Constitution is once deliberately interpreted by the court of last resort, that interpretation should not be overruled. Amendment No. 7 did not relate to anything but initiative measures or those referred in accordance with the provisions of that amendment. It did not interfere with the power of the Legislature conferred in the old Constitution, and did not change the Constitution except to add or reserve the power of the people to initiate measures or to compel a referendum. When that amendment was adopted, the Constitution already contained a provision for referendum of all proposed amendments, hence the new amendment did not deal at all with that subject. It did not repeal or amend any part of the old Constitution except, as before stated, to add the reserved power of the people, as it was in no other respects repugnant to the provisions of the old Constitution. This is the construction we have heretofore placed on Amendment No. 7 in the various opinions of the court up to Brickhouse v. Hill, supra. The quotations in the majority opinion from the former cases show that the rule has been firmly established, with regard to amendments to the Constitution, to the effect that they do not repeal any prior provisions except those repugnant to the last expression of the will of the people. State v. Scott, 9 Ark. 270; Hodges v. Dawdy, 104 Ark. 583; Ferrell v. Keel, 105 Ark. 380; State ex rel. v. Donaghey, 106 Ark. 56.

.Amendment No. 7 contains the following provision: “The style of all bills shall be, ‘Be it enacted by -the people of the State of Arkansas,’ ” and in Ferrell v. Keel, supra, the court decided that this provision did not repeal the requirement of the old Constitution that the style of all legislative hills shall be, “Be it enacted by the General Assembly o.f the State of Arkansas.” The point of that decision was that Amendment No. 7 did not change the old Constitution except so far as it conflicts with the new amendment. In State ex rel. v. Donaghey, supra, we decided that the amendment did not repeal the limitations in the old Constitution upon the number of amendments to be submitted at an election.

The principal argument in support of the view that the old provision as to the number of votes required to adopt an amendment was repealed by Amendment No. 7 is that the latter contained an express provision that “any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon. ’ ’ In the preceding part of the amendment the referendum is defined as a vote by the people on a measure presented on petition of a certain percentage of the legal voters, hence the words “measure referred to the people” should be construed to mean measures referred on petition, and not to constitutional amendments proposed by the Legislature under the provisions of the old .Constitution. There is, as before stated, nothing in Amendment No. 7 to evince an intention on the part of its framers to deal with anything else except the reserved power of the people in regard to matters referred to the people under the reserved power. If its framers felt any concern about the method of adopting amendments proposed by the Legislature, or thought of the anomaly of having separate methods of adoption for the two different kinds of amendments, they would, doubtless have expressed in appropriate language their intention to change the rule declared in Rice v. Palmer, supra, by repeal of that feature of the old Constitution.

The new scheme of government embraced in Amendment No. 7 was one borrowed from another State, where the e,vi].sought to be corrected was supposed dereliction of legislative bodies, .and the sole idea was to give the people a right to assert themselves where such dereliction was shown, either in refusing legislation desired by the people or in thrusting undesirable legislation upon the people without their approval. Such was the idea here in adopting Amendment No. 7, and the whole legislative scheme was left unimpaired otherwise than as to the right of the people to initiate and to have referred to them all legislation when a referendum was sought by the necessary percentage of legal voters, and that was evidently what was in the minds of the members of this court when former decisions were rendered. Those decisions have been acquiesced in to the extent of the abandonment of numerous amendments which had fallen under the ban. Several proposed amendments which were declared defeated under the doctrine announced in those decisions were submitted more than once. The so-called bond amendment was resubmitted the third time upon the idea that it had failed of adoption under prior decisions, and the amendment increasing the number of judges of the Supreme Court was resubmitted after having been adopted by the rule now announced by the court.

I am authorized to say that Mr. Justice Smith concurs in these views.


author: Smith, J.

text:
    Tune v. Vaughan.
    Opinion delivered April 12, 1926.
    Bankruptcy—failure to plead discharge.—Where a judgment is recovered in a State court after the defendant has been discharged in bankruptcy, no matter when the action was begun, it is valid and enforceable, for the bankrupt has had his opportunity to plead his discharge in bar.
    Appeal from Miller Circuit Court; James H. McColIn/m, Judge;
    affirmed.

      John N. Gooh, for appellant.

      Will Steel, for appellee.
   Smith, J.

On November 9, 1923, appellees sued appellant in the Miller Circuit Court on a promissory note which he had signed as an accommodation indorser for appellant and had been required to pay. On January 2, 1924, appellant filed in the District Court of the United States for the Eastern District of Texas his petition and schedule in bankruptcy, and was on January 14, 1924, adjudged a bankrupt, and on March 29, 1924, was granted a discharge from all his indebtedness, including the note above mentioned. Upon filing the petition the referee in bankruptcy mailed to appellee notice thereof. No trustee in bankruptcy was ever appointed, because there were no assets. On June 12,1924, at a regular term of the Miller Circuit Court, judgment was taken by appellee against appellant by default, and, after the adjournment of the term at which this judgment was rendered, process was issued to collect the judgment. Thereupon appellant filed in the Miller Circuit Court a petition under § 6290, C. & M. Digest, to vacate this judgment, and upon the hearing of this petition same was overruled, and this appeal is prosecuted to reverse that action.

The petition to vacate the judgment recites the facts stated above, and alleges that the petitioner is inexperienced in court proceedings, and that he did not employ an attorney to represent him in the suit pending in the Miller Circuit Court for the reason that he was of the opinion, generally entertained by laymen, that his discharge in bankruptcy relieved him from all liability and operated as a stay and bar of appellee’s suit, and that he had no notice that appellee would proceed with his suit after the discharge in bankruptcy had been obtained.

Appellant was duly served with summons when the suit was filed against him in the Miller Circuit Court, and he was not entitled to any other notice. He was required thereafter to take notice of any proceeding in that court.

Upon filing his petition in bankruptcy appellant might have procured a stay of proceedings in the State court, and, if necessary, might have enjoined any proceedings therein pending the hearing of his petition in bankruptcy. Collier on Bankruptcy (13th ed.), vol. 1, page 410. But he did not do this. Appellant received his discharge on March 29,1924, and he thereafter had ample time to plead his discharge in bar of the pending suit in the Miller Circuit Court, but this was not done. He suffered judgment to be rendered against him under the misapprehension that his discharge automatically terminated the pending suit against him. In this he was mistaken.

In Loveland on Bankruptcy, vol. 2, page 1400, § 802, it is said: “A discharge in bankruptcy may be pleaded in bar of an action founded upon a debt released by it. Á ¡State court does not lose jurisdiction of the person of a defendant by his being adjudged a bankrupt. A judgment may be rendered against him if he does not plead his discharge. Unless a defendant pleads his discharge, he .is deemed to have waived it as a defense. No court except the bankruptcy court is bound to take notice of the discharge unless pleaded. No proceeding in bankruptcy can be pleaded in bar of an action upon ante-bankruptcy debts except the discharge.”

In the case of First Nat. Bank of Broadway v. Coates, 32 Am. Bankruptcy Reports 361, the West Virginia Supreme Court of Appeals held (to quote a syllabus): “This court will not dismiss an appeal, as presenting only a moot question, because defendant was discharged in bankruptcy pending the appeal. To avail as a defense to a pending suit in a State court, a subsequent discharge in bankruptcy must be pleaded. The discharge does not ipso facto oust the State court of jurisdiction to render judgment. ’ ’

In the case of Griffith v. Adams, 52 Atl. 66, it was said by the Court of Appeals of Maryland: “There is nothing in the nature or effect of a plea of discharge in insolvency which can take it out of the operation of the practice act. A discharge in insolvency is of no avail unless pleaded, and, if pleaded, it must be pleaded in manner and form required by the statute governing the entry of judgments.”

In the case of Crocker v. Bergh, 34 Am. Bankruptcy Reports, 190, the Supreme Court of Minnesota held: “A judgment recovered against a bankrupt after the commencement of proceedings in bankruptcy and before his discharge is annulled thereby, and he has the absolute right, if not guilty of laches, to have further proceedings thereon perpetually enjoined, for he had no opportunity to plead in bar a discharge which had not then been granted. On the other hand, where the judgment is recovered after the discharge has been granted, no matter when the action was begun, it is valid and enforceable, for the bankrupt has had his opportunity to plead in bar his discharge” (Citing cases).

See also Collier on Bankruptcy (13th ed.), vol. 1, page 413; Bank of Commerce v. Elliott, 85 N. W. 417; Lane v. Holcomb, 65 N. E. 794; Dimock v. Revere Copper Co., 117 U. S. 559; Boynton v. Ball, 131 U. S. 457.

The motion to vacate the judgment of the court below was therefore properly overruled, and that judgment is affirmed.


author: Humphreys, J.

text:
    Church v. State.
    Opinion delivered April 12, 1926.
    1. Intoxicating liquors—transporting—evidence.—On a charge of transporting liquor, evidence that accused told an employee to go to his home and bring a bottle of whiskey to be found in a safe, which the employee did, tout, being intercepted by an officer, he broke the bottle, held to sustain the charge.
    2. Criminal law—principals and accessories.—In misdemeanors there are no accessories, so that one who procures another to commit a misdemeanor is himself a principal in the crime.
    Appeal from Clay Circuit Court, Eastern District; G. E. Keck, Judge;
    affirmed.

      W. E. Spence, for appellant.

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

Appellant was indicted, tried, and convicted in the circuit court of Clay County, Eastern District, under § 6165 of Crawford & Moses’ Digest, making it unlawful for any one to transport alcoholic liquors from one place to another in this State, and was fined $100 as a punishment therefor, from which is this appeal.

The 'undisputed facts are that Elzra Blake, an employee of appellant, was instructed to go to his home and get a hottle of whiskey for him. Appellant told witness he would find the whiskey in the safe. Witness did as he was told, but, before getting to appellant with the whiskey, was intercepted by an officer, whereupon he broke the bottle. Witness had not tasted the liquid before destroying it, and said he could not swear whether it was whiskey or not.

Appellant’s first assignment of error is an alleged insufficiency of the evidence to support the verdict. It is argued that there is no proof that the fluid in the bottle was alcoholic liquor. Appellant told the prosecuting witness that it was whiskey and where to find it. While taking it up town to appellant, witness was caught by an officer, and destroyed the bottle. This was proof sufficient that the liquid was whiskey, and courts take judicial knowledge of the fact that whiskey is intoxicating. Edgar v. State, 37 Ark. 218.

Appellant’s next assignment of error is that he could not be indicted, tried, and convicted as a principal because he was not present, aiding and abetting in the crime. The statute makes the crime of transporting alcoholic liquors a misdemeanor, and not a felony. In misdemeanors there are no accessories, so one who procures another to commit a misdemeanor is himself a principal in the crime. Sanders v. State, 18 Ark. 195; Stephens v. State, 164 Ark. 90.

No error appearing, the judgment is affirmed.


text:
    Unterberger & Company v. Wiley.
    Opinion delivered April 12, 1926.
    1. Master and servant—discharge of employee—disobedience.— An employee must obey the reasonable orders of his employer, and a disobedience of them will justify the employee’s discharge; but the reasonableness of orders has reference not only to the kind and character of directions, but also to the manner in which they are made.
    2. Master and servant—discharge of employee—discourtesy.— A peremptory instruction to find against an employee suing for a wrongful discharge was properly refused, although he disobeyed the master’s orders, where there was evidence that the orders were given in an ill-tempered and discourteous manner.
    3. Accord and satisfaction—retention of check.—Where defendant mailed a check to plaintiff reciting that it was in full settlement of plaintiff’s claim, and plaintiff immediately tendered the check to defendant, saying that he would not accept it in full settlement, and he did not cash it until suit was brought and until by agreement the recital of satisfaction was erased from the check, his retention of the check did not amount to an accord and satisfaction.
    Appeal from Clay Circuit Court, Eastern District; G. E. Keclc, Judge;
    affirmed.

      Z. B. Harrison and Will J. Irvin, for appellant.

      Ward & Ward; for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the circuit court of Clay County, Eastern District, to recover a balance of $82 on November salary and $100 for December salary under an employment for a period of one year as a clerk in appellant’s store at Hector, Arkansas. Appellee alleged that, on December 1, 1923, one month before the contractual term of service expired, appellant discharged him without legal cause.

Appellant interposed three defenses to the alleged cause of action; first, that appellee voluntarily quit his employment; second, that, if discharged, there was a legal cause for doing so; and third, an accord and satisfaction by appellee’s acceptance of a check for $82 in full of his claims.

The cause was submitted to a jury upon the pleadings, testimony adduced by the parties, and instructions of the court, which resulted in a verdict in favor of appellee for $100. During the trial, by agreement, “in full of all claims ’ ’ was scratched off the face of the check, and appellee was permitted to cash it without further prejudice to his right to prosecute his claim for the December salary, and the cause proceeded on that issue alone.

Little or no testimony was introduced in support of appellant’s defense that appellee quit voluntarily, so a reversal of the judgment is sought upon the grounds that appellant had legal cause to discharge appellee, but, if not, that appellee was estopped to claim the December salary by the acceptance of the check for $82 which recited on its face “in full for all claims.”

(1). Appellant requested a peremptory instruction upon the theory that the undisputed testimony revealed that appellee refused to obey his reasonable orders to wait upon a customer. The court refused to give the instruction, and appellant insists that reversible error was committed in refusing to do so. The law is that an employee must obey the reasonable orders of his employer and that a disobedience of them will justify the employee’s discharge. 18 R. C. L. 520; 26 Cyc. 990, 992; Frazier on Master & Servant, 71. “Reasonable orders” not only have reference to the kind and character of directions and commands given, but also to the manner in which made. An employer must make his requests in a courteous manner. He must not couch his orders in abusive, insulting language, thereby displaying ill temper towards his employee, and expect obedience. In the instant case the store was crowded with customers, and appellant (employer), being busy himself, took a new customer to appellee and requested him to wait upon him. Appellee was already waiting upon a customer or two, so he did not offer to wait upon the new customer immediately. The failure to wait upon the new customer at the moment resulted in hot words between them and several subsequent belligerent altercations and a discharge of appellee. It goes without saying that appellant had a right to order appellee to quit waiting upon one customer and wait upon another. He was the owner of the store, and had the right to adopt his own methods of conducting the business, and appellee (clerk) had no right to ignore his orders pertaining'thereto, even .if they did not meet with his approval. The record, however, reflects a conflict in the testimony as to appellant’s manner in requesting appellee to wait upon the new customer.

Appellant testified that he called appellee to wait upon the new customer, and he said something under his nose; that he called him again, and appellee said, “You go to hell”, and followed it up by striking him. Appellee testified that, when appellant requested him to wait upon Matt Vowell, he replied that he was already waiting upon two customers, and would do so as soon as he got through with them, whereupon appellant got rough with him and discharged him because he did not wait upon Vowell immediately; that hot words passed between them, and a fig’ht followed.

We'do not understand from appellee’s testimony that he refused to wait upon Vowell, but was simply trying to postpone the service for a few moments out of courtesy to the other customers. In other words, that no insubordination was intended by him. A clerk is not a mere machine, and is usually employed and retains his position on account of his personal following. In order to retain the good will of the trade, he must be courteous to all customers alike, and it would be impossible for him to maintain his good standing with them if his employer were allowed to humiliate him in their presence.

"We think the testimony of these two witnesses and of others bearing upon this point presented the question for the jury of whether the discharge of appellee was the result of insubordination on his part or ill temper and discourteous treatment on the part of appellant.

The peremptory instruction was properly refused.

(2). Appellant next insists upon a reversal of the_ judgment because appellee accepted and retained the $82 check for over a month. The undisputed testimony-in the case does not show that appellee accepted the check or that he willingly retained it for more than a month. Appellant testified that he did, but appellee testified that he received the check by mail, and immediately hunted up- appellant and tendered it back to him, and when he refused it, he requested him to strike out the words “in full for all claims”; that he told appellant he would not accept and cash the check in full settlement of his claim, but intended to sue him for the entire indebtedness. The retention of the cheek by appellee under these circumstances until the institution of the suit 'did not amount to an accord and satisfaction.

We have examined the instructions, and find that they correctly submitted the two real issues in the case to the jury for determination.

The judgment is therefore affirmed.


text:
    Railey v. State.
    Opinion delivered April 19, 1926.
    Criminal law—comment of court on evidence.—Where defendant was charged with contributing to the moral delinquency of two youths at his house, and a witness having opportunity to know, testified that the boys did not go into defendant’s house, as testified by them, it was error for the court to remark: “They could have been there, and he (the witness) would not have seen them.”
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    reversed.

      Gus Fulk and Rogers S Robinson, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch, C. J.

Two indictments were returned against appellant by the grand jury of Pulaski County, each charging him with the statutory offense of contributory delinquency—that is to say, contributing to the moral delinquency of a male child under seventeen years of age. Crawford & Moses’ Digest, § 5784. The two cases were tried together, and appellant was convicted under each indictment.

Appellant is unmarried, and resides in the city of Little Bock with his married sister and her family. The two boys to whose delinquency he is alleged to have contributed lived in the same neighborhood with appellant, and the testimony adduced by the State was to the effect that appellant habitually induced these two boys and other lads to visit his room and indulge in certain immoral practices. Theré were two other indictments against appellant, charging more serious offenses involving immoral conduct with two other boys, but the jury acquitted him of those two offenses.

Appellant testified in his own behalf, and denied that he ever had the boys in his room or that he indulged in any immoralities with the boys or induced them to do so. Members of the household where appellant resided testified that the charge was not true, and that there were no opportunities for such things to occur in the house without being known to other members of the family. Appellant introduced a very large number of citizens who had known him a great many years, and all testified to his good character. Among other witnesses introduced by appellant was a fifteen-year-old boy named Blassingame, who testified that he lived next door to appellant for a considerable period of time, covering the time when the boys testified that these immoralities were going on, and Blassingame mentioned a number of boys who, he said, congregated around appellant’s home during the previous year, and he stated that the boys did not go into the house, but played around the premises. The witness was asked directly whether he had ever seen the four boys named in the indictments ag’ainst appellant around there in the neighborhood of appellant’s home, or if he had ever seen them go into the house, and he answered in the negative. The trial judge at this point interposed the following remark, “They could have been there and he would not have seen them.” Appellant objected to the court’s remark, and saved exceptions. This incident in the trial is urged as the principal ground for reversal of the judgment. The court did not specifically exclude the evidence, and appellant has not assigned as error the exclusion of the evidence, but the assignment relates to the remark of the court. If the evidence was incompetent, we should treat the remark of the court as an exclusion of it; but, if the evidence of the boy was admissible, then the remark of the court constituted a statement as to the weight of the evidence, and this would be prejudicial and call for a reversal of the judgment. It is unimportant therefore whether or not the court actually excluded the evidence, for in any event, if the evidence was admissible, the remark of the court was erroneous. The evidence was negative in its character, but it was not without probative force. The testimony of witness Blassingame was to the effect that he was in a situation to identify all the boys who played around appellant’s house and whether any of them entered the house. The boys testified that all the visits they made to the house of appellant were in the daytime, usually during the afternoon, after school hours, and Blassingame testified that he was about home and saw the boys who were playing around there. He testified that he had never seen either of these boys there who claimed to have had improper relations with appellant. The weight of such testimony is always a question for the jury, but it is not inadmissible because of its negative character. Keith v. State, 49 Ark. 439; Ft. Smith & Western Ry. Co. v. Messech, 96 Ark. 243; 1 Wharton’s Crim. Ev. § 382; 1 Wigmore on Evidence, § 664; Thomas v. DeGraffenreid, 17 Ala. 602; State v. Blair, 48 Vt. 366.

Prof. iWigmore has this to say on the subject of negative testimony: “But there is no inherent weakness in this kind of knowledge. It rests on- the same data of the senses. It may even sometimes be stronger than affirmative impressions. The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.”

The action of the court must be treated as prejudicial, for the effect was to exclude this testimony, or at least to discredit it so that the jury did not give it any weight. It was a comment upon the weight of the evidence. The testimony was sharply conflicting, and the testimony of this lad of fifteen years of age, who lived next door to appellant and was acquainted with all the boys who frequented the neighborhood, might have turned the scales in appellant’s favor if his testimony had been allowed to go to the jury unimpaired by the discrediting remark made by the trial judge. We cannot say what the verdict would have been if they had given full credit to the testimony of this boy, who said that the lads who testified against appellant were never on the premises.

For this error the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


text:
    Kittrell v. Angelo.
    Opinion delivered April 19, 1926.
    Sewers—right to connect with private sewer.—Where plaintiff and W. jointly built a private sewer, and W., without plaintiff’s consent, permitted defendant to make connection with the sewer, which thereby became overloaded, held that W. had no authority to permit such connection, and plaintiff was entitled to an injunction.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Kutclims, Chancellor;
    reversed.

      W. J. Dungan, for appellant.
   McCulloch, C. J.

During the year 1910 appellant and T. D. Willies, being residents of the town of Augusta, in Woodruff County, and the respective owners of their own homes, built a private sewer across their own properties, beginning at appellant’s dwelling bonse, where the water fixtures were attached. The pipes ran a distance of about two blocks. Afterwards they permitted ‘four other owners of adjoining property to connect with the sewer, upon the payment by each of them of the sum of twenty-five dollars. In April, 1924, appellant discovered, that appellees (three of them), who were property owners in the vicinity, had also connected with the sewer and were using it without.appellant’s.knowledge or consent, and he instituted this action to restrain them from so doing and to compel them to disconnect. On the hearing of the cause the court rendered a decree restraining appellees from permitting any one else to connect with the sewer, but dismissed appellant’s complaint as to the further relief of compelling appellees to disconnect from the sewer.

The facts were brought out on the trial of the case as to the manner in which the sewer had been constructed and the purposes thereof. Appellant testified that he and Willies constructed the sewer at their own expense and for their own use, but agreed that, if the owners of other property in the vicinity wanted to join, they would consult about it, and, if satisfactory, permit them to do so on the payment of a price, and that, pursuant to that arrangement, they had jointly agreed to permit four other users to connect. But appellant testified that he had never agreed for appellees to connect with the sewer and had no knowledge of it until after he found that they had made connection and were using the sewer. He testified further that the additional connection resulted in overloading the sewer, and that this constituted a nuisance by reason of the noxious gases that arose when the sewer overflowed. One of the appellees testified that he made an arrangement with Wilkes for the privilege of connecting with the sewer, and paid the latter twenty-five dollars for the privilege. There is practically no dispute as to the facts, and the decision turns upon the question of the authority of Wilkes to grant the privilege to appellees to connect with the sewer. This depends upon the relation existing between appellant and Wilkes as to the ownership of the property—whether they were mere common owners or were copartners.

The evidence is sufficient to show that the overloading of the sewer constituted a nuisance, but, even without that element in the case, if appellees made the connection without authority they were, in so doing, invading the rights of appellant, and should be restrained, as there is no other remedy available. Our conclusion is that appellant and Wilkes were not copartners. There were no elements of copartnership involved in the construction and use of the sewer. Harris v. Umsted, 79 Ark. 499. The sewer was constructed, not for profit, but for private use of the owners. The fact that they permitted others to join in the use of the sewer was not for the purpose of operating the business at a profit, but was a mere incident to the ownership of the sewer. Wilkes had no authority to grant the privilege to appellees without the consent of appellant. The chancellor erred therefore in refusing to give appellant the relief to which he was entitled.

The decree is reversed, and the cause remanded with • directions to enter a decree in favor of appellant.