author: Wood, J.

text:
    Avery v. Avery.
    Opinion delivered October 15, 1923.
    1. ADOPTION — collateral attack. — Where a record of the probate court in the matter of the adoption of a child recites that the child is a resident of the county, such fact cannot be controverted by proof aliunde.

      2. Adoption — regularity op proceeding. — Where the record in adoption proceedings recites that the natural father of the child appeared in open court and petitioned for the child to be adopted by himself, and the mother, by affidavit filed in court, assented to the adoption, whereupon the order was made, a substantial compliance with Crawford & Moses’ Digest, § 256, is shown.
    3. Adoption — fraud in procuring order — collateral attack.— Where an order for the adoption of a minor child is entered in due form, the person adopting the child and all others claiming as his heirs are estopped to question the validity of the proceedings on the ground of fraud in its procurement not shown upon the face of the record.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Philip McNemer, for appellant.
    1. There being no statute in this State forbidding, Avery could lawfully adopt the child without his wife joining in or consenting thereto. 1 Cyc. 198; 1 C. J. 1375, par. 8.
    2. The jurisdictional fact, residence of the child in the county, is plainly stated in the judgment. It is not open to collateral attack. 81 Ark. 9; 59 Ark. 483; 16 Am. Law Rep. 1020; 1 Black on Judgments, 359; 1 C. J. 1394, par. 114; Id. 1393, par. 49 and cases cited; 156 Ark. 331; 92 Ark. 236; 72 Ark. 299 ; 100 Ark. 63; 1 R. C. L. 626, par. 38; Id., 625, note 8; 1 Cyc. 928; 23 L. R. A. 665; 1 C. J. 1392, par. 105, notes 19 and 22; 30 L. R. A.' (N. S.) 159.
    3. As to tke consent of the mother of the child in this case, there was a substantial compliance with the statute in that respect, and that is sufficient. 59 Ark. 483; 1 Cyc. 919; 1 R. C. L. 595; 1 C. J. 1373, 4 and 5,
    and note 31; 86 Ark. 478; 81 Ark. 7; 102 Cal. 70; 41 Am. St. Rep. 163; C.- & M. Dig. § 9751; 1 C. J. p. 1382, § 39; Id. p. 1384, § 57; Id., p. 1385, § 68; Id. p. 1390, §§ 95, 96, 99; Id. p. 1389, § 92.

      J. H. Carmichael, for appellee.
    1. The order of adoption is void. The child was not a resident of the county, but, if she was an illegitimate child, her domicile and residence was that of her mother, to-wit: Greenville, Miss. 9 R. C. L. 548, § 10; 49 L. R. A. (N. S.) 860, 863. If she was a legitimate child, her residence was that of her father, viz: in Jefferson County. According to the statements in his complaint for divorce against the mother, they were living together when this child was begottén. 117 Ark. 113. And this brings the case within the decision of Morris v. Dooley, 59 Ark. 483.
    2. The order is void on its face because it affirmatively shows that the mother of the child appeared by affidavit and not in open court. C. & M. Dig. § 256; Words and Phrases, “Open Court”; 86 Ark. 478, 479; 123 Ark. 383. The order is subject to attack by any one interested. 16 A. L. R. 1024; 17 Ore. 204. Every fact necessary to show jurisdiction must appear of record. 123 Ark. 195; Id. 211; Id. 383; 54 Ark. 627.
   Wood, J.

This action was instituted by the appellant against the appellees in the Pulaski Chancery Court. Appellant alleges in her complaint that she is the sole heir of James Avery, deceased, who died intestate in Pulaski County, Arkansas, on December 30, 1920; that she was adopted by James Avery as Ms heir on the 25th of June, 1909, in the Pulaski Probate Court; that Avery owned, at the time of bis death, certain real property in Pulaski County and G-arland County, which is described in the complaint; that the report of the administrator of Avery’s estate shows that he had sufficient personal property to pay all debts. She alleges that the appellee is the widow of James Avery and is denying the rights of the appellant in and to the realty mentioned. She prayed that an order be made setting aside to the appel-lee her dower interest in the property mentioned, and that the right, title, and interest of appellant as heir of Avery be declared and quieted in her.

The appellee, in her answer, denied that the appellant was the heir of James Avery, deceased, and denied that the appellant was adopted ¡by Avery as 'alleged in the complaint. Appellee averred that she was the sole heir of Avery; that she was his lawful wife on June 25, 1909, the day when the alleged adoption order by the probate court was entered; that she was not present and did not consent to such order when same was entered; that she was married to James Avery in 1904, and they had lived together as husband and wife continuously until his death; that she did not know, until two days before the death of Avery, that it was claimed that he had adopted the appellant as his child; that she was informed by appellant’s attorney of that fact at a time when her husband was in a dying condition; that the order of the Pulaski Probate Court referred to in the complaint was a fraud upon the court and a fraud upon the appellee. She further alleges that one Curtis and his wife were the parents of the appellant; that she was ‘born in lawful wedlock, and, at the time of the alleged adoption by James Avery, he and the mother of the appellant knew the place -of residence of appellant’s father, which was at Pine Bluff; that appellant’s father was not notified of the adoption, nor was the appellee notified. She further alleges that the appellant was not a resident of Pulaski County, and the Pulaski Probate Court was without jurisdiction to make the order, and that same was therefore void. -She further set up that appellant never lived at the home of James Avery nor in his family; that Avery left no children, father, mother, or other descendants, and that, under the statutes of this State, appellee is entitled to all the property owned by James Avery at the time of his death. She denied that Avery was, at the time of his death, possessed of sufficient personal property to pay the debts against his estate, and alleges that, since his death, she has paid all the taxes on the property of the estate, and claims the same as her own.

An intervention was filed by Ed Bell and eighteen others, setting up that they were collateral heirs of James Avery, and virtually the same facts as were alleged in the answer of the appellee to the appellant’s complaint. They deny the validity of appellant’s alleged adoption. The appellee answered the intervention and denied the alleged relationship of the interveners to James Avery, and prayed that their complaint be dismissed. The appellant answered the intervention, admitting the relationship of the interveners, but alleged that they were estop-ped by order of adoption of the probate court from claiming any part of the estate of James Avery, deceased, as his collateral heirs. Appellant also replied to the answer of the appellee, denying its allegations.

The court, after hearing the testimony in the case, entered a decree dismissing the appellant’s complaint for want of equity and leaving the controversy between the interveners and the appellee undetermined. From the decree dismissing the appellant’s complaint she prosecutes this appeal.

1. The decree recites that the cause was heard upon the pleadings, the certified copies of the petition and order of the Pulaski Probate Court in the matter of the alleged adoption of the appellant by James Avery, and the testimony of certain witnesses, naming them, whose testimony was taken ore tenus at the fear of the court, and which testimony has keen duly authenticated and brought into this record. The conclusion reached by the court makes it unnecessary to set out much of this testimony, and only such of it as we deem competent and material will be set forth.

To sustain her contention, appellant introduced the petition that was filed by James- Avery in the Pulaski Probate Court, as follows: “Comes the petitioner, James Avery, and petitions the court for the adoption of Lizzie Allease Avery, age six years, who has no property, real, personal, or mixed; that the mother of said minor is Gertrude Rush of Greenville, Miss., and that petitioner is the father of said child, and resides- in the city of Little Rock, County of Pulaski, State of Arkansas, where petitioner desires to rear, clothe, and educate said child and provide for it in all respects to the best -of his ability. That petitioner desires said minor to take his name, upon adoption, and be entitled to and receive all the rights and interests in his estate that all natural and legal children are by law entitled under the statutes of the State of Arkansas.

“Wherefore, the premises seen, petitioner prays the court for an order to the end that said minor herein be adopted to him in the name of Lizzie Allease Avery, and for such other and further relief in the premises as is legal and proper.”

The appellant also introduced the sworn certificate of her mother consenting to the adoption, as follows: “This is to certify that the undersigned is the natural mother of the child, Lizzie Altease Avery, and I hereby -consent to the adoption of said child by James Avery, its father.”

The petition by Avery and the certificate of consent by appellant’s mother were duly verified on the 22d day of June, 1909. On the 25th day of June, 1909, the same being a regular day of the April term, 1909, of the Pulaski Probate Court, that court entered the following judgment: “In the matter of the adoption of Lizzie Allease Avery, a minor: On this day comes James Avery, and files and presents to the court his petition praying that one minor child, Lizzie Allease Avery, age 6 years, a resident of Pulaski County, he adopted to him, and that she has no property. Upon examination of s;aid petition, it appearing to the court, from the petition and from the testimony of James Avery and J. A. Robinson, witnesses, that the mother of said child being unable to rear, clothe and educate said minor, and it further appearing,- from the affidavit of Gertrude Rush, the mother of said minor, that, she being unable to maintain and care for said child, and that she consents to said adoption, and it further appearing to the court that the petitioner is the natural father of said child, and that he is amply able to care for, maintain and educate said minor, the prayer of the petitioner is by the court granted. It is therefore ordered and adjudged by the court that the said minor be and she is hereby declared to be adopted to the said James Avery as his' own child; and it is further ordered -and adjudged by the court that the said Lizzie Allease Avery, as such adopted • child, shall be entitled' to and shall receive the same right, title and interest in and to the estate of petitioner, James Avery, as a natural and legal heir of the said James Avery, and she is hereby declared to be, for all intents and purposes, the natural and legal heir of the petitioner, James Avery, herein. ’ ’

The appellee contends that the alleged judgment of adoption is void on its face because it fails to show that the appellant, at the date of the judgment, was a resident of Pulaski- County, and fails to show that Gertrude Rush, the mother of appellant, was present in open court consenting thereto; that these are jurisdictional facts which must appear of record, and that the record here affirmatively shows that Gertrude Rush appeared by affidavit. We do not agree with learned counsel for appellee in these contentions. The pertinent sections of our statute on adoption, chapter 2, Crawford & Moses’ Digest (act of Feb. 25,1885), are as follows:

“Section 252. Any person desirous of adopting’any child may file his petition therefor in the probate court, in the county where such child resides.

“Section 253. Such petition shall specify, first, the name of such petitioner; .second, the name of such child, its age, whether it has any property, and, if so, how much; third, whether such child lias either father or mother living, and, if .so, where they reside. Such petition shall ■be verified by the oath or affirmation of such petitioner.

‘ Section 256. Such court shall not adopt such child, if it have a father or mother living, unless such father or mother appear in open court and give consent thereto, provided, that if such petitioner show by two competent witnesses that the residence of such father or mother be unknown, then such court may order the adoption of such child. ’ ’

In Morris v. Dooley, 59 Ark. 483-487, construing this statute, among other things we said: “Unless all jurisdictional facts appear in the record itself, the judgment in the proceeding will be void upon collateral attack.” The converse of the proposition there stated is equally true, that, where all jurisdictional facts appear in the record itself, the judgment is not void and cannot be so declared on collateral attack. In that case the order of adoption did not state that the child was a resident of the county where the' proceedings were had, and we held that such fact was essential to give the court jurisdiction, and that it must appear upon the face of the record.

In the case at bar the language of the order, to-wit: “On this day comes James Avery and files and presents to the court his petition praying that one minor child, Lizzie Allease Avery, age six years, a resident of Pulaski County, * * *” as we construe it, plainly states that the appellant was a resident of Pulaski County, the county in which the order of adoption was sought and obtained. Therefore the record of the probate court of Pulaski County, in which the order of adoption was made, shows on its face the essential jurisdictional fact that appellant was a resident of that county at the time. This fast cannot be controverted by proof aliunde.

2. The appellee next contends that the record does not show that Gertrude Rush, the mother of the appellant, was present in open court when the order was made. Section 256, supra, requires that the father and mother, if living, of the child to 'be adopted, must appear in open court and give consent to the adoption, provided, if the residence of the father or mother ’be unknown, the petitioner must show such fact by two competent witnesses. In Willis v. Bell, 86 Ark. 473, the record of the adoption proceedings showed affirmatively that the father was living at the time, but did not show that his place of residence was unknown. The record did not show in that case that the father had appeared in open court and consented to the proceedings. Speaking on that phase of the case, we said: ‘‘The jurisdiction of the court depends upon the express consent of the parents of the child, unless their residence be shown to be unknown. * * * There must be substantial compliance, in all their essential requirements, with statutes authorizing the adoption of children, in order to effect an adoption thereunder. And an order of adoption not made in conformity with the statute is absolutely void. It cannot be valid in part or void in part. It is either valid1 or void in its entirety, and any one interested can take advantage of its invalidity. ’ ’

Counsel for appellee rely upon this case as authority for saying that the record of the adoption proceedings does not show that Gertrude Rush, the mother of appellant, appeared in open court and consented to the adoption, in compliance with the requirements of § 256, supra. Counsel say that the record shows affirmatively that Gertrude Rush was living, and her residence was known.

Now, the judgment of adoption under review recites: “Upon examination of said petition, it appearing to the ■court from the petition and from the testimony of James Avery and J. A. Robinson, witnesses, that the mother of said child being unable to rear, clothe and educate said minor, and it further appearing, from the affidavit of G-ertrude Rush, the mother of said minor, that she being unable to maintain and care for said child, and that she consents to said adoption, * * * .” These recitals show a substantial compliance with the requirements of § 256, supra. The affidavit of Gertrude Rush, the mother of appellant, is thus brought into the judgment record, and it recites that she is the ‘ ‘ natural mother of the child, Lizzie Allease Avery, and consents to its adoption by James Avery, its father. ’ ’ This affidavit is tantamount to a petition on the part of the mother asking that the child may be adopted by its father. --

It will be observed that § 256, supra, does not say that the father or mother must appear in person in open court. It only says “unless such father or mother appear in open court.” This simply means that the court must be in session and the father or mother of the child, if living, must appear in -such open session and give consent to its adoption, but it does not mean that such appearance must necessarily be in person, but in the usual way in which litigants appear in court, either in person or by their duly constituted attorney and agent. The only inference to be drawn from the recitals of the judgment that the “mother consents to said adoption” is that she appeared and consented in the manner required by the statute. Certainly such presumption should be indulged from this recital in the judgment.

In Coleman v. Coleman, 81 Ark. 7-11, the court had under consideration an adoption order that did not show that the father was not living and did not state that it was shown by two competent witnesses that the residence of the father was unknown. In that case we said: “The order recites on this point Ghat the mother of said boy died soon after his birth, and the residence of the father, if living, is unknown to petitioner. ’ We understand from this that it was alleged, in substance, that the mother was dead, and that the' residence of the father was -unknown. This was a substantial Compliance with the statute. Moreover, the petition not being set out in the record, it will be presumed that it complied with the statute. * * * Appellant contends that the order is void and subject to collateral attack because it does not recite that it was shown 'by two witnesses that the residence of the father was mi known. But the jurisdiction of the court did not, in our opinion, depend on such evidence, nor was it necessary to make such a recital in the record. Making the order of adoption without such proof would be error, and might be ground to set such order of adoption aside, on petition of the father of the adopted child, but neither D. L. Coleman, on whose petition the order of adoption was made, nor any one claiming through him, as plaintiff does, would be allowed to object to the judgment on that ground.”

The doctrine • thus announced controls here. The recitals of the judgment, in connection with the affidavit of Gertrude Rush, which is expressly brought into the judgment, are certainly sufficient to show that the requirements of § 256, supra, had been substantially complied with.

3. Counsel for appellee contends that the taking of the order was a fraud upon the court and a fraud upon the parties. Certainly the record of the adoption proceedings does not show on its face that any fraud was perpetrated upon the court or the parties, and the appellee cannot raise these questions on a collateral attack on a judgment of adoption which is in all things regular on its face. As is said in 1 R. C. L. 626, § 38: “The want of jurisdiction must appear from the record, and, as an order of adoption entered in due form partakes of the characteristics of a judgment, if there is jurisdiction over the parties and the subject-matter, it cannot be avoided for errors or irregularities, except upon appeal or :by motion to vacate it, and the order or decree is therefore exempt from collateral attack by parties and' privies. The person adopting a minor child and procuring the order for such adoption, and all others -claiming as his heirs, are estopped from denying that he was a resident of the county as alleged in his petition for such adoption, or from questioning the validity of the adoption proceedings on the ground of mere irregularities not involving the jurisdiction of the judge.”

The trial court therefore erred in dismissing appellant’s complaint. The decree is reversed, and the cause is remanded with directions for further proceedings according to law and not inconsistent with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Beeson-Moore Stave Company v. Clark County Bank.
    Opinion delivered October 15, 1923.
    1. Trial — direction op verdict — jury question. — Where the testimony of an intervener made it a question for the jury whether he was entitled to recover from the plaintiff, it was error to direct a verdict against the intervener.
    2. Trial — argumentative instructions. It was not error to refuse prayers for instructions that were argumentative in form.
    3. Banks and banking — damnum absque injuria. — Where checks drawn by plaintiff payable to certain payees for timber, labor and other expenses in manufacturing staves, were delivered to and wrongfully indorsed by intervener, and the money was paid by defendant bank on such forged indorsements, plaintiff suffered no damage if the funds were used in' the manner intended by plaintiff, as the latter suffered no damage by the bank’s wrongful act.
    Appeal from Clark Circuit Court; George R. Eaynie, Judge;
    reversed in part.

      Mehaffy, Bonham & Mehaffy, for appellant.
    1. Gosney, it appears, filed no motion for new trial, and presented no hill of exceptions. Alleged errors, based on admissions of testimony at the trial, or on instructions given and refused, cannot be considered. 148 Ark. 156; Id. 653; 140 Ark. 218; 130 Ark. 538; 129 Ark. 86; Id. 217; 143 Ark. 463; 149 Ark. 669.

      2. The appellee bank is liable to the appellant, under the facts in the case. It had the means of knowing, and did know, whether the indorsements on the checks were genuine or not. 5 R. C. L. 554; Id. 552; .137 Ark. 252; 141 Ark. 414; 148 Ark. 14.
    3. Court erred in refusing instructions 9 and 10 requested by appellant. 142 Ill. 296; 148 Ark. 604; 97. N. Y. Supp. 274; 7 C. J. 686; 115 Ark. 326; 73 Ark. 566; 3 R. C. L. 542-543; 1 Morse on Banks and Banking, 4th ed., 483; L. R. A. 1917-A, 145; 137 Ark. 258, 259; 36 Am. St. Rep. 81.

      J. 8. Townsend, for cross-appellant Gosney.
    Gosney’s theory of the case is supported not only by his own testimony, -but also that on the- part of the appellant. He was entitled to have that theory submitted to the jury, which was the judge of the weight and credibility of the witnesses. The court erred in directing the verdict. 98 Ark. 334; Id. 370; 105 Ark. 136, -and cases cited.
   Wood, J.

The Beeson-Moore Stave Company, a corporation of Arkansas (hereafter called appellant), instituted this action against the Clark County Bank (hereafter called bank), and J. Gosney. The appellant alleged that, pursuant to an agreement with Gosney, it issued various voucher checks to certain payees for different amounts, all of which are set forth, amounting »in the aggregate to the sum of $4,833.91; that these checks were sent to Gosney to be delivered to the payees therein named; that it was fraudulently represented- to appellant that the various sums for which checks were issued were due to the payees for labor and service performed; that appellant did not owe the payees any sum, but, if so, the sums were less than the- amounts alleged in the checks; that Gosney did not turn over the checks to the payees, but, without right and without their consent, forged the names of the payees to the checks and took credit in his own name for the amounts of the checks; that the bank, without the consent of the payees, permitted G-osney to cash the checks and take credit for same in his own name; that the hank accepted the checks and stamped on the hack of them the following : “Pay any bank, banker, bankers or trust company, or order (all prior indorsements guaranteed). 192. Clark County Bank, Gurdon, Arkansas. P. M. Holt, cashier.” The appellant alleged that, by reason of these acts of G-osney and the bank, it had been damaged in the sum above named, for which it prayed judgment.

The bank, in its- answer, categorically denied all the allegations of the complaint, and set up that, if the checks were handled as alleged, the appellant ratified such handling by G-osney; that appellant knew, immediately after the checks were paid in January, 1920, and at all times thereafter, that the checks were being, handled as alleged in the complaint, and appellant paid; same with such knowledge, and failed to notify the bank' that it objected thereto; that appellant continued to deliver the checks to G-osney for more than one year : with full knowledge of how they were being handled by Gosney, without notifying the bank that it objected there-, to; that, if it had notified the bank within a reasonable-' time after it honored the checks in January, 1920, the. bank would have refused to further honor such checks, and could and would have recovered the money paid Gosney on such checks; that.Gosney is insolvent. The bank further alleged that, after the appellant knew that Gosney had cashed the checks as alleged, appellant paid Gosney large sums of money from time to time; that all of the -checks were charged to Gosney by the appel-' lant and had been paid by Gosney. Therefore the bank prayed that appellant’s complaint be dismissed.

Gosney answered, adopting the answer of his co-defendant, as far as applicable, and set up, in a cross-complaint, that he entered into a written contract with the appellant to buy timber to make staves or have them made and shipped to the appellant, for which he was to receive a stipulated price specified in the. contract; that the appellant agreed to advance all money necessary to carry out the contract and charge the same to Gosney’s account; that, in pursuance of the contract, he had delivered to the appellant staves which, at the price agreed upon, amounted to the sum of $8,235.20; that, in addition to the price of the staves, he had incurred expense in bucking the same, amounting tó $1,699.13; that the appellant was indebted to him in the sum of $600, under the terms of the contract between them, for staves purchased by him for appellant at Antoine, Arkansas ; that appellant was indebted to him in the sum of $879.36 under the contract for cutting and yarding logs; that appellant- was indebted to him in the.sum of $2,000 for 200,000 feet of stumpage for staves on the Chancellor & Thornton land, making a total of $11,613.69 due him by the appellant; that against this sum appellant Avas entitled to certain credits. He prayed that, after giving these credits, he have judgment for the balance.

The appellant answered the cross-complaint of Gos-ney, denying all of its allegations.

The testimony of the respective parties adduced to -sustain the contentions as set forth in their pleadings i-s quite voluminous, and no useful purpose -could be served by setting it forth in detail. Suffice it to say there was testimony which made it an issue for the jury to determine whether or not Gosney was indebted to the appellant, as alleged in its complaint, or whether the appellant was indebted to Gosney, as alleged in his cross-complaint. At the conclusion of the testimony the court instructed the jury, at the instance of the .appellant,. to find against Gosney on his cross-complaint. Gosney excepted to the giving of this instruction, and made the ruling of the court in giving the same one of the grounds of his motion for a new trial.

The issue between the appellant and the bank was submitted to the jury, on instructions given at the instance of the appellant and the bank. The court refused certain prayers for instructions of the appellant, to which ruling the appellant excepted. The court granted the bank certain prayers for instructions, and among- them Nos. 6 and 12, as follows:

“No. 6. If the defendant Gosney entered into a contract with plaintiff to manufacture and sell staves to plaintiff, and plaintiff agreed to advance funds for timber and labor and other expenses in connection with the manufacture of such staves, and to charge the amounts advanced to said Gosney, and, in carrying out such contract, the checks in evidence were issued and delivered to said Gosney and charged to him, and the defendant Gosney used all the proceeds of said checks in paying the laborers under the terms of his contract with the plaintiff, your verdict should be for the defendant, Clark County Bank.”

“No. 12. If you find from the testimony in this ease that the defendant, Clark County Bank, paid out, upon checks drawn by the defendant Gosney to his employees' for making, manufacturing and hauling staves, under the terms of the contract between plaintiff and Gosney, a sum of money equal to the total amount of the checks drawn by the plaintiff and payable to the defendant’s employees, and indorsed and cashed by the defendant Gosney, then you will find for the defendant, Clark County Bank.”

The jury returned a verdict in favor of the appellant against Gosney in the sum of $2,000, and in favor of the bank. Judgment was entered in accordance with the verdict. From the judgment against the appellant in favor of the bank the appellant prosecutes this appeal, and Gosney was granted an appeal by the clerk of this court.

1. The court erred in instructing the jury, at the instance of the appellant, to find against Gosney on his cross-complaint. As we have stated, the testimony of Gosney made it an issue for the jury as to whether or not Gosney was entitled to recover from the appellant on the issue raised in his cross-complaint and the answer of appellant thereto. The appellant contends that Gosney filed no motion for a new trial and presented no bill of exceptions, but, upon an examination of the record, which has been corrected by certiorari, we find that Gosney did file a motion for a new trial. It was not necessary for him to file a separate bill of exceptions, inasmuch as the bill of exceptions presented by the appellant shows that Gosney reserved exceptions to the ruling of the court in giving the instruction of which he here complains.

2. The appellant complains of the ruling of the court in refusing certain of its prayers for instructions. We find that these prayers were sufficiently covered by the instructions which the court gave. Appellant’s prayer for instruction No. 6 was sufficiently covered by its prayers for instructions Nos. 7 and 8, which the court granted. Appellant’s prayers for instructions Nos. 9 and 10 in effect told the jury that, if the bank indorsed the checks cashed by it with the words “.all prior indorsements guaranteed,” and the checks so indorsed were returned to the appellant, then the appellant had a right to assume that the bank had áseertained that the prior indorse-ments on the checks were genuine, and that no unauthorized payments had been made, and, if the bank so indorsed the checks, it was not the duty of the appellant to examine said checks for forgeries, and its failure to examine them did not constitute negligence. The fact that the bank indorsed the checks ■“ all prior indorsements guaranteed” did not add anything to its liability, for, if the checks were forgeries, the bank was liable to the appellant for any loss caused thereby, as was set forth in other instructions, given at the instance of the appellant, in which the liability of the bank for forged in-dorsements was correctly submitted. Prayers for instructions Nos. 9 and 10 in the form requested were argumentative, and the court did not err in refusing to grant them.

Appellant contends that the court erred in giving instructions Nos. 6 and 12, set out above. Taking these instructions together, they tell the jury, in effect, that, if all of the money drawn from the bank by Gosney through, forged indorsements of the names of the payees, was paid for timber, laborers, and other expenses in manufacturing staves under his contract with the appellant, then the bank would not be liable. Such we understand to be the purport of the instructions, and such was the manifest intention of the trial court in giving them. To ¡be sure, if all the money drawn out of the bank by Gosney through forged indorsements was used in paying for timber, laborers and other expenses in connection with the manufacture of the staves under the contract between Gosney and appellant, then appellant would not suffer any financial loss or be damaged in any manner because the bank paid out the money on forged indorsements by Gosney. It would be injuria sine damno. “It is not enough that an unauthorized act or injury be done, but the plaintiff must sustain a loss by reason thereof” Weeks, Damnum Absque Injuria, § 5, p. 9. The effect of these instructions was to so inform the jury. The testimony of Gosney justified the court in giving the above instructions.

The judgment therefore in favor of the bank is affirmed. The judgment in favor of the appellant against Gosney, for the errors indicated, is reversed, and the cause is remanded for a new trial on the issues between Gosney and the appellant.


text:
    Castle v. Sanders.
    Opinion delivered October 15, 1923.
    Sewers — improvement district — notice op piling op petition.— Where a notice of a filing of a petition for a sewer improvement district a correct description by section lines of all the lands included in the district, failure of the notice to include a single lot in an alternative description of the lands by lots and blocks, was not fatal to the organization of the district.
    Appeal from Pulaski Chancery Court; G. B. Thweatt, special chancellor;
    affirmed.

      ■Louis Tarlowshi, for appellant.
    The court erred in dismissing the complaint. The statute was mandatory and not directory, and, being mandatory, its provisions must be strictly followed. Failure to insert in the published notice a description of one lot owned by appellant and situated within the proposed district is, under the terms of the statute, a fatal defect in the organization of the district. 104 Ark. 298; 67 Ark. 30; 113 Ark. 567; 115 Ark. 163; 134 Ill. 330; 58 Calif. 237. Statutory requirements are mandatory in the formation of local improvement districts. 50 Ark. 116; 59 Ark. 344; 30 Ark. 609; 79 Ark. 236; 98 Ark. 505; 28 Ark. 359; 31 Ark. 334; 59 Ark. 344; 30 Ark. 487; 71 Ark. 556; 82 Ark. 247; 59 Ark. 237. It is a genera] rule that, where the Legislature makes no exception in a statute, the court can make none. 16 Ark. 671; 59 Ark. 297; 6 Ark. 14; 42 Ark. 121; 13 Ark. 291; 24 Ark. 487; 62 Ark. 585; 59 Ark. 237; 20 Ark. 410.' Where the language is unambiguous, there is no room for construction of a statute. 56 Ark. 110; 46 Ark. 159; 110 Ark. 99; 93 Ark. 42.

      Sam T. & Tom Poe, for appellees.
    The notice contained a sufficient description of the property. 138 Ark. 339. Congressional subdivision description includes all parcels, tracts and lots within the limits of the same. 72 Ark. 496; 70 S. W. 143.
   Wood, J.

This action was instituted by the appellant against the appellees. The appellant alleged in his complaint that he was owner of real property in Little Rock-North Heights Sewer District No. 1 of Pulaski County, Arkansas, to-wit: Lot 2, block 12, Park TIill Addition to city of North Little Rock, Pulaski County, Arkansas. He set up that on the 4th of May, 1923, certain owners of real property in Pulaski County presented a petition to the county court praying for the formation of a local improvement district for the purpose of building a sanitary sewer system, under authority of act 126 of the Acts of 1923, p. 84. The land embraced in the petition is described in the complaint. The appellant then alleges that, pursuant to the provisions of act 126, the cleric of the. Pulaski County Court caused notice of the filing of the petition to he published in the city of North Little Rock, Pulaski County, Arkansas; that the notice as published omitted one lot which was intended to be a part of the proposed improvement district as set forth in the petition. The lot omitted is lot 40, block 5, Park Hill Addition to the city of North Little Rock, Arkansas. The complaint further alleged that the published notice contained the same description as was set forth in the petition, except the above mentioned lot; that the land was described in the petition under the congressional subdivision as the SE % SE14 and Ey2 SE% SW% SE% section 22; S% (except NE]4 NE14 SE%) of section 23, which includes certain blocks (describing them by number) and lots numbered from 39 to 46 inclusive, block 5 in Park Hill Addition to North Little Rock, and certain other lands, the description of which is set out in the complaint; that the published 'notice described the property the same as in the petition and the order of the court creating the district, except that, in enumerating the particular lots in block 5, lot 40 is omitted. The appellant then alleged that the appellees, as commissioners of the district, were proceeding to take steps to make the improvements for which the district was created; that the order of the court creating the district was void, and concluded with a prayer that it be so declared and that the appellees be enjoined from taking further steps looking toward the making of the improvements contemplated in the order creating the district. A copy of the petition for the formation of the district, and of the notice and of the court’s order creating the district, were made exhibits to the complaint.

The appellees entered a general demurrer to the complaint, which the court sustained. The appellant stood on his complaint. The court entered a decree dismissing the same for want of equity, from which is this appeal.

The only question for decision is whether or not the omission of lot 40 from the published notice 'rendered the order creating the district invalid. Act 126 of the Acts of 1923 provides for the creation of improvement districts of the character set forth in the petition, when such petition is presented to the county court by a ■majority in value in acreage or numbers in any territory adjacent to a city having a population of more than 10,000 inhabitants, and that portions of incorporated towns and cities may be included upon the conditions therein specified. The act provides that, upon the filing of the petition, it shall be the duty of the county clerk to give notice óf the filing thereof, describing the territory to be affected, and calling upon all persons who wish to be heard upon the question of the establishment of the district to appear before the county court, on a day to be fixed in the notice. The act provides the form of the notice, which is to the effect that a petition is on file at the office of the county clerk, praying for the formation of an improvement district, describing its purpose, and calling upon all persons desiring to be heard on the question of the formation of the district to appear on a certain day. The act, in prescribing the form of the notice, provides that the notice shall contain a description of the lands affected, and “that same may be described by using the largest subdivision possible.”

The appellant relies upon cases in this court and other authorities to the effect that the publication of the notice to the landowners in a contemplated improvement district in the manner prescribed in the statute is jurisdictional, and that the district is not created without it. Crane v. Siloam Springs, 67 Ark. 30; Norton v. Bacon, 113 Ark. 567; Voss v. Regburn, 104 Ark. 298; McRaven v. Clancy, 115 Ark. 163. In the last of the above cases, among other things, we said: “The omission from the publication of one lot which was included in the petition and ordinance creating the district can•not be said to be an immaterial variance. The statute, being mandatory and jurisdictional, must be strictly complied with, and other notice than that contained in the statute of the passage of the ordinance is not sufficient and cannot be substituted for the notice prescribed by the statute.”

The authorities upon which appellant relies are nod applicable to the facts of this record, because here the published notice does not omit, in fact, any land that was embraced in the petition for the formation of the district and in the order of the court creating the same. In those cases there was an entire omission in the notice of any description of the lots that were included in the petitions and ordinances. Here, it is true, the notice, in enumerating the particular lots included in the general description, omitted lot 40 in block 5, but this particular lot was included in the general description “Sy2 (except NE% NE% SE%) of section 23.” Any property owner, in reading the notice, would see at a glance that the failure to mention lot 40 was but a clerical misprision, and that said lot was necessarily included in the description by government subdivision. It is not like the oases of Voss v. Reyburn and McRaven v. Clancy, supra, where the notice failed 'to include lands that were embraced in the petitions for, and ordinances creating, the districts. Under the form of notice prescribed in the statute, the description of the property embraced in the district, by using the government subdivision, was entirely sufficient, because it is expressly provided that the lands to be embraced in the district “may be described by using the largest subdivisions possible.”

After the lands were described in the notice as the S% (except NE% NEy4 SE^i) of section 23, it was wholly unnecessary to then enumerate the lots and blocks included in that description. All landowners were notified by the general description that every block and lot embraced within that description would be included in the district, if the same were established by the court. And even a casual reading of tlie notice as a whole would advise any property "owner that, since all of the blocks and lots in the of section 23 were included, a failure to include lot 40 in the description by lots and blocks was an obvious misprision.

In the case of Martin v. Urquhart, 72 Ark. 496, a deed was executed which conveyed the property known as the “J. J. Martin plantation,” embracing certain lands. A particular description of these lands was then given, and the deed contained certain exemptions and reservations. It was held that this description embraced a certain four acres of the land which were not included in the particular description given in the deed. The court said: CThe words ‘the property known as the J. J. Martin plantation,’ used in the deed, were sufficient to describe the tract of four acres. The words following, that allege that the J. J. Martin plantation embraces certain lands, do not limit or restrict their meaning, or except any lands save those expressly reserved.” That principle is applicable here. The notice under the statute was sufficient if, taking it as a whole, it contained the lands described in the petition for the formation of the district. The notice in this case does that. The property owners who owned this particular lot 40 had signed th'e petition. They knew that lot 40 was included, and any other property owner in the district would necessarily have been advised, after reading the notice as a whole, that all lots in block 5 were included in the proposed district.

The decree of the court was therefore correct, and it is affirmed.

Hart, J., dissenting.


author: Hart, J.,

text:
    Culver v. Gillian.
    Opinion delivered October 15, 1923.
    1. Adverse possession — possession without color • of title.— Where no color of title is claimed, adverse possession is limited to the land actually occupied.
    2. Adverse possession — character op possession. — While, 'to constitute adverse possession in one having no color of title, there need not be a fence or building, yet there must he such visible and notorious acts of ownership exercised over the premises continuously for the time limited by the statute that the owner of the paper title would have knowledge of the fact, or that his knowledge may he presumed as a fact.
    3. - Adverse possession — notice op hostile 'claim. — To constitute adverse possession of uninclosed and uniniproved lots, there must be actual continuous possession by the claimant of such unequivocal character as to reasonably indicate to the owner that the claimant was making a hostile claim to the lots.
    4. Adverse possession — sufficiency of acts of possession. — Proof that one claiming uninclosed and unimproved land put up a sign forbidding trespassers from coming there, that at one time he had the underbrush cleared and some of the larger trees cut down, that one year he planted some garden seed, that within the statutory period he inclosed and rented a part of the land, is insufficient to establish adverse possession.
    5. Taxation — presumption as to tax title. — A donation deed from • the State conveying land forfeited for taxes is prima facie evidence of title, and vests in the grantee constructive possession in case of wild and uninclosed land; and this possession is actual for all the purposes of remedy until it is interrupted by actual entry and possession taken by another.
    6. Adverse possession — invalid tax deed as color of title. — An invalid tax deed, being color of title, is competent evidence to mark the boundaries and extent of the purchaser’s possession.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.
    STATEMENT OE PACTS.
    This is an action of ejectment brought by Cus Gillian in the circuit court against C. L. Culver, to obtain possession of certain lots in the city of Van Burén, Arkansas. The defendant asserted title in himself by adverse possession, and also claimed that the plaintiff could not maintain bis action because be claimed title under a void tax deed.
    Gus Gillian claimed title to tbe five lots in controversy by mesne conveyances from tbe State of Arkansas.
    It appears from tbe record that the lots were forfeited to tbe State for tbe nonpayment of taxes in 1900. On tbe 26tb day of January, 1910, tbe Commissioner of State Lands executed a deed to said lots to W. V. Boat-right, upon tbe payment of tbe taxes, penalties, and costs, for which tbe lands were forfeited, as provided by tbe statute. On tbe 7th day of December, 1912, W. V. Boatright and wife conveyed tbe lots by deed to Rachel Lindstrom. On tbe 10th day of March, 1919, Rachel Lindstrom conveyed tbe lots by deed to tbe plaintiff, Gus Gillian. Gillian and bis grantors never entered into actual possession of tbe lots, but paid tbe taxes on the same.
    The case was tried at tbe November, 1922, term of the circuit court.
    C. L. Culver was a witness for himself. According to bis testimony, tbe lots were situated near bis residence, and were used by tbe public as a dumping ground for dead animals. He could not get tbe public authorities to stop using tbe lots for that purpose, and be posted a sign on the lots in 1907, forbidding trespassing on tbe lots. He also bad tbe undergrowth and some of tbe larger timber cut down. He then planted some butternut trees and some vines to grow upon tbe large trees. He also planted some pumpkin seeds one year. In 1917 he inclosed a part of tbe lots with-a fence. .During the past three years Culver rented out tbe lots and collected tbe rent.
    The county and probate clerk of Crawford County was also a witness for tbe defendant. According to bis testimony, which was not objected to, tbe assessor’s tax-books showed that tbe lots in question were assessed in gross in 1900. Tbe record of tbe tax sale on the lots shows that they were sold together for the taxes, penalties, and costs to the State of Arkansas, for the nonpayment of the taxes.
    The jury returned a verdict for the plaintiff, and from the judgment the defendant has duly prosecuted an appeal to this court.

      Chew & Ford, for appellant.
    Both the assessment of the lots, and the sale thereof, were en masse, and were illegal and void. C. & M. Digest §§ 9928 and 10086. The deed therefore from the State Land Commissioner to Boatright is void. Appellee has no title to support an action in ejectment. 61 Ark. 414, and cases cited; 138 Ark. 94. Appellee therefore cannot complain that appellant showed no title in himself. 55 Ark. 213; 107 Ark. 373; 122 Ark. 374.

      O. L. Grant and E. L. Matloch, for appellee.
    1. The deed from the State to Boatright is not void on its face. Even a void tax deed may he color of title. 60 Ark. 499. A donation deed executed by the State is prima facie evidence of title, and vests in the grantee constructive possession in the case of unoccupied land; and this possession is actual for all purposes of remedy until interrupted by actual entry and adverse possession taken by another. 76 Ark. 551; 69 Ark. 420; 74 Ark. 383.
    2. To suppport the claim of adverse possession without color of title, it must be shown by the party asserting it that he had actual adverse, open and exclusive possession for the statutory period. 30 Ark. 656. Appellant’s testimony fails to establish such possession.
   Hart, J.,

(after stating the facts). One of the de-. fenses to the suit is that the defendant has title to the lots in question by adverse possession. It will be observed that he does not claim to have entered into possession of the lots under color of title. In cases of adverse possession under color of title the actual possession, by presumption of law, is constructively extended to the limits defined in the paper conveyance which gives color of title. In the case, however, of adverse possession without color of title, the adverse possession is limited to the land actually adversely occupied.

Here the defendant does not claim adverse occupancy under color of title.

While, in such cases, to constitute an adverse possession, there need not be a fence or building, yet there must he such visible and notorious acts of ownership exercised over the premises continuously, for the time limited by the statute, that the owner of the paper title would have knowledge of the fact, or that his knowledge may be presumed as a fast. In other words, it has been well said that if the claimant “raises his flag and keeps it up,” continuously for the statutory period of time, knowledge of his hostile claim of title may be inferred as a matter of fact.

In the present case it may be said that, under the circumstances shown by the defendant himself, there has been no actual, visible, hostile appropriation of the lots, to the exclusion of the owner of the paper title, continuously for seven years. The lots were uninclosed and unimproved. There was no actual continuous use of the lots by the defendant of such unequivocal character as to reasonably indicate to the owner that the defendant was making a hostile claim to the lots. Norwood v. Mayo, 153 Ark. 620.

The defendant claims to have gone into possession of the lots in 1907 and to have held adverse possession ever since. He. describes his adverse possession, however, and i-t is not of such a substantial character as to .give him title to the lots. At one time he had the underbrush cleared and some of the larger trees cut down. One year he planted and cultivated a few.garden seed. He did nothing from that time until the suit was brought, except that, in 1917, a part of the lots were inclosed and rented. It is true that, in the beginning, he put up a sign on the lots forbidding trespassers from coming there. This of itself would not be sufficient to show adverse possession of the lots against the true owner. It is not even shown that the sign remained posted np continuously for seven years. Therefore we hold that, under his own testimony, the defendant did not acquire title to the lots by adverse possession.

Another ground of defense relied on for the reversal of the judgment is that it appears from the record that the five lots were assessed for taxes and sold en masse for a lump sum, and that the case is thus brought within the rule announced in Campbell v. Sanders, 138 Ark. 94. This would be true if the tax deed showed on its face that it was void. This would be in application of the well-known rule that the plaintiff in an ejectment case must recover upon the strength of his own title and not upon the weakness of that of his adversary. It does not appear from the record, however, that the tax deed in question is void on its face. Prima facie it conveyed a good title from the State to one of the grantors of the plaintiff. An invalid tax deed is color of title, and, as such, is competent evidence to mark the boundaries and extent of the purchaser’s possession. This court has expressly held that a donation deed executed by the State of Arkansas is prima facie evidence of title, and vests in the grantee constructive possession in the case of wild land; and that this possession is actual for all the purposes of remedy until it is interrupted by an actual entry and adverse possession taken by another. Thornton v. St. Louis Refrigerator & W. G. Co., 69 Ark. 424.

As we have already seen, the defendant acquired no title whatever to the lots by adverse possession. He made no claim under a paper title. Therefore, if the plaintiff had a prima facie title, he might recover possession of the lots on it, and the defendant,' being a trespasser, is in no attitude to resist his claim.

It' follows that the judgment will be affirmed.


text:
    Gage v. Arkansas Central Railroad Company.
    Opinion delivered October 15, 1923.
    1. Carriers — refusal to receive freight — excuse.—Where a carrier is prevented from handling freight in a prompt and ' expeditious manner by unforeseen conditions such as a strike, over which it has no control and over which, in the nature of things, it could have no control, it will be excused from receiving freight for shipment until such freight, can, in the regular and usual course of business, be removed.
    2. Appeal and error — harmless error. — Where the trial court reached the right conclusion under a state of facts which is undisputed, although by an erroneous route, it is the duty of the Supreme Court to affirm the case.
    Appeal from Franklin Circuit Court, Charleston District; James Cochran, Judge;
    affirmed.
    STATEMENT OE PACTS.
    Treating this case as counsel for appellant has treated it, it is an action ¡by appellant against appellee to recover damages for the common-law breach of duty of appellee, as a common carrier, in refusing to receive for shipment certain hogs of appellant.
    According to the evidence adduced in favor of appellant, appellee owns and operates a line of railroad between Paris and Fort Smith, Arkansas. Appellant made application to the station agent of appellee at Ratcliff, Arkansas, for two cars for the purpose of transporting 148 hogs to Kansas City, Missouri. Appellant requested that the cars be set at the stock pens of appellee at Rat-cliff, Arkansas, on the 8th day of April, 1920. Appellee had bis hogs in the stock pens at said station on said date, ready for shipment, but appellee refused to receive the same;
    The station agent at Ratcliff, Arkansas, the superintendent, and the train dispatcher of appellee, Arkansas Central Railroad Company, were all witnesses' for it. Each of them testified that the distance from Ratcliff, Arkansas, to Kansas City, Missouri, is 397 miles, and that, in the ordinary movement of trains, the carload of stock would make the trip in about 48 hours. The railroad company received information on April 8,1920, that there was an embargo placed by the railroads running into Kansas City on all kinds of freight consigned to that place. The embargo on freight for Kansas City was due to a switchmen’s strike, and the agents on the Arkansas Central Eailroad Company were notified that no freight would be received consigned to Kansas City, Missouri, until the embargo was lifted. The embargo was raised on the 30th day of April, 1920, and freight cars, as requested, were placed for appellant on May 1, 1920. The hogs were then shipped by appellant to Kansas City, Missouri.
    The court directed a verdict for the appellee, and the case is here on appeal.

      Cheto & Ford, for appellant.
    Appellant’s action was not brought under § 913, C. & M. Digest, but was one for failure to receive freight, and the resultant damages. The statute of limitations is three years instead of one, as held by the court.

      Thomas B. Pryor and Vincent M. Miles, for appel-lee.
    Whether the suit was one for failure to furnish cars (77 Ark. 363) or failure to receive freight (84 Ark. 151) the penalty is fixed by § 913, C. & M. Digest. It fixes the period of limitation at one year. Therefore the court was correct in sustaining a plea of the statute of limitation. A parallel case is that found in 77 Ark. 357. As directly in point, see 118 Ark. 375.
   Hart, J.,

(after stating the facts). The circuit court was right in directing a verdict for appellee. It is true that railroad companies are bound to have all reasonable and necessary facilities and appliances for conducting and carrying on their business in a prompt, skilful, and careful manner, but they are not bound to be prepared for unusual contingencies which no ordinary prudence or foresight could reasonably foresee or anticipate. So that it has been held in this State, where, an unusual contingency has arisen winch unexpectedly increases the business of a railroad company, it will be excused for delaying shipping, or even in receiving goods for shipment, until such goods can, in the regular and usual course of business, be removed. St. L. S. W. Ry. Co. v. Clay County Gin Co., 77 Ark. 357, and Hines v. Mason, 144 Ark. 11.

In the application of the rule, if the railroad, as in this case, is prevented in the handling of freight in a prompt and expeditious manner by unforeseen conditions, such as a strike, over which it had no control, and over which, in the nature of things, it could have no control, it will likewise be excused from receiving freight for shipment. 10 C. J. 67; Murphy Hdw. Co. v. Southern Ry. Co., 150 N. C. 703, 22 L. R. A. (N. S.) 1200; and Pittsburgh, Cinn. & St. L. Ry. Co. v. Hollowell, 65 Ind. 188, 32 Am. Rep. 63.

It appears from the record that a switchmen’s strike in the city of Kansas City, Missouri,'caused all railroads which entered that city to refuse to receive freight from connecting carriers. The line of the .defendant’s railroad only extended from Ratcliff to Fort Smith, Arkansas. On account of the embargo on freight consigned to Kansas City, Missouri, it did not receive the shipment of hogs in question. The strike was not in any manner induced or caused by appellee. It had nothing whatever to do with it, and the embargo placed on freight consigned to Kansas City prevented it from receiving the ■hogs for shipment. .

The testimony on this branch of the case was undisputed, and it follows that, under the principles of law above announced, the court was right in directing a verdict for appellee. The direction was a general one, but, even if it had been directed because the court had a different theory from the one announced above, the result would not be different on appeal.

Where the right conclusion is reached under a state of facts which are undisputed, although through an erroneous route,.it is tbe duty of tins court to affirm. St. L., I. M. & S. R. Co. v. Randle, 85 Ark. 127, and St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154.

Therefore the judgment -will be affirmed.


author: Hart, J.

text:
    Adams v. State.
    Opinion delivered October 15, 1923.
    1. Criminal law — instruction—undue prominence op particular matters. — A request for instruction in a murder case which singled out and gave undue prominence to the testimony of defendant to the effect that he armed himself solely for his own protection was properly refused.
    2. Homicide — self-defense—instructions.—Where it was the State’s theory that the defendant had armed himself with a rifle for the purpose of killing deceased, an instruction presenting defendant’s theory that he went to the pláee where deceased was working to remonstrate with him, and that he carried his rifle with him for self-protection, and shot deceased in .self-defense, held sufficient.
    3. Homicide — instruction as to degree. — Where the court correctly charged the jury as to the duty of giving the accused the benefit of every reasonable doubt, and told the jury what passion of anger, fear or terror would reduce the crime to manslaughter, it was not error to refuse an instruction that where there is reasonable doubt as to the degree of criminal homicide, the jury should give him the benefit of the doubt.
    4. Criminal law — exclusion of evidence — harmless error. — The error of refusing to permit defendant to ask a question on cross-examination of a State’s witness will not be considered on appeal where it does not appear in the record what the answer would have been.
    5. Criminal law — exclusion of evidence — harmless error.— Where it is undisputed that the killing in question grew out of a dispute as to whether deceased, who was defendant’s tenant, had abandoned a part of the rented land, refusal of the court to permit defendant to ask deceased’s son concerning such abandonment, being asked for the purpose of showing that deceased had abandoned his crop and that defendant went to the field to protect his interests, held not prejudicial where the court announced in the presence of the jury that defendant had aright to go down there at the time the killing occurred.

      6. Homicide — EVIDENCE—PRIOR ALTERCATION. — It. was not error to refuse to permit the defendant in a murder case to introduce testimony as to the details of a prior altercation between plaintiff and deceased about ten days previously, where the court allowed the defendant to prove any threats which might have been made against defendant by the deceased.
    7. Homicide — evidence—collateral matter. — It was not error in a murder case to permit defendant to prove that deceased had previously turned back to defendant’s wife the land over which the controversy arose which resulted in the killing, as the evidence related to a collateral matter and would have tended to confuse the jury.
    Appeal from Miller Circuit Court; James E. McCol-lum, Judge;
    affirmed.

      Pratt P. Bacon and Louis Josephs, for appellant.

      J. 8. Utley, Attorney Oeneral; Jno. L. Carter, W. T. Hammock and Darden Moose, Assistants, for appellees.
   Hart, J.

J. W. Adams was indicted for murder in the first degree, charged to have been committed by killing J. W. Collum by shooting him, in Miller County, Arkansas. He was tried and convicted of murder in the second degree, his punishment being fixed by the jury at five years in the State Penitentiary.

It appears from the record that J. W. Adams owned a farm in Miller County, Ark., and rented about forty acres of it to J. W. Collum for the year 1922. Collum and his three boys were working the land. The killing resulted from a controversy between the parties about three or four acres of this land. Adams claimed that Collum got behind with his crop, and turned back to him three or four acres of corn, which he intended to use for a pasture.

On the other hand, it was the theory of, the State that Collum had not turned this land back to Adams, and was working it, as he had the right to do, when he was killed by Adams. In any event, Collum and his three boys were plowing in this patch at the time the shooting occurred.

According to the witnesses for the' State, J. W. Adams went down into the field with a Winchester riñe, and when J. W. Collnm plowed ont to the end of a row in the patch in question, Adams, applying a vile epithet to Collnm and his sons, ashed them what they were doing plowing np his corn and stealing his grass. He at once threw np his Winchester rifle and shot J. W. Collnm. When Adams threw the Winchester rifle to his shoulder, Collnm said, “Don’t hill me with that thing.” As soon as J. W. Collnm was shot, he fell and died. Adams immediately reloaded his gnn and threw it on one of the sons of 'Collnm, who had started to 'Collnm after he was shot. Adams cnrsed the hoy and told him that if he came on he would do him the same way as he had done his father. Adams made the boy take his plow and go home. Collnm had not done or said anything to Adams at the time the latter shot him. Collnm was unarmed at the time he was killed, except that he had a small knife in his pocket. Neither Collnm nor his hoys made any attempt whatever to advance upon or to assault Adams at the time the latter shot and killed the elder Collnm.

Adams was a witness for himself. According to his testimony, the patch of corn had been turned back to him by J. W. Collnm, and there had been some threats made against him by the Collums on account of the transaction. He saw the Collums plowing np the patch, and went down into the field to see them about it. He carried his rifle with him solely for protection in case they attacked him. When he got down into the field, J. W. Collnm drew his knife and started towards him at a rapid gait, threatening to kill him. He shot Collnm to prevent him from cutting him with his knife, when Collnm was about fifteen steps from him.

On the other hand, the witnesses for the State testified that the deceased was nearly thirty yards away from Adams when the latter shot him. Adams was seventy-eight years old at the time he .shot and killed Collnm.

The evidence for the .State was amply sufficient to sustain a conviction of murder in the first degree, and counsel for the defendant do not contend to the contrary. Their reliance for a reversal of the judgment' of conviction is on account of the alleged error in the admission of evidence and the giving of instructions.

We have recited the substance of the evidence for the State and for the defendant in order that a discussion of the assignments of error relied upon jfor 'a reversal of the judgment may be more readily understood.

It is first contended that the court erred in refusing to give instruction No. 13 at the request of the defendant. The instruction is as follows: “13. You are instructed that the fact that defendant went to where the deceased was, armed, is a circumstance the jury may consider in determining what was his purpose and intention in going there; but if, after considering all the evidence in the case, you believe he went there, not for the purpose of engaging in a difficulty with the deceased, but for the purpose of seeing him on a matter of business, and that he armed himself solely for protection, then the fact that he armed himself would not cut off his right of self-defense.”

The.court gave the following instruction at the instance of the State: “11. If you believe from .the evidence in this case, beyond a reasonable doubt, that the defendant, armed with a deadly weapon, sought the deceased with the felonious intent to kill him, or sought, or brought on, or voluntarily entered into the difficulty with the deceased with the felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed.”

It also gave the following for the defendant:

“11. Defendant seeks to justify the killing on the ground that deceased was making an attack on him under such circumstances as indicated an intention on the part of deceased to take defendant’s life, or do him some great bodily harm. You are instructed that, whether deceased intended such harm or not, if it appeared to the defendant, from bis standpoint, acting as a reasonably prudent person, and without fault or carelessness on his part in coming to such conclusion, and if the circumstances were such as to excite the fears of a reasonable person, and if defendant acted in good faith and without fault or carelessness, and not in a spirit of revenge, and if it appeared to him that the danger was urgent and pressing, and that it was necessary to kill deceased to prevent him from killing the defendant or doing defendant great bodily harm, then the killing would be justified, and you should acquit the defendant.”

It is the contention of counsel for the defendant that the court, having given instruction No. 11 at the request of the State, should also have given instruction No. 13 at his request, and that instruction No. 11 given at his request did not cure the error in refusing to give instruction No. 13.

We do not think that the court erred in refusing to give instruction No. 13. This instruction was improper because it singled out and gave undue prominence to the testimony of the defendant to the effect that he armed himself solely for his own protection. The court is not required to segregate any fact from all the material facts in the case, and, by calling especial attention to it, give that fact undue prominence:

It was the theory of the State that Adams became angered because he saw the deceased and his sons plowing up the patch of corn, which he claimed had been turned back to him, and that he armed himself with' his rifle for the purpose of entering into a difficulty with the deceased and killing him.

On the other hand, it was the theory of the defense that he carried his rifle with him for his own protection, and that he went down into the field to remonstrate with Collum about plowing up the corn and grass. He claimed that Collum advánced upon him rapidly with an open knife, and that he killed him to save his own life. This theory of the case and the appearance of danger to the defendant were fully presented to the jury in instruction No. 11 given at the request of the defendant, and copied above. Therefore the court having given the respective theories of the State and of the defendant about the killing, it was not prejudicial error for the court to not single out the alleged fact that the defendant carried the gun for his own protection, from the other facts.in the case, and emphasize to the jury that the fact that he armed himself under these conditions would not cut off his right of self-defense. Therefore the court did not err in refusing to give instruction No. 13 at the request of the defendant.

It is next insisted that the court erred in refusing to give instruction No. 8 at the request of the defendant. The instruction is as follows: “If you are satisfied, beyond a reasonable doubt, that the defendant is guilty of some grade of criminal homicide as explained in these instructions, but entertain a reasonable doubt as to whether it is murder or manslaughter, you should then give him the benefit of the doubt, and convict him of manslaughter, but if you entertain a reasonable doubt as to whether defendant is guilty of any degree of criminal homicide, as explained in these instructions, you will give him the benefit of that doubt, and acquit him.”

Crawford & Moses’ Digest, § 3183, provides that, where there is a reasonable doubt of the degree of the offense which the defendant has committed, he shall only be guilty of the lower degree. Hence the defendant assigns as error the refusal to give the instruction just copied.

In Price v. State, 114 Ark. 398, the court said that this section of our statute does not, in express terms, require the court to instruct the jury in the precise language of the statute. The court further said that it is sufficient if the instructions as a whole convey that idea to the jury. In the application of the rule it was held that a general instruction which required the jury to acquit where the evidence fails to satisfy it, beyond a reasonable doubt, of the guilt of the defendant, was sufficient to impose upon tlie jury the duty of giving the accused the benefit of every reasonable doubt upon each degree of the homicide charged in the indictment.

So in the present case the court, in at least three other instructions (two of which were given at the request of the defendant), told the jury that the law presumes the defendant innocent of the charge, and that this presumption continues and prevails until the jury is satisfied from the evidence, beyond a reasonable doubt, of his guilt. The court told the jury that this presumption was not a mere form, but was a substantial part of the law, and was binding upon it, unless the evidence satisfied it of his guilt beyond a reasonable doubt.

The court, in instruction No. 7, given at the request of the defendant, told the jury what passion of anger, fear, or terror would reduce the crime to manslaughter, and expressly instructed the jury that, if the defendant killed the deceased while acting under such passion it could not convict him of any crime greater than manslaughter.

The jury by its verdict convicted the defendant of-murder in the second degree, and under the circumstances stated, and for the reasons given, we do not think that the court erred in refusing' to give instruction No. 8, as requested by the defendant.

It is next insisted that the court erred in refusing to allow Frank Smith to answer, on cross-examination, a question by the attorneys of the defendant, asking him what Collum’s boys said about the defendant in the presence of their father. The record does not show what the answer of the witness would have been, and this alleged error cannot be considered on appeal. McKinney v. State, 140 Ark. 529.

The next assignment of error is that the court erred in refusing to allow the cross-examination of Harrison Collum, a son of the deceased, as to the details of quitting a part of the crop. The witness was asked if they had not quit a part of the crop in the early part of-June, and replied that they had not exactly quit it. He was asked what he meant by the word “exactly,” and the court refused to allow him to answer the question, on account of its being immaterial, up to that time, what took place with respect to the crop. The court in this connection, however, said that the defendant had the right to go down there at the time the killing occurred.

According to the statement of one of the attorneys for the defendant, he asked this question for the purpose of showing that the tenant had abandoned the crop, and that the defendant went down there to protect his interests. As we have seen, the court at once said that “of course the defendant had a right to go down there,” but that, for the present, the witness would not be allowed to go into details with regard to giving up that part of the crop. If the question was asked for the purpose of showing that the defendant had a right to go down there, and the court said, in the presence of the jury, “of eourse he had a right to go down there,” no prejudice could have resulted to the defendant.

The next assignment of error is that Hugh 'Collum was not allowed to answer the following question propounded by the attorneys for the defendant: “Q. Were you there about ten days before this happened, when Mr. Adams talked to your papa about their corn patch there, and when your papa hit him in the head with a hoe-handle?” The attorney for the defendant was referring to a difficulty which had occurred between the deceased and the defendant about ten days before the killing. The court refused to let the Witness answer, but told the defendant’s attorneys that they might prove any threats made by the Collums against the defendant, but that they could not prove the details of a previous difficulty. The court was right in its ruling. It was not proper' to enter into the examination, in detail, of a previous difficulty, for the purpose of determining which of the parties was in the wrong. Such a course would tend to confuse or mislead the jury. Any previous difficulty between the parties was a collateral issue, and could only be shown in a general way to show the state of feelings between the parties and as shedding light npon who was the aggressor. in the difficulty which ended in the homicide. The defendant was allowed to show that the parties had had a difficulty about the corn patch, and the court allowed the defendant to prove fully any threats which might have been made against him by the deceased before the fatal difficulty. Hence this assignment of error was not 'well taken.

Finally, it is insisted that the court erred in not allowing the defendant to show that the deceased had turned back to the wife of the defendant the patch of corn which caused the fatal difficulty. We do not think, however, that any prejudice resulted to the defendant on this account. The defendant was allowed to state fully all of his dealings with his tenants. The undisputed evidence showed that the difficulty resulted from ill feeling between the parties on account of the patch of corn where the killing occurred. The evidence, if admitted, would have tended to divert the minds of the jury to a collateral issue and thereby have confused it rather than assisted it in reaching a proper conclusion as to whether the defendant acted in his necessary self-defense in killing the deceased.

We have carefully examined the record, and find no prejudicial errors in it. It follows that the judgment will be affirmed.


author: Smith, J.

text:
    State v. West.
    Opinion delivered October 15, 1923.
    1. Judgments — vacation at subsequent term. — Under the continuing power of courts to amend their records to speak the truth, a court of record may, after the term in which a purported judgment was entered, enter an order vacating such judgment where it was void as having been rendered in vacation.
    2. Evidence — contradicting record by parol. — That a judgment purporting to have been rendered in term time was in fact rendered at a subsequent date in vacation may be shown by parol eyidence.
    3. Notice — service on parties interested. — Notice of a motion to vacate a judgment alleged to be void must be given to the parties in interest.
    4. JUDGMENT — notice op motion to vacate. — Where, in a proceeding by an executor and surviving wife, under Crawford & Moses’ Dig., § 10235, to fix the inheritance tax due upon the estate, judgment was rendered in favor of the executor and widow, notice of the State’s motion to vacate such judgment as rendered in vaca-cation should be given to the widow as the real party in interest.
    5. Notice — service on attorney. — Under Crawford & Moses’ Dig., § 1334, providing that “where it is not otherwise ¡specially provided, a notice to a party in an action of any motion or proceeding to be made or taken therein in court, or before a judge, may be served upon such party or his attorney,” held that notice of a motion to vacate a void judgment may be served upon the attorney of the opposite party.
    6. 'Appeal and error — necessity op bill of exception. — Where a petition to vacate a judgment as void alleged that it was rendered in vacation, a demurrer thereto admitted the truth of the allegations, and a bill of exceptions was not necessary to bring such fact into the record.
    7. Judgment — parol evidence to contradict. — On a petition to vacate a judgment on the ground that it was void as having been rendered in vacation, evidence aliunde was admissible to disprove the recital of the judgment that it was rendered on a day of the regular term.
    Appeal from Carroll Circuit Court, Western District; W. A. Dickson, Judge;
    reversed.

      J. S. TJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants ; David A. Gates, inheritance tax attorney, for appellant.
    The judgment rendered in vacation and entered of record as of a date during the term of court, although done under agreement, was a nullity. 71 Arle. 226; 75 Ark. 415. Parol evidence is admissible to show that a judgment which appears to he regular on its face was actually rendered in vacation, and consequently a nullity. 86 Ark. 591. Section 2190, C. & M. Digest, did not change the law with respect to cases in the circuit court. Dow;er is subject to the tax. 156 Ark. 169. The Federal estate tax is not a deductable allowance in determining the net value of the share upon which the inheritance tax accrues. 175 N. W. 506; 166 N. T. Supp. 168.

      W. N. Ivie and J. V. Walher, for appellees.
    .No summons or notice was served on appellees as contemplated by § 1316 O. & M. Digest. The appeal must be tried on the record in the ease. 2 Ark. 14; 111 Ark. 201. Errors complained of, not appearing on the face of the record, must be brought to the attention of the court by bill of exceptions. 47 Ark. 504; 84 Ark. 342. There is no bill of exceptions, and the matters complained of in the motion, with exhibits attached, are not before this court, and cannot be considered, because not a part of the record. 40 Ark. 114; 7 Ark. 266; 36 Ark. 305; 38 Ark. 594; 79 Ark. 185; 95 Ark. 302. Where there is no error on the face of the record, a bill of exceptions and motion for new trial are necessary. 139 Ark. 408. The latter does not take the place of the-former. 135 Ark. 499. Parol evidence is not competent to contradict the affirmative recitals of a decree. 141 Ark. 512; 50 Ark. 338; 55 Ark. 218; 12 C. J. L. 968, § 1205; 22 Ark. 308.
   Smith, J.

On June 29,1921, D. J. West, executor, and Helen E. Granger, legatee, of the estate of R. S. Granger, filed a complaint in the Carroll County Probate Court against the State of Arkansas, pursuant to § 10235, C. & M. Digest, alleging that R. S. Granger had died testate, leaving his estate to his widow, except a money legacy to his executor. It was alleged that Granger had died without issue, and that petitioner, Helen E. Granger, his widow, took one-half of the estate as dower and the other half under the will, and that the inheritance tax attorney for the State was asserting that the entire estate, the dower included, was subject to the tax. There was a prayer that the court declare the sum upon which the inheritance tax should be paid.

On July 30, the inheritance tax attorney answered for the State, and admitted that Helen E. Granger was the sole beneficiary, but alleged tbe estate was more valuable than petitioners bad alleged it to be, and that the entire estate was subject to the tax.

The cause was tried in the probate court, and judgment was rendered in favor of the plaintiffs, the court finding there was no tax due on the part of the estate which the widow had taken as dower.

The State appealed to the circuit court, and there was a judgment there in favor of the original plaintiffs, which was an erroneous judgment, in view of the decision of this court in the case of State v. Boney, 156 Ark. 169. Thereafter the State filed in the circuit court a petition to vacate this judgment, and that petition contained the following allegations: That the appeal of the State was heard by' the court by consent in vacation, the judgment being rendered on November 15, 1921, but entered as of August 6, 1921, which was a day of the court. This judgment was adverse to the State’s contention, and, as originally entered, did not show a motion for a new trial. Later an amended judgment was entered by consent on January 6, 1922, showing that a motion for a new trial had been filed and an appeal prayed. There is an allegation explaining the delay in the preparation of the transcript, which was not received by the inheritance tax attorney until February 8, 1922, which was not then filed because more than six months had expired since August 6, 1921, the date upon which the judgment had apparently been rendered.

This motion to' vacate was filed July 18, 1922, and notice thereof was'duly served on West, the executor, and on July 19, 1922, W. N. Ivie, attorney for Mrs. Granger, accepted service for himself only, expressly stating that he would not and did not -accept service for his client, Mrs. Granger. On July 31, service of the notice was had upon J. V. Walker, an attorney in the original cause. In the recital of the service of the notice to vacate, J. V. Walker is referred to as attorney for the plaintiff, D. J. West, but it is also recited that “the plaintiffs, T). .1. West and Helen E. Granger, appear specially through their attorneys, W. N. Ivie and J. Y. Walker, and demur to the jurisdiction of the -court to hear the motion to vacate the judgment by this court at a former term. • * *”

The demurrer of the attorneys for the executor and the legatee was filed on August 17, and was upon two grounds: (1) that no summons or notice was issued or served on the plaintiffs herein in the manner prescribed by law; (2) the motion to vacate the judgment filed by the defendant is not a proper or valid pleading, and does not state facts sufficient to constitute a cause of action.

The court heard the demurrer and sustained it, and dismissed the petition, and this appeal is from that- order.

The action of the court below is defended upon three grounds, the first being that the original judgment of the circuit court could only be vacated by a proceeding authorized by § 6290, C. & M. Digest, -and that, of the eight grounds there named for vacating or modifying judgments, only the first contemplated such a proceeding. as this, it being “by granting a new trial for the cause and in the manner prescribed in § 1316, C. & M. Digest,” and this last-named section requires that a summons be first served, which was not done in the instant case.

We do not think, however, that the State’s right to proceed to vacate the judgment is created by § 6290 of the Digest; nor do we think that the procedure is controlled by that section, or by § 1316 of the Digest. In fact, this is not a statutory proceeding, but is a special proceeding, instituted for the purpose of calling to the attention of the court the invalidity of the purported judgment, for the reason that it was rendered in vacation.

The case of Jackson v. Becktold Printing & Book Mfg. Co., 86 Ark. 591, was brought to vacate a judgment of the circuit court which -had been rendered in vacation. .In opposition to the relief there prayed, it was contended that the fact that the judgment was rendered in vacation could not be shown by testimony, but could only be shown by the record itself, but the court said that, if this contention were correct, we would have the anomalous condition of a decree being a nullity and of the parties affected by it being denied the right to establish that fact. The court then quoted from the case of Bobo v. State, 40 Ark. 224, as follows: “ ‘Courts have a continuing power over their records not affected by lapse of time. Should the record in any case be lost or destroyed, the court whose record it was possesses the undoubted power, at any time afterwards, to make a new record. In doing this it must seek information by the aid of such evidence as may be within reach tending to show the nature and existence of that which it is asked to establish. There is no reason why the same rule should not apply when, instead of being lost, the record was never made up, or was so made up as to express a different judgment than the one pronounced by the court. Hence the general rule that a record may be amended, not only by the judge’s notes, but also by other satisfactory evidence ”

This proceeding is therefore an exercise of that continuing power which courts have over their judgments to find and declare that what purports to be a judgment is, in fact, no judgment at all; and, while we do not think that the authority to institute this proceeding is derived from or is controlled by the sections of the Digest referred to, we do think it was essential that notice thereof be given to the parties in interest.

The real party in interest here is the widow, for it is obvious that any additional tax which may be collected will 'be deducted from funds which would otherwise go to her. She should therefore have notice of the proceeding to vacate the judgment in her favor. Has she had it? We think she has. It is not denied that Ivie, who was and is her attorney, was served with notice. It is true this attorney accepted service only for himself, and not for his client, but the service upon him was not in his individual capacity, but as the attorney for the widow; and it was not denied, and is not denied, that he was then, and is now, her attorney in this matter. The service upon Ivie must necessarily therefore have been upon Mrs. Granger's attorney. Likewise the service upon Walker was service on her attorney. As has been said, the judgment itself in one place referred to Walker as the attorney for the plaintiff D. J. West, bnt it also recites that West and Mrs. Granger appeared through their attorneys, Ivie and Walker. We do not understand that the court made any finding that Ivie represented one of the parties and Walker the other; but we understand the fact to be that both attorneys represented both parties.

By § 1334, C. & M. Digest, it is provided that, “where it is not otherwise specially provided, a notice to a party in an action of any motion or proceeding to be made or taken therein in court, or before a judge, may he served upon such party -or his attorney; hut the service upon the attorney in any such case must he by delivering to him a copy of the notice.”

If it he contended that this section applies only to proceedings had prior to the rendition of a final judgment, and does not relate to proceedings had thereafter, it may be answered, without passing upon that contention, that the purpose of this proceeding is to show that no final. judgment has been rendered; indeed, that no judgment has been rendered at all, because of the lack of power on the part of the court to render a judgment in vacation.

We conclude therefore that Mrs. Granger has been properly notified of this proceeding.

The action of the court in sustaining the demurrer is defended on the second ground that there is no showing that the judgment was in fact rendered in vacation, there being no bill of exceptions in the case; and it is insisted that the demurrer did not admit the truth of the allegations of the petition. There was no hill of exceptions ; but none was necessary, as the error of the court appears upon the. face of the record, as the demurrer necessarily confessed the truth of the facts recited in the petition to vacate the judgment. It is true, the demurrer challenged the jurisdiction of the court, but it did so on the facts alleged in the petition, and a bill of exceptions was not necessary therefore to bring these facts into the record.

In support of the court’s action in sustaining the demurrer, it is finally insisted that, as the judgment which the State seeks to vacate recites, in its face, that it was rendered on August 6, 1921, a day of the regular term of the circuit court, no evidence can be heard to contradict this affirmative recital.

We think the case of Jackson v. Becktold Ptg. & Book Mfg Co., supra, answers this contention, for, as was there said, “if the fact of its rendition in vacation could not be shown by testimony, and could only be shown by the record, we would have the anomalous condition; in cases like the present one, of a decree being a nullity and of the parties affected by it being denied the right to establish that fact.” x

This proceeding is not to amend, or modify, or to contradict, a judgment, but was begun to establish the fact that there was no judgment, and, from the nature of the case, the proof could not properly be limited to the recitals of the judgment which was sought to be set aside.

We conclude therefore that the court erroneously sustained the demurrer to the petition to vacate, and the judgment will therefore be reversed, and the cause remanded with directions to overrule the demurrer.

Mr. Justice Hart dissents, upon the ground that Mrs. Granger was not properly served with notice.