text:
    Fort Smith v. Bruce.
    Crim. 3822
    Opinion delivered October 31, 1932.

      Geo. W. Dodd, for appellant.

      A. M. Dobbs, for appellee.
   Humphreys, J.

Appellee was convicted in the municipal court of Fort Smith for failing to pay an occupation tax provided by ordinance and appealed to the circuit court, where the cause was submitted to the court, sitting as a jury, upon the following agreed statement of facts:

“It is agreed that the defendant, W. H. Bruce, is conducting a plumbing business, and would, if not exempted by the facts and law hereinafter set up, be subject to pay a privilege tax under the ordinances of the city of Fort Smith.

“The defendant pleads as a defense that he, being a resident of the Fort Smith District of Sebastian County, has been granted a certificate by the county judge certifying that he is entitled to the privileges and exemptions provided by Crawford & Moses’ Digest, § 9842, which certificate is 'attached hereto and made a part of this statement of facts, and plaintiff admits the genuineness of said certificate, and the same is unrevoked.

“It is admitted that defendant is an ex-United States soldier of the World War, and has a certificate of disability showing him to be a disabled soldier, a copy of which is hereto attached and made a part of this statement.

“It is admitted that defendant is drawing compensation under the provisions of the laws of the United States relating to veterans of the World War in the sum of $50 per month, and is a married man with a wife and two children, and has no property or business except the plumbing business from which to provide a living for himself and family.

“The certificate of disability issued by the United States Veteran’s Bureau states, ‘That because of defendant’s disability, asthma bronchial, severe with emphysema, right, which was caused by military service, his rating of permanent partial 50 per cent, will be continued. ’

‘ ‘ The certificate of the county judge is as follows:

“To Whom It May Concern:

“The bearer of this permit, Wallace H. Bruce, Jr., is a regularly discharged member of the United States Marine Corps, and, under § 9842 of Crawford & Moses’ Digest of the laws of Arkansas, is entitled to engage in what is known as ‘hawking and peddling,’ as is prescribed by this section.

“Therefore, the said Wallace H. Bruce, Jr., is on this day given a permit to engage in any 'business not in violation of said section, without paying a license therefor.

“July 2, 1931.

(Signed) “S. A. Lynch,

‘ ‘ County Judge, Sebastian County, Arkansas. ’ ’

The circuit court found that appellee was not drawing a pension within the meaning of said section of the Digest, but was drawing compensation, and was exempt from the payment of the tax under § 9842 of Crawford & Moses’ Digest, and returned a judgment of acquittal, from which is this appeal.

The decisive question presented by this appeal is whether appellee is receiving a monthly pension of more than $8 within the meaning of § 9842 of Crawford & Moses’ Digest. That section exempts an ex-United States soldier, as well as certain others, from paying privilege or occupation taxes who do not draw a pension in excess of $8 per month. There is nothing in the context of the section indicating that the word “pension” was used in any other than its ordinary sense or meaning.

“Pension” is defined in Webster’s International Dictionary as “a stated allowance or stipend made in consideration of past services or of the-surrender of rights or emoluments to one retired from service; esp., a regular .stipend paid by a government to retired public officers, disabled soldiers,” etc.

“Pension” is defined in Black’s Law Dictionary as “a stated allowance out of the public treasury granted by the government to an individual or to his representatives for his valuable services to his country or in compensation for loss or damage sustained by him in the public service.”

The agreed statement of facts reflects that appellant is receiving $50 per month, or more than $8 per month, from the United States Government on account of disabilities caused by his military service; so, the amount received by him is a pension within the definitions quoted above, and in the sense the word “pension” was used in the statute. The trial court erred in ruling that the monthly stipend received by appellee was compensation and not a pension. The stipend was not founded in contract and cannot therefore be regarded as compensation, but was a gratuity or bounty allowed him on account of disabilities received in military service.

Appellee also insists that the certificate issued to him by the county judge of .Sebastian County conclusively shows that he is exempt from the payment of the license fee - imposed by the ordinance. The certificate of the county judge was made pursuant to the provisions of § 9842 of Crawford & Moses’ Digest, which states that the certificate shall “be sufficient proof of the indigency or disability, and- of the service of said soldier or sailor in the Confederate, or United States Army or Navy.” The certificate does not state the amount of pension the applicant draws, so could not be conclusive proof that he comes within the exemption.

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


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Nelson v. Parrish.
    4-2843
    Opinion delivered October 31, 1932.

      Boy Nelson, J. J. Mardis and Harrison, Smith & Taylor, for appellant.
    I. M. Greer, A. B. Gaplinger and June P. Wooten, for appellee.
   Humphreys, J.

On August 31, 1932, appellant brought suit in the circuit court of Poinsett County contesting the certificate of nomination of appellee by the Democratic party for the office of senator for the 29th senatorial district, composed of the counties of Poinsett, Mississippi and Jackson, alleging that the entire vote of Poinsett County was void because there was no certified list of voters .prepared according to law, and that more than 2,236 people were permitted to vote without having purchased a poll tax receipt, and whose names did not appear upon any kind of list, and that no poll tax receipts or certified copies thereof were attached to the ballots, and no separate list kept by judges and clerks as required by law; and also alleging that there were certain illegal votes cast in Mississippi and Jackson counties, and that, if the illegal votes in the several counties were cast out, the result would be changed, so that appellant would receive a plurality of all legal votes cast in the district.

Appellant offered to amend his complaint so as to set out the names of the voters in Mississippi and Jackson counties that be alleged voted illegally, which request was refused hy the court.

Several motions and special demurrers were filed by appellee, which it is unnecessary to set out or refer to in this opinion as the trial court sustained the general demurrer to the complaint, and dismissed it on the sole ground that the contest should have been filed within ten days after appellee was certified as the nominee of the Democratic party.

The trial court was in error in thus construing § 3772' of Crawford & Moses’ Digest, specifying the time in which contests in primary elections must he commenced. Said section provides, in part, that: ‘ ‘ The complaint * * * shall he filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county.” The contest in the instant case is against the total vote of the entire district, composed of three counties, and not against the total vote cast in one county. The purport and gist of the complaint was to change the total vote in the entire district so that the contestant might receive a plurality of the entire vote in senatorial district 29, composed of three counties. Under the rule of liberal construction applied to the primary election laws in this State, set out in the case of Logan v. Russell, 136 Ark. 217, 206 S. W. 131, the correct interpretation is to allow a contestant for an office in a district composed of more than one county 20 days from the date of certification in which to file his complaint.

The trial court should have permitted appellant to amend his complaint. Wilson v. Cardwell, ante p. 261.

On account of the errors indicated, the judgment is reversed, and the cause is remanded with directions to allow the requested amendment, and to proceed with the trial of the cause upon its merits.


author: Butler, J.

text:
    Dierks Lumber & Coal Company v. Tollerson.
    4-2712
    Opinion delivered October 31, 1932.

      Abe Collins and Lake, Lake & Carlton, for appellant.

      Feaeel & Steel and Tom W. Campbell, for appellee.
   Butler, J.

Tbe record and briefs in this case are voluminous, but tbe essential facts may be briefly stated as follows:

Tbe appellee, W. A. Tollerson, bad been in tbe employ of tbe appellant and an associated company for several years. He was engaged in laying tracks on log roads and spurs thereof and taking up tbe same when they bad served their purpose and locating them in other places. He had been promoted from time to time until, at the time of his injury which was the occasion of this suit, he was foreman of the steel gang and acting as conductor on the work train which transported his crew and material. On May 3, 1929, he was in charge of a work train consisting of a locomotive, a caboose attached thereto, and four flat cars attached to the caboose. It was the appellee’s intention to proceed from the main log road on to a spur for the purpose of taking up this spur and removing the same. When his train reached the spur, it was backed on to it, the four flat cars being first, the caboose next, and the locomotive last. In this order the train was backed along the spur track. The locomotive was in charge of an engineer and a fireman. The steel gang was in the caboose, or immediately outside of it on its vestibule or approach, except one of them named Davis, who was stationed on the last flat car from the engine and the appellee who was on the third flat car from the caboose and next to the end flat car on which Davis was riding. While they were occupying these positions, the train continued backing along the spur track until it had gone some distance from the main line when Davis discovered a fallen tree lying on the track. He signaled to the appellee to attract his attention. The appellee also saw the tree and in turn attempted to signal the engineer and fireman to warn them of the obstruction ahead in order that the train might be stopped. The expected response to these signals was not made, and the train continued to be backed at the same rate of speed at which it had been moving until the last flat car came in contact with the tree and was derailed. Just before this occurred, Davis and the appellee sprang from the cars on which they were riding to the ground. The appellee’s foot was badly injured, and it was for this injury that he brought suit, recovering the judgment that is here on appeal.

It is the theory of the appellee that he was occupying a proper place on the train, and that it was the duty of the engineer and fireman to keep a lookout in the direction in which the train was moving for such signals as might be given; that they failed in this duty, and because of snob failure tbe signals given were not seen or obeyed, and that tbis was negligence on tbeir part and tbe proximate cause of tbe injury suffered.

Tbe appellant, on tbe contrary, insists that tbe ap-pellee wrongfully took tbe position be was occupying at tbe time of bis injury, and that bis signals given from tbis place ¡could not be seen by tbe engineer and fireman, because tbe caboose between tbe locomotive and flat cars, being wider than tbe cab in wbicb they were riding, obstructed their view; that tbe place provided for tbe appellee and where it was bis duty to be was in a cupola on tbe caboose. Tbis cupola was provided with windows and an automatic air brake to enable one occupying tbe cupola in case of emergency to slow down and stop the train himself. Appellant maintained that, if the appellee bad been occupying tbis position, as they claimed it was bis duty to do, bis signals might have been observed by tbe operatives on tbe locomotives, and, if they bad not been seen, tbe appellee himself .could have prevented tbe accident by an application of tbe automatic air brake; that because be was occupying tbe position on tbe flat car was tbe proximate and sole cause of bis injury.

Tbe evidence was in sharp conflict; that on behalf of tbe appellant tending to sustain its contention, and that on behalf of tbe appellee tending to show, as claimed by him, that be was occupying a proper place on tbe train in accordance with instructions of bis superiors, and that tbe engineer and fireman could have seen bis signals in time to stop tbe train, bad they been keeping a proper lookout. The jury are tbe sole judges of tbe .credibility of tbe witnesses and tbe weight to be given their testimony, and, tbe testimony adduced by tbe ap-pellee being accepted as true, we are bound by the verdict of tbe jury, since on appeal tbe evidence tending to sustain tbe contention of tbe appellee must be viewed by us in its most favorable light. These rules are so well settled that we deem tbe citation of authorities unnecessary. There was sufficient evidence to sustain tbe ver-diet, and the judgment of the court in accordance therewith must therefore he affirmed, unless some substantial error appears in the conduct of the trial. Because of the fact that it is difficult in the confusion and hurry of trial to prevent errors from occurring, it is a rule of universal application that errors complained of must be substantial and prejudicial to the rights of the party complaining ; else they will be disregarded.

In this case-numerous assignments of error are made 'because of the admission of incompetent testimony, all of which we do not set-out and review in detail as to do so would unduly lengthen this opinion. We have examined the evidence said to be incompetent and have concluded that, if this is indeed true, no prejudice resulted thereby. The most serious contention made is relative to the action of the court in permitting the appellee to introduce a book of rules and to read to the jury rule No. 102 as follows: “When cars are pushed by an engine (except when shifting or making up trains in yards), a flagman must take a conspicuous position on the front of the leading car and signal the engine man in case of need”; also, in permitting the appellee to testify that such a book containing that rule was given him for his guidance by the railroad master of the Choctaw Lumber Company during the time he worked for that company from 1920 to 1923 as steel gang foreman. It is clear that, if this testimony had stood alone, it would have been incompetent. 'Before its introduction, however, J. M. Campbell was called to testify on behalf of the appellee and stated that he was the superintendent of the logging department for the appellant company and the Choctaw Lumber Company, and that he had held this position for both these companies for about twenty years; that the appellee worked in his department for the Choctaw Lumber Company during 1922 and 1923, and that the rules of the two companies governing the operation of the steel gang on the spur tracks were practically the same. Witnesses for the appellant testified that this book of rules and the specific rule read to the .jury governed the operation of trains on the tracks of two railroad companies which were separate and distinct corporations from the appellant, and that these rules had no application to the operation of log trains on the spur tracks of the appellant, and that no such hook of rules was ever given to the appellee for his guidance. This testimony did not render the admission of the hook of rules incompetent, but simply raised a question of fact as to whether or not such a hook had been given the appellee for his guidance, and that such rule applied to the conduct of employees of appellant.

It will he noticed that the rule read to the jury prescribes the position to be taken by one who should signal the engine man, and that this position is on the front of the leading car. Before the introduction of these rules, the appellee had testified without objection that he had been directed by his foreman to “ride out on one of these cars when the work train was backing out on the spur and there to watch for obstructions and see that the track was clear;’’ and, further, that at the time of, and just preceding, the accident appellee was keeping the position on the flat car as it was his custom to do and in accordance with orders he had received.

It appears that the facts sought to be established by the introduction of the book of rules had already been put in evidence by the testimony of the appellee without objection, and, if the introduction of the rule was erroneous, it was not prejudicial, because other evidence admitted tended to prove the same fact sought to be established by the introduction of the rule. Maxey v. State, 76 Ark. 276, 88 S. W. 1009; Thurston v. Payne, 148 Ark. 456, 230 S. W. 561; Chancellor v. Stephens, 136 Ark. 175, 206 S. W. 145; Ark. P. & L. Co. v. Orr, 175 Ark. 246, 298 S. W. 1029.

It is urged that the testimony of Campbell above referred to was incompetent because it related to rules in effect ten years before the time at which he testified. When his testimony however is considered in its entirety, it is manifest that he was testifying about rules in effect ten years before, and also that the same rules were in effect at the time of the accident in question. Therefore his testimony was not incompetent, although it may have been irrelevant, since the rules under which the appel-lee was working, according to his testimony, were the directions given him by his foreman.

The appellee was permitted to testify over the objection of the appellant that he had been fired by Hulse, appellant’s claim agent, because he would not agree to a settlement of his damages. The reason assigned for the incompetency of this testimony was that it tended to arouse th‘e prejudice of the jury and could have no bearing on the real question in issue. We agree with learned counsel that this evidence was incompetent, but it appears, when the amount of the verdict is considered in connection with the testimony relative to the injury of the appellee, that such verdict was amply justified, as the evidence might have warranted the assessment of a larger sum. The verdict does not appear to have been the result of passion or prejudice and the testimony complained of, while incompetent, was not prejudicial. St. L. I. M. & S. R. Co. v. Brown, 100 Ark. 107, 140 S. W. 279.

Objections were made and exceptions saved to the admission of other testimony which we have examined and find without merit.

The court gave a number of instructions at the request of the appellant, and the appellee and refused to give certain instructions requested by the appellant. Exceptions were saved to the giving of each of the instructions requested and given on behalf of the appellee and to the action of the court in refusing to give certain other instructions requested by the appellant.

Instruction No. 1, given at the request of the appel-lee, was long and involved, and submitted to the jury many questions about which there was no dispute, but we are of the opinion that the instruction on the whole was a correct declaration of law, and the error consisted in submitting to the jury questions which in fact were undisputed, and tlie instruction therefore was more favorable to the appellant than to the appellee. Specific objection was made to this instruction that it ignored the question of the duty of appellee to exercise due care for his own safety. This might be a valid objection were this suit not one against a corporation. Contributory negligence is no longer a defense in an action against a corporation (% 7145, Crawford & Closes’ Digest), and the jury might well find for the appellee, although it might appear that he was guilty of negligence contributing to his injury. Instruction No. 1 simply presented the theory of the appellee under the allegations of his complaint, and the theory of the appellant was also given in instructions requested by it.

There was no error committed by the court in overruling and refusing to grant other instructions requested, as they were fully covered by instructions given.

The instruction on the measure of damages of which appellant complains is one that has been frequently approved by this court, and we find it unnecessary to set it out. After a careful examination of all the instructions given and refused, we are of the opinion that the court gave the law to the jury in instructions as favorable to the appellant as it was entitled to.

Finding no substantial error in the rulings of the trial court, and, the verdict of the jury being supported by substantial testimony, both as to liability and the amount of damage, the judgment below should be and is affirmed.


author: Btjtleb, J.

text:
    Holt v. Manuel.
    4-2693
    Opinion delivered October 31, 1932.

      Vincent M. Miles, for appellant.

      James B. McDonough, for appellee.
   Btjtleb, J.

On May 5, I960, Dr. Charles S. Holt entered into a contract with the duly authorized agent of the appellees for the purchase of a lot with the building situated thereon in the city of Fort Smith, for the sum of $35,000. The property was incumbered by a mortgage which the purchaser was to assume, the balance of the purchase price to be paid in cash with a deposit made at the time of the execution of the contract of $1,000' with Eugene Henderson, agent of the sellers, which sum was to be held by him until the consummation of the sale or to be returned if tbe sellers failed to carry out the contract. In the contract was the following stipulation: “Seller to furnish a warranty deed and abstract showing good merchantable title and property free of incumbrances except as above specified. Purchaser’s attorney shall have at least ten days in which to examine the title prior to closing.” The abstract of title was promptly furnished by the sellers, which was examined by the attorney of the purchaser within the ten days, who gave it as his opinion that the title was defective. After conferring with another attorney who advised that the opinion of the examining attorney should be accepted, the purchaser immediately notified the agent of the sellers that he would not take the property and complete the purchase. Suit was instituted by the sellers in the chancery court in order to remove the objections made by the attorney who examined the title. This suit proceeded to judgment, after which the attorney pronounced the title good, and, the purchaser still continuing to refuse to complete the purchase, an action was instituted against him for specific performance of his contract.

Several questions were raised in the court below which are argued here, but which we think it unnecessary to consider because it is our opinion that the title tendered by the sellers was a merchantable one, and that the decree for specific performance is correct, regardless of the grounds upon which the chancellor based his conclusion. There is a unanimity of opinion as to what constitutes a merchantable title, but courts having that question before them have given various definitions of what is deemed to be such. In all of these, however, in the final analysis a merchantable title is held to be one which imports such ownership as enables and insures to the owner the peaceable control and use of the property as against every one else. It imports something more than a title which might ultimately prove impervious to assault. This court has approved the following definition of a merchantable title: “A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some defects appearing in the course of its deduction, and the doubt must he such as affects the value of the land or that mil interfere with its sale. ” Griffith v. Maxwell, 63 Ark. 548, 39 S. W. 852. And in Fenner v. Reeher, 148 Ark. 553, 230 S. W. 581, we quoted with approval the following: “The court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings; or, as it is usually expressed, it will not compel him to buy a lawsuit.” To the same effect is the holding of the court in a number of subse-craent cases which were approved and restated in Crow Creek Gravel & Sand Co. v. Dooley, 182 Ark. 1009, 33 S. W. (2d) 369.

There was a large estate embracing the parcel of land in controversy left in trust by the will of the ancestor to the appellees and others. Suit was instituted in the chancery court of Sebastian County for the purpose of terminating the trust and vesting the title freed from it in the devisees in the will and their descendants, and for partition. One of the original devisees, Edward T. Hurley, had died before the institution of the suit, leaving a widow, Mrs. Lena Hurley, and two children, Edward Thomas Hurley and Hilda Jean Hurley, both of whom were minors under the age of fourteen years at the time of the institution of the suit and the owners of an undivided interest in the estate, and who are still minors. In that suit a decree was rendered terminating the trust, decreeing partition, and appointing commissioners who allotted to the minors a certain portion of the estate and the lot in question to the appellees. The alleged defect in that title was because, as it is claimed, the minor heirs were not properly served with process in that case as appeared from an examination of the original papers and decree. The examining attorney, in his letter to the appellant disapproving the title, said: “The decree shown at sheet A-2 (referring to the abstract) recites that there was proper service of summons on these two minor defendants. Bnt, upon examining the return of service of said summons, I find that that recital is not correct. The sheriff’s return of service indorsed on the summons fails to show that the summons was served on the minors in the manner prescribed by the statute. The question raised may be a close question of law. But, in the absence of proper service on the minors, I do not think that the proceedings in said suit and the partition of the property pursuant to said proceedings are binding upon said minor defendants. ’ ’

The return upon which the attorney based his opinion is as follows:

"State of Arkansas,

"County of Sebastian.

"I have this 2d day of September, 1922, duly served the within summons by delivering a true copy thereof to each of the within named, C. L. Hurley, Annie Hurley, Harold Hurley, Mary Hurley Magruder, Edna Hurley, Mrs. Lena Hurley, widow of Edward T. Hurley, Hilda Jean Hurley and Thomas Edward Hurley, in the Fort Smith District.

"Blake Harper, Sheriff.

‘ ‘By A. J. Berry, Deputy. ’ ’

Indorsed: "Returned and filed this 12th day of September A. D., 1922.

"S. A. Lynch, Clerk.

"By Claude Hoffman, D. C.”

The important question in this case is this: Is the state of the record in the decree ordering partition, and which is a link in appellee’s chain of title, sufficient to create a reasonable doubt as to the sufficiency of the title ? It is not sufficient to create a reasonable doubt that the owner might be exposed merely to idle litigation, but it must be a reasonable apprehension that the purchaser-taking the title might be subjected to litigation of a substantial nature from which his title might be placed in jeopardy. In determining whether or not reasonable doubt exists, it appears to be the general rule that the opinion of an attorney that the title to property is bad is not sufficient to raise such a doubt, although., as in the instant case, the attorney may he one of admitted standing and ability. Such opinion that the title is invalid, if erroneous, will not justify the purchaser in receding from his contract. LeRoy v. Hornwood, 119 Ark. 418, 178 S. W. 427; Lone Rock Bank v. Pipkin, 169 Ark. 491, 276 S. W. 588; Tudor v. Bank of Lincoln, 184 Ark. 1110, 44 S. W. (2d) 1091; Montgomery v. Pacific Coast, etc., 94 Cal. 284, 29 Pac. 640, 28 Am. St. Rep. 122; Buchan v. G. A. L. Co., 180 Ia. 911, 164 N. W. 119, L. R. A. 1918 A., 84; Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593. If it should appear to the court, upon general and familiar principles of law, that the title is valid, then the doubt as to the title would be unfounded, and there could be no basis for any reasonable apprehension that the purchaser would be subjected to substantial litigation.

The record of the proceedings in the suit for partition show that on November 11, 1922, the following order was made and entered: “Upon due service on the minor defendants herein, Mrs. Lena Hurley is by the court appointed guardian ad litem for the said defendants, and now, on this day, files her answer as such guardian. V The answer made specific denial of all the material allegations of the complaint.

The decree adjudging that the trust be terminated and decreeing partition as prayed was made and entered on November 15, 1922, and contains the following recital: “The court finds that the allegations of the bill of complaint are true, and finds that actual service was had on the minors, Hilda Jean Hurley and Edward T. Hurley, by delivering to each of them and to Lena Hurley, their mother and guardian, a copy of the summons herein. The court further finds that thereafter an attorney and guardian ad litem was appointed in this cause for said minors, and an answer was filed by said attorney for said.minors as required by law.”

The method of service on infant defendants is prescribed by § 1153 of Crawford & Moses’ Digest, which provides that, where the minor defendant is under the age of fourteen years, service must he upon him and upon his father or guardian, or, if neither of these can be found, then upon his mother, etc.

It is a familiar law that the recitals and judgment of a court of superior jurisdiction as to service will be conclusive unless it is in conflict with other official evidence in the record. The complaint affirmatively showed that Edward T. Hurley, the father of the minors, was dead, and that Mrs. Lena Hurley was their mother, and in that state of case the law required that a copy of summons be served upon each of them and their mother. There is nothing in the return of the sheriff to indicate that this law was not complied with. On the contrary, the fact is evident that actual service was had on the minors by delivering to each of them a copy of the summons and a copy to their mother, Mrs. Lena Hurley. It is true, the return does not state in so many words that Edward T. Hurley and Hilda Jean Hurley were minors or that Lena Hurley was their mother, but, as a matter of fact, they were minors, and Lena Hurley was their mother, and therefore service was had in substantial compliance with the law, although the officer failed to describe with particularity its method. The return of the sheriff does not contradict the recitals in the decree, but supports and confirms them. We have held that a literal compliance with the statute is unnecessary if there is a substantial compliance, Huggins v. Dabbs, 57 Ark. 628, 22 S. W. 563. And in Boyd v. Roane, 49 Ark. 397, 5 S. W. 704, which was a suit by heirs to vacate a decree rendered when they were minors on the ground that they had not been served with summons, the complaint was dismissed, although the decree recited the appointment of a guardian ad litem after service of process on them and that the guardian answered. In that case the court held that this recital in the record raised a conclusive presumption of service. Counsel for the appellees have cited a number of cases which support the view we have taken, but which we deem it unnecessary to notice, as-in'our opinion the above case is controlling, and that on well-settled principles of law there conld have been no reasonable doubt as to the validity of the title, and that the judgment of the trial conrt decreeing specific performance of the contract is affirmed.

Engene Henderson was a party to the proceeding-in the conrt below, and the court awarded him judgment in the sum of $1,000 against the appellees as his fee for procuring the purchaser, and from that judgment the appellees were'granted a cross-appeal. It is admitted by the appellees that Henderson is entitled to the $1,000 as his fee, but it is contended he would not be entitled to judgment against them unless specific performance should be awarded. Henderson has already in his possession the amount of his fee, and, since he will not be required to return the money to the appellant, the question as to him is unimportant, and the judgment in his favor will also be affirmed.


author: Smith, J.

text:
    Collins v. Jones. Burrow v. Watson.
    4-2871
    Opinion delivered November 7, 1932.

      G. G. Garter, June P. Clayton and Vincent M. Miles, for appellants.

      T. A. Pettigrew, J. D. Benson, Patterson <& Patterson and Cochran, Arnett i& Woolsey, for appellees.
   Smith, J.

In the judgment from which this appeal comes appellee, Jones, was declared to have been legally nominated, at the Democratic primary election held in Franklin County on August 9,1932, for the office of county treasurer, and appellee, Watson, was declared to he the nominee of the Democratic party at the same election for the office of county judge. Contests' for the nominations for these offices were consolidated and tried together.

The decision of the contests turned upon the validity of certain assessments and payments of poll taxes. The court declared his view of the law upon the subject, and appointed canvassers to tabulate and certify the vote in accordance with this view. The effect of this ruling was to throw out enough votes to leave contestants with a majority of the votes which the court found had been Legally cast.

The legality of the votes which were thrown out as liaving been illegally cast depends upon the construction to be given our election and revenue laws relating to the assessment and payment of poll taxes, and we proceed to discuss such parts of these statutes as are here involved.

The General Assembly, at its 1909 session, passed act 320, entitled, “An act to enforce the provisions of Amendment No. 9 of the Constitution of Arkansas.” Acts 1909, page 942. The amendment, referred to as Amendment No. 9, was the amendment requiring the payment of a poll tax to qualify one to vote. This act of 1909 has been amended in particulars not important here to consider. But § 1 of this act of 1909 appears as § 3738, Crawford & Moses’ Digest, and it was decided in the case of Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631, that the section is unrepealed and is existing law. Of that section, more presently.

This Amendment No. 9 was superseded by an amendment known as the Equal Suffrage Amendment, adopted at the 1920 General Election, which appears at page xxviii of 184 Ark. as Amendment No. 8. The declared purpose of this last amendment was “to confer suffrage equally upon both men and women, without regard to sex.”

In the case of Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74, it became necessary to decide whether a female must pay poll tax to be eligible to vote, and it was there held that she was subject to the Poll Tax Amendment. This conclusion was held to fall within the principle that, when a privilege is extended to one class of citizens, upon certain conditions, and subsequently thereto a like privilege is conferred upon another class, the conditions attached to the exercise of such privilege by the former class necessarily attach, in like manner, to the subsequent class. The laws of this State in relation to the assessment and payment of poll taxes may therefore he said to apply alike to men and women.

It is not only settled that the law applies alike to both men and women in regard to the assessment and payment of poll taxes as a qualification to vote, bnt it has also been several times decided that neither a man nor a woman can become an elector without being assessed as required by law (unless they have come of age since the assessment was due), although he or she possesses a poll tax issued by the collector of taxes.

The case of Cain v.CarlLee, 168 Ark 64, 269 S. W. 57, (which was decided February 23', 1925) involved the eligibility of certain persons who possessed poll tax receipts and who had voted thereon, but whose poll taxes had not been assessed in the manner required by law. We there held that the assessment of the voter in the manner required by law was essential to qualify the voter, and that the payment of a poll tax alone did not suffice. We there said, after reciting the provisions of § 3738, Crawford & Moses’ Digest, that there were two reasons why this was true, the first being to protect the public revenue, and the second to prevent frauds in elections. See also Craig v. Sims, 160 Ark. 269, 255 S. W. 1.

In the case of Taaffe v. Sanderson, supra, where it was first held that women were subject to the Poll Tax Amendment, the facts were that certain women were assessed only by having the word “Mrs.” written after the names of their husbands on the tax books. We there held, after reciting the provisions of § 3738, Crawford & Moses’ Digest, in regard to assessment of persons whose names had been omitted from the original assessment rolls, that this method of issuing poll tax receipts did not conform to the requirements of the law, and did not qualify the holders of such receipts to vote. In so deciding, we cited both the CarlLee and the Craig cases, supra, as having held that the collector can issue a valid poll tax receipt only to a person whose name has been placed upon the tax book in the manner provided by law.

The view was expressed in the dissenting opinion in the case of Taaffe v. Sanderson, supra, that the women were qualified electors, not because they had been properly assessed for the payment of a poll tax, hut because they were not required to pay a poll tax at all.

It having therefore been definitely decided that an assessment made in the manner provided by law. must precede the issuance of a poll tax receipt, it becomes necessary to inquire how this assessment is made.

Act 172 of the Acts of 1929 is a comprehensive act of forty sections, dealing with assessments of both real estate and personal property as well as the assessment of poll taxes.

Section 3 of this act requires the assessor to appraise and assess all the personal property of his county between the first Monday in January and the third Monday in August of each year.

Section 7 of this act requires the assessor to maintain an office at the county seat of the county between the first Monday in January and the 10th day of April of each year to assess property and for the purpose of assessing such persons as are liable to pay the per capita or poll tax. It is further provided by this section that * * all male residents of the county who shall have attained the age of 21 years, and all female inhabitants who shall have attained the age of 21 years, and who wish to exercise their franchise to vote, shall, at such time and place, report to the assessor, in person or by agent, for per capita or poll tax assessment.”

It thus appears that it is the duty of the assessor to assess the poll tax of all male inhabitants over 21 years of age in any event, and all females over that age “who wish to exercise their franchise to vote,” but either-a man or a woman may assess in person or by agent.

This section of the act contains provisions — which we do not review — requiring the assessor, or his deputy, “to attend at places of holding elections” in the various townships, etc., for the purpose of assessing real, personal and poll taxes.

Section 8 of the act 172 requires the State Tax Commission to prepare and furnish to the county clerks of the State copies for all lists, blanks and records to he used in the assessment, extension and collection of taxes (except the blanks for poll tax receipts, which are prepared and furnished by the Auditor of State), and this section also provides that “no lists, blanks or records shall be used by any official in the assessment, extension or collection of taxes except as shall have had the approval of said commissi on.”

It appears therefore that there is no such thing as an oral assessment, but assessments are made in writing and upon blanks which have had the approval of the State Tax Commission, and upon no other blanks. The county clerk is required to have these blanks printed and to deliver them to the assessor on or before the first day of January each year.

Section 13 of act 172 requires the assessor, after the 10th day of April, to make a house-to-house canvass of his county to assess the property of any person who has failed to assess, and requires that the assessor “shall assess all such persons for the per capita or poll tax.”

The assessor is required to make to the county clerk a report of all assessments on or before the third Monday in August, which report shall be verified by the affidavit of the assessor, the form of which affidavit is set out in the act.

Act 172 contains provisions for the equalization of the assessments made by the assessor, etc., after which, in due course, the tax books are made by the county clerk and delivered to the collector of taxes for the collection of all taxes on the first Monday of the year.

Now, it may transpire that the assessor failed to assess a particular person, or to make return thereof, who, when he appears to pay his poll tax, is advised that he has not assessed. Provision is found in the law whereby such a person may pay his poll tax and qualify as an elector, but he can do so only by being assessed. Section 3738, Crawford & Moses’ Digest, to which reference has already been made, provides bow that name may get on tbe tax books.

This section reads as follows: “At any time after the assessment lists have been delivered to the connty clerk for the purpose of enabling him to prepare the tax books for the collector, any person whose name has for any canse been omitted from the said lists may have his name included in said list and placed upon the tax lists in the hands of the collector by application to the said clerk at any time before the Saturday next preceding the first Monday of July, when the collector is required to make his final settlement with the county court. If the said application shall be made after the tax books have been delivered to the collector, the clerk shall certify the said supplemental assessment, which he is hereby authorized to make, to the collector, and shall charge to said collector the amount of tax and penalties so added. In addition to the sum assessed against any such applicant for poll tax, the clerk shall extend against him a penalty for failing to return his assessment to the assessor at the proper time, one dollar — twenty-five cents of which shall go to the clerk for his services, and seventy-five cents shall go into the fund for general county expenses; and if said application shall be made after the 10th of April, the collector shall collect a penalty of twenty-five cents for a failure to pay the said poll tax at the time prescribed for making payment of taxes without penalty. In addition to the assessment of poll tax in such cases, it is hereby made the duty of said clerk to assess any property held by said applicant, and which, for any reason, has been omitted from the tax books.”

■Section 3738 must, of course, be read in connection with act 172 to ascertain how the county clerk shall assess the poll and other taxes of the delinquent applicant, and it appears, from what has already been said, that the assessment must be made upon blanks approved by the State Tax Commission, after which the county clerk may place the name of the party assessed upon the tax books.

The case of Tucker v. Meroney, supra, declares the law to he that one may have his name placed on the tax books through an assessment made pursuant to act 172, supra, or by the clerk, pursuant to § 3738, Crawford & Moses’ Digest, but the implication is very clear in that case that the assessment must be made in one way or the other before the collector has the authority to issue a poll tax receipt, and that, unless authorized, the receipt does not qualify the taxpayer as an elector.

Now, while one must assess his personal property and his poll tax, either through the assessor in person or by an agent, or through the county clerk in the manner above stated, to be entitled to pay his poll tax, he does not have to pay other taxes in order that he may pay his poll tax. He may pay his poll tax without paying any other taxes. Section 3739, Crawford & Moses’ Digest, gives this right.

The ruling of the circuit judge appears to conform to the views here expressed.

The assessor testified that he made a certificate in the back of his assessment book before it was delivered to the county clerk, but that he later entered names therein; that men would come in and tell him that he had made an error in not assessing their wives with a poll, and he would go to the county clerk’s office and add their names to the book. Some brought a copy of their assessment list, the original of which was in his possession, and when these copies showed two polls he would list the wife as having been left off by error. These lists were all brought to witness after April 10. There was no name on these lists except that of the husbands. “It would just say two polls. They just got to coming in by bunches, and you could tell that the numbers had been changed, the figure 1 had been erased and the figure 2 substituted. A number of persons brought in as many as twenty lists.”

We agree with the circuit .judge that these assessments did not comply with the law. None of these assessments were made until after April 10, at which time the provisions of § 3738, Crawford & Moses’ Digest, applied. Even those assessments which were not brought in “in bunclies, ’ ’ and which had not been mutilated, did not show the name of the second person assessed. The law appears to contemplate a separate assessment of each taxpayer, of all males and of all females, who wish to become qualified electors by paying a poll tax. Section 7 of act 172, supra.

One may assess who has no property subject to taxation, and one does assess who makes that statement and signs the blank assessment list showing no property subject to taxation. This may be done by the person himself or by his agent, and the husband may, of course, be the agent of his wife for this purpose. 'But some one must sign the list, otherwise there is no assessment, and there is no contention here that any husband had signed an assessment list for his wife.

For these reasons, we think the court was correct in holding that persons of this class had not been properly assessed.

The court also ordered excluded from the count the names of persons which had been placed on the tax books by the county clerk. The testimony in regard to these names was to the following effect: Persons applied to the county clerk to have him place their names on the tax books, and this was done upon this application without requiring any assessment to be made of personal property.

We think the court properly excluded these names, for the reason that no assessment of personal property was made. The fact — if, in any case, it was a fact — that these persons had no property subject to taxation would have been no reason for not placing their names on the tax books; but, nevertheless, they were required to sign a tax list showing the property, if any, owned by them.

There was a third class of voters held ineligible, whose votes were excluded; but it is unnecessary to pass upon their eligibility, as the judgment of the court must be affirmed if we uphold the action of the court in striking out the two classes of voters hereinbefore referred to, and, as we think the ruling of the court as to both those classes conformed to the law as we have here interpreted it, the judgment must be affirmed, and it is so ordered.


author: Kirby, J.,

text:
    Epstein v. Kansas City Life Insurance Company.
    4-2718
    Opinion delivered November 7, 1932.

      James B. Yerger, for appellant.

      Carmichael & Hendrichs, for appellee.
   Kirby, J.,

(after stating the facts). It is undisputed that the receiver collected the $5,000 rental as receiver, which he failed to pay into the court, though ordered to do so, and, upon appellee’s motion for judgment against Clark as receiver for $5,000 and Sam Epstein, surety on his bond, for $1,000, the amount of the bond signed by the surety, the judgment was rendered.

Appellant insists that he was not bound, under the terms of the bond, to pay the amount of the penalty thereof for the money collected by the receiver and deposited by him in the bank which failed, resulting in the loss thereof. It is true the condition of the bond is not in the language provided in the statute, § 8600, Crawford & Moses’ Digest, but it is in accordance with the requirements of the provisions of § 8614 thereof, requiring the receiver to execute a bond with one or more sureties approved by the court, in such form as the court shall direct, “to the effect that he will faithfully discharge the duties of receiver in the action and obey the orders of the court therein.” The powers of such receiver are designated in § 8615 of the Digest, to receive -rents, collect debts, etc.; and the receiver and his surety under the bond, conditioned as it is to the effect that he will faithfully discharge the duties, of receiver in the action and obey the orders of the court therein, were hound to the payment into the court of all moneys or assets which shall come into his hands as receiver in the case, according to the order of the court, as though it had been so expressly stipulated in the language of the statute, said § 8600, Crawford & Moses’ Digest.

- If there had been no statement of it relative to the execution of the bond and its liability under the later statute, which is in nowise in conflict, but is in harmony, with the first statute, a surety on a receiver’s bond would have been bound to account for and pay over moneys collected by the receiver upon the order of the court. In National Surety Company v. Byrd, 179 Ark. 688, 17 S. W. (2d) 876, the court held that the receiver and the sureties on his bond were bound to account for and pay into the court, when required by its order, all money and assets coming into his hands as such receiver, and the failure to malee such payment was not excused by the insolvency of a bank in which such funds were deposited. It was there said:

“The receiver is an officer of the court appointing him, and the condition of the receiver’s bond, as prescribed by statute, is different from that required of administrators, the receiver being bound to account for and pay into court all money or assets which shall come into his hands as such receiver, and in that respect like the bonds of public officials, requiring them to account for and pay over money coming into their hands as such. Sections 1096, 2832,10,029, Crawford & Moses’ Digest.

We find no error in the record, and the judgment is affirmed.


text:
    Nolan v. Haskett.
    4-2701
    Opinion delivered November 7, 1932.

      E. B. Klewer and Hughes .& Davis, for appellant.

      Sam M. S. Margolin, for appellee.
   Kirby, J.,

(after stating the facts). Appellants insist that the court erred in not instructing a verdict in its favor and in refusing to give its requested instruction No. 3. The undisputed testimony shows that the driver of the truck, in delivering the gasoline to appellees’ filling station, connected the discharge hose on the truck with the intake pipe of the underground tank, “propped the lever down” so the flow of gasoline would continue, and went away, leaving it unattended while discharging the gasoline, knowing at the time that it was a dangerous thing to do, but having no thought of any danger at the time. He knew that the lever was so arranged that it would shut the gasoline off from the discharge hose if it was not continuously held by the operator to keep it open, and propped it accordingly when he went into the restaurant. If the lever had been released, the flow of gasoline would have been shut off, and if he had been operating the lever as he was supposed to do, he might easily have put out the fire caused by the match thrown down, before it gained headway, and certainly he could have shut off the flow of gasoline by releasing the lever, had he been operating it.

When the condition was discovered by the owner of the filling station and the driver of the truck, who were coming out of the building, the owner immediately shouted to the operator of the truck to cut off the gasoline and drive the truck out of the station, and, rushing to the discharge hose, jerked it out of the intake pipe so that the truck would be disconnected. The evidence is in conflict as to the time expiring before Haskett jerked the discharge hose out of the intake pipe, but the .jury could well have found that it was some minutes, giving ample time to shut off the flow of gasoline and move the truck, had the operator been engaged in doing this as Haskett ' thought was the case. It is true the driver testified that he warned Haskett against disconnecting the discharge hose, but Haskett denied this, and the gasoline, not having been shut off when the discharge hose was jerked out of the intake pipe, ran freely, and the flames spread rapidly, finally reaching the building and destroying it. The driver also claimed that jerking the hose from the intake pipe spread the gasoline and the fire so as to prevent him from reaching the truck and shutting off the flow of gasoline and driving it out of the station. The owner of the station was confronted with an emergency in trying to protect his property in disconnecting the discharge hose so that the truck might be moved, and the jury could have found that he did not disconnect the hose from the intake pipe until after he directed the driver of the truck to move it and gave him time enough to shut off the gasoline and start the truck. But for the negligence of the driver of the truck in leaving the hose unattended with the lever thereon “propped down” so that the gasoline would continue to flow concurring with the negligence of Hayden in throwing the lighted match to the ground, the injury would not have occurred. Bennett v. Bell, 176 Ark. 690, 3 S. W. (2d) 996; Jonesboro L. C. & E. R. Co. v. Wright, 170 Ark. 815, 281 S. W. 374. The jury was also warranted in finding that the conduct of Haskett, the owner of the station, under the circumstances and in the emergency, was not such contributory negligence, if contributory negligence at all, as would bar his right to recovery. The negligence of the operator of ' the truck in connecting the discharge hose with the intake pipe, “propping down” the lever and releasing the flow of gasoline which would otherwise have closed the discharge hose if it had not been so fixed, and leaving it unattended with the gasoline flowing, concurring with the negligent act of the third person, Hayden, in throwing the lighted match down near enough to the waste gasoline to ignite it, was the proximate canse of the injury and damage, as the jury, whose province it was to determine the question, found. Pulaski Gas Co. v. McClintock, 97 Ark. 576, 134 S. W. 1199; Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283, 214 S. W. 9; Morgan v. Cockrill, 173 Ark. 910, 294 S. W. 44.

Instruction No. 3 was properly refused, since in effect it took away from the jury entirely the question of whether the conduct of Haskett in pulling the hose out of the intake pipe amounted to contributory negligence such as would bar recovery, only submitting the question of whether his conduct and the effect of it constituted the proximate cause of the spread of the fire.

Instruction No. 8, given by the court, was more favorable to appellants than they were entitled to. It told the .jury that, if they should find Eiley, the employee of appellants, was negligent in the premises at the time of the fire, and that such negligence was one of the causes of the fire, “hut further find that the negligence of the plaintiff, C. C. Haskett, was one of the contributing causes of the fire, or that he failed to exercise that degree of care which an ordinarily prudent man would exercise under like circumstances,” then they were instructed to find for the defendant as against both of the plaintiffs, “because the contributory negligence, if any, of the plaintiff, C. C. Haskett, is a complete bar in this case, regardless of whether or not there was some negligence on the part of the defendants through their employee.” The instruction-states, “but further find that the negligence of the plaintiff, C. 0. Haskett, was one of the contributing causes of the fire,” clearly assuming that the plaintiff was negligent, and the attempt to define negligence in connection with this did not relieve against the error in assuming that the plaintiff was negligent, and was not remedied by stating that the jury should render a verdict against both plaintiffs because “the contributory negligence, if any, of the plaintiff, O. C. Haskett, is a complete bar in this case.”

The jury were warranted-in finding that the negligence of appellants, concurring with the conduct of Hayden in carelessly throwing the lighted match where it ignited the gasoline, was the proximate cause of the injury ; and the testimony is amply sufficient to warrant the verdict. The jury did not find that appellees were guilty of contributory negligence that would bar recovery, notwithstanding the instruction of the court that was so confusing as to he more favorable to appellants than they were entitled to.

On the whole case we do not find any reversible error, and the judgment is accordingly affirmed.


author: McHáNey, J.

text:
    Little Rock v. Lenon.
    4-2702
    Opinion delivered November 7, 1932.

      Linwood L. Brickhouse, for appellant.

      Henry Bonham, Martin Fulk and Bose, Hemingway, Cantrell i& Loughborough, for appellee.
   McHáNey, J.

The late Judge C. T. Coffman executed his will February 21, 1896, in which he appointed his wife, Jean H. Coffman, sole executrix without bond and made her his sole beneficiary. The will provided: “I give, devise and bequeath to my beloved wife,- Jean H. Coffman, all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my death.”

More than 27 years later, on June 9,1923, he executed the following codicil to said will: “Know all men by these presents :■ That I, C. T. Coffman, being of sound and disposing mind and memory, do make and publish this, my codicil to my will, heretofore executed and dated February 21, 1896, being the only will which I have executed and which is now in force. I hereby direct that my said executor, being my wife, Jean H. Coffman, upon my death shall erect at the expense of my estate a suitable monument,- in case same has not already been erected during my lifetime. It is my will that all property left by me to my wife which has not been used or expended by her during her lifetime be donated and turned over to the City Hospital of Little Bock, as a memorial to her and to me and to be used by the management of said hospital in such manner as they may deem to the best interest of same.”

Thereafter, on October 14,1925, Judge Coffman died without issue, and three days later the above will and codicil were probated, Mrs. Coffman being appointed executrix, in accordance with the directions of the will.

On February 2, 1932, the said Jean H. Coffman died testate, undertaking by her will to dispose of all the property of which she died seized, including all the property which came to her by the will of her husband, and ignoring the direction contained in the codicil to the will of her late husband that all property left by him to her “which has not been used or expended by her during her lifetime be donated and turned over to the City Hospital of Little Bock, as a memorial to her and to me,” etc. Numerous beneficiaries are named in her will, many of whom are related to her collaterally, a few to him, and several bequests of a charitable nature. Appellee Lenon was named executor in the' will which was probated.

Appellant brought this action against the executor of her will and all devisees and legatees named therein, praying that the will of Judge Coffman be construed, the executor of Mrs. Coffman’s will be enjoined from proceeding under her will until its rights were determined, and that he be ordered to turn over to it all the assets in his hands belonging to the estate of C. T. Coffman. Trial resulted, in a decree against appellant, the court holding, under the will and codicil óf C. T. Coffman, that his widow took fee simple title to all his property, and that her devisees and legatees became vested with the same title to the respective properties devised and bequeathed to them in her will. This appeal followed.

We are all agreed that by the original will of Judge Coffman, his widow, Jean H. Coffman, would have acquired fee simple title to all his property, had he not later executed the above codicil. We are also agreed that the codicil did not limit her power to use, expend, sell, convey or otherwise dispose of the property in her lifetime left her by his will. The difficulty of the writer has been to determine what effect the codicil had on the property left by him which had “not been used or expended by her.” The majority hold that while the estate conveyed to her in the original will was the fee, the effect of the codicil was to convert the fee originally granted into a life estate with full power of disposition, and that, if any part of the estate devised to her remained unused or unexpended at her death, it thereupon passed as directed in the codicil. Some courts hold that a life estate, coupled with unlimited power of disposition, is equivalent to a fee simple title. The great weight of authority, however, including this court, supports the rule that a life estate may be created, coupled with power of disposition, and that such power does not change the life estate into a fee for the reason that the power of disposition is not in itself an estate, but is an authority so to do derived from the will. See 17 R. C. L., page 624, § 13. We so held in Archer v. Palmer, 112 Ark. 527, 166 S. W. 99, even though the power of disposition might defeat the rights of a remainderman. See also State v. Gaughan, 124 Ark. 548, 187 S. W. 918; Galloway v. Sewell, 162 Ark. 627, 258 S. W. 655; Reddin v. Cottrell, 178 Ark. 1178, 13 S. W. (2d) 813. We have many times held that there can he no limitation over after a fee in a will for the reason, as stated in Moody v. Walker, 3 Ark. 147, that, “if a legatee possesses the absolute right of property, he certainly has the power of disposing of it in any way he may think proper, and therefore he might defeat the devise or limitation over.” See also Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682; Davis v. Sparks, 135 Ark. 412, 205 S. W. 803; Fies v. Fiest, 145 Ark. 351, 224 S. W. 633; Letzkus v. Nothwang, 170 Ark. 403, 279 S. W. 1006; Combs v. Combs, 172 Ark. 1073, 291 S. W. 818; Payne v. Hart, 178 Ark. 100, 9 S. W. (2d) 1059; First Nat. Bank v. Marre, 183 Ark. 699, 38 S. W. (2d) 14. But here there has been no attempted limitation over after a fee. The codicil operates only on such property of his as may not have been “used or expended” by her. If there is no such property, the codicil is ineffective. It does not attempt to control her in any disposition of such property during her lifetime, but is, in the view of the majority, a disposition of such of his property as may remain unused or unexpended at her death. The rule announced in the above-cited cases, as to a limitation over after a fee given, has no application here.

The general rule relative to the construction of a will and a codicil is stated in R. C. L., vol. 28, p. 199, as follows: “It is the well-settled general rule that a will and codicil are to be regarded as a single and entire instrument for the purpose of determining the testamentary intention and disposition of the testator, and both instruments together will be construed as if they had been executed at the time of the making of the codicil. They will not, however, be considered as a single instrument where a manifest intention requires otherwise. The construction of the provisions contained in a will and codicil may be different from that which would be given to the same provisions all embodied in a will. This is due to the fact that the mere taking of a codicil gives rise to the inference of a change in intention, and such an inference does not arise in the case of a will standing by itself. When a will and codicil are inconsistent in their provisions, the codicil, being the latest expression of the testator’s desires, is to be given precedence.”

This court follows the general rule above stated. In Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90, we said: “A codicil is in legal effect a republication of the will, and the whole is to be construed together as if executed at the date of the codicil.” This was quoted with approval in Rogers v. Agricola, 176 Ark. 287, 3 S. W. (2d) 26.

Undoubtedly, Judge Coffman intended by his original will to give his wife all his property without any strings tied to it. They were childless, but each had a number of collateral kindred. In 1896 his fortune was of little value, but in 1923 it had grown to quite a substantial sum. Even then he tied no strings to her right to use and enjoy his property, but only to the excess or surplus. For some reason he made the codicil, which gives rise to an inference of a change in intention as to what might be done with the surplus. He might have thought, and the evidence somewhat sustains this surmise, that too much of it would go to her relations to the exclusion of his. Whatever his purpose was, it was his will or wish that his excess property go to the City Hospital, if any remained at her death.

The will and the codicil are to*be construed together to ascertain the intention of the testator. If the codicil is in conflict with the will, the codicil governs. We have many times held that, where the provisions of a will are in conflict, the last provision is controlling. Cox v. Britt, 22 Ark. 567; McKenzie v. Roleson, 28 Ark. 102; Gist v. Pettus, 115 Ark. 400, 171 S. W. 480. In the latter case we held there was no necessary repugnancy between the codicil and the will, and continued, saying: “But. if we are mistaken in this, and the third paragraph of the will should he construed to devise the fee simple title to John W. Pettus, then this paragraph would he manifestly inconsistent with and repugnant to the codicil, and in that case the language of the codicil would control.”

Therefore, if the codicil in this case he held to be in conflict with or repugnant to the will, which the majority does, by holding that the codicil converted the fee theretofore given into a life estate with power of disposition, then it necessarily follows that the codicil controls, and the surplus of his property at her death must go to the city for the City Hospital under his will.

The writer is of the opinion that there is no such repugnancy between the two instruments; that the language of the codicil, fairly construed, in the light of Gibbons v. Ward and Rogers v. Agricola, supra, together with the will, as one instrument as of the date of the codicil, constitutes a mere wish or will, precatory words, that she donate or give such of his property as remained, by will, to the City Hospital.

The record here does not disclose what or how much of his property, if any, remained on hand at her death. It therefore becomes necessary to reverse and remand the case with directions to ascertain such fact and to order the appellee, Lenon, as executor of Mrs. Coffman’s estate, to deliver such property to appellant for the use and benefit of the City Hospital. It is so ordered.


author: McHaNey, J.

text:
    Crawford County Board of Education v. Schaberg School District No. 69.
    4-2726
    Opinion delivered November 7, 1932.

      D. H. Howell, for appellant.

      Roy Gean, for appellee.
   McHaNey, J.

Tlie county boards of education of Crawford and Washington counties sought to. combine Mountainburg School District No. 16, Schaberg School District No. 69, and Armada School District No. 93 in Crawford County, Arkansas, and two sections of land in Mt. Olive School District No. 30 of Washington County, under § 53 of act 169 of 1931, commonly known as the “school law.” This section provides for the formation of school districts embracing territory in two or more counties. The procedure provided for in the second paragraph of that section was resorted to in this instance to effectuate the consolidation. It appears from the record that the two sections of land in Washington County which were sought to be included were wild and unoccupied. No person resided on said sections. The county boards entered an order creating the district, but on a trial de novo in the circuit court this order of consolidation was vacated and quashed.

For a reversal of the judgment of the circuit court, it is first contended that the court erred in issuing a writ of mandamus against appellant directing it to send up the record for trial de novo. It is contended that no appeal was taken as provided by law. We think appellant is in error, as, in the view we take of the matter, the order of the county board was void and was subject to be quashed, either by appeal or certiorari. The whole proceeding for the consolidation of the three districts was void for failure to comply with the applicable section of the “sehool law,” § 44, and not § 53. We think the procedure prescribed in § 53 was not open to appellants in this case for the reason that in reality it was not sought to form a district embracing territory in two counties. We' think the record clear that a small amount of territory in Washington Connty was included in the scheme of consolidation in order to avoid the procedure necessary to a consolidation under § 44. The real object of the consolidation was for the Mountainburg District to take in the territory of the Schaberg and Armada districts without the consent of the qualified electors in the latter districts. We do not think a fair construction of the ‘‘school law” would permit, the Mountainburg District to take over the other two without their consent by including two sections of uninhabitated wild land in Washington County. Section 44 provides, in express terms, that “no existing district shall be included in a new district under the provision of this section unless the majority of the qualified electors of the district to be included sign the petition, or, in case of an election, a majority of the voters in the election in the district on the question shall favor it.” The effect of this proceeding is for Mountainburg District to take Schaberg and Armada districts without their consent.

The circuit court correctly quashed the proceedings and order of the county board of education, and this judgment is therefore affirmed.


author: McHaNBy, J.

text:
    Hunter v. Woollard.
    4-2704
    Opinion delivered November 7, 1932.

      JR. V. Wheeler, for appellant.

      S. V. Neely, JR. JBJ. Berry and Elton A. Rieves, Jr., for appellee.
   McHaNBy, J.

This is a special statutory proceeding brought under the provisions of act 135, Acts 1927, p. 452, regulating the granting of franchises for toll bridges, turnpikes or causeways. Section 3 of the act reads as follows: “Upon application being made to the county court for the granting of a franchise or privilege as herein provided, the applicant shall give notice by publication in some newspaper in the county or counties where said toll bridge, turnpike or causeway is situated, having a bona fide circulation therein once a week for two weeks, setting forth the fact that application has been made for the granting of such franchise or privilege, giving the name of the stream to be bridged or the location of the turnpike or causeway, and the date when said petition will be heard by the county court, which notice may be in the following form, to-wit:

“FORM OF NOTICE

“Upon the date named in said notice, unless the hearing is continued for cause, the court shall hear all inter-, ested parties, and, in the event said franchise or privilege is granted, an order of the county court shall be made, fixing the rates or tolls to be charged, which shall be entered of record.” ■

The point involved in this appeal is the sufficiency of the notice under the above statute.

On November 28, 1930, a notice was published in the Earl Enterprise of Earl, Arkansas, to the effect that appellant has made application to the county court of Crittenden County, Arkansas, for a franchise to operate a toll bridge over the Mississippi bottoms in said county, and that same would be heard by the county court on December 15, 1930. The first publication of the notice was made on November 28th, and the application or petition for franchise was not filed until December 1, 1930. Thereafter, the same notice was published on December 5th and 12th. At the hearing on December 15th, 256 protestants appeared and objected to the granting of the franchise. One of the grounds of protest was that no notice of the application had been published as required by law. The county court overruled the protest, granted the franchise, and an appeal was prosecuted to the circuit court, where it was held “that the first publication of the notice on November 28, 1930, was ineffective for the reason that the application was not filed with the clerk of the county court until December 1, 1930.” The judgment of the county court granting the franchise was adjudged to be null and void. This appeal is from that order.

We think the court correctly so held. No notice could be given until application had been made to the county court as provided in the statute. The publication of the notice on November 28th was without effect because at that time no application had been made to the county court. The publication of the notice on December 5th and 12th was insufficient to give two weeks ’ notice of the application, because two weeks had not elapsed between the date of the first effective publication and the date of the hearing. Strict compliance with the statute relative to notice must be had in order to give the county court jurisdiction, this being a special statutory proceeding and the jurisdiction of the court being dependent upon strict compliance therewith. It would make no difference if all the people in the county had appeared to protest the application, because the jurisdiction did not depend upon the appearance of the protestants, but upon compliance with the provisions of the statute. Nevius v. Reed, 176 Ark. 903, 5 S. W. (2d) 327. As said by Judge Battle in Gibney v. Crawford, 51 Ark. 34, 9 S. W. 309: “The statute having prescribed the manner in which the notice should be given, it could not be given legally in any other manner.” In Townsend v. Martin, 55 Ark. 192, 17 S. W. 875 we held that, where the statute prescribes that the list of delinquent lands shall be published “weekly for two weeks,” the first insertion of the notice should be made two full weeks before the day of sale, and failure to comply with the statute in this respect renders the sale void. There are many cases in our reports to the same effect, one of the latest being Giese v. Jones, 185 Ark. 548, 48 S. W. (2d) 232.

Since two full weeks did not elapse between December 5, the date of the first publication, and December 15, the date of the hearing, notice was not given “once a week for two weeks” as provided in the statute, the county court had no jurisdiction to make the order granting the franchise, and the circuit court correctly held it null and void.

Affirmed.


text:
    Silbernagel & Company v. Taliaferro.
    4-2713
    Opinion delivered November 7, 1932.

      Reinberger :& Reinberger, for appellant.

      Harry T. Wooldridge and Frank F. Boone, for appellee.
   Butler, J.

Silbernagel & Company, the appellant, is a wholesale grocery and furnishing concern with its principal place of business in Pine Bluff. In 1930 it bad a customer, H. B. Chambliss, to whom it had advanced money and merchandise, who owed a balance at the end of that year. Chambliss rented a farm from the appel-lees, Ed Taliaferro and J. H. Taliaferro, at the beginning of the year 1931, at an agreed rental of $1,200. Cham-bliss applied to the appellant to furnish supplies to make his crop, and the appellant declined to do so unless the landlords would waive the lien for rents. At that time the appellant prepared a written waiver and gave it to Chambliss to obtain the signature of the landlords. The landlords declined to sign because there was no limit fixed in the waiver as to the amount of indebtedness, and thereupon the appellant, acting through its agent, wrote an additional clause at the end of the waiver limiting the amount of the waiver to the sum of $3,000. The waiver was then returned to the landlords, who signed the same, and which in its entirety is as follows:

“In consideration of Silbernagel'& Company, Pine Bluff, Arkansas, furnishing cash, merchandise, supplies, etc., to H. B. Chambliss, for purposes of making crop for the year 1931 on lands belonging to me in Lincoln County, Arkansas, and described herein, I herewith agree to waive to Silbernagel & Company any and all amounts that may be due me for rents from said lands for year 1931, until such time as Silbernagel & Company shall have been paid any and all amounts due them by said H. B. Chambliss. I further agree not to furnish said H. B. Chambliss any cash or supplies myself, and any advances so made shall likewise be waived to Silbernagel & Company. The lands mentioned herein are described as follows: (Here follows land description.)

“Signed.

“This agreement entered into with Silbernagel & Company, excepting that the amount waived by me shall in no event exceed the total sum of $3,000, and is limited by me to that amount.

“J. H. Taliaferro.”

After a considerable part of the crops had been harvested and turned over to the appellant, the landlords brought this suit to recover rents due by Chambliss, alleging that the amount advanced to make the crop had been paid out of the cotton already appropriated, and that the appellees were entitled to the remainder as rent, and that the appellant was attempting to include an old indebtedness of .Chambliss. The appellant answered, alleging that the waiver signed by the landlords was intended to, and did, include the indebtedness that Cham-bliss owed for the year 1930.

There is little, if any, dispute in the evidence. It tended to establish that the landlords and the appellant had never discussed the waiver, but that Chambliss had acted as the intermediary, and that neither he nor any one representing the appellant informed the landlords that Chambliss, at the time the waiver was signed, was indebted to the appellant for a balance on an old account. Witnesses for the appellant testified that it was the intention of the appellant and Chambliss that the waiver should extend, not only to the advances made for the year 1931, but to cover the balance for the year 1930, and that the balance for the year 1930 was covered and the inducement for appellant to furnish Chambliss supplies to make the crop of 1931. This understanding between Chambliss and the appellant, however, was never communicated to the landlords, and they did not know of any such understanding at the time they signed the waiver. They testified that they thought they were signing a waiver only as to the supplies advanced to make the crop of 1931, and that the sum of $3,000 named was for the purpose of limiting the advances of 1931 within that sum.

The chancellor found that the landlords, appellees, waived the rents only for the amounts furnished the tenant in 1931, and did not in fact waive any part of their rents for the past due account which Chambliss owed the appellant. He further found that, at the time of the rendition of the decree, there was a balance of $131.99 due the appellant for supplies for the year 1931 which it was entitled to recover, and ordered the crops which had been taken charge of by a receiver to be sold and the proceeds first applied to the payment of the balance found to be due and the remainder applied to the payment of rents due the appellees.

We think a fair interpretation of the waiver in the light of the attendant circumstances fully justified the conclusion reached by the trial court. The language of the waiver discloses the purpose for which appellees signed the contract, and it is fairly to be inferred that, when they waived their rents for all amounts due by Chambliss and agreed not to furnish him anything themselves, they had in mind that the indebtedness referred to was that to be incurred for the purpose of making the crop for the year 1931, as that was the reason for which they were signing the waiver. The undisclosed intention of the appellant and Chambliss could not, and did not, bind the landlords. However, if the contract of waiver is ambiguous and calls for construction, we must construe it most strongly against the appellant, as the contract of waiver was prepared by it. Leslie v. Bell, 73 Ark. 338, 84 S. W. 491; Wright Chevrolet Co. v. Kent, 181 Ark. 923, 28 S. W. (2d) 700.

Affirmed.


text:
    Bentonville Ice & Cold Storage Company v. Anderson.
    4-2727
    Opinion delivered November 7, 1932.

      J. T. McGill, for appellant.

      Paul L. Anderson, for appellee.
   Butler, J.

For many years prior to the year 1930 the appellee, plaintiff below, was an orehardist near Cen-terton, Benton County, Arkansas. The appellant company for several years was operating’ a cold storage plant in Bentonville, in said county. It had been a custom for orchardists to place apples in the appellant’s storage with instructions to sell them at the prevailing market price. During those years the appellee had placed apples in the appellant’s storage, and, when they were sold, the appellant had remitted the proceeds of sale, less storage charges. Appellee delivered certain apples to the appellant during the year 1930. Thereafter the appellant sold the apples to one W. M. Zimmerman, a defendant below, on credit. Suit was instituted in the Benton Circuit Court against the appellant and Zimmerman for $309.25, the value of the apples. Upon a trial, judgment was entered in favor of the appellee for said amount, from which the appellant has duly prosecuted its appeal.

The complaint in effect alleged that the apples had been sold to the appellant company. There is no evidence, however, to establish a sale to the appellant, but all of the evidence is to the effect that the appellant company acted as the agent for the appellee in the sale of his apples. At the close of the testimony, the appellant asked for an instruction directing the jury to return a verdict in its favor. This request was refused by the court, and exceptions saved, but, whether or not the exceptions were saved in the motion for a new trial, we are unable to say, as that motion is not abstracted or referred to in appellant’s abstract and brief.

Counsel for the appellee say that in all previous years the appellant had sold the apples of appellee for cash, and that appellee had never authorized the sale to be made in any other manner, and that the apples were sold on a credit to an insolvent person upon an indefinite credit arrangement. The evidence as abstracted does not justify that statement. The appellee testified that he placed his apples with the appellant company with instructions to sell the same, as in previous years, and, when asked upon what terms appellant was authorized to sell the apples, he answered: “The only terms I have recollection of is as I had done before. I simply told them to sell the apples for me if an opportunity might come up for a sale. So far as I know that is the only instruction. ’ ’

The manager of the appellant company testified that the quality of the apples was not as good — not as good a size as usual; that they were small and would not be a No. 1 apple; that he found a cash buyer for the apples, but the appellee was not willing to accept the price offered. The appellee, in testifying about this matter, stated in effect that the testimony of the manager regarding the cash buyer and his refusal to accept because of the price offered was true. The manager also testified that the appellee’s apples remained unsold at about the close of the storage season, and that the company had to sell them; that it was trying to handle the apples to the best advantage for the appellee, and that Zimmerman, the man to whom the apples were finally sold, on a credit basis, was the only buyer that could be found.

The evidence fails to disclose what had been the custom regarding the sale of apples during the time ap-pellee had done business with the appellant, or what was the financial responsibility of Zimmerman, the buyer, known to the appellant or which, in the exercise of ordinary care, it should have known. Neither was there any express direction given the appellant as to how the apples should be sold. In the absence of any proof of custom, or of the express direction of the owner, an agent must be reasonably diligent and exercise reasonable care in the selection of responsible purchasers, and to sell the commodity for its fair value or market price for cash, or upon a reasonable term of credit, and to exercise reasonable diligence in collecting the purchase money when intrusted with the collection, and to promptly account to the owner for all money and property which has come into its hands during, and by virtue of, the agency. Ark. Fertilizer Co. v. Banks, 95 Ark. 86, 128 S. W. 565. Of course, an agent is bound to make sales in accordance with the express direction of the owner (Sledge & Norfleet Co. v. Mann, 166 Ark. 358, 266 S. W. 264), and is liable for any damage resulting from a failure to obey the direction of the owner, or for failure to exercise proper care in the absence of such direction. Houston Rice Co. v. Reeves, 179 Ark. 700, 17 S. W. (2d) 884; Marks v. F. G. Barton Cotton Co., 170 Ark. 637, 280 S. W. 674.

"We are of the opinion that our cases support the majority rule declared in 25 C. J., paragraph 16, page 350, cited by the appellant, as follows: “That, in the absence of specific instructions to sell only for cash, appellant had implied authority to sell upon a reasonable credit, provided he exercised due care in doing so.”

The appellant requested three instructions: the first was for a directed verdict, heretofore referred to; instruction No. 2 was in effect that, in the absence of express direction to sell for cash, appellant was not liable if it sold the apples on a credit and the buyer failed to pay for them; instruction No. 3, as requested, was as follows: “If you find that the plaintiff stored the apples in question with the defendant, Bentonville Ice & Cold Storage Co., with instructions to sell said apples, and you further find that the apples were sold by the company as agent or broker for plaintiff, you will find for the defendant, Bentonville Ice & Cold Storage Co.”

The court refused the instruction as asked, hut qualified it as follows: “Unless you further find that the broker, Bentonville Ice & Cold Storage Co., sold said apples contrary to the agreement and understanding between it and the plaintiff, Anderson, or that it sold said apples on a credit without authority,” and gave same as qualified, over the objection of defendant, appellant. There appears to have been no specific request for instructions made by the plaintiff.

On consideration of the authorities, supra, we think both instruction No. 2 and No; 3 might have been properly refused, as they overlooked the duty of the agent to use reasonable diligence to find purchasers and exercise reasonable care in the selection of responsible ones, but the qualification of instruction No. 3 was also erroneous because there was no evidence (or at least none abstracted) tending to show that the sale was made contrary to any agreement between the parties, or that it was the understanding that the apples were to be sold for cash.

The judgment must be reversed, and, as it appears from the evidence abstracted that the case might not have been fully developed, the cause is remanded with leave to amend the complaint and take further testimony if appel-lee is so advised, and for further proceedings in accordance with this opinion.


author: Smith;, J.

text:
    Bull v. Ziegler.
    4-2724
    Opinion delivered November 14, 1932.

      Edioard Gordon, for appellant.

      Cockrill '& Armistead, for appellee.
   Smith;, J.

Appellant says, in his brief, that “the only question to be determined on this appeal is whether or not the plaintiff in this case has a right to garnishee the State Highway Commission after filing suit in the Pulaski Circuit Court against the defendant, S. B. Ziegler, doing business as Ziegler Construction Company, which company holds an indebtedness against the State Highway Commission on account of constructing highways under a contract with the Highway Commission, and which has been specifically authorized to construct highways and to sue and be sued, the appellant being employed by the defendant in the construction of said hig’hways and injured while so employed.”

We think the court below correctly held that the right did not exist to garnishee money due Ziegler by the State Highway Commission, for the reason that the commission is an agency of the State, and, as such, is not subject to suits of this character.

The case of Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. (2d) 879, is cited as authorizing this garnishment proceeding. But such is not the effect of that ease. We did there hold that the State Highway Commission had been created as a corporate entity to contract with reference to the construction of certain State highways, and that the Commission might be sued in relation thereto, but we stated that the whole proceeding was statutory, and suits could be maintained only to the extent and in the manner authorized by statute. See also Baer v. Arkansas State Highway Commission, 185 Ark. 590 48 S. W. (2d) 842.

The instant case is not a suit to enforce a construction contract, hut is a suit at law for damages for personal injuries by an employee of a contractor against his employer, with a writ of garnishment to impound money due the contractor by the State Highway Commission, in order that the money may be applied to the satisfaction of any judgment which the employee may finally recover.

In the chapter on Garnishment, 2iS C. J., page 55, it is said that there is authority to the effect that, under a provision authorizing the summoning of persons and corporations generally as garnishees, a municipal or public corporation may thus be brought into the case. It is, however, also said: “But, according to the weight of authority, general provisions authorizing garnishment do not, in the absence of a clearly expressed legislative intention to such effect, apply to the Federal and State governments, or their officers or agencies. This rule includes all municipal or quasi municipal corporations or other public bodies charged with the performance of governmental functions, or their officers or agents.”

An answer was filed on behalf of the Highway Commission, admitting its indebtedness to Ziegler, which raised no question as to the right of the plaintiff to impound the money due from the Commission to Ziegler by writ of garnishment, and it is argued that as the Commission does not raise the question that it is not subject to garnishment, the defendant cannot do so; in other words, that there has been a waiver by the Commission of its exemption from garnishment. We think, however, that this exemption may not be waived, and that the de- • fendant, Ziegler, had the right to move, as he did do, to quash the writ, although the Highway Commission has not done so.

Numerous authorities on this question are reviewed in the case of Welch Lumber Co. v. Carter, 78 W. Va. 11, 88 S. E. 1034, by the Supreme Court of Appeals of West Virginia, where it is stated that, while there are cases holding that the exemption from process of garnishment is a privilege personal to the agency possessing it, yet the weight of authority is opposed to this view, and that the public policy which forbids the process in the first instance forbids also its waiver. This case is annotated in 2 A. L. R. 1582, where many cases on the subject are cited.

It was- held by the Supreme Court of Alabama, in the case of Porter & Blair Hardware Co. v. Perdue, 105 Ala 293, 16 So. 713, that garnishment is a remedy of statutory creation and existence, and that there is no authority to resort to it except in cases and against parties which are and who are within the terms of the statute. And, further, that public corporations and governmental agencies are held not to be subject to this process unless included, in unequivocal terms, by the letter of the statute, on grounds of public policy. It was there further said: ‘ ‘ But whether the nonliability of such corporations to this process be put upon the idea of exemption merely from the operation of a statute broad enough to embrace them, or upon the idea that they are not embraced at all in the terms of the statute, is of no practical consequence. If they are not within the statute at all, no court has, nor by consent can acquire, jurisdiction to proceed against them in this way; and, if it is a mere matter of exemption, the same public policy which gives life to it is potent also to prevent the officers and agents for the time being of such corporations from waiving the exemption by appearing without objection and admitting indebtedness for the corporation. 8 Am. & Eng. Ehc. Law, p. 1135. ”

Like the State of Alabama, we have no statute making these governmental agencies subject to garnishment.

We have held, in several cases, that, where contracts' have been fully completed for certain governmental agencies, and nothing remains to be done except to pay the contract price due the contractor, the creditors of such contractor, if he be insolvent, may, by equitable garnishment, impound the money due him and subject it to the payment of their demands against him. The following are cases of this kind: Henslee v. Mobley, 148 Ark. 181, 230 S. W. 17; Riggin v. Hilliard, 56 Ark. 451, 20 S. W. 402. See also First Nat. Bank v. Mays, 175 Ark. 542, 299 S. W. 1002. These cases appear to have no application to the facts of this case.

We conclude therefore that the garnishment was properly quashed, and that judgment is affirmed.