author: Hart, J.

text:
    J. S. Elder Grocery Company v. Applegate.
    Opinion delivered February 6, 1922.
    1. Sales — warranty in sale of seeds — evidence.—In an action for breach of warranty in the sale of seed, where plaintiff alleged that blaekeye peas bought from defendant and sown by him on April 21 did not germinate, proof that soy beans planted by plaintiff on the same day germinated, and that Whippoorwill peas planted by plaintiff on May 10 germinated, was not competent to prove that the peas planted on April 21 lacked germinating qualities.
    la. Appeal ' and error — incompetent evidence — prejudice.—Admission of incompetent evidence to establish a fact which it had no tendency to prove is prejudicial.
    2. Sales — implied warranty in sale of seeds. — There is an implied warranty in the sale of seeds sold for planting that they are fairly and reasonably suitable for that purpose, and a breach occurs if the seeds are unfit for planting because they have no germinating power.
    3. Sales — implied warranty in sale of seeds — question for jury.- — Where defendant denied that they had warranted seeds sold by them, and proved that they had advertised in a local paper that they did not expressly or impliedly warrant their seeds for planting purposes, and plaintiff denied that he had read this notice, it was not error to submit the issue of implied warranty to the jury.
    4. Sales — express and implied warranties — question for jury.— While an express warranty excludes an implied one, it was not error to submit to the jury both lands of warranty where the evidence was such that the jury might find one or the other not to exist.
    d. Sales — express warranty in sale of seeds — evidence.—Evidence that the dealer told the buyer that seeds sold to him were good producers and had plenty of food value in them was not sufficient to establish an express warranty that the seeds sold possessed germinating power.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.
    STATEMENT OP PACTS.
    Appellee instituted this action in the circuit court against appellants to recover damages in the sum of $106 for an alleged breach of warranty in the sale to him by appellants of eleven bushels of peas for the purpose of planting.
    J. E. Applegate, the appellee, was a witness for himself. According to his testimony he was engaged in farming near Rogers, Arkansas, during the year 1920. In the early part of April of that year he bought from the J. S. Elder Grocery Company eleven bushels of peas of the California Blackeye variety. The witness had grown "Whippoorwill peas in Arkansas for several years, 'but had never planted any California Blackeye peas before. He asked appellants for Whippoorwill peas and was told that they did not have them, but that they had California Blackeye peas which they sold to him to be planted. We copy from his testimony, the following:
    “Q. Tell the jury what you paid for them, what was the contract?
    “A. Well, I went to Mr. Elder to find out about these peas. I inquired of him about them, and it seems there wasn’t any, he didn’t have any, and didn’t know of any, and he told me he had California Blackeye peas. He told me they were good producers, had plenty of food value in them, but not as viney as the Whippoorwill peas, yet produced a good vine, and made a very good hay, but that they were more to produce peas, and that he had had considerable experience withj them down south, and had sold quite a few to the different fellows around over the country, but said he did not have the other peas. Well, I took it under consideration, and when I found out that I could not get the Whippoorwills I went down there and asked him if he still had these peas, between ten and eleven bushels, and I bought all of them. I planted them between April 21 and 24. I sowed some Whippoorwill peas, and some of this kind.”
    According to the witness he prepared the ground well where he planted the peas, and it was fertile. The weather was not too inclement for them to come up, and there was nothing in the appearance of the peas from which it could be told that they would not germinate. It cost witness $3 an acre to prepare ten acres of ground for planting the peas. The peas did not come up and an examination of them in the ground showed that they were rotten. Appellants told the witness that they had bought the peas from the Ozark Grocery Company, and would see what could be done about it.
    According to the testimony of a salesman of the Ozark Grocery Company, that company did not handle California Bladkeye peas for seed purposes during the spring of 1920, and only sold them for food. The peas which they sold for food had been treated to keep the Weevils out.
    According to the evidence adduced for appellants no warranty, express or implied, of the peas was made to appellee. Appellants bought the peas in question from the Ozark Grocery Company, and that company did not inform them that the peas were not fit for seed purposes. Appellants advertised in a weekly newspaper published in Rogers, Benton County, Ark., that they gave no warranty, express or implied, in any manner whatever with regard to the seeds sold by them. They said in the advertisement that they had endeavored to buy the best seeds obtainable after careful investigation.
    Other witnesses for appellants testified that they ■bought California Blackeye peas from appellants and planted them in April, 1920, and that they failed to come up on account of the cold wet weather. They planted the same kind of peas later on in the season, and they came up well.

      The jury returned a verdict for appellee in the sum of $76, and from the judgment rendered appellants have duly prosecuted an appeal to this court.

      Duty é Duty, for appellants.
    The testimony was not sufficient to show an express warranty. To .constitute an express warranty it must have been so intended by the parties. 35 Cyc. 374; 11 Ark. 339; 64 Mo. 531.
    An express warranty will exclude an implied warranty of fitness for the purpose intended, and where one is waived he may rely on the other, but he cannot rely upon both. 79 Iowa 282; 44 N. W. 548; 35 Cyc. 392; 76 Ark. 177.
    Where one purchases seed by name, the warranty implied is that the seed is of the kind designated, and there is no waranty that the seed will g’erminate or be fit for the purpose intended. 35 Cyc. 409; 117 Ky. 382; 78 S. W. 143; 63 L. E. A. 647; 107 Fed. 886; 76 Ark. 177.
    Upon the sale of chattels the law implies no warranty; that is a matter of contract between the parties. 10’8 Ark. 254; 70 Ark. 61 A purchaser assumes the risk of the quality of the chattel sold him, unless there 'be fraud or warranty in the sale. 45 Ark. 284. There is a waiver ol warranty where he has opportunity of inspection of the goods sold. 76 Ark. 66. The rule of caveat emptor .applies where the buyer and seller have equal opportunities of inspection. 35 Ark. 397. • •
    Instruction No. 5 requested by defendant should have been given. 161 Mich'. 266; 21 Ann. Cas. 74; 78 Ark. 177; 74 Ark. 144.

      John W. Nance, for appellee.
    An affirmation by the seller that seed sold are good and other affirmations as to quality constitute an express warranty. 24 E. C. L. p. 199; par. 470; 24 E. C. L. p. 168, .par. 442; Ann. Cas. B-P 73.
    There was an implied warrantv, and defendant was liable. 24 E. C. L. p. 190, par. 470.'
   Hart, J.

(after stating the facts). Counsel for appellants urge as error the admission of certain testimony before the jury given by appellee. Appellee was permitted to testify that he planted some soy beans about the 21st of April, 1920, and they made a good crop. He was also permitted to testify that he sowed Whippoorwill peas about the 10th of May, 1920, and made a pretty good crop of. them.

Counsel for appellee claims that this testimony was competent to show that appellee had properly prepared his ground and planted the seeds in due season. He contends that the fact that they grew in the same soil under the conditions testified to is a circumstance tending to show that the failure of -the California Blackeye peas to come up was the lack of germinating qualities in them.

We cannot agree with counsel in this contention. It is true that the California Blackeye peas were plant* ed about the 21st of April in the same soil, but it was not shown by appellee that the soy beans had the same germinating qualities as the California Blackeye peas, or that they should be planted about the same time. The Whippoorwill peas were not planted until the 10th of May following the planting of the California Blackeye peas on the 21st of April. The season was then further advanced, and the fact that they grew at that time in the same soil would not tend to show that the California blackeye peas, planted on the 21st of April preceding, lacked germinating qualities.

It was the theory of appellants that the seed did not come up because they were planted in cold wet soil. The season was further advanced on the 10th of May than when the 'California blackeye peas were planted, and the testimony that the Whippoorwill peas came up when planted on the 10th of May would not tend to show that the California Blackeye peas planted on the 21st of April preceding lacked germinating qualities. It was not shown that the germinating qualities of the soy beans and the Calif ornia Blaekeye peas were the same,' and the fact that soy beans planted at about the same time as the California Blaekeye peas that came up in the same soil, would tend to show that the peas had no germinating power.

The evidence, being admitted to establish a fact which it had no tendency to prove, was necessarily prejudicial to the rights of appellants, and therefore constituted prejudicial error calling for a reversal of the judgment.

It is next contended that the court erred in telling the jury that there was an implied warranty of germinating power in the peas. The undisputed evidence shows that at the time appellee purchased the seeds from appellants he stated that he wanted them to plant, and it could not be told from looking at the seeds whether they were good for the purpose of seeding or not.

The authorities are divided on the question of whether there is an implied warranty of germinating power on a sale of seeds for planting purposes. It is said that the weight of authority is that there is an implied warranty that seeds sold for planting are fairly and reasonably suitable for that purpose and is breached if the seeds are unfit for planting because they have no germinating power. Totten v. Stevenson, (S. D.) 135 N. W. 715; Shaw v. Smith, (Kan.) 11 L. R. A. 681; and case notes to 37 L. R. A. (N. S.) 81; L. R. A. 1916-C p. 1012, and Ann Cas. 1918-B, 74. The holding that a warranty of germinating power is implied in the sale of seeds for planting is in accord with the previous holding of this court on a kindred question. In Kefauver v. Price, 136 Ark. 342, the court held that there is an implied warranty in the sale of seeds for planting or sowing where the sale is by description, that the seeds are true to name. In that case the court said that the fact that the buyer inspected the seeds before purchasing is immaterial when the character of the seeds cannot be ascertained by any reasonable inspection.

In the present case, appellants denied the warranty. Under this denial it was competent for them to show facts negativing an implied warranty, and this they did by proving that they had advertised in a paper published in the town where they did business that they did not expressly or impliedly warrant their seeds for planting purposes. Appellee denied that he had read this notice. This phase of the case was submitted to the jury under proper instructions, and the court did not err in submitting the issue of implied warranty to the jury.

It is next insisted that the court erred in submitting to the jury the question of express warranty in the sale of the seeds by appellants. Of course, there could not'be both an express warranty and an implied warranty of fitness for the purpose for which the seeds were sold. The reason is that, if there was an express warranty upon this subject, it would govern as being the contract between the parties. There would be no room for an im-. plied, warranty if there was an express warranty on the same subject. This rule, however, would not necessarily render erroneous instructions on both express and implied warranty of germinating power. The reason is that the jury might find one or the other not to exist under the facts and circumstances introduced in evidence. For instance, in the present case the jury might have found that there was no implied warranty because appellee had read the notice published in the paper by appellants to the effect that they gave no warranty, express or implied, as to the quality or productiveness of their seeds. At the same time, if the evidence was sufficient to establish an express warranty, this would govern as the contract between the parties, notwithstanding appellee might have read the notice in the paper.

Hence, in view of another trial, we deem it necessary to decide whether or not the evidence introduced is sufficient to establish an express warranty that the seeds possessed germinating power. The only testimony on that point is the testimony of the appellee himself. We h'avé copied what he said on this point in our statement of facts and do not deem it necessary to repeat it here. We do not think the testimony is sufficient to establish an express warranty. It is true that the dealer told the buyer that California Blaekeye peas were good producers and had plenty of food value in them, but this was not sufficient to constitute an express warranty that the seeds sold possessed germinating power.

For the error in admitting testimony as above indicated the judgment must be reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Tompkins v. Tompkins.
    Opinion delivered February 6, 1922.
    1. Homestead — dea™h op enteyman — right of widow. — Where one entering public lands as a homestead dies before making final proof, his widow is entitled to make such proof and obtain a patent from the United States. •
    2. Adverse possession — husband and wife.— A husband or wife cannot obtain a tax title in opposition to the other when they are in joint possession of the land.
    3. Lost instrument — sufficiency of evidence. — Evidence held to establish the execution of a lost deed.
    4. Husband and wipe — conveyances between. — A deed to land from a wife to her husband conveys ah equitable title.
    5. Husband and wife — conveyances between. — Evidence held to establish that a deed from a wife to her husband was free from any undue influence on the part of the latter.
    6. Tenancy in common — purchase at tax sale by co-tenant.— A tenant in common cannot add to or strengthen his title by purchasing the title to the entire property at tax sale, and possession of the land thereafter.
    Appeal from Sharp Chancery Court, Southern District;. II. J. Ra'lclrff, special Chancellor;
    reversed and affirmed.
    statement oe pacts.
    Appellees brought this suit in equity against appellant to cancel and set aside deeds made to him to two tracts of land, and for an accounting of the rents ant profits of the same. Appellant defended on the ground that he had title to the lands in question. The material facts necessary to decide the issues raised by the appeal, briefly stated, are as follows:
    W. M. Tompkins died in Sharp County, Arkansas, in the year 1900, owning several tracts of lands in said county, including the two forty-acre tracts which are the basis of this lawsuit. He left surviving him Lurena A. Tompkins, his widow, and appellees, who are his children and heirs at law. Yancey Tompkins was a minor at the death of his father, and was only twenty years of age when this suit was brought on the 5th day of April, 1916. In February, 1900, W. M. Tompkins entered, as an additional homestead under the law!s of the United States, forty acres of land involved in this controversy, which was situated adjoining the land on which he lived with his wife and children and which constituted his homestead. The residence of W. M. Tompkins was near the boundary line between the tract on which it was erected and the forty-acre tract in controversy called the homestead tract. The boundary between the two tracts ran through his yard and up to the porch of his dwelling house. His garden, orchard, a well, and some outhouses were erected on the forty-acre tract in controversy. Tompkins entered the forty acres in controversy as an adjoining homestead in February before he died in May, 1900. During the latter part of the year 1902, Lurena Tompkins, the widow of "W. M. Tompkins, deceased, married T. J. Tompkins, a nephew of her first husband. T. J. Tompkins was appointed administrator of the estate of W. M. Tompkins, deceased, in December, 1902, and as such administrator took charge of all the real and personal property belonging to his decedent’s estate. On the 27th of June, 1904, T. J. Tompkins was duly appointed guardian of the estate of Yancey Tompkins and Bama Tompkins, minor children of W. M. Tompkins, deceased. W. M. Tompkins resided on his homestead at the time of his death. His widow and minor children continued to reside there until she married T. J. Tompkins in the latter part of 1902. After that time they all resided there until Lurena Tompkins died in 1912. In April, 1906, Lurena Tompkins, the widow of W. M. Tompkins, deceased, perfected her proof to the homestead on the homestead forty-acre tract in controversy and secured a patent thereto from the United States. The said tract of land was forfeited for nonpayment of taxes for the year 1908, and T. J. Tompkins became the purchaser at the tax sale held in June, 1909. He obtained a certificate of purchase, and a clerk’s tax deed was issued to him on the 15th day of June, 1911. He testified that subsequently to his purchase of the land at tax sale his wife made a deed to said land to him. The testimony on this particular point will be stated more at length in the opinion.
    The record shows that W. M. Tompkins at the time of his death owned other lands which he had purchased from Wm. McKinley, and the testimony on tliis point will be stated more particularly under an appropriate heading in the opinion. Forty acres of these lands were sold at tax sale in 1906, and T. J. Tompkins became the purchaser thereof at said sale. Subsequently he received a clerk’s tax deed therefor.
    W. M. Tompkins left surviving him his widow and five children. One of his daughters sold her interest in his estate to her mother and the other four children. In July, 1902, Dora Porter, another one of his daughters, sold and conveyed her interest in his estate to T. J. Tompkins. Dean Tompkins, one of the children of W. M. Tompkins, has been dead five years and died at the age of twenty-three years.
    The testimony with regard to the rents and profits from the two forty-acre tracts in controversy will be stated and referred to more in detail in the opinion.
    It was decreed in the chancery court that Yancey Tompkins recover from T. J. Tompkins the sum of $651.97 as a trust fund derived from the rents and profits of the two tracts of land in controversy. It was further decreed that Yancey Tompkins have a two-thirds interest in the two tracts of land in controversy, and that T. J. Tompkins he decreed a one-third interest therein.
    T. J. Tompkins has duly prosecuted an appeal to this court.

      John C. Ashley, for appellant.
    The lands in NE. NW. 31-17-4 were entered from the United States by W. M. Tompkins, who died shortly thereafter, and his widow made final proof and received patent therefor in her own right, as she had the right to do, and the land was not a part of the estate of W. M. Tompkins.
    As to the lands in SW. SE. 19-17-4, no color of title is shown to have been in W. M. Tompkins, and appellees have failed to establish title in themselves. 57 Ark. 97.
    If appellees had title to the lands in controversy they are barred by the statute of limitations. C. & M. Digest, 6947; 59 Árk. 460; 53 Ark. 418; 58 Ark. 151; 92 Ark. 30. As to the second tract described above, appellees (with the exception of Yancey Tompkins) are also barred by the seven-year statute. U. & M. Dig., 6942.
    The court erred in holding appellant liable to Yancey Tompkins for any sum. Upon the filing of his final report as administrator, guardian and curator, he was discharged, and there is no showing that the sums adjudicated in favor of appellee were not included in that report. The probate court judgment is not subject to collateral attack. 92 Ark. 611; 73 Ark. 612; 52 Ark. 341.

      David L. King, for appellee.
    Appellee is seeking to enforce a legal remedy, and the pleas of laches and limitation are wholly inapplicable. 100 Ark. 399; 70 Ark. 371.
    Appellant was a tenant in common, and his redemption from the tax sales only gave him the right to demand contribution from his co-tenants, not title to the property. The trustee of an express trust cannot acquire title at a tax sale. 84 Ark. 557; 129 Ark. 149; 78 Ark. Ill; 30 Ark. 95; 49 Ark. 242; 39 Ark. 573; 69 Ark. 539; 75 Ark. 184; 139 Ark. 206.
    As to the tract known as the homestead forty, this continued to be the homestead of the widow and children after the death of W. M. Tompkins, 37 Ark. 316; 29 Ark. 633. Homestead is not subject to partition. 31 Ark. 145; 51 Ark. 429. The statute of limitation did not run against appellee, who was a. minor. The possession of one holding under a life tenant is not adverse to the remainderman until the death of the life tenant. 58 Ark. 510; 129 Ark. 342.
    The money judgment in favor of appellee should have been for a larger sum even than that awarded him.
   Hart, J.

(after stating the facts). We will first discuss the rights of the parties to what is called the additional forty acres. It will be noted that W. M. Tompkins had his dwelling house and homestead on an adjoining forty acres of land. He entered the forty acres in question as an additional homestead under the laws of the United States in February, 1900, prior to his death in May of the same year. He dug a well and used the forty-acre tract in controversy as a part of his homestead. After his death his widow made final proof and obtained a patent from the United States to the forty acres in controversy in 1906.

In McCune v. Essig, 199 U. S. 382, the Supreme Court of the United States held that the widow of the entryman is first entitled to complete the entry and obtain a patent, and that a State law is not competent to change this provision and give the children of the entry-man an interest paramount to that of the widow. So it will be seen that when the patent was issued to Lurena Tompkins in 1906, she took an absolute title to the land free from any claim of her children. After the patent was issued to her the land was forfeited to the State for non-payment of taxes, and T. J. Tompkins became the purchaser at the sale. He now claims title by virtue of a clerk’s tax deed which was afterwards issued to him. At the time T. J. Tompkins purchased the land at the tax sale he was the husband of Lurena Tompkins,, and they occupied the land jointly as her homestead.

In Herrin v. Henry, 75 Ark. 273, the court said that the rule is thoroughly settled that a husband or wife can not obtain, a tax title in opposition to the other when they are in joint possession of the land. This is a salutary rule, and prevented T. J. Tompkins from obtaining any title to the homestead forty-acre tract by virtue of his purchase thereof at the tax sale after his wife had obtained a patent to the land from the United States.

Again it is contended by counsel for appellant that the latter obtained title to the forty-acre homestead tract by purchase and conveyance from his wife. In this contention we think counsel is correct. It appears from the record that the dower interest of Lurena Tompkins in the estate of tW. M. Tompkins, deceased, was set off to her in 1910. According to the testimony of T. J. Tompkins, the children of. W. M. Tompkins, deceased, raised objections to the title to the said forty-acre tract being in appellant when the widow’s dower was being set off in the estate of W. M. Tompkins, deceased. They claimed that the land belonged to the estate, and not to T. J. Tompkins by virtue of his purchase at the tax sale. Then Lurena Tompkins sold the land to her husband for $50 and T. J. Davidson wrote the deed from Lurena Tompkins to T. J. Tompkins to said land and took her acknowledgment to it. The deed is now lost.

According to the testimony of T. J. Davidson, he represented Mrs. Tompkins in the settlement of her dow- ■ er interest in the estate of W. M. Tompkins, deceased. Mrs. Tompkins told him that she desired to give her husband, T. J. Tompkins, the homestead forty-acre tract in question. Davidson .prepared a deed to that effect, and Lurena Tompkins acknowledged the deed. He stated that he thought that he delivered the deed to her, and that her husband was present when he did so. It is true that his recollection was that this happened in 1902, which was before the United States had issued a patent to the land to her. It is evident that the witness was mistaken as to the date; for he states that he prepared the deed while he was representing Mrs. Tompkins in having her dower set apart to her, and while that suit was in progress. The records of the probate court show that her dower was set apart to her in the latter part of 1910. These facts and circumstances are sufficient to show that a deed had been made by Lurena Tompkins to T. J. Tompkins. Steward v. Scott, 57 Ark. 153. This was after the widow of W. M. Tompkins, deceased, had acquired an absolute title to the land by obtaining a patent therefor from the United States. She then had a right to convey the land to her husband, and the deed from herself to him at the time it was executed conveyed an equitable title to him in the land. Mathy v. Mathy, 88 Ark. 56, and Wood v. Wood, 116 Ark. 142.

The testimony of T. J. Tompkins, in connection with that of T. J. Davidson, who is entirely disinterested, shows that the wife wished to convey the forty-acre homestead tract in controversy to her husband. At the time she was having her dower in her first husband’s estate set apart to her, and their children were claiming that her second husband had no title to the land by virtue of his purchase at the tax sale, and that the land still belonged to their father’s estate. With the knowledge of these facts, the wife told her attorney that she wished to give the land to her husband and had him to prepare a deed for that purpose. The testimony shows that the transaction was free from any undue influence on the part of her husband, and is, we think, sufficient to establish the fact that the deed was made. There is nothing in the record to contradict this testimony except the fact that the deed is lost or missing, and we do not think that is sufficient. The testimony of the husband and of the attorney for the wife is positive, and establishes the fact of tbe conveyance by the wife to the husband of an equitable title in the land. The equitable title being in appellant, he is entitled to the possession of the land, and the court erred in divesting the title out of him and investing it in appellee.

As to the remaining forty acres, the decision of the chancery court was correct. The record shows that Win. McKinley originally owned this and other forty-acre tracts adjoining it. Various witnesses testified that ihey lived near the land, and that ¥¥. M. Tompkins had possession of it and claimed it as his own. After appellant married the widow of A¥. M. Tompkins, he became the guardian of the minor children of W. M. Tompkins and also administrator of his estate. ¥¥. M. Tompkins died, leaving five children as his sole heirs at law. One of these children sold her interest in her father’s estate to her mother and the other children. After this, another one of the children of W. M. Tompkins sold and conveyed to appellant her interest in her father’s estate. She made the conveyance to appellant in 1902, and he thereafter became a tenant in common with the other children. As such his purchase of the land at the tax sale amounted to no more than a redemption of the land.

In Sanders v. Sanders, 145 Ark. 188, the court held that a tenant in common can not add to or strengthen his tillo as against his cotenants by purchasing the title to the entire property at a tax sale. Thé court further held that such a proceeding amounted to no more than a redemption of the land from the tax sale, and that possession of the land thereafter by such tenant in common would be construed as the common possession of all the tenants in common until he did some act of ouster or notified the others that his possession was exclusive. In discussing the question the court said:

“In Cocks v. Simmons, 55 Ark. 104, it was held that a tenant in common of land can acquire no title to the interest of his cotenants by purchase at a tax sale of the whole for delinquent taxes, and that his purchase amounts to 310 more than the payment of the taxes, and gives him no right except to demand contribution from his cotenants. The rule is based upon a community of interest in a common title creating such a relation of trust and confidence between the parties that it would be inequitable to permit one of them to do anything to the prejudice of the others in reference to the property.”

The record shows that Yancey Tompkins was only twenty years of age at the time he brought this suit. Therefore there could be no' question of ouster against him, and the chancery court was right in decreeing him a two-thirds interest in said tract of land and his part of the rents and profits thereof.

In making an accounting between the parties the court rendered judgment in favor of Yancey Tompkins against T. J. Tompkins in the sum of $651.97. In doing this the court made appellant account for the rents and profits from both tracts, which was wrong. $128.87 of this ainount came from what we denominate the homestead forty. As we have already seen, this tract belonged to appellant, and it follows that the court erred in making him account for the rents and profits therefrom.

The court correctly found that appellant owed Yancey Tompkins $523 for cedar timber cut from the land which appellant owned as tenant in common with Yancey Tompkins and the other appellees. This part of the decree was correct. The result of our views is that the decree of the chancellor vesting title in Yancey Tompkins to a two-thirds interest in the homestead forty-acre tract described as the NE% of the NWli, section 31, township 17 N, range 4 West, is erroneous, and for that error the decree in this respect will be reversed, and the cause remanded with directions to the chancellor to render a decree dismissing the complaint of appellees with reference to this tract for want of equity.

The chancellor is also directed to render a decree in favor of Yancey Tompkins against T. J. Tompkins for the sum of $523, instead of $651.97. With reference to the decree with regard to the other forty-acre tract described as the SE% of the SW14 of section 19, township 17 N, range 4 West, the decree is affirmed.

It is so ordered.


text:
    State v. American Refrigerator Transit Company.
    Opinion delivered February 6, 1922.
    1. Taxation — private car companies — privilege tax. — Under Crawford & Moses’ Dig., §§ 9823-30, providing a method for the assessment and collection of an excise or privilege tax on private cars doing business in the State, the State can not collect an excise or .privilege tax unless the private car companies are doing business within the State during the period of time for which it is sought to assess and collect the tax.
    2. Taxation — private car company doing business in state.— A private car company, having no place of business in the State, which leases its cars to railroads engaged in business in the State, is not carrying on business within the State, within Crawford & Moses’ Dig., §§ 9823-30.
    Appeal from Pulaski Chancery Court, J. E. Mariineau, Chancellor;
    affirmed.
    statement of facts.
    The Attorney General of the State of Arkansas, proceeding under §§ 9823-30 Crawford & Moses’ Digest providing for the assessment and collection of an excise or privilege tax on private car companies doing business in this State, brought this suit in the chancery court against the American Refrigerator Transit Company, a foreign corporation, to recover a privilege tax levied against it by the said Tax Commission under the provisions of the act for the years 1918, 1919, and 1920.
    The defense to the suit is that the American Refrigerator Transit Company was not doing business in the State during the years named, and therefore was not liable for the tax provided by the statute.
    The parties have agreed upon the facts. The American Refrigerator Transit Company is a foreign corporation incorporated under the laws of the State of New Jersey, and has its principal office in the city of St. Lonis, Mo. The company owns and controls 5,000 refrigerator cars which are used by the various railroads of the United States, and for the use of which the railroads pay the company one cent per mile for each mile traveled by its cars, both empty and loaded, over the lines of the respective railroads. We copy from the agreed statement of facts the following:
    “The gross receipts tax assessed by the State of Arkansas for the years in question is based upon the aforesaid mileage allowance paid the American Refrigerator Transit Company by the railroads for all of the mileage made by the said A. R. T. cars within the State of Arkansas without distinction as between intrastate and interstate movements.
    ‘ ‘ The defendant company has nothing whatever to dc with the transportation of the freight shipped in its cars, but, as heretofore stated, simply rents or leases its cars to the railroads for a mileage allowance of one cent per mile, and, in order that this mileage may be calculated, it receives from the railroad companies way-bills showing the movements of its cars and the freight transported therein.
    “For each of the three years hereinafter mentioned, the American Refrigerator Transit Company has paid to the State of Arkansas a property tax assessed pursuant to act 224 of Acts of 1915 of the State of Arkansas. ’ ’
    The records of the company show that the mileage paid it for the use of cars where the points of origin and the destination are both within the State of Arkansas, aggregate for the period of time named in this lawsuit, the sum of $356.06, and the company tenders to the State of Arkansas the sum of $17.80, the amount due on this basis. The remainder of the amount claimed is for cars moving from points without the State of Arkansas to points within the State, or vice versa, or where the cars are moved from a point without the State through the State of Arkansas to a destination outside the State of Arkansas.
    The chancellor found the issues in favor of the defendant, the American Refrigerator Transit Company, and it was decreed that the plaintiff should not recover of the defendant any sum except the sum of $17.80, which the defendant tendered in court to the plaintiff.
    To reverse that decree this appeal has been prosecuted.

      J. S. Utley, Attorney General, A. L. Botenberry and J. G. Marshall, for appellant.
    Appellee is not engaged either in State or Interstate commerce, but in leasing cars to be run on railroads in this State, and such a business is taxable. The owner of such cars is not a carrier nor subject to the Interstate Commerce Commission. 237 IT. S. 434. The Commission cannot require the owner to furnish such cars to carriers. 242 IT. S. 208.
    The tax sought to be imposed under the statute, based on rentals received by the owners of the ears, does not affect the commerce in which the carriers are engaged, and is not a burden upon interstate commerce, as it is only indirectly and remotely affected thereby. 169 ü. S. 264; 171 U. S. 578, 592, 594; 158 IT. S. 431; 154 IT. S. 204.
    The chancellor in holding that the appellee was not engaged in business in this State was guided by the .opinion in the ease of Pickard v. Pullman Go., 171 IT. S. 34; but in that case the Pullman Company was itself engaged in interstate business as a comomn carrier, and was not required to file its articles in Tennessee or have a situs- there to do business. Here, the appellee has filed its articles in this State, and engaged in the business there specified, i. e., leasing its cars to be run over the railroad tracks in the State. It was therefore doing business in this State within the franchise tax law. 231 S. W. 184; C. & M. Digest, § 9809.

      The fact that the railroads operating the leased cars were under Federal control during two years of the time in question does not affect the right of the State to collect the tax nor exonerate the appellee from the payment thereof. Act March 21,1918 (ch. 25, § 15; Comp. Statutes 1918, § 3115 3-4; 41 Sup. Ct. Rep. 489.

      E. B. Kinsworthy and B. 8. Kinsworthy, for appellee.
    1. The pleadings do not show, nor does the evidence show, that during the period of time in question the appellee was doing business in this State. It could not, therefore, be held liable for the privilege tax.. 117 IT. S. 34, 29 L. Ed. 785.
    • 2. The statute, C. & M. Digest, §§ 9823-9, inclusive, limits the privilege tax therein mentioned to business done wholly within this State. Cars operated into and out of the State being vehicles of commerce and therefore engag’ed in interstate commerce, the proceeds on these cannot be taxed by State law. Fed. Statutes, Annotated, vol. 4, p. 351; 44 Fed. 310,142 IT. S. 339, 35 L. Ed. 1035; 132 IT. S. 473; 25 L. R. A. 120, 164 IT. S. 650, 41 L. Ed. 586. See also 75 Ark 126; 56 Id. 495; 58 Id. 438.
    3. A tax on the proceeds of cars operated into and out of the 'State would be a tax on interstate commerce, and a State law authorizing such tax would be void, and in violation of the commerce clause of the Constitution of the United States. Const. U. S. § 8, art. 1; Interstate Commerce Act of February 4, 1887, and amendments thereto. None of the cases cited in support of appellant’s contention holds that ears handled by a railroad company from one State to another for the purpose of carrying merchandise are not engaged in interstate commerce. The fact is, the car itself, when being handled from one State to another, is merchandise engaged in interstate commerce. 22 U. S. 1; 157 S. W. 917. Interstate commerce includes instrumentalities and agencies by which it is conducted, and the power of Congress extends to the regulation of such instrumentalities. 78 S. E. 489; 86 S. E. 748; 63 So. 693; 268 Fed. 662; 149 Fed. 486; 236 U. S. 439, 59 L. Ed. 661; 168 Fed. 987. See also 121 U. S. 230, 30 L. Ed. 889; 122 IT. S. 326, 30 L. Ed. 1200; 210 IT. S. 217, 52 L. Ed. 1031; 117 IT. S. 34, 29 L. Ed. 785. For further authorities on the meaning of commerce, see 22 IT. S. 1; 154 IT. S. 204, 38 L. Ed. 962, 969; 19 Fed. 679-709; 102 IT. S. 691-702, 26 L. Ed. 238; 48 IT. S. 283-401, 12 L. Ed. 702; 38 Cal. 492-497; 73 U. S. 35, 18 L. Ed. 745; 172 Fed. 545-560; 151 Fed. 608; 91 IT. S. 280; 96 Fed. 353; Pomeroy, Const. Law, § 378.
    4. Appellee cannot be held liable for the privilege tax during the period of Federal control, if liable at all. 41 Sup. Ct. Bep. 593; 250 IT. S. 135; 254 Fed. 880; 267 Fed. 171.
   Hart, J.

(after stating the facts). As above stated, this suit is based upon §§ 9823-30 of Crawford & Moses’ Digest, providing a method for the assessment and collection of an exercise or privilege tax on private cars doing business in this State. Under the provisions of the act, the State can' not collect an excise or privilege tax unless the private car companies are doing business within the State during the period of time for which it is sought to assess and collect the privilege tax.

The defendant company is a private car company created by the laws of the State of New Jersey, with its principal office in the city of St. Louis, Mo. It owns the cars sought to be taxed. It made a contract in St. Louis, Mo., with the railroad companies operating out of said city for the use of its cars at one cent for each mile traveled by the cars over the lines of the railroad companies. The routes are at the will of the railroad companies, and the defendant has nothing to do with the transportation of the freight hauled in its cars. The cars pass through the State both ways, hauling freight, or go from a point in the State to a point without the State or come from a point Without the State to a point within the State.

It is the contention of counsel for the State that the act was intended to tax as a privilege the using of cars for profit by the owner other than the railroad company which may he actually running them. The act in express terms provides for the payment of a privilege tax to be computed by taking 5 per cent, of the amount fixed by the Tax Commission as the gross receipts of the private car companies for business done by them within the ■State. That such a tax is constitutional, see Wallace v. Hines, 253 U. S. 66, and cases cited. The act by its terms only intends to tax a percentage of the gross receipts of private car companies doing business in this State. Under the facts just related, we are of the opinion that the defendant company was not doing business in the State within the period of time during which the State has sought to assess and collect a privilege tax from it. It therefore does not come within the provisions of the act; .and it is not required to pay the excise or privilege tax imposed by its terms.

In this respect the case is ruled by Pickard v. Pullman Southern Car Co., 117 U. S. 34. In that case the court held that a statute of Tennessee which imposed a privilege tax of $50 per annum on every sleeping car used or run over a railroad in Tennessee, and not owned by the railroad on which it was run or used, was void so far as it applied to the interstate transportation of passengers carried over railroads in Tennessee, into or out of or across that State, in sleeping cars owned by a corporation of Kentucky and leased by it for transportation purposes to Tennessee railroad corporations, the latter receiving the transit fare, and the former the compensation for the sleeping accommodations. There, as here, the private car company had no branch office or establishment of any kind in the State for the transaction of business. Its cars were operated under its contracts with the railroad companies made outside of the State. The cars furnished to the railroad companies under its contracts constituted all the property owned by it in the State, and the private car company in that case was not doing any business in the State unless the operation of its cars by the railroads constituted doing business.

In discussing the question in Pickard v. Pullman Southern Car Co., supra, the court said:

“The car was equally a vehicle of transit, as if it had been a car owned by the railroad company, and the special conveniences or comforts furnished to the passenger had been furnished by the railroad company itself. As such vehicle of transit, the car, so far as it was engaged in interstate commerce, was not taxable by the State of Tennessee, because the plaintiff had no domicile in Tennessee, and was not subject to its jurisdiction for purposes of taxation; and the cars had no situs within the State for purposes of taxation; and the plaintiff carried on no business within the State, in the sense in which the carrying on of business in a State is taxable by way of license or privilege. ’ ’

It will be noted that the court in that, case under a state of facts in all essential respects similar to the facts in the present case, said in plain terms that the private ear company in that case had carried on no business within the State in the sense in which the carrying on of business in a State is taxable as a privilege. Thus it will be seen that the precise question involved in this appeal was determined adversely to the contention of the State in that case. The principles of law decided in that case have never been overruled by the Supreme Court of the United States and govern the present case.

The cases of Fargo v. Hart, 193 U. S. 490, and American Refrigerator Transit Co. v. Hall, 174 U. S. 70, and other cases of like character relied upon by counsel for the State, have no application under the facts presented by the record. Those cases deal with the liability of foreign corporations for a property tax. Under the principles of law announced in those cases the defendant in the present case would be liable for a property tax on its cars on the theory that the situs of its cars for the purpose of taxation is in the State of Arkansas. It is liable for a property tax on its cars, not because it is doing business in this State, but because the situs of its oars for the purpose of taxation is here. It would have to pay a property tax, just as other persons or corporations must pay such a tax, regardless of the fact whether they did any business here or elsewhere. Such a tax is not levied for the privilege of doing business in the State, but because the property has .its situs for taxation here. The general rule is that a State cannot impose a tax on the property of a foreign corporation which has never been brought within its borders. When, however, movable property is regularly and habitually used in a State, it may be taxed according to its value, and tlie valuation need not be limited to the mere worth of the tangible property itself, but the State may look to the property of the corporation beyond its borders to arrive at the true value of the property within the State. Such a property tax is provided for in §§ 1001-8 of Craw- ’ ford & Moses’ Digest, (act 224 of Acts 1915); and the agreed statement of facts shows that this tax has been paid by the defendant in the instant case. We are of the opinion that the defendant was not doing business in this State during the years mentioned in the complaint, and therefore was not liable for the privilege tax imposed by statute on private car companies doing business in this State.

It is true that the chancery court rendered judgment against the defendant for the sum of $17.80, but this Was done because the defendant made a tender of this amount to th'e plaintiff, and not because the court found- that there was anything in the record tending to show that the defendant was doing business in this State within the period of time designated in the complaint. On the contrary, the chancellor was of the opinion that neither the pleadings nor the evidence showed that the defendant was doing business in the State of Arkansas, and we think that the chancellor was correct in reaching that conclusion.

It follows that the decree will be affirmed.


author: Smith, J.

text:
    Thomas-Bowman Cooperage Company v. Missouri & North Arkansas Railroad Company.
    Opinion delivered February 6, 1922.
    1. Railroads — shipping facilities — abandonment of spur track. —A judgment of the circuit court confirming an order of the Corporation Commission authorizing a railroad company to remove that portion of a spur track which lies beneath the level of a river bank and is subject to overflow will be affirmed where its maintenance, while eonveniencing a few shippers, is very onerous to the railroad company, and where adequate shipping facilities were furnished at the regular shipping track.
    2. Public service commission — jurisdiction.—The Corporation Commission had no jurisdiction, in an order authorizing the abandonement of part of a spur track, to determine the ownership of the ties and rails thereon.
    Appeal from Pulaski Circuit Court, Second Division, Guy Fulh, Judge;
    affirmed.

      Brmdidge & Neelly, for appellant.

      Shouse & Rowland, for appellee.
   Smith, J.

On September 23, 1920, the receiver of the Missouri & North Arkansas Railroad Company filed with the Corporation Commission an application for permission to remove a certain spur track located at Georgetown, extending from the main line track of the railroad to the north bank of the White River. Two sawmill operators and a number of citizens of the town filed protests against the application. There was a formal hearing before the Commission, and the Commissioners made a personal inspection of the spur in question.

On December 9, 1920, the Commission made the following order:

“It is on this day ordered that the Missouri & North Arkansas Railroad Company should be, and is hereby, authorized to take up and remove that portion of its spur track located at Georgetown, Arkansas, beneath the level of the river bank and which is subject to overflow. It is further ordered that said company shall not remove that portion of its spur track above the level of the bank, and which is being used by the mills at the present time for loading purposes and by the public for the loading of logs and other commodities. The Commission retains jurisdiction of the parties and subject herein for the purpose of issuing such further orders as to it may appear necessary and just. ’ ’ All the Commissioners concurred in this finding and order.

Thereafter the remonstrants, who had made themselves parties, prayed and perfected an appeal to the circuit court, where, after a hearing on June 20, 1921, the order of the Commission was confirmed, and an appeal to this court was taken.

This case comes to us in the same manner as the recent case of the St. Louis Southwestern Railway Co. v. Stewart, 150 Ark. 586, and in this case, as in that, we find it unnecessary to determine whether we review the evidence de novo as in chancery cases, as we do not find that the conclusion of the Corporation Commission and of the circuit court on appeal are contrary to the preponderance of the evidence.

The assistant engineer of the railroad testified that he had made an estimate of the cost of the spur track, and had fouiid it to be $8,887.36. He further testified as follows : The total length of the spur track is 3,672 feet, of which the first 2,000 feet of track lies over ordinary level land, which the witnesses designate as the upper track, and the balance lies over the river bank and in the river bottom, and is designated as the lower track. That the lower track is subject to overflow, and is expensive to maintain, and that the actual cost of maintenance for the year 1919 was $744. That only two industries are located on this track, both being sawmills, and that there is a passing track at Georgetown, which will accommodate 44 cars at one time, and that it is accessible. The passing track would accommodáte a larger number of cars, as it is 2,344 feet long, but a part of it is taken up with, cattle pens and other obstructions which would interfere with loading. That this lower track is under the river bank for approximately 1,600 feet, and has only a mud bottom foundation, and this soft ground causes frequent derailments. Witness did not think that this spur track was erected for the purpose of getting sawmills installed there, as one of the •mills was already there when the spur was installed, but he was not sure as to the other. That this track was no more accessible to the general public than is the passing track at this station. Witness admitted that there was a slough or draw, as some of the witnesses called it, which interfered with the free use of the passing track when the water was up, but he said, when this happened, the lower track would be submerged by the river.

The traffic manager of the railroad testified as follows : For the period of six months ending May, 1920, 19 cars had been received and unloaded at Georgetown and 160 shipped out. Of this business the total number handled on the lower track was 32, and on the higher track 44, and 84 on the passing track, and that the average freight paid the company was $30 per car, but that the company was paid nothing for its service in placing and moving cars on this spur. That in the beginning this spur was a wye for the purpose of turning trains, but that later a Mr.' Dean proposed to him that, if the railroad would put a derrick at the river bank, and have the track run to the derrick, and would establish through rates on lumber from White and Black River landings, to what is known as C. F. A. & Western trunk line territories, he (Dean) would bring logs and lumber down the river, stop them at Georgetown, and ship the lumber to these points of destination. The spur was extended to the river, the derrick installed, and for a time considerable business was handled, but the business fell off until it ceased to be remunerative, and the derrick was disposed of. It is not the practice of the railroad to give special service, such as is given over and to this spur, to other industries, along the line of the road, where the parties served do not pay for the maintenance and construction of the spur. He knew of no record of the railroad showing that the company had paid for the installation of this spur.

All the witnesses who used the spur either testified affirmatively that they whuld not be willing to pay their proportionate part of the cost of maintenance, or declined to answer the question whether they would do so. The managing officers of both sawmills testified that the spur was indispensable to them, in that their operating costs would be greatly increased if the spur were removed. One of these mills had been built by Mr. Dean, but it does not appear who built the other one nor when it was built.

It does not certainly appear who built this extension, although A. E. Thomas, the operator of the mill built by Mr. Dean, testified, without objection, that Mr. Dean told him he did the grading, furnished the ties and' everything himself, and paid for building the spur to the extent of $3,700, and that he was to have a royalty on the shipments that originated from the loading out of the logs until this sum had been refunded, but no refund had ever been made. Dean, who was said to be a resident of Newport, did not testify, but none of the remonstrants who did testify made any claim that they had ever paid any royalty which could be applied to Dean’s account. On the contrary, the evidence is undisputed that no switching or other charge had been made by the railroad, and while it is shown that during the six mbnths covered by Murray’s testimony the railroad collected $2,280 freight on cars loaded on the lower track, it also appears that this amount, and no less, would have been earned if the shipments had been loaded on either the upper track or the passing track.

Witnesses for remonstrants testified that the lower track was sodded with Bermuda, and they expressed the opinion that on this account the upkeep was not considerable, notwithstanding their admissions that in periods of high water the lower track became submerged.

We think, however, these opinions and estimates do not outweigh the testimony of the engineer, who gave the exact cost of maintenance of the railroad.

It very clearly appears that this spur is a very great convenience to the sawinills, and that their operating expenses will be increased by reason of a lengthened haul to the passing track; and it also appears that this spur track greatly .promotes the convenience of a few other shippers. But this is not a service which the railroad is required to furnish, in view of the fact that adequate facilities for all shipping purposes are furnished these remonstrants, and all others, at the regular passing track; and these remonstrants do not show any contractual right to have this lower track maintained. 22 R. C. L., page 908 (sec. 155 Railroads); 38 Cyc. 637; State v. Old Colony Trust Co., L. R. A. 1915-A, 549.

The Corporation Commission had no jurisdiction to adjudge the title to the property here sought to be removed, and we do not understand that it has in fact done so. If the railroad does not own this spur track, it gets no authority from the Commission’s order to damage it or to convert ties and rails laid upon it. The Corporation Commission found the fact to be that the railroad was the owner of the spur, and, upon this assumption, granted permission to the company to remove it; but, assuming the Commission to be in error in this finding, this is only an incident to the real relief sought, which is to be relieved from the duty of maintaining this spur. This duty the Commission had the right to adjudge, and their order goes only to that question. The title to the property is unaffected by the Commission’s order; and, if the railroad does not in fact own the spur, then it derives from this order nothing except absolution from further duty to maintain this lower track.

As thus interpreted, the judgment of the court below, confirming the order of the Commission, is affirmed.

Wood and Humphries, JJ., dissent.


text:
    Gish v. Scantland.
    Opinion delivered February 6, 1922.
    1. Trial — direction of verdict. — While the testimony of a litigant, although not contradicted by any other witness, does not make a case of undisputed testimony, upon which the 'court may direct a verdict, it was not error to direct a verdict upon the affirmative testimony of the plaintiff as to the correctness of his account where defendant’s answer failed to deny the correctness of any of its items.
    2. Set-off and counterclaim — want of reply — waiver.—Where defendant did not move for a judgment for want' of a reply to his counterclaim, but went to trial without objection as if the allegations of the counterclaim were in issue, the absence of a reply will be disregarded.
    Appeal from Lafayette Circuit Court, George R, Ilaynie, Judge;
    affirmed.

      King & Whatley, for appellant.

      Searcy é Parks and Samiter & Dickson, for appellee.
    Tlie failure to file a reply is waived if not objected to or raised before tlie evidence is introduced. 54 Ark. 216; 35 Ark. 109; 1 Ark. 90; 71 Ark. 364; 74 Ark. 104; 90 Ark. 156; 69 Ark. 114; 83 Ark. 154; 33 Ark. 107; 47 Ark. 493.
   Smith, J.

This is a proceeding to enforce a landlord’s lien. Scantland, the landlord, filed an itemized statement of His account, which he testified was correct, except that he admitted an item of $7.50 for damage done by stock, was not a proper charge, and this item was stricken from the account. Gish, the tenant, filed a counterclaim, about which he testified at length, but he did not deny the accuracy of Scantland’s account against him. The issues of fact raised by the testimony related to the items set out in the counterclaim.

At the conclusion of the testimony the court gave a general charge submitting to the jury the two accounts, with the direction to find the amounts for which the litigants should have credit, and then strike a balance and render a verdict accordingly. After so instructing the jury, the attention of the court was called to the fact that the defendant had not denied the correctness of the plaintiff’s account, whereupon the court gave the following additional instruction: ‘£ Gentlemen, I will say this: If you find from the evidence that there is no part of the plaintiff’s claim that is denied or disputed by defendant, then the plaintiff is entitled to recover for the full amount he sues for; it is just a question of how much should be deducted from that, if any, on account of the defendant’s counterclaim. I am talking about the evidence, what the witnesses say about it.”

The defendant objected and excepted to this instruction, and then asked the court to charge the jury that ££if you find that there is no reply filed, defendant is entitled to judgment on his counterclaim.”

There was a. verdict and judgment in favor of the landlord, from which is this appeal, and for the reversal of the judgment the only errors assigned are the action of the court in giving plaintiff’s instruction and in refusing the one asked by the defendant.

We think no error was committed in giving the instruction set out above. It is true we have several times held that the testimony of a litigant, although not contradicted by any other witness, does not make a case of undisputed testimony, upon which the court may direct a verdict, upon the theory that the facts of the case are not in dispute. This is true for the reason that the interest of the litigant in the subject-matter of the litigation makes a question for the jury whether the testimony is true, as it is a circumstance from which an inference may be drawn unfavorable to his testimony or against the facts testified to by him. Skillern v. Baker, 82 Ark. 86; Salmon v. Boyer, 139 Ark. 236; American Surety Co. v. Black, 125 Ark. 464; Paxton v. State, 114 Ark. 393. But here we have not only the affirmative/ testimony of the plaintiff, but the tacit admission of the defendant arising out of his failure to deny the correctness of any of the items of plaintiff’s account; and in the circumstances the court did not err in treating the correctness of plaintiff’s, account as being admitted.

Appellant insists that, having given plaintiff ’s instruction, the court should then have given the one requested by him. But we do not think this follows. There was much conflicting testimony in regard to the counterclaim. There was no motion for a judgment for the want of a reply, and the case was tried without objection as if the allegations of the counterclaim were in issue; and when this is done the absence of a reply will be disregarded. Hill v. Imboden, 146 Ark. 99.

No error appearing, the judgment is affirmed.


text:
    Watkins v. Louisiana State Life Insurance Company.
    Opinion delivered February 6, 1922.
    1. Trial — both parties requesting directed verdict. — Where both parties ask for a peremptory instruction, and for no other instruction, they in effect submit the case to the court sitting as a jury, and the finding and judgment of the court, made under those circumstances, have the same effect as the jury’s verdict would have had.
    2. Insurance — proof of death in military service. — Under Crawford & Moses’ Dig. §§ 6157-8, the introduction of a certificate of the Adjutant General of the War Department that an insured person had died in battle while in the military forces of the United States was sufficient to support a finding that insured was killed while in the military service of the United States in time of war.
    3. Insurance — extra premium for increased hazard. — A life insurance company had the right to charge an extra premium at the established rate for the increased hazard occasioned by the enlistment of the insured in the military service of the United States.
    Appeal from Yell Circuit Court, Dardanelle District, A. B. Priddyi Judge;
    affirmed.

      Jno. B. Crownover, for appellant.
    The court erred in taking the case from the jury and rendering a judgment for the defendant. 95 Ark. 561; 71 Ark. 447; 76 Ark. 522; 73 Ark. 561; 89 Ark. 222; 89 Ark. 372; 63 Ark. 94; 77 Ark. 556; 36 Ark. 451; 35 Ark. 146; 62 Ark. 63; 8 Ark. 57.
    Courts do not favor insurance forfeitures, nor do they regard with favor technical defenses. 20 Ark. 214; 67 Ark. 511; 67 Ark. 558; 21 Minn. 805; 23 Minn. 491; 32 N.Y. 405; 101 Mass. 558; 5 Ind. 103; 2 May on Insurance, sec. 361.
    A contract of insurance is construed most strongly against the insurer. 58 Ark. 528; 67 Ark. 558; 80 Ark. ‘ 49; 86 Ark. 115; 89 Ark. 471; 94 Ark. 417. .'

      Wilson S Chambers, and Wilkinson, Lewis & Wilkinson, for appellee.
    The court did not commit any error in taking the case from the jury and in rendering judgment for defendant. 26 R. C. L. sec. 83, p. .1080; 100 Ark. 71; 139 Ark. 643; Security Life Ins. Co. v. Bates, 144 Ark. 345.
    The policy was properly in evidence, and there was no error in permitting it to be read to the jury. 2 C. J. 1258; 1 R. C. L. p. 1033, sec. 68; 25 Cyc. 723.
   Smith, J.

• Appellant is the beneficiary named in a policy of life insurance upon the life of her brother, Horace Vernon Collins, issued by appellee, hereinafter referred to as the company. A copy of the policy was made an exhibit to the complaint, and on page 2 thereof appears a section numbered 5, which deals with the liability of the company in case of total disability on the part of the insured. Section No. 12 provides: “This policy is free of conditions as to residence, travel or occupation. No permit or extra premium will be required for military or naval service in time of war, or in time of peace.” On page 3 of the policy there is printed or stamped the following statement: “Military and Naval Service. — Any engagement in Military, Naval or Aerial service in time of war shall require the written permission of the company and the payment of an extra premium at the established rate. Should the insured engage in such service, without the company’s written permission, and liis death occur while thus engaged, or as the result thereof, the liability of the company hereunder shall be limited to the then legal reserve under this policy. This modifies sections 5 and 12 of this policy.”

At the trial the company produced, and offered in evidence, an agreement purporting to have been signed by the insured on the day of his application and accompanying it, in which the insured expressly agreed that, if the rule of the company required it, any policy which the company should issue on his life should' contain the clause which was inserted on page 3 of the policy set out above.

It is insisted that the testimony does not show that the insured signed this agreement, but that in any event that question should have been submitted to the jury.

At the conclusion of all evidence in the case, both sides asked for a peremptory instruction, and neither side asked for any other instruction. This, under our practice, is a withdrawal of the case from the jury and the submission of it to the court sitting as a jury, and the finding and judgment of the court, made under these circumstances, has the same binding effect the jury’s verdict would have had, and will be affirmed by us if the testimony, viewed in the light most favorable to the prevailing party, is legally sufficient to support the verdict. Security Life Ins. Co. v. Bates, 144 Ark. 345; St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71; Webber v. Rogers, 128 Ark. 25.

There was a finding and judgment for the plaintiff in the sum of $36.95, the legal reserve under the policy, and the plaintiff has appealed.

We are asked to reverse the judgment upon three grounds. The first ground is, that the court should have submitted to the jury the question whether the deceased came to his death while engaged in the military service of the United States in time of war. As to this assignment of error, it may be said that the question was submitted to the jury by the joint request for a peremptory instruction, and the evidence certainly supports the court’s finding that the insured was killed while thus engaged, as the proof of death was made by the production of the certificate of the Adjutant General of the War Department, as provided by §§ 6157 and 6158 of C. & M. Digest, which read as follows:

“Sec. 6157. From and after the passage of this act, it shall be competent and proper in the trial of all causes arising from death claims against insurance companies, accruing on account of death of the insured in foreign lands and while in the service of the United States government as a soldier in the army or navy of the United States, to introduce as evidence a certificate from the office of the Adjutant General of the United States certifying the death of the insured.

“Sec. 6158. When the certificate, as provided in § 6157 of this act, officially signed and certified, has ¡been introduced in evidence in the trial of a cause as stated in § 6157 of this act, it shall be taken and received and considered in such trial as prima facie evidence of the death of the insured.”

The Adjutant General’s certificate, after its caption, reads as follows:

“The records of this office show that Horace V. Collins was enlisted May 27, 1918, at Danville, Arkansas, and was killed in action (by shell fire) on October 16, 1918, in battle of Verdun Sector while serving as a private, 'Company 1, 1.27 Infantry. At date of enlistment he gave his age as 25 years, 5 months, and the name and address of the person to be notified in case of emergency as Mande Collins Clinton, (sister), route No. 2, Danville, Arkansas.”

It appears, therefore, that'the instrument which proves the death of the insured also states the cause of his death and shows that he died a hero’s death by being killed in the battle of Verdun.

The second assignment of error is that the court should have submitted to the jury the question whether the insured signed, the agreement which accompanied his application.’ As we have said, this question was, of course, submitted to the court as a jury, and the testimony is legally sufficient to support a finding that the insured signed it, but it is not essential that we find that he signed this statement for the reasons stated in our discussion of the third assignment of error.

The third assignment of error is that the court should have submitted to the jury the question of the validity and effect of the printed matter appearing on page 3 of the policy set out above. As we have said, the court’s general finding is, of course, decisive of that question. There is no showing whatever that this printed matter on page 3 is not a part of the policy. It appears on the policy, which plaintiff filed as an exhibit to her complaint as the basis of her suit. There is no contention that the company issued any other policy on the life of the insured, and the policy sued on has been in the possession of the beneficiary since its issuance.

The modification on page 3 of the policy was no doubt made in response to the purported agreement of the insured which was alleged to have accompanied his application. But, whether this is true or not, the undisputed fact is that page 3 is a part of the policy issued by the company as sued on by the plaintiff, and expressly modifies paragraphs 5 and 12 appearing on page 2 thereof; and its plain provisions support the court’s findings as to the sum recoverable thereunder.

The plaintiff admitted she had paid no extra premium, although she admitted knowing that this extra premium was required. Plaintiff admitted writing the following letter:

“Dardanelle, Ark., Sept. 1918.

“Louisiana State Life Co.

“This is to let you know that Horace Collins has been sent over seas. What are the terms of the extra payment? How much is the first payment, and when due? I am his sister and will try to keep up his policy until he returns?”

On the part of the company it was testified that a reply to this letter was sent advising the plaintiff that the extra premium would be $100. Plaintiff denied having received this letter, bnt admits that on September 22, 1919, she wrote a letter to the company in which she stated that “I did not know that there was an extra premium to be paid for overseas duty, for I have never read the policy, until I had heard it talked around last fall, so I wrote you to know, and by the time I reed, your ans. or soon after my brother was reported to have been severely wounded. I was trying to make the hundred dollars to deposit with the company.”

The company had the right to charge ‘ ‘ an extra premium at the established rate” for the increased hazard occasioned by the enlistment of the insured in the military service of the United States. Nutt v. Security Life Ins. Co. 142 Ark. 29; Benham v. American Central Life Ins. Co., 140 Ark. 612; Miller v. Illinois Bankers’ Life Assn., 138 Ark. 442.

The testimony supports the finding that the insured was killed in action without having paid this increased rate, and the recovery was therefore properly limited to the legal reserve under the policy, as therein specified.

Judgment affirmed.


text:
    Snyder v. State.
    Opinion delivered February 6, 1922.
    1. Jury — bias—preconceived opinion. — Where a juror, on his voir dire, testified that he knew the families of both the deceased and the defendant, that he knew too much about both families, that he had talked with the witnesses on both sides, and that he had a feeling which would influence him, and did not believe that he could give a fair and impartial trial, it 'was error to hold him a competent juror, though he subsequently stated that he could disregard that opinion and try the defendant according to the law and evidence.

      2. Jury — incompetent juror — prejudice.—When defendant’s peremptory challenges were exhausted before panel of the jury was filled, the error of holding- a biased juror to be competent was prejudicial.
    Appeal from Pulaski Circuit Court, First Division, John W. Wade, Judge;
    reversed.

      J. A. Weas and Lewis Rhoton, for appellant.
    The court erred in holding jurors Holt and Biff to be qualified.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants.
    Holt stated his opinion was formed from reading newspaper reports of the,case, hut stated he could try the case on the evidence. He was therefore qualified. 72 Ark. 613; 79 Ark. 127; 80 Ark. 113; 85 Ark. 64; 101 Ark. 443; 103 Ark. 21; 109 Ark. 450; 114' Ark. 472. Appellant cannot complain of Holt, as he entered only a general challenge to this juror. Standard Enc. of Proc., vol. 17, pages 146-149.
    Juror Biff was not challenged for cause, and appellant can not now complain of him. Standard Ene. of Proc., vol. 17, pages 119-123; 100 Ark. 437; 74 Ark. 286.
    The finding of the court that the jurors were competent has the same sanctity as a verdict of a jury upon a question of fact. West v. State, 150 Ark. 555.
    If appellant was not satisfied with the correctness of the bill of exceptions as approved by the judge, with certain indorsements thereon, he had a remedy under § 1322, C. & M. Digest, to have the recitals corrected.
   Smith, J.

Appellant was indicted for murder in the second degree, and was found guilty of voluntary manslaughter, and has appealed.

The only error assigned for the reversal of the judgment is that the court erred in holding jurors Holt and Biff competent.

We think the court properly held juror Holt to be competent, as the opinion entertained by him was shown to have been based solely on rumor. But we think it equally clear that the juror Riff was disqualified, and that the court erred in holding him competent.

In response to the questions of the prosecuting attorney Riff answered that he knew the families of both the deceased and the defendant. He w'as asked if he could disregard any feeling or opinion he had and try the case according to the law and the evidence, and he answered, “I have a feeling that would influence me in arriving at a verdict. ’ ’ He was asked if he could lay that aside, and he answered, “No.” He was asked if this feeling was based on facts or knowledge of the family, or both families, and answered, “I know too much about both families; I have a feeling that would influence me.” He was then asked by the prosecuting attorney, “You don’t think you could give a fair and impartial trial, regardless of the evidence?” He answered, “I don’t believe I could. ’ ’ He was then asked by the court if. he had talked with any of the witnesses, and answered that he had talked to witnesses on both sides, and that “I have discussed the case thoroughly both ways; both sides told me about the transaction.” His examination thereafter was conducted by the court and is as follows: “ Q. Did both sides tell the same thing about it ? A. No. Q. Did you believe both sides? A. No. Q. Did you believe one side? A. I did at that time. Q. Have you got that belief yet? A. Yes. Q. Based on having talked with them? A. Yes. Q. Is that an opinion as to the guilt or innocence of the defendant? A. It would require a good deal of evidence to remove- my opinion. Q. Do you think it is a fixed opinion? A. So far. Q. Could you try the case according to the law and the evidence? A. Yes; I would have to do that. Q. If selected as a juror would you disregard any impression or opinion you might have and try it according to the law and the evidence. A. Yes. Q. You would go into the jury box and try it fairly and impartially according to the law and the evidence as if you had never heard of it? A. Yes; I would have to do it. Q. Could you do it? Could you succeed in doing it? A. Yes; I would have to.”

These last questions of the court were objected to as leading, and exceptions were saved thereto.

The court then held Riff competent, to which ruling the defendant excepted and then challenged him, and before the jury was completed exhausted her challenges.

Thereafter, one Reynolds was sworn and examined touching his qualifications to serve as a juror, and there appears in the bill of exceptions the following finding of facts made by the court in regard to the selection of Reynolds to serve as a juror in the case:

“We had much difficulty in getting a jury in this case. Mr. Rogers interrogated on voir dire for State and Mr. Rhoton for defense. They were both unnecessarily tedious and repeated much. The record does not purport to show all the voir dire. The two panels of jurors were exhausted and the bystanders, and the court waited several times for the sheriff to go out and bring in special jurors into court. All the morning was thus consumed, and much of the afternoon, before defendant exhausted all her peremptory challenges. In doing so, Mr. Rhoton said to the court, I have excused good men in order to exhaust my challenges. I am now ready to accept most any bystander after making formal objection. Thereupon the sheriff called juror Reynolds, and Mr. Donham, of the prosecuting' attorney’s office, said to the court that the State does not want him and will excuse him. To which the judge replied, “If that is what you are going to do, accept him, and out of abundant caution I will reverse my ruling on the juror Riff and excuse him for cause and thereby give the defendant an opportunity to excuse Reynolds peremptorily.” The juror Reynolds was then interrogated by both sides and accepted by the State, when Mr. Rhoton, to the surprise of the -court and prosecutor, promptly accepted the juror. He never objected to him but accepted him. The court then and there in the presence and hearing of counsel commanded that the record show that the juror had been accepted by the defendant. Mr. Rogers inquired aloud what the court had said, whereupon the command was repeated. At no time did counsel for defendant object to or do or say anything about it. The court thereupon concluded that the juror Reynolds was acceptable to the defendant, and the court is of the opinion that the State could not excuse him after they accepted because defendant’s peremptories were exhausted. The court still believes jurors Riff and Holt competent and qualified, .but would have removed any possible doubt about it had not defendant accepted juror Reynolds under the circumstances just detailed. ’ ’

Upon consideration of this record, we think the court should have held Riff disqualified. Notwithstanding his answer that, if he was accepted as a juror, he would have to try the case according to the law and the evidence, it clearly appears that he had a fixed opinion on the merits of the case, based upon a narrative of facts traceable to a definite source — the witnesses in the case — ■ on both sides of the case. Riff 'should therefore have been excused as disqualified. West v. State, 150 Ark. 555 ; Collins v. State, 102 Ark. 180; Caldwell v. State, 69 Ark. 322.

It is insisted by the State that Riff was not first challenged for cause before being challenged peremptorily. Challenges are of two lands, first, to the panel; second, to the individual juror. Section 3151, 0. & M. Digest. The challenge to the individual juror is, first, for cause; second, peremptory. Section 5153, O. & M. Digest. Challenges for cause may be general or particular. Section 3156, C. & M. Digest. Causes for general challenges relate to the right of the juror to serve in any case and are, first, a want of the qualifications prescribed by law; second, a conviction for a felony; third, unsoundness of-mind, or such defect in the faculties of the mind or organs of the body as renders him incapable of properly performing the duties of a juror. Section 3157, C. & M. Digest.

Particular causes of challenge are actual or implied bias. Section 3158, C. & M. Digest.

“Actual bias is the existence of such a state of mind on the part of the juror in regard to tin? case, or to either party, as satisfies the court, in the exercise of a sound discretion, that he can not try the case impartially and without prejudice to the substantial rights of the party challenging. ” Section 3159, C. & M. Digest.

Implied bias is a bias arising by implication of law from airy of the relations or conditions set out in section 3160, C. & M. Digest, which need not be recited here.

Either actual or implied bias is made a ground for challenge on the part of either the State or the defendant. In addition to these challenges for actual or implied bias, the State is given ten peremptory challenges, and the defendant twenty peremptory challenges, in the trial of felony cases. These peremptory challenges may, of course, be used by the State or by the defendant for any reason and without assigning a reason. An indefinite number of challenges for cause may be interposed by either the State or the defense, but only the statutory number of peremptory challenges can be used. When these peremptory challenges have been exhausted, challenges can thereafter be made only for cause.

We think the examination of Riff set out above makes it clear that he was being examined touching his bias or the existence of such a state of mind on his part in regard to the facts in the case as would prevent him from trying it impartially and without prejudice to the substantial rights of either the State or the defendant. Section 3159, C. & M. Digest.

The record presented no question of a cause for general challenge. The only question presented for the decision of the court was that of the existence of bias. The examination of the juror, both bv the prosecuting attorney and by the court, was devoted entirely to the question of bias, and the ruling of the court, based in part on the responses of the juror to the questions of the court, could have meant only that, in the opinion of the court, the juror was not shown to have such an opinion as disqualified him from serving in the case. There was therefore no failure of the defendant to properly challenge the juror for cause.

We think there is nothing in the court’s finding of facts set out above which cures the error of holding Riff competent. This ruling was never reversed. The defendant used her twentieth and last challenge before the juror Reynolds was called. She could then only challenge for cause, and not peremptorily, and the record does not show that the right to challenge Reynolds for cause existed. There was no question about the competency of Reynolds. He could only have been challenged peremptorily, and this right did not exist on the part of the defendant for the reason that she had exhausted her last peremptory challenge on Riff.

We do not understand, from the court’s statement, that the conversation between the prosecuting attorney and the court occurred in the hearing of all parties concerned, in fact, the statement of the prosecuting attorney to the court that he did not want Reynolds and would excuse him, indicates that the remarks of both the court and the prosecuting attorney to each other were aside. The judge did have the record to show that the defendant accepted Reynolds, but there was nothing else for her to do, as her challenges were exhausted. As we understand the record, the court formed the purpose of reversing its ruling in regard to juror Riff, and indicated that fact to the prosecuting attorney, and this was to be done upon condition that the prosecuting attorney would not peremptorily challenge Reynolds; but the court did not announce this intention to reverse its ruling, and the defendant was not advised of it and was not therefore in position to exercise any challenge after having exhausted her peremptory challenges. In other words, before the jury was completed, the defendant exhausted her twenty peremptory challenges by being compelled to use one of her challenges on a juror erroneously held competent. This was error and calls for the reversal of the judgment. It is so ordered.


author: Humphreys, J.

text:
    Laster v. State.
    Opinion delivered February 6, 1922.
    1. Continuance — absent witnesses. — A continuance on account of absent witnesses was properly overruled where there was no showing as to the whereabouts of the witnesses. '
    2. Witness — cross-examination as to collateral matter. — Where the prosecuting witness in a prosecution for arson was asked on cross-examination as to the state of feeling existing between him and the accused, the accused was bound by his answer, as it related to a collateral matter, and could not contradict him by other testimony.
    Appeal from Mississippi Circuit Court, Chickasawba District; R. E. L. Johnson, Judge;
    affirmed.

      G. W. Barham, R. Duncan and E. E. Alexander, ' for appellant.
    The court erred in refusing a continuance of the case to procure the witnesses for appellant, and also in refusing to permit appellant to relate the state of feeling existing between himself and Martin.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Appellant’s motion for continuance was not verified until after the trial and judgment and was properly overruled. Logan v. State, ms. op.; 15 Ark. 252. Appellant did not exercise due diligence in procuring the attendance of his witnesses. Coppersmith v. State, 149 Ark. 597.

      The testimony complained of by appellant as being refused by the court was not competent, nor such testimony as could be brought out on cross-examination. 16 Ark. 568; 132 Ark. 518. Before one can complain of excluded testimony, he must first show what such testimony would have been. 87 Ark. 123; 88 Ark. 362; 133 Ark. 599.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Mississippi Circuit Court, Chickasasawba District, for the crime of arson for unlawfully, feloniously, wilfully and maliciously burning a. barn, the property of T. F. Martin, and as a punishment therefor was adjudged to serve a term of seven years in the State penitenitary. From the judgment of conviction an appeal has been duly prosecuted to this court.

The indictment was returned against appellant at the April, 1921, term of the court. He was arrested on the 11th day of April following, and at the July term thereafter the cause was continued on his application until the regular term of court which convened bn the 31st day of October, 1921.

An alibi was interposed by appellant as a defense to the charge, and after the continuance of the cause at the adjourned term he had subpoenas issued and served upon certain witnesses for the purpose of establishing his defense. On the first day of the October term, which was the 31st day of October, appellant filed the following motion for a continuance until the next term of court:

“The defendant, J. B. Laster, prays the court to grant him a continuance in the above cause until the next term of this court, and for the grounds thereof says: That J. Jones and Della Jones, Jim Davis and Lizzie Davis are material witnesses for the defendant, and if present would testify that they were at the home of J. B. Laster on the night that Tom Martin’s barn burned, and that J. B. Laster was at home during the entire time engaged in playing the graphophone. The defendant knows said fact to be true.

“The defendant is hasing his defense npon an alibi.

“The defendant says that he has caused the above mentioned witnesses to be subpoenaed, and service has been had npon them; that said witnesses are not absent by the defendant’s consent, connivance or procurement, and defendant believes that, if he is granted a continuance herein, he would be able to procure the said witnesses upon the trial of this cause, or take their depositions.

(Signed) J. B. Laster.

“J. B. Laster states that the facts set out in the foregoing motion are true and correct.

“Subscribed and worn to before me this the 31st day of October, 1921.

“Jesse L. Russell, Clerk.”

Over the objection and exception of appellant the motion was overruled, and the overruling of the motion is assigned by appellant as a ground for the reversal of the judgment. The motion was properly overruled, as appellant made no showing as to the whereabouts of the witnesses at the time the motion was filed. It was necessary to know and allege the whereabouts of the witnesses so that the court might determine whether appellant could procure their attendance or their testimony at the next term of the court. The naked allegation in the motion that appellant believed that if granted a continuance until the next term he could procure the attendance of the witnesses or their testimons^ was insufficient. Rider v. State, 140 Ark. 1; Adkisson v. State, 142 Ark. 15.

The motion for a continuance for a few days’ read into the record on the second day of the term embodied a supposition that the witnesses were at Wilson, in said county, but the information was not definite, and was after the jury had been impaneled to try the case, and the motion itself did not meet the requirements of the statute governing continuances. Brickey v. State, 148 Ark. 595.

The only other assignment of error insisted upon by appellant for reversal is the refusal of the court to permit him, when on the witness stand, to explain the feeling existing between him and the prosecuting witness at the time the barn was burned. The attorney for the State made no attempt, when the prosecuting witness was called to the stand, to show by him that bad feeling existed between him and appellant at and before the time of the alleged crime. Appellant’s own attorney brought cut that fact on cross-examination of the prosecuting witness. The testimony elicited was collateral. This court said, in the case of Crawford v. State, 132 Ark. 518, that “the cross-examining party in a criminal case is bound by an answer concerning collateral matters.” In the earlier case of Atkins v. State, 16 Ark. 568, this court said that “in such eases the cross-examining party must be satisfied with his” (meaning the witness being interrogated) “answer.”

The judgment is affirmed.


text:
    Williams v. Bogard.
    Opinions delivered February 6, 1922.
    Judgment — misprision of clerk — vacating after term. — Misprisions of the clerk in entering judgments may be set aside, upon mption with notice, by the court in which the judgment or final order was rendered after the expiration of the term, under Crawford & Moses’ Dig., §§ 6290-1.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      Culbert L. Pearce, for appellant.
    The clerk committed error or misprision in entering personal judgment against appellant. It is not responsive to the verdict, and subject to correction by 'appeal. Sec. 6285 et seq., C. & M. Digest. A judgment must-conform to the verdict, and where it does not, neither the clerk nor the court has authority to make it otherwise. B. O. L. vol. 15, p. 43 and cases cited. 5 Ark. 375; 29 Ark. 597; 47 Ark. 126; 50 Ark.' 96.

      G. G. McKay, for appellee.
    The effect of the jury’s verdict was to render personal judgment against appellant. Judgment could only have been rendered against the plaintiff or the defendant, not against the garnishee or the bank. 99 Ark. 433; 101 Ark. 29; 101 Ark. 193; 117 Ark. 394.
    If a misprison, appellant had a remedy under secs. 6285-91, C. & M. Digest, to have same corrected. 107 Ark. 415.
    Procedure to correct misprision shall be. by motion upon reasonable notice to adverse party. 34 Ark. 291. No such motion was filed or notice given.
   Humphreys, J.

This suit was instituted by appellant against appellees in the chancery court of White ' County to prevent the enforcement of a personal judgment rendered against him on the 5th day of February, 1920, in the circuit court of said county, through the alleged misprision of the clerk of said court. It is alleged that, iñ a suit in the circuit court wherein appel-. lant was plaintiff and appellee J. H. Bogard defendant and cross-complainant, and C. M. Erganbright garnishee, the jury returned a verdict in favor of defendant Bogard for $289, which the garnishee Erganbright owed Bogard, and which sum, being on deposit in the First National Bank of Judsonia, of which the garnishee was president, he tendered it into court for payment to the proper party; that, notwithstanding the verdict awarded the money in possession of the garnishee to J. H. Bogard, the clerk of the court, through mistake or misprision, entered a personal judgment for said amount against appellant J. M. Williams. A demurrer was filed by appellees to the complaint, which the chancery court treated as a motion to transfer to the law court, and thereupon transferred the cause to the circuit court, in which the verdict was returned and judgment entered, thereby necessarily holding that the allegations of the bill did not state a cause of action in equity, but were sufficient to obtain relief in the law court which entered the judgment.

Upon transfer of the cause the appellees demurred to the pleading upon the ground that it did not state facts sufficient to constitute a cause of action at law. Over the objection and exception of appellant, the court sustained the demurrer and dismissed the proceeding, from which is this appeal.

Appellant insists that the complaint stated a cause of action, and that the court - erred in sustaining a demurrer thereto and dismissing it. The proceeding was in the court in which the verdict had been returned and judgment entered. It was in the nature of a motion after the expiration of the term to correct a judgment which did not conform to the verdict, occasioned by the mistake or misprision of the clerk in entering it. The language imports that the judgment entered was not ren dered by the court. It is true, as suggested by appellees, that an appeal from the judgment had been granted and abandoned by appellant, but on appeal only errors of the court in rendering the judgment could have been corrected. Misprisions of the clerk in entering the judgment could not have been corrected on appeal without having first been presented to and acted upon by the trial court. Section 6288 of Crawford & Moses’ Digest provides: “A misprision of the clerk shall not be a ground for an appeal until the same has been presented and acted upon in the circuit court.” Misprisions of the clerk in entering judgments may be set aside, upon motion with notice, by the court in which the judgment of final order was rendered after the expiration of the term. Crawford & Moses’ Digest §§ 6290-6291.

The complaint should have been treated by the court as a proceeding upon motion to correct the mistake or misprision of the clerk so as to conform the judgment to the verdict. The court therefore erred in sustaining the demurrer and dismissing the complaint. The judgment is reversed and the cause remanded, with directions to overrule the demurrer to the complaint.