author: Butlee, J.

text:
    Bristow v. Bristow.
    4-2602
    Opinion delivered July 11, 1932.

      J. B. Perrymore, J. D. Benson and O. D. Thompson, for appellant.

      J. P. Clayton and O. C. Carter, for appellee.
   Butlee, J.

The parties to this litigation lived together as man and wife.in this State until 1911, at which time they separated and appellee removed to Texas, where, in January, 1914, he obtained a divorce. The decree awarding him a divorce contained no reference to his property. Tears later, after appellee’s health had failed, he returned to this State, and on November 10, 1930, brought this suit against his former wife to recover possession of certain real estate, both rural and urban.

The complaint alleged the joint ownership of the real estate there described, but testimony was offered touching the title to only three town lots the title to- which had been conveyed to appellee individually. The judgment rendered from which is this appeal makes no reference to the rural property.

Appellant defended upon the grounds that she took title to the property under a parol agreement to that effect and through adverse possession for many years. She testified that, after a conference in 1911 with ap-pellee, who was then her husband, it was agreed that he should deliver to her the possession of all his real estate, a portion of which was incumbered, and that she should become the owner thereof. The consideration for this agreement was the assumption of payment by appellant of the debts upon the property secured by liens thereon and the payment of certain unsecured personal debts then owing by appellee amounting to several hundred dollars, and the additional agreement on her part to take care of and educate their three children. Appellant testified that these obligations had all been performed, and was corroborated by the two children now living, the third having died.

Appellee denied having made this agreement, although he admitted having left his wife in possession of the property. His version of their agreement upon separating was that she might occupy and use the property while the children were being educated.

This brief statement presents the issues of fact in the case, and no useful purpose would be served by setting out the more or less conflicting testimony.

As has been said, the case as adjudged related only to the city property, and upon this issue the court gave the following instruction: ‘ ‘ Gentlemen of the jury: Mr. Bristow sues Mrs. Bristow for joint possession of three certain pieces of property, claiming that he is the record title owner of said property and is entitled to have possession and income of said property jointly along with -the defendant. Mrs. Bristow claims that he is not entitled to have possession and part of the income along with her of said property for the reason that he gave her the property and it is now all hers. It is admitted on the part of the defendant that the record title or deed is in Mr. Bristow; that he bought it and paid for and the deed made to him. Mrs. Bristow contends that when he left about '20 years ago he gave her the property.

“So, gentlemen of the jury, you will find for the plaintiff, Mr. Bristow, unless you find from a preponder-anee of the testimony that Mr. Bristow gave the property to his wife. If you find that he gave the property to her then, he now has no interest in it, and she should win. If he didn’t give the property to her then, he now has interest in it, and he should win.”

Upon a verdict in favor of appellee the following judgment was rendered: “It is therefore the order and judgment of the court, upon the verdict of the jury, that the plaintiff, Geo. 0. Bristow, do have and recover of and from defendant, Josie E. Bristow,” the lands in controversy, which, as there described, were the town lots.

If this judgment is proper, the instruction was not, as its import is that the plaintiff was seeking to recover a joint interest, and not one which was several. " The court, in giving the instruction, no doubt had in mind the allegations of the complaint alleging joint ownership. It is inferable, although not established, by the testimony that a portion of the property described in the complaint had been acquired by the parties as tenants by the entirety. However, no objection was made to this instruction, but we make this comment upon it in view of the fact that a new trial must be ordered.

The appellant asked, but the court refused to give, the following instruction: “You are instructed that if you find from the preponderance of testimony that the plaintiff did at the time of their separation or any other time .give the defendant the property he owned in Ozark in question, and that she has been in possession of it and has held the same for a period of more than seven years, and that she had relied upon that gift, then you will find for the defendant.”

We think this instruction should have been given. It is true appellant claimed title under a parol conveyance, which the witnesses referred to as a gift, but she also claimed title by adverse possession, and the testimony on her behalf was sufficient, if believed, to support a finding that she had adversely occupied the property as owner for many years. It is to be remembered that the parties were divorced in 1914, and. this suit was not commenced nntil 1930. Wilkerson v. Powell, 173 Ark. 33, 291 S. W. 799. There was no inconsistency in the defenses which appellant interposed, first, that she took title by a parol conveyance, and second, that she had acquired title by adverse possession. The instruction should therefore have been given.

Over appellant’s objection, the court permitted ap-pellee to offer in evidence the following letter:

“Ozark, Arkansas, Nov. 13, 1930.

“Dear Mr. Bristow: Why do you want to law out all we have? We owe to the children what we can leave them. I will give you a home a room as good as I have if you will withdraw that suit, on account of the children. You can have a room and make yourself at home, and it seems to me that would be better than lawing it all out. If you will withdraw the suit, you know how low down Jack is. Now please keep what we have for the babys. You can have a home, and we will neither have one when we finish. Please let me hear from you and come back home. The sheriff has sued for the taxes, so I don’t know what to do, but will manage some way. Let me hear from you.

“Joe.”

This letter was written after the institution of this suit, and was admitted on the theory that it tended to explain the character of appellant’s possession.

We think, however, that the letter should not have been admitted in evidence. It was evidently an offer in good faith to compromise the litigation. Notwithstanding the divorce of the parties, their children were their heirs, and the reference to them as such is not inconsistent with appellant’s claim of title by adverse possession.

For the error in refusing’ the instruction set out above, and for the error also in admitting’ the letter in evidence, the judgment of the court below must be reversed, and it is so ordered.


source: Caselaw Access Project

author: BtjtleR, J.

license: Public Domain

text:
    State National Bank v. Fisher.
    4-2634
    Opinion delivered July 11, 1932.

      Jas. B. Head, for appellant.
   BtjtleR, J.

The appellant filed a complaint in the Miller Chancery Conrt alleging that W. A. Coleman died June 9, 1931, leaving surviving him no widow, and leaving "W. A. Coleman, Jr., a minor who is now abont eight or nine years of age, his sole surviving heir at law.

In October, 1927, the said ~W. A. Coleman made a will, by the terms of which the appellant was appointed as executor and also appointed as guardian of the estate of W. A. Coleman, Jr. The will was duly probated on June 23, 1931, letters issued to appellant both as the executor of the estate and as guardian of the minor. It made bond both as executor and guardian and is now acting as sncb.

All of tbe property of tbe decedent was devised in trust to tbe bank, and directions given to reduce personal property, except United States bonds, to cash, and to invest same in revenue-bearing investment. It was also directed to take charge of, improve, lease, sell and dispose of all real estate, and re-invest so much of tbe proceeds as is not required for tbe administration of said estate.

Tbe executor was also requested to bold tbe estate intact, if possible, until W. A. Coleman, Jr., arrives at tbe age of twenty-one years; to pay tbe expenses and legacies out of tbe income, if sufficient, and, if not, to use tbe principal for that purpose. Provision was also made for decedent’s mother, but she died before tbe testator.

Tbe will gave to testator’s sisters and brothers $1 each. It directed tbe appellant to superintend tbe manner of W. A. Coleman, Jr’s., living, and see to bis education, and deliver tbe remainder of tbe property to W. A. Coleman, Jr., when be arrived at twenty-one years of age. Tbe will also provided for tbe executors to receive such fees as are allowed administrators and executors and a reasonable compensation as guardian for W. A. Coleman, Jr.

Tbe plaintiff in tbe court below requested instructions and directions in many particulars. Mrs. N. R. Fisher, a sister of testator, was made defendant.

After bearing tbe evidence and considering tbe ease, tbe chancery court decreed as follows:

“(a) Tbe administration should be closed at tbe end of one year, tbe debts being paid;

“ (b) There was created by tbe will, at tbe end of tbe statutory period, a trust with tbe State National Bank acting as trustee;

“ (c) Said bank as executor should file its final settlement at tbe end of tbe statutory period, there being no debts and then transfer to itself as trustee the remaining assets;

“(d) That such assets were vested by the will in the bank as trustee, with full authority to handle, administer, sell, dispose of, invest and reinvest funds from the sale of any of the -property of the estate;

“(e) That under the will the bank is entitled, during the statutory period of administration, to those fees allowed to executors and administrators;

“ (f) At the expiration of the statutory period for administration, the bank should receive reasonable compensation as trustee;

“(g) Upon final settlement by the bank (at the end of the statutory period of administration) the trustee should take over the remaining property and continue the trust under the provisions of the will;

“(h) There being no present necessity for advice to the bank, or for interpretation of the will as to whether it was intended to vest a present estate in W. A. Coleman, Jr., a minor, in the residue of property, the court declines to interpret it in this respect.”

Section 97 of Crawford & Moses’ Digest provides among other things that: ‘ ‘ All demands not exhibited to the executor or administrator as required by this act before the end of one year from the granting of letters shall be forever barred.”

This section of the Digest was amended by act 211 of the Acts of 1931, but there is no change in the paragraph above quoted.

Section 1 of Crawford & Moses’ Digest, under administration, also provides that in certain cases no letters of administration shall be granted, or, if granted, the same shall be revoked.

It was the intention of the Legislature to close the administration within one year if there were no debts or claims against the estate. The court was therefore correct in holding that the administration should be closed at the end of one year, the debts being paid, and also in bolding that tbe will, at tbe end of tbe statutory period, created a trust with tbe State National Bank as trustee.

Paragraph 2 of the will conveys all of tbe testator’s property in trust for tbe purposes thereafter named.

Having held that tbe administration should be closed at tbe end of one year, it necessarily follows that tbe executor should file its final settlement at that time, and, since it was, by tbe terms of tbe will, made trustee, it would be its duty at tbe end of tbe administration to take charge of tbe property as trustee.

Paragraph 4 of tbe will expressly provides that tbe executor shall take charge of, improve, rent, lease, sell, convey and dispose of any and all real estate, and, if it sell tbe same, it is authorized to convey title thereto and reinvest tbe proceeds in some good revenue-bearing investment.

Paragraph 3 of tbe will directs tbe executor to reduce all personal property.to cash, except United States bonds and to invest tbe proceeds, not required for tbe purposes mentioned elsewhere in tbe will, in good revenue-bearing investment.

The court therefore correctly held that tbe assets were vested in tbe trustee, with full authority to handle, administer, sell, dispose, invest and reinvest funds from tbe sale of any of tbe property of tbe estate.

Tbe will itself provides that tbe executor shall be allowed such fees as are allowed by law to administrators and executors for its services, together with reasonable compensation for acting as guardian.

If tbe will had made no provision for compensation to tbe executor, it would have been entitled to the statutory fees. There is no provision in tbe will naming tbe amount of fees that tbe trustee shall receive. Tbe will directs tbe trustee in tbe matter of tbe management of the estate, and names numbers of things that it is to perform, and it was evidently the intention of tbe testator not only that it should have tbe management of tlie estate, but that it should have a reasonable compensation for its services as trustee. The will fixed the fees that the executor should receive as such, but did not fix any fees for the bank as trustee, but it was manifestly the intention of the testator that the trustee should perform the duties indicated in the will, and that it should be paid a reasonable compensation. This compensation should be presented to and allowed by the probate court.

In the case of James v. Echols, 183 Ark. 826, 39 S. W. (2d) 290, it was said: “In this connection it may be stated that when the trustee accepts the trust, and qualifies and enters upon the discharge of his duties as such trustee, he accepts the trust upon the conditions named in it, and is entitled to no other or greater compensation than the will allows.”

Therefore if the testator had fixed the fees for the-trustee, it could not accept the trust and receive any other or greater compensation than that named in the will; but, since the will pointed out the duties of the trustee, and did not undertake to fix the compensation, it would be entitled, as the lower court held, to reasonable compensation.

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


author: Humphreys, J.

text:
    Missouri State Life Insurance Company v. Barron.
    4-2592
    Opinion delivered June 27, 1932.

      Allen May and Rose, Hemingway, Cantrell & Lough-borough, for appellant.

      Sam T. & Tom Poe, for appellee.
   Humphreys, J.

TMs is an appeal from a judgment for $2,000, twelve per centum statutory penalty, and an attorney’s fee of $500, rendered in a suit in the circuit court of Pulaski County, Second Division, in favor of appellees against appellant, on a certificate of accident insurance under group policy No. ADD-501 carried by the Missouri Pacific Railroad Company to protect John Barron, husband and father of appellees, as well as its other employees, from death resulting from accidental bodily injuries, effected through external, violent and accidental means independent from all other causes * * *.

It was alleged, and the proof introduced by appellees tended to show, that John H. Barron died from heat prostration induced by working in an engine in a roundhouse of said railroad company within a few hours after he was stricken. The certificate of insurance provided that notice of injury and death should be given to appellant within the time provided in the group policy, and the group policy provided for notice to appellant within 90 days after the loss for which claim is made. Appellees did not know of the existence of the certificate until they obtained possession thereof in November, 1930. They employed attorneys on December 2, 1930, who proceeded to make an investigation of the facts and the law applicable thereto, and on May 7,1931, notified appellant by letter that death had resulted to the insured through accidental means, and demanded payment of the face of the policy. Appel-lees introduced testimony tending to show that, after discovering the existence of the certificate of insurance, it was a difficult matter to ascertain the real facts surrounding the death of the insured, and to determine Avhether death resulted from natural or accidental causes, dependent to some extent upon expert testimony, and that their attorneys diligently pursued the inquiry during the five months intervening between discovering the certificate and the- demand made for the payment of the face of the policy. Upon receipt of the letter from appellees’ attorneys, appellant answered same, denying liability, in which letter it reserved the right to make any defenses it had or might later ascertain.

Appellant first contends for a reversal of the judgment upon the ground that it did not receive notice that the insured died from heat prostration within a reasonable time after appellees discovered the existence of the certificate of insurance. We are unable, as a matter of law, to say that five months was an unreasonable time to make the investigation and determine whether appellant was liable. There is testimony in the record tending to show that the attorneys prosecuted the investigation diligently, and that, in order to make a thorough investigation, the time consumed was actually required. The dispute in the evidence on this point made the issue one for the jury, and not a question of law for the court. The court therefore properly submitted this issue to the jury. Of course, further and more formal proofs of the cause of the insured’s death were waived by appellant’s denial of liability within the time appellees had a right to give the notice, which was a reasonable time after discovering the existence of the certificate of insurance. Ætna Life Ins. Co. v. Duncan, 165 Ark. 395, 264 S. W. 835. The reservation in the letter, to make any defenses it then had or might later ascertain, did not qualify the denial of liability. The effect of the unqualified denial made within the period appellees had to make formal proof of the cause of the insured’s death was to waive it, notwithstanding the reservation contained in the letter.

Appellant next contends for a reversal of the judgment because the court gave instruction No. 3, which is as follows:

. “You are instructed that you are the judges of the cause of death of John H. Barron, and, if you find from a preponderance of all the facts and circumstances in evidence in this case that on the 24th day of June, 1929, John H. Barron, a short time after leaving the firebox of a locomotive engine, which was poorly ventilated and unusually hot, suffered from heat stroke, and at the time he suffered from heat stroke Barron was afflicted with a latent or dormant abscess, tumor or growth or formation in the brain, and which abscess, tumor, growth or° formation was affected by the heat stroke and excited and aroused and caused the erosion of blood vessels within the brain of John H. Barron and consequently hemorrhages which resulted in his death on the same day and within a few hours thereafter, independently of all other causes; that is to say, that Barron would not have died as and when he did if the accident had not occurred; that, while death from the abscess, tumor, growth or formation in his brain might have resulted, it would have been deferred until a later period of his life, then heat stroke would be considered the cause of his death within the meaning of the policy and certificate of insurance.”

This instruction told the jury in effect that, if the heat stroke was the proximate cause of the death of the insured, appellant would be liable under the policy, although death might have resulted at a later date on account of an abscess or tumor discovered in his brain by the autopsy, regardless of the heat stroke. This instruction was based upon the following clause found in both the certificate and group policy, to-wit:

“If death, shall result from accidental bodily injuries, affected through external, violent and accidental means, independently of all other causes * *

Appellant admits that this instruction was a correct declaration of law applicable to the language quoted above under the construction placed thereon by this court upon a similar clause in an accident policy in the case of Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. (N. S.) 493. Appellant argues, however, that the group policy in the instant case contains an exception or exemption clause which brings the case within the rule that there can be no recovery if a disease of the insured cooperated with the accident to produce death. The exception or exemption clause relied upon to differentiate the instant case from the Meyer case, supra, is as follows:

“This insurance shall not cover accidental injuries, e death or loss caused directly or indirectly, wholly or partly by bodily or mental infirmity or by any kind of disease.”

The testimony is in conflict as to whether death resulted to the insured from heat prostration, from an abscess or tumor found in one cell of his brain when the autopsy was made, or from both causes co-operating together. Under instruction No. 3, requested by appel-lees and given by the court, before the jury could return a verdict for appellees they must find that heat prostration was the proximate cause of the insured’s death. As stated above, this was a correct declaration of law as applied to the liability clause pleaded as a basis for the recovery. Liability under said clause was denied, and this was the only issue joined by the pleadings. The exemption or exception clause was not pleaded as a defense. It should have been pleaded specifically, and the failure to do so was a waiver by appellant. 1 C. J. 493; Harrison v. Interstate Business Men’s Acc. Assn. of Des Moines, Iowa, 133 Ark. 163, 202 S. W. 34; National Life & Acc. Ins. Co. of Nashville, Tenn., v. Sherod, 155 Ark. 381, 244 S. W. 436.

Appellant next contends for a reversal of the judgment because instructions Nos. 3 and 5, requested by-appellant and given by the court, conflicted with instruction No. 3, requested by appellees and given by the court. The effect of instructions Nos. 3 and 5, given by the court at the request of appellants, was to tell the jury, if they found that the proximate cause of insured’s death was a disease of the brain, then they should return a verdict for appellant. The instructions stated exactly the converse of the propositions contained in instruction No. 3, given by the court, and were not in conflict with it. Instruction No. 3, given by the court at the request of appellees, presented their theory of the case, and instructions Nos. 3 and 5, given by the court at the request of appellant, presented its theory of the case. Instructions presenting the respective theories of the parties are in no sense conflicting.

Lastly, it is contended that the attorney’s fee of $500 allowed by the court is excessive. We think not, considering the time required to investigate the facts and try the cause, together with the services performed on the appeal of this case. The testimony of learned attorneys of the bar of Arkansas was to the effect that four or five hundred dollars was a reasonable fee for the preparation and trial of the cause.

No error appearing, the judgment is affirmed.


author: Mehaety, J. Smith, J.,

text:
    Davis v. Lawhon.
    4-2616
    Opinion delivered June 27, 1932.

      George B. Pugh and J. H. Carmichael, for appellant.

      Compere $ Compere, for appellee.
   Mehaety, J.

The firm of Jackson-Hill Cotton Company became indebted to the American Southern Trust Company, and, to secure its debt, executed a deed to the American Southern Trust Company conveying about 8,000 acres of land in Ashley County, Arkansas. The conveyance, although a deed in form, in fact was a mortgage, and signed by the individual members of the firm of Jackson-Hill Cotton Company, and their wives, as follows: Ranson J. Jackson and Ann C. Jackson, his wife; B. 0. Jackson and Della McM. Jackson, his wife; Harry E. Hill and Bracey Jackson Hill, his wife.

Bracey Jackson Hill was the sister of B. 0. Jackson and Ranson J. Jackson, and was living in Pulaski County until the time of her death. Harry E. Hill was appointed administrator of her estate.

W. O. Davis was appointed receiver of the American Southern Trust Company, and presented the claim to the administrator of the estate of Bracey Jackson Hill, which claim was disallowed by the administrator.

Thereafter, on October 15, 1931, the claim was allowed by the probate court of Pulaski County. Before the claim was filed in the probate conrt of Pulaski County, suit had been filed by W. 0. Davis, receiver, in Ashley County, Arkansas, to foreclose the mortgage in that county. Said suit is now pending in the Ashley County Chancery Court.

Thereafter a petition on behalf of the children of Bracey Jackson Hill was filed in Pulaski Probate Court, asking that the allowance of said claim he set aside, and that the court remove Hill as administrator, and appoint R. J. Jackson administrator in succession of the estate of Bracey J. Hill, deceased.

The probate court made an order reciting the pen-dency of the suit in Ashley Chancery Court against the administrator and others to foreclose the mortgage, and to obtain a judgment against the administrator and others upon the notes sued on. The probate court, for that reason, set aside the allowance made on December 23,1931, and refused to allow or disallow the claim-. Appellant then filed in the Pulaski Circuit Court a petition for a writ of mandamus to compel the Pulaski Probate Court to act on the claim.

Ross Lawhon, the judge of the Pulaski Probate Court, did not appear, and an order was issued directing him to pass on the claim, and either allow or disallow it.

Thereafter Ross Lawhon, judge of the probate court, filed a petition and asked that the writ he set aside. The circuit court set aside the writ and refused to issue the writ of mandamus. The case is here on appeal.

The only issue involved is whether appellant can foreclose in one county a mortgage which he holds and at the same time, during the pendency of the foreclosure suit, probate his claim against the estate in another county.

The appellee’s first contention is that § 1189 of Crawford & Moses’ Digest prohibits the prosecution of the suit in Pulaski Probate Court, while the foreclosure suit is pending in another county. He relies on the third paragraph of the above section, which states, as a ground of demurrer, that there is another action pending between the same parties for the same cause.

The suits are not between the same parties, and they are not for the same cause. The suit in the Pulaski Probate Court is against the estate of Bracey Jackson Hill for an allowance against the estate. The suit in Ashley Chancery Court is against several persons, including the administrator of the estate of Bracey Jackson Hill, and is for the foreclosure of a mortgage.

The Pulaski County Probate Court would have no jurisdiction to foreclose a mortgage, and the Ashley Chancery Court would have no jurisdiction to allow a claim against the estate of Bracey Jackson Hill.

It is only in cases where two courts have concurrent jurisdiction of the same cause of action that the pendency of the case in one court bars the right to pursue the same remedy by the same parties in another court. Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8; Simms v. Miller, 151 Ark. 377, 236 S. W. 828; Bd. Dir. St. Francis Levee Dist. v. Redditt, 79 Ark. 154, 95 S. W. 482.

It is said that, if the Pulaski County Probate Court allows or disallows the claim, this will bring about a conflict of jurisdiction with the chancery court of Ashley County. It is true that one court might find one amount, and another court a different amount. One court might find there was liability and the other that there was no liability, but these questions are not before us, and, if such a thing should happen, and appeals be taken in both cases to this court, it would then become the duty of this ■ court to decide this question.

But the question now before the court is whether another suit pending in Ashley County was a bar to the right of prosecuting the claim in the probate court of Pulaski County, and, as we have said, it is not between the same parties, and is not the same cause of action, and the pendency of the suit in Ashley County does not prevent the claimant from prosecuting his claim in the probate court of Pulaski County. It is only in cases where the causes of action are inconsistent that the prosecution of one suit bars tbe other. Where the two remedies are cumulative and not inconsistent, both snits may be prosecuted at the same time. Sturdivant v. Reese, 86 Ark. 452, 111 S. W. 261; Dilley v. Simmons National Bank, 108 Ark. 342, 158 S. W. 144; Craig v. Meriwether, 84 Ark. 298, 105 S. W. 585.

“Where the law affords several distinct but not inconsistent remedies for the enforcement of a right, the mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies. In order to operate as a waiver or estoppel, the election must be between coexistent and inconsistent remedies. To determine whether coexistent remedies are inconsistent, the relation of the parties with reference to the right sought to be enforced as asserted by the pleadings should be considered. If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general be pursued concurrently even to final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.” American Process Co. v. Florida Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054.

“Another class of cases exists where there is but one cause of action but in which different or alternative remedies may be pursued. It is permissible to follow these remedies or reliefs independently, even in some cases to judgment, although but one satisfaction can be had. Thus a creditor whose claim is secured by two written obligations falling due simultaneously has a right to proceed at once thereafter upon either or both of them to enforce payment of the amount due. ” 9 R. C. L. 958-59.

“The doctrine of the election of remedies, that the pursuit of one remedy will exclude the pursuit of another applies only to those cases in which the party has two or more remedies which are inconsistent with each other, and has no application to a state of facts where the remedies available to him are concurrent and consistent. Where the law furnishes a party with two or more concurrent and consistent remedies, he may prosecute one or all until satisfaction is had; but a satisfaction of one is a satisfaction of all. He may select and adopt one as better adapted than the others to work out his purpose, but his choice is not compulsory or final. ’ ’ 20 C. J. 6-7.

It is said in a note cited in support of the above text as follows: “If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general he pursued concurrently even to-final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.” Note 56, 20 C. J. 7.

If the remedies had been the same, and the parties the same in each court in this case, then the jurisdiction of the court which had been first invoked would retain jurisdiction, and no other court would exercise jurisdiction during the pendency of the first suit. In other words, where courts have concurrent jurisdiction, the one that first obtains jurisdiction will determine the case, and no other court with concurrent jurisdiction would be permitted to interfere. But where the remedies are wholly different, as they are in this case, and are consistent, as they are in this case, then they are cumulative, and the plaintiff may pursue as many remedies as he may have.

In a recent case we said: “We find nothing in the law requiring a plaintiff to exhaust his security in the mortgage before resorting to other proceedings. A plaintiff creditor may prosecute all remedies against a debtor with the right, of course, to only one satisfaction of the debt.” Vaughan v. Screeton, 181 Ark. 511, 27 S. W. (2d) 789; Rhodes v. Cannon, 112 Ark. 6, 164 S. W. 752; England v. Spillers, 128 Ark. 33, 193 S. W. 86.

Our attention has been called to the case of McLean v. McLean, 184 Wis. 495, 199 N. W. 459. It may be said in the first place that the authorities on the question here involved are not entirely harmonious. Different States have different statutes governing the question, but in the case of McLean, referred to, the conrt said that the owner of the mortgage had the right to pnrsne one of three remedies, and that statement indicates that that court might hold that they could not all be prosecuted at the same time.

But this question was not 'before the court in the McLean case. The court itself stated as follows: “The appellants in the court below pleaded the statute of limitations, and the only question involved on this appeal is whether or not the note and mortgage are barred by such statutes.” The court was not considering the question before us; it was unimportant. No one connected with the case gave any thought to the proposition here involved, because the only question before the court was the question of the statute of limitations.

The weight of authority seems to be that, where one has cumulative and consistent remedies, he may pursue all or one.

Attention is called to the case of Jamison v. Adler-Goldman Commission Co., 59 Ark. 548, 28 S. W. 35, and the case of Merchants’ Nat. Bank of Ft. Smith v. Taylor, 181 Ark. 356, 25 S. W. (2d) 1048. Under these authorities, if any amounts were collected from the securities, it would, of course, have to be applied in reduction of the claim in probate court. So, also, if payments were made on the claim in the probate court, the claim pending in the Ashley Chancery Court would necessarily be reduced by the amount collected in the probate court.

In other words, although a person may pursue one or all his remedies, he can have but one satisfaction.

* The judgment of the circuit court is reversed, and the cause remanded with directions to issue the writ.

Smith, J.,

(dissenting). The majority say that, if any amount is realized from the mortgage, the sum realized would have to be applied in reduction of the claim in the probate court, and that, if payments were made on the claim in the probate court, the claim pending in the Ashley Chancery Court would necessarily be reduced by the amount collected in the probate court, and the cases of Jamison v. Adler-Goldman Commission Co., 59 Ark. 548, 28 S. W. 35, and MerchantsNat. Bank of Ft. Smith v. Taylor, 181 Ark. 356, 25 S. W. (2d) 1048, are cited in support of this statement.

The majority have, however, ordered the prohate court, notwithstanding this declaration of the law, to proceed to hear and class appellant’s demand, notwithstanding another court having full jurisdiction has already assumed jurisdiction and is still asserting it.

Judge 'Battle defined the proper practice to follow in this and similar circumstances in the case of Jamison v. Adler-Goldman Commission Co., supra, where he said: “In regulating the rights of creditors, the statutes give ample time in which to present their claims, and provide that they shall be paid equally according to classes. They take from the administrator the right to prefer one to another. To this extent they cure defects in the common law, and provide for the greater security of creditors. The changes made are' commensurate with the evils intended to he remedied. They make no change, however, as to any vested interest that each shall take in the estate. 'Creditors are required to present their claims for the amount due them when it is presented, and to swear ‘ that nothing has been paid or delivered towards the satisfaction of it, except what is credited thereon, and that the sum demanded naming it, is justly due. ’ They may present their claims within one year and 364 days after the grant of the first letters — upon the close of the administration — hut they must make this oath before their demands can he allowed; the statute thereby showing clearly an intention that they shall not share in the assets of the estate, except upon the basis of what is actually due after all payments are deducted. This being the manifest intention of one, it is presumed that it pervades the other statutes upon the same subject, and that when they say, ‘if there be not sufficient to pay the whole of one class, such demands shall be paid in proportion to their amounts,’ according to an apportionment made by the court, they mean by ‘amounts’ the sum actually due at the time of the apportionment. When money is received from collaterals or mortgages held as security, in part payment of claims, they are certainly diminished accordingly, and their amounts become the balances due on them. This construction was placed upon similar statutes of Missouri, in a similar case, in Estate of McCune, 76 Mo. 200. In Haskill v. Sevier, 25 Ark. 152, the same construction was partially placed upon the statutes of this State. In that case the court directed a foreclosure of a mortgage upon land which was executed by John A. Jordan, deceased, in his lifetime, to secure a debt, and directed that, if the proceeds of the sale were not sufficient to pay the debt, the balance thereafter remaining should be certified to the probate court, and there classed against the estate of Jordan.”

In other words, where the mortgagee is unwilling to rely exclusively on his mortgage for the satisfaction of his demand, but wishes to share, as a general creditor, in the distribution of the general assets, he should first exhaust his security and apply the proceeds thereof to the partial satisfaction of his demand, and it is the balance then remaining — and this balance only — which he may probate as a general creditor.

This was the practice, conforming to our own, which was approved by the Supreme Court of Wisconsin in the case of McLean v. McLean, 184 Wis. 495, 199 N. W. 459. Speaking of the remedies of a mortgagee against the estate of a deceased mortgagor, the Supreme Court of Wisconsin there said: “Up to the time of the death of Mary E. McLean, as a joint maker of the note, she was liable for the principal and the interest, and her property remained as security by virtue of the mortgage. Upon her death, the owner of the mortgage liad the right to pursue one of three remedies as against her: First, she could file her claim for the full amount of the note, with interest, against the estate of the deceased, and thereby recover the full amount of the personal obligation; second, she could file a contingent claim for a possible deficiency on the foreclosure, and then proceed with a foreclosure suit in tlie circuit court for the foreclosure of the mortgage; or third, she could rely solely upon her - security and the foreclosure of her mortgage.” See also 2 Woerner’s American Law of Administration (3d ed.) chapter XLIYa.

This was a practice which the probate court was attempting to follow, and would have followed but for the directions of the majority to proceed now, independently of the action of the chancery court, to pass upon and class the full demand, regardless of the credits which may arise from the sale of eight thousand acres of land under the decree of foreclosnre in the Ashley Chancery Court.

In his excellent work on Arkansas Mortgages, at § 322 thereof, Judge Hughes says: “So far as the mortgage itself is concerned, the probate court is without power. That court has no jurisdiction in respect of foreclosure or redemption, and even its judgment allowing the mortgage debt as a claim against the estate is not conclusive upon chancery courts as to the amount of the debt in foreclosure or redemption actions subsequently instituted therein.” Here, however, the probate court is directed to proceed in a matter over which the chancery court first obtained jurisdiction and in which it is still asserting that jurisdiction.

The views here expressed are not in conflict with the statement of the remedies of a mortgagee against the estate of a deceased mortgagor appearing in Rhodes v. Cannon, 112 Ark. 13, 164 S. W. 752. It was there said that the mortgage creditor might go into the probate court and probate his claim against the estate generally, or might foreclose his lien in the chancery court, or that he might pursue both remedies, but there was not involved in that case, as there is here, any question as to the practice in the pursuit of these remedies.

Here the expressed purpose of the probate court was to treat the demand of appellants as properly filed for allowance, but to.postpone the adjudication of the balance due thereon until it became known what credits would arise from the sale of the lands under the foreclosure proceeding pending in the Ashley Chancery Court, and, as I think this was the proper course for that court to pursue, I dissent from the order of this court awarding a writ of mandamus directing the probate court to allow the demand before knowing what credits should be applied thereon.

I am authorized to say that Mr. Justice Butler concurs in the views here expressed.


author: Mehaeey, J.

text:
    Pulaski County v. Board of Trustees of Arkansas Tuberculosis Sanatorium.
    4-2695
    Opinion delivered June 27, 1932.

      Carl E. Bailey, for appellant.

      John W. Newman, Joseph M. Hill and J. F. Lough-borough, for appellee.
   Mehaeey, J.

This action was begun in the county court of Pulaski County by the appellee, filing its claims for the Arkansas Tuberculosis Sanatorium against the county for the maintenance of tuberculosis patients, the claims aggregating $18,755.

The county court found that the claims "were correct and unpaid, and that they should be paid by Pulaski County as soon as it has funds available for that purpose, but the county court was of the opinion that, under the provisions of amendment No. 10, it had no right to make an order allowing such claims, or to issue warrants thereon, and the court entered the following order:

“It is ordered that no order of allowance of said claim he made at this time, and that no warrants issue thereon now, and that the request of said hoard of trustees that allowance he made and warrants issued thereon at this time is denied, and that this order is a final judgment in that regard.”

An appeal was granted to the circuit court, where it was tried on the following ‘statement of facts:

“STATEMENT OE0EACTS

“In each of the Pulaski County fiscal years of 1930 and 1931, on orders of the county court, duly made and entered for each patient, patients were sent and admitted to the Arkansas Tuberculosis Sanatorium for maintenance in the manner required by law, whereby the county was to pay five dollars a week toward the maintenance of each of said patients, and during each of those fiscal years patients from Pulaski County were maintained at said sanatorium under such orders of the county court, hut in each of the quarterly periods ending on the date hereinafter described, and the monthly period ending October 31, 1931, hereinafter described, the county failed to pay to the sanatorium the respective amounts accruing in the preceding quarterly periods and in the one monthly period shown opposite the last day thereof, as follows:

June 30, 1930.$3,275

September 30, 1930. 3,170

March 31, 1931. 4,125

June 30, 1931. 3,855

September 30, 1931. 3,260

October 31, 1931.-... 1,070

Nor did the county court enter any orders of allowance or issue any warrants on any of said claims.

“The amounts are correct, and represent the respective amounts unpaid for maintenance of Pulaski County patients at the sanatorium in the respective periods stated, at the rate of five dollars per week per patient.

“That claims in the usual form provided by law for claims against the county, describing the foregoing amounts as owing by the county to the sanatorium, were sent to the county judge of Pulaski County within a few days after the end of each of the said periods, and were by him duly filed and kept in the records of the county court.

“In the fiscal year of 1930, the total amount appropriated by the quorum court for the maintenance of patients in the sanatorium was $13,000, and the amount paid in that fiscal year by the county on that account was $9,690, leaving $3,310 between the amount paid and the amount appropriated; and the total unpaid was $6,445.

“In the 1931 fiscal year, $10,000 was appropriated for the sanatorium, and $3,560 was paid on that account, leaving $6,440 of the appropriation that has not been paid, and a total unpaid of $12,310.

“No allowances were made or warrants issued in either of the years above the amount paid as described.

“In the fiscal year of 1930, the total county revenues, plus the valid floating indebtedness carried over from preceding years (including the amount of the indebtedness herein claimed in that year) did exceed the total valid contracts and allowances for that year; and the same is true of the 1931 fiscal year.

“The total county indebtedness incurred in the 1930 ' fiscal year did not exceed the revenues for that year; and the total county indebtedness incurred to October 1,1931, was about $8,000 less than the total county revenues for the 1931 fiscal year. But an indebtedness was incurred after October 1st to November 1st of about $58,000 in excess of the revenues for that fiscal year; so that at the time all of the claims herein accruing in the fiscal year of 1930 were due, amounting to $6,445, the revenues for that year had not been exceeded. And the same is true of the-claims herein that accrued in the 1931 fiscal year to September 30, 1931, amounting to $11,240, leaving the claim for the month of October, 1931, amounting to $1,070 in excess of the revenues for that year, except that the total county debts for that year, accrued to October 1, 1931, were $8,000 less than the total revenues for that year.

“"Where the fiscal years of 1930 and 1931 are referred to herein, it is meant the fiscal year ending the first Monday in November in each of those years.

“Many of the patients, for whom the county’s part of the maintenance is in the claim now made and unpaid, are still 'being maintained at the sanatorium and have not recovered from tuberculosis.

“There is attached to and made a part of this statement of facts, as Exhibit A, a statement showing the amount owing by -the several counties in the State to the sanatorium for maintenance of patients sent from each, together with the number of patients from each county; the financial part of the statement being the condition on May 1, 193'2, and the number of patients being those at the sanatorium on May 23, 1932. It is agreed that Dr. J. D. Biley, superintendent in charge of the sanatorium, would testify that the statement is correct, and it shall be received herein as his testimony, with the same effect as if shown in his deposition duly taken and filed herein.

“On December 7, 1924, there was outstanding general revenue fund indebtedness of Pulaski County in a substantial amount, not funded by bond issue, and the total amount of such outstanding indebtedness has not, at any time since that date, been reduced below the total amount of such valid non-bonded indebtedness of the county now outstanding, including the total amount of the claims involved herein.

“Signed this 28th day of May, 1932.”

There was an exhibit which was made part of the agreed statement of facts, which showed the financial condition of the county, together with number of patients from each county. There is no necessity of copying this exhibit.

The circuit court allowed the claims in the aggregate sum of $18,755, and ordered the county court to allow it and issue warrants therefor, and judgment was entered accordingly.

Motion for new trial was filed and overruled, and the case is here on appeal.

This suit involves amendment No. 10 of the Constitution. This amendment has been before the court many times.

It will be seen from the agreed statement of facts that the only question for us to determine is whether or not the county court can allow this claim at a time when allowance of said claim would be in excess of the revenue from all sources for the current fiscal year.

The debt of the county was incurred and the claims were due at a time when they could have been paid without violating amendment No. 10. The claims were sent to the county judge, but were not acted on. Nothing was ever done by the appellees to get action on the claims at a time when they could be lawfully paid.

It is apparent that everybody connected with the ease not only concedes that the claims are just, but that they should be paid if there is any way in which this can be done without violating amendment No. 10.

Appellee calls attention to a number of authorities, all of which we have carefully considered, but we think the decisions of this court construing amendment No. 10 settle this case beyond controversy.

The claims are not only just, but they are of such character that everybody would be glad to see them paid, and all regret that the situation is such that payment is impossible without a violation of the plain provisions of the Constitution. The failure to pay them will necessarily result in great hardship. That, however, does not justify the courts in violating the provisions of the Constitution.

Many instances might be named where decisions of the courts worked great hardships, and courts always regret to have to render decisions that will do this.

The law requires all demands against the estate of any deceased person to be made within one year, and all demands not exhibited, as required by law, before the end of the year are forever barred. It is wholly immaterial that the claim is just, that the estate may be very valuable, and the claimant very poor; no matter what the equities are, if the claim is not exhibited, as required by law, witbin one year, it cannot be paid.

The owner of a promissory note must bring his action before the claim is barred by the statute of limitations. If the creditor fails to do this, his claim is barred and cannot be collected.

Under the provisions of amendment No. 10, the county court cannot make a contract, and cannot make any allowance for any purpose whatsoever in excess of the revenues from all sources for that year.

The court is not only prohibited by this amendment from making an allowance, bnt the county judge cannot sign or issue any script or warrant in excess of the revenue, and, if a warrant was issued on this claim, the officer or officers of the county who authorized, signed or issued such warrant would be guilty of a misdemeanor, and subject to fine and removal from office.

The holders of the claims involved in this suit might have compelled action by the Pulaski County Court and collected their money. It was their duty to do this.

It was said in the last ease construing amendment No. 10:

“The holder of a valid warrant may, by an appropriate action, compel the redemption of his warrants, to the exclusion of an invalid warrant, and he may, if necessary, enjoin the redemption of an invalid warrant. The invalid warrants cannot be received by any collecting officer of the county, and the officer who does receive one does so at his peril and is not entitled to take credit for it in any settlement of his account, because the wa'rrant is void. It is issued without authority, and the action of a collecting officer in receiving it cannot give it validity. Counties (and cities and towns also) must pay as they go, and can go only so far as they can pay, and they are without power to make or authorize any contract or make any allowance or issue any warrant for any purpose whatsoever in excess of the revenues, from all sources, for the fiscal year in which said contract was entered into, or allowance made, or warrant issued.

None of these statements announce any new interpretation of the amendment, hut all have been made one or more times in the numerous cases interpreting the amendment, in a more or less futile attempt to coerce the fiscal officers of the counties, cities and towns of the Stale to obey the plain mandate of the Constitution.” Stanfield v. Friddle, 185 Ark. 873, 50 S. W. (2d) 237.

In Nelson v. Walker, 170 Ark. 170, 279 S. W. 11, we said:

“If we should hold otherwise, the obvious purpose of the amendment would be defeated. It would only be necessary to first make the allowances for the expenses covering those things with which a county might dispense to the extent of all the revenue, or so much thereof as was necessary to pay them, and then make allowances to cover the claims where the compensation is definitely fixed by law. It must be quite obvious that, if a county court can make allowances to cover claims which may be paid for by a county, but which are not essential to the operation of the county’s affairs, and, after doing so, may then make other allowances on the theory that indispensable services have not been paid for, the provision of the amendment that the county’s indebtedness shall not be increased would have no binding effect on the county judge who wished to evade it. ’ ’

This amendment has been construed frequently by this court, and most of the cases are cited and the principles discussed in Luter v. Pulaski County Hospital Asso., 182 Ark. 1099, 34 S. W. (2d) 770; McGregor v. Miller, 173 Ark. 459, 293 S. W. 30; Dixie Culvert Mfg. Co. v. Perry County, 174 Ark. 107, 294 S. W. 381; Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729; Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002; Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554; Miller v. State use Woodruff County, 176 Ark. 889, 1 S. W. (2d) 998; Chestnutt v. Gates, 177 Ark. 894, 9 S. W. (2d) 37; Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250.

There are other cases construing amendment No. 10, but we do not deem it necessary to review all these decisions here. None of the cases in which amendment No. 10 has been construed are in conflict with the principles herein announced.

While it is to be regretted that the situation is such that the appellee cannot collect its just claims, yet the plain provisions of the Constitution compel the conclusions herein reached.

The judgment of the circuit court is reversed, and the cause remanded with directions to enter a judgment disallowing the claims.

McHaney, J., dissents.


author: MoHaney, J.

text:
    Paving Districts Nos. 76 and 52 of Pine Bluff v. State Highway Commission.
    4-2604 & 2605
    Opinion delivered June 27, 1932.

      Coleman Ga/ntt, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Claude Ditty, Assistant, for appellee.
   MoHaney, J.

Prior to the passage of act 85, p. 247, Acts 1931, Street Improvement Districts Nos. 76 and 52, in the city of Pine Bluff, had improved certain streets therein, a portion of which was being used as continuation of State Highway No. 3. Prior to the passage of said act 85, in the year 1930, appellee contemplated changing the route of State Highway No. 3 so that it would not pass over any portion of the improvement in said districts. Pursuant to that purpose, appellee entered into a contract for the construction of approximately one-half mile of new highway to connect State Highway No. 3 with West Sixth Avenue, and participated with Improvement District No. 105 in said city in the paving of West Sixth Avenue and other streets in said district over which said highway would pass, under the provisions of act 8 of 1928, approved October 3, 1928. The one-half mile connection above mentioned was graded, but has never been paved-nor opened for public use. Certain streets in district No. 105 have been designated as the continuation of highway No. 65, which is both a Federal and State highway, and appellee participated in the cost of said improvement to the extent of one-half of the entire cost of construction of the improvement made by said districts. Appellee has continued to route traffic passing over State Highway No. 3 over a few blocks of the improvement in appellant districts since the passing of act 85, but with the purpose and intent of changing the route as above stated, and has designated same as a temporary route by its markers thereon. Appellants brought these suits against appellee to compel it, by writ of mandamus, to participate in the retirement of the outstanding bonds and maturing interest under § 2 of said act 85. Demurrer was interposed and sustained to the complaint setting forth the above facts, and this appeal followed.

We think the court correctly sustained the demurrer. The complaint shows that appellee contemplated the change in the route of highway No. 3 through the city of Pine Bluff, and had actually entered upon the construction of one-half mile connection to route the traffic over the streets in Improvement District No. 105, and had participated with said district to the extent of one-half the cost of the improvement in said district No. 105. This shows that, although appellee was using as a continuation of State Highway No. 3 a few blocks of the improvement in appellant districts, this use was temporary in character, and we are of the opinion that it was not the intention or purpose of the lawmakers in passing act 85 of 1931 to require appellee to participate by paying one-half the bonds then outstanding in municipal street improvement districts for a mere temporary use of said streets, and especially where a permanent route had been selected over other streets and its share of the cost thereof assumed. The fact that appellee was using a portion of the street improved by appellant districts at the time of the passage of act 85 gave it no vested right to a continuation of the use thereof. Hempstead County v. Huddleston, 182 Ark. 276, 31 S. W. (2d) 300.

The route to be selected as continuations of State Highways through cities and towns rests in the sound discretion of the Highway Commission, and no person would have the right to control such discretion by mandamus. The ultimate effect of this suit is virtually an attempt to compel appellee to continue the use of a portion of the streets in appellant districts as a continuation of State Highway No. 3, and, as we have already shown, this is. a matter resting in the discretion of the Commission, and not subject to be controlled by mandamus.

The judgment of the circuit court is correct, and must be affirmed.


author: Butler, J.

text:
    United Friends of America v. Phillips.
    4-2606
    Opinion delivered June 27, 1932.

      Troy W. Lewis, for appellant.

      Brundidge & Neelly, for appellee.
   Butler, J.

Alice Booth became a member of the United Friends of America, a fraternal benefit association, which was operated by means of a lodge system. There is no question as to whether or not she paid lier dues regularly until July, 1929. On the 28th of that month she died. Proof of death was made in the month of August, and the appellant insurance company denied liability, claiming that the dues of the deceased were not paid in the month of July, 1929, within the time prescribed by the by-laws.

A jury was waived, and the case submitted to the court sitting as a jury, which, after having heard the testimony in the case, found that at the time of the death of the deceased the certificate was in full force and effect, and rendered judgment in favor of the plaintiff, the beneficiary named in the policy, for the sum prayed. From that judgment is this appeal.

The testimony adduced for the appellee tended to show that the local council, domiciled at Searcy, had no regular place of meeting and no regular lodge room. The meetings were usually held at the home of Lulu Heard, the local secretary. It was the custom of the members of the local council to pay their monthly dues to the said Lulu Heard. When the dues were paid to her, she kept an account of the same, made a report of the moneys received, and forwarded this report to the ' supreme council at Little Rock.

The testimony of the witnesses on behalf of the appel-lee tended further to show that on the 15th day of July, 1929, the dues of the assured for that month were sent to the home of Lulu Heard to he paid to her as was the custom. Lulu Heard had left home on or about the 13th of July, for a trip to Chicago, and was absent on the 15th when the money was brought to her house. She intended to remain away from home, and did so remain, until about the first of August, 1929, and had directed her daughter, Mary Heard, and her stepmother, Lucy Freeman, who lived with her, to receive the dues of the members of the council. The money for the payment of the dues of Alice Booth was received, and Lucy Freeman gave a receipt therefor, which read as follows: “Received of Lillian Phillips, July 15, 1929, $1 for Alice Booth endowment. [Signed] Lucy Freeman.”

Mary Heard testified that the money received on the 15th of July was not sent off immediately because at that time the $1 paid for Alice Booth was all the money received, and they were waiting until the other members paid before sending it in to the general council. After the death of Alice Booth, on the 2i8th of July, and before the 5th of August the other members of the local council came in and paid their dues, and on the last mentioned- date Lulu Heard, who had in the meantime returned to Searcy, made report of and remitted the collections, amounting in all to $10.30, to the supreme council at Little Rock. The supreme council retained the ' money until it received notice later in August of the death of Alice Booth, and thereupon the $1 paid by her was tendered by the supreme council to Lulu Heard, who-refused to receive it.

Counsel for the appellant calls attention to certain discrepancies and contradictions in the testimony of the witnesses for the appellee which, he contends, cast doubt upon the credibility of the witnesses if it does not indicate the falsity of all their testimony. But these were questions for the court, and, the court having accepted the testimony of these witnesses as true, we are bound by its decision.

The only question presented for our determination is whether or not the evidence is sufficient to support the finding and judgment of the court below, sitting as a jury, counsel recognizing the rule that the finding of the court is entitled to the same weight as the verdict of a jury, and will not be disturbed where there is legally sufficient evidence to sustain it, even though such finding might appear to this court to be contrary to the preponderance of the evidence. Counsel contends that Lulu Heard was powerless to delegate her authority to collect dues and issue receipts, and therefore the payment of dues to Lucy Freeman was unauthorized and not binding on the appellant. In the absence of Lulu Heard, the secretary, the payments of dues should have been made, it is claimed, to the assistant secretary, “who is clothed with the duty of collecting dues and giving official receipts in the absence of the secretary by the express provisions of the by-laws.” Counsel introduced that part of the by-laws deemed pertinent to the issues involved in the ease which was incorporated in the bill of exceptions and copied in his brief, but by an examination of the by-laws to which he referred (section 8, article 22) it seems that he was in error as to the authority of the assistant secretary. The by-laws do not prescribe any specific person or officer to whom dues shall be paid, but there is a provision that “all members will see to it that their dues are paid to their local council in time for the local council to remit same to the general office on or before and not later than the 20th of each and every month;” and there is the further provision that, if any member fails to pay the dues “to his council” in time to get it to the general office on or before the 20th of each month, he shall be delinquent and suspended from all benefits of the order.

Section 2'of article 2 provides for the organization of the local conncil. Section 4 names the officers, and the remaining sections of that article prescribe .the duties of each. The duties of the secretary and assistant secretary are as follows:

“Section 7. The secretary shall 'keep a correct account of all moneys collected by the council and keep a correct account between the council and the members, forward to the supreme office, one report for each month’s dues paid by members, make out and together with the commander sign all orders drawn on the treasurer.

“Section 8. The assistant secretary shall assist the secretary in keeping a correct account of the council’s business, and in the keeping of the correct minutes of every meeting held by the council; make record of all new members joining, and of everything transacted by the council, and perform such other duties as the law may require.”

It will therefore be seen that the only authority for the secretary to collect the dues would arise from custom, and the assistant secretary is delegated no authority by the by-laws except to assist the secretary in keeping the records. In the absence of the secretary therefore the assistant secretary would have no more authority to collect the dues than any other member of the council. Furthermore there is no testimony0 to show who the assistant secretary was and whether or not he was available for the payment of dues on the 15th day of July, 1929.

Section 9 of the by-laws requires that the dues be paid in the lodge room or place appointed for meeting, and that they be marked on the official card furnished by the order and that this card is the “only official receipt authorized by the grand lodge and the lodge room the only authorized place for receiving and paying dues, the organization shall not be liable or responsible for any dues paid by any one to any officer or council unless said dues are paid in the lodge room as herein described and marked on the official card.”

The evidence does not disclose whether or not the dues of the members as paid were noted on the official card except the testimony of one witness who, in referring to the payment of dues by the members, stated that “they didn’t have any cards or books.”

We infer from the testimony that the business of the local council was conducted in rather an informal way, and that Lulu Heard was the principal functionary, although there were other officers who might be said to rank her in authority and who possessed higher sounding titles. Another one of the by-laws provided for the forwarding by local council to the supreme office $1.25 each month for every member, and that this payment should be forwarded so as to reach the supreme office by the '20th of the month, and that, should any council fail to comply with this provision within the time named, “the entire council shall be delinquent and shall stand suspended from all the benefits of the order until said report is made by the council, received and accepted by the general office.” It was further provided that where the dues were sent in after the due date the grand lodge might either accept or reject°the report, and in case the report was rejected should not be liable to the council or any of its members.

The secretary of the grand lodge testified to the effect that in the report received of the payment of dues July 1st, twelve members were shown to have paid their dues, the sixth in order being Alicq Booth. But so far as the evidence of this witness, or any other, discloses the report was not rejected except as to the item of the $1 for Alice Booth, although received long after the time limit named in the by-laws. The effect of this was to retain the premiums of the members who continued in life and to repudiate the payment by the one who had died.

The evidence as accepted by the trial court makes it clear that there was a bona fide attempt made by the assured to pay her dues in July within the time prescribed ; that such payment was offered at the only place under the by-laws where it could be lawfully accepted, and that it was not paid to the person accustomed to collect the dues for the order was no' fault of the assured. Whether or not Lucy Freeman and Mary Heard, the stepmother and daughter of the secretary, who lived-in the same home with her, could have been lawfully authorized by Lulu Heard to accept the payment of dues in her absence is beside the mark, for there can be no doubt that it was carried to and paid at the proper place as designated in the by-laws, and she actually received the money on her return and transmitted it to the supreme lodge, which accepted it without demur, although the time limit had expired, until it learned of the death of Alice Booth. It then elected not to reject the dues of any of the delinquent members who were living but only that of the member who had died. Such being the state of the record, we are of the opinion that the trial court correctly held that the policy or certificate involved a valid and binding obligation.

In Crites v. Capital Fire Ins. Co., 91 Neb. 771, 137 N. W. 847, the premium on the policy was payable at the home office of the company, but the insurer sent the premium note to a •'bank in another State for collection. Being notified of this, the maker of the note, on the day of its maturity, went to the bank at the customary hour for opening to .pay the same and waited for a time. No one appearing, he went to his work. That night the property covered by the insurance was destroyed. In that state of case it was held thatfit was a question for the trial court ro determine whether the insured used reasonable diligence in endeavoring to pay the note ánd sustained a judgment in favor of the insured notwithstanding the premium note had not been paid.

In a New York case reported in 1 Hun at page 460, O’Reilly v. Guardian Mutual Life Ins. Co., a policy of life insurance had been issued which prescribed no place for the payment of premiums. An agent for the company called at the home of the insured semiannually, and collected two of the half yearly premiums, but did not call on the 7th of January, 1872, the due date for the third half-yearly premium. The agent’s connection with the insurer had been discontinued in August of the preceding year, but the insured had no notice of this and died on the 15th of May, 1872. In that case it was held a question of fact for the jury as to whether or not under, the facts above stated it was the duty of the insured to seek out some one to whom to pay the premium. The jury found for the plaintiff, „ the beneficiary under the policy, and the judgment of the trial court on appeal was affirmed.

It will be noted that the secretary in the instant case actually received the dues paid for Alice Booth. Therefore, the payment was sufficient, although first paid to one who might not have been authorized to receive it. Weisman v. Commercial Fire Ins. Co., (Del.) 50 Atl. 92; Mauck v. M. & M. Fire Ins. Co., 4 Pennewill (Del.) 54 Atl. 952.

It is our opinion that the principles announced in the cases above cited are applicable to the facts in the case at bar and support the view we have taken. Affirmed.


author: Smith, J.

text:
    Blake v. State.
    Crim. 3794
    Opinion delivered July 4, 1932.

      G. M. Martin and Scipio A. Jones, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

Appellants, Lonis and Elbert Blake, who are father and son, have prosecuted this appeal from the judgment of the Ouachita Circuit Court sentencing them to death for the murder of Brad Polk. The testimony on the part of the State was to the following effect. Louis Blake was a tenant on the farm of Polk, and they had disagreed about Blake’s account and had been unable to effect a settlement. Blake had stated that he would not leave the farm where he lived until a settlement had been effected, and that he would kill Polk, if necessary, to secure a settlement. This threat was made in the presence of Walter Jones about 10:30 at the People’s Bank in Stephens, Arkansas, on the morning of the day before the killing. Louis Blake owned a pistol, which he had been known to carry. Polk went to Blake’s home at about noon on Christmas Day to effect a settlement. This conclusion was arrived at from the following facts. When deceased was found after he had been shot, it was discovered that he had been shot in his left eye. Deceased’s glasses were found upon his breast with the left lens shot out. Polk used his glasses only when reading, and an envelope was found in his pocket covered with figures. The Blakes were in their home when the fatal shot was fired. The elder Blake fired four shots. His son fired only once, but this was the fatal shot, and it struck Polk while the latter was standing near the porch on the outside.

Louis Blake denied making the threat about which the witness Jones testified, and two other witnesses testified that at the time when the alleged threat was made Louis Blake was not°at the bank but was at work on the house of a Mr. Gfuttry. This, however, was a question of fact for the jury.

Louis Blake admitted that he and Polk had disagreed about their settlement.

This testimony, standing alone, might, with the inferences reasonably dedncible therefrom, support the finding that the Blakes had killed Polk after deliberation and premeditation, and were therefore guilty of murder in the first degree as found by the jury. But it does not stand alone. There are certain other facts which cannot he ignored, although we may say that the jury had the right to disbelieve the testimony of the defendants as to the circumstances under which the fatal shot was fired, according to which the killing occurred in their necessary self-defense and in defense of their home and the protection of its inmates from a murderous assault.

After the shooting, young Blake ran away, but he was later arrested. The older Blake went at once to the home of the deceased and informed deceased’s daughter that Elbert Blake had shot her father, and he went with her for a doctor. The doctor — Dr. Sanders — went at once to the scene of the killing. Polk was dead when he arrived, having been killed instantly. Deceased’s glasses were lying across his chest, they having apparently fallen off his face. Deceased had a pint of liquor in his left hip pocket, but none of it had been consumed. Other witnesses testified that Polk'had not been drinking that day. Deceased’s pistol was found lying near his feet.

R. L. Elliott, a deputy sheriff who investigated the killing and arrested Louis Blake, arrived at the scene of the killing a short time after it had occurred. He and others searched the house and found two pistols, one of .38 caliber, the other .45 caliber Colt’s revolver. There were four empty shells in the .38 caliber pistol and one in the .45. In regard to bullet holes found in the Blakes’ home, Elliott testified as follows: ‘£ Q. Did you examine the house to ascertain whether or not any bullet holes were in it? A. Yes, sir. Q. What did you find? A. There were three bullet holes through .the wall and one bullet was taken about the door, it went in straight, and there was a bullet fired from the outside that went through the window sash and through a 2 x 4 and then stuck into the wall. There was a bullet hole up over the door, kind o’ at the corner of the door facing. Q. What was your statement with reference to the window? A. ' That was fired from the door, whoever fired it was on the outside of the door. Q. The bullet that went through the sash was fired from the outside? A. Yes, sir, and went to the corner of the building on the inside. ’ ’

The sheriff, who also examined the house in which the Blakes lived, testified that he found where three shots had been fired from the inside of the house through the wall thereof and one through the window from the inside, hut he also found one which had been fired from the outside, there being one or two shots over the door. Louis Blake, when first arrested, denied that he had fired any shot, but later admitted that he had shot three or four times through the wall of the house.

A witness who was hunting near the Blakes’ home testified that he heard the report of the guns, and that all of the shots were fired within a short time of each other, and he and other hunters with him supposed that other hunters were shooting birds.

We have concluded that, while this testimony is sufficient to support a verdict of murder in the second degree, it is not sufficient to' support a verdict of murder in the first degree. We think there is' lacking that deliberation and premeditation required to constitute the higher degree of murder. The appellants were in their home at the time of the shooting, and, while the jury evidently did not believe their testimony that deceased began the shooting, it is certain that he participated in it. Guests present in appellants’ home to partake of a Christmas dinner, then about ready to be served, testified that when they saw deceased coming to appellants’ home they thought there would be trouble, and they left hurriedly, and that immediately after they had left the house through a rear door the shooting began, but they did not know who had commenced it.

In numerous cases this court has announced the power of the court to reduce' a punishment imposed upon the verdict of a jury. One of the leading cases is that of Routt v. State, 61 Ark. 594, 34 S. W. 262, in which a defendant had been convicted of robbing one Morgan of several hundred dollars. The court was of the opinion that, while the testimony established the fact that Boutt had stolen Morgan’s money, it did not suffice to establish the crime of robbery. In discussing the power of the court to reverse the judgment of the trial court convicting appellant of robbery and to reduce the punishment to that appropriate for grand larceny, the court pointed out that “the charge of robbery made against the defendant includes larceny,” and the judgment of imprisonment for robbery was set aside, and the case remanded with directions to the circuit court to sentence the prisoner for grand larceny.

In discussing this power of the court, Justice Ero-eiok there said: “Our statute provides that ‘the Supreme Court may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all parties, and when the judgment or order has been reversed, the Supreme Court may remand or dismiss the cause, and enter such judgment upon the 'record as it may in its discretion deem just.’ Sand. & H. Digest § 1064. We have twice held that this statute applies to judgments in criminal as well as civil cases. Simpson v. State, 56 Ark. 19, 19 S. W. 99; Brown v. State, 34 Ark. 232.”

It was there also said: “We have said that the evidence does not sustain the charge of robbery, but that it does clearly make out a case of grand larceny. The fact that the defendant was found guilty of a greater crime than was warranted by the evidence does not compel us to set the entire conviction aside when it is in part clearly correct. It was to avoid such an unreasonable and costly procedure that'the statute above referred to was enacted. The defendant in this case was sentenced to be imprisoned for ten years, when the maximum punishment for larceny of money is imprisonment for five years. Under the statute and the authorities cited above, we will relieve the defendant from the excessive judgment, of which he has a right to complain, hut affirm the conviction to the extent that it seems clearly right. The judgment of imprisonment for robbery is set aside, and the cause remanded, with an order that the circuit court sentence the prisoner for grand larceny. ’ ’

This power has frequently been exercised by this court in subsequent cases, and, while the practice usually followed is to reverse the judgment on account of the excessive punishment, unless the Attorney General will consent that the trial court impose a lower sentence, that practice has not always been followed. The court, when it is thought proper to do so, has itself fixed the reduced punishment.

One of the first cases in which this was done was that of Howard v. State, 82 Ark. 97, 100 S. W. 756. The headnote in that case reads as follows: “A conviction of murder in the first degree will be reduced to the second degree where the evidence shows that the killing was done with a deadly weapon but without deliberation or premeditation.” The court there said: “We will set aside the judgment for murder in the first degree, and affirm it for murder in the second degree, and will assess the punishment at imprisonment in the penitentiary as provided by the statute.” The final judgment of this court in that case shows that the punishment imposed by this court, after reversing the death sentence, was imprisonment for twenty-one years, the highest punishment provided by law for murder in the second degree.

■Other cases in which this court has itself reduced the punishment are as follows: Williams v. State, 66 Ark. 264, 50 S. W. 517; Noble v. State, 75 Ark. 246, 87 S. W. 120; Petty v. State, 76 Ark. 515, 89 S. W. 465; Walker v. State, 91 Ark. 497, 121 S. W. 925; Quinn v. State, 114 Ark. 201, 169 S. W. 791; Trotter v. State, 148 Ark. 466, 231 S. W. 177; Williams v. State, 183 Ark. 870, 39 S. W. (2d) 295; Stanley v. State, 183 Ark. 1093, 43 S. W. (2d) 415.

The judgment of the court below sentencing the appellants to death will therefore be reversed, and the judgment will be modified by reducing tbeir conviction to that of murder in the second degree, and a sentence of twenty-one years upon each of them is hereby imposed.


text:
    Means v. American Equitable Assurance Company.
    4-2636
    Opinion delivered July 4, 1932.

      Tom F. Digby, for appellant.

      Verne McMillen and Terrell Marshall, for appellee.
   Smith, J.

On October 28,1930, a thief abandoned an automobile which he had stolen in one of the streets of the city of North 'Little Pock, a city of the first-class. When the presence of the car was discovered, the chief of police of that city directed appellant, who operates a public garage in that city, to remove the car from the streets and to place it in storage. This appellant did.

The city of North Little Rock has an ordinance relating to motor vehicles abandoned in the streets of that city, the relevant portions of which are to the following effect: Such cars are to be seized by any member of the police department. The owner may identify and recover the car without cost within twenty-four hours after being notified to appear and claim his car. If the owner is unknown, the chief of police shall publish notice that the car lias been seized, and the owner may, within two weeks, identify and recover his car “upon payment of all storage charges and cost of posting and publishing notice.” If the abandoned vehicle remains unclaimed for a period of thirty days or more, the chief of police is required to sell it after notice published in a local newspaper, and to hold the proceeds of sale, less costs, for sis months, during which time the owner may establish his title and claim the net proceeds of the sale. There was no sale of the car in question.

The owner of the stolen car carried theft insurance with appellee, American Equitable Assurance Company, hereinafter referred to as the company, and he collected from the company the insurance carried upon the car. Upon making this payment the company took a bill-of-sale for the car from the owner.

Later an agent of the company discovered the car in the possession of appellant, who offered to surrender it upon payment of his charges. This demand was refused, and the company brought replevin for the possession of the car.

It was evidently the opinion of the circuit judge, in the trial of this cause in the court below, that the ordinance, set out above, was invalid, as the jury was instructed that appellant had no right to hold the car for his charges and to allow nothing on that account. The cause was submitted under instructions which required the jury to find the value of the car and the damages arising from its detention, and this appeal is from a judgment rendered upon the verdict thus returned.

Inasmuch as we do not concur in the view that the ordinance was invalid and that no rights were acquired under it, we find it unnecessary to decide certain questions which have been discussed in the briefs on this appeal.

Counsel for the company correctly say that no authority has been expressly conferred by the General' Assembly, even in the statute conferring certain enlarged powers upon cities of the first and second class, to pass the ordinance in question"; but we think this power is necessarily implied from those which were expressly granted by § 7494, Crawford & Moses’ Digest to all municipalities, commonly known as the “general welfare” clause. This section provides, in part, that“* * * they (municipalities) shall have power to make and publish, such by-laws and ordinances, not inconsistent with the laws of this 'State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof. ’ ’

We think the power is implied under this grant to pass ordinances providing for the removal of abandoned motor vehicles in the streets of a town or city which, if not removed, would obstruct and menace traffic; and we think also that the ordinance in question was a reasonable exercise of this implied power, and that the action of the chief of police was authorized by the ordinance.

This being true, appellee should have paid a reasonable charge for storing the ear. There was, however, no compliance with the ordinance in regard to advertising the recovery of the car, nor with its provisions in regard to its sale. On the contrary, it appears that appellant kept the car in his possession and made certain personal use of it. We are therefore of the opinion that the value of this use of the car to appellant should be offset against the storage charges.

We say the value of the use made of the car by appellant, and not the value of its use generally or the value thereof to the owner, should be assessed by the jury, for the reason that the true owner was not wrongfully deprived of its possession. Appellant had the right to retain possession, but, as he used the car without having the ordinance under which he held it complied with, he should pay for the value of the use which he made of it, or any damages to the car resulting from such use.

The judgment of the court below will therefore he reversed, and the cause will be remanded with directions to try the issues stated in accordance with the principles herein announced.