author:
Butler, J.
      Smith, J., Johnson, C. J.,

text:
    Glenn v. Killough.
    Opinion delivered May 14, 1934.

      Marvin P. Watkins, Charles Q. Kelly and Melbourne M. Martin, for petitioner.

      Donham \& Fulk, for respondent.
   Butler, J.

On the 7th day of February, 1934, Mrs. II. Y. Glenn filed a suit against Studebaker Corporation of America and others, the same being case No. 96 in the first division of the circuit court of Poinsett County, Arkansas, Subsequent to the filing of this suit, and after certain preliminary matt.ers were attempted to be had in the second division of the circuit court of that county, Mrs. Glenn filed her petition in this court for a peremptory writ of mandamus in which the Hon. Neil Killough, one of the judges of the circuit court of Poinsett County, was made respondent. The petition alleged the filing of the suit and, in effect, that on March 3, 1934, the defendants gave notice to the plaintiff that on March 5, 1934, there would be presented to the Poinsett Circuit Court defendants’ petition and bond for the removal of said cause to the United States District Court; that said circuit court convened on March 5, 1934, in regular session, and on that date counsel representing the defendants appeared and announced that he desired to be heard upon the petition and bond for removal which he had on that day filed in said court, having given notice to opposing counsel of such intention; that thereupon the Hon. Neil Killough, the presiding judge, advised Marvin P. Watkins, one of counsel for plaintiff, and Martin Fulk, counsel for defendant, that he had no jurisdiction to take any steps in the cause pending in-the first division of the Poinsett 'County Circuit Court, which position was maintained by the court despite the insistence of Fulk that the court should rule upon his petition. Thereupon, the defendants, through said counsel, moved the court for permission to strike from the files of the cause the petition and bond for removal; that the court then directed the clerk to hand to the defendants’ attorney said bond and petition, and, pursuant to defendants’ motion, took his pen and struck the filing marks from said petition and bond and directed the clerk to permit the withdrawal of the same and surrendered them to defendants’ counsel. The petitioner further alleged that the docket and record in said cause do not reflect the motion of the defendant Studebaker Corporation to strike said pleadings and for leave to withdraw their bond and petition for removal, nor do they reflect the order of the court made upon said motion. It is alleged that the motion aforesaid and the order of the court made pursuant thereto results in the entry of the general appearance of the defendants in that cause. The petitioner further alleged that, subsequent to the aforesaid proceedings, to-wit, on March 13, 1934, she presented to the Poinsett Circuit Court, still functioning in regular session, her motion to enter upon the docket in said cause its order made on March 5th permitting the defendants to withdraw the petition and bond for removal and to reflect upon the said docket that the order sought to be entered was made upon motion of defendants for leave to withdraw said petition and bond, and that the same were withdrawn and delivered to defendants ’ counsel pursuant to his motion. The petitioner further alleged that the docket in the action failed to reflect the proceedings had by the defendants in said court and that she is entitled to have the facts reflected by the record and to have the Poinsett County Circuit Court take jurisdiction for the purpose of trial; that, while in regular session as aforesaid, she presented to the Hon. Neil Killough, presiding judge of the court and the respondent named in her petition, her motion for judgment by default in said case No. 96, being entitled thereto for the reason that more than twenty days had elapsed since the issuance of the summons and that defendants had appeared generally in the cause, and, having failed to file any pleadings, she was entitled to the judgment prayed and the impaneling of the jury to assess her damage; that said presiding judge refused to take jurisdiction in the cause and neither granted nor denied said motion, although, as above stated, petitioner was entitled to her judgment by default.

Petitioner further alleged that the said presiding judge refused to take jurisdiction in the premises and refused to make any order whatsoever on the motion filed by her, and “she therefore prays a peremptory writ of mandamus to require said Hon. Neil Killough, judge of the second judicial district and judge presiding over the Poinsett County Circuit Court, to enter the motion of defendants for leave to withdraw their bond and petition for removal to the United States District Court and the order of said court heretofore made permitting the withdrawal of said pleading's and to enter upon the docket in said cause No. 96, styled Mrs. H. Y. Glenn v. Studebaker Corporation of America et al., to the end that her cause of action may be properly heard in said Poinsett County Circuit Court”; and in the final prayer further relief was prayed “that this court direct the respondent herein, as judge presiding over said Poinsett County Circuit Court, to grant petitioner, as plaintiff below, in said cause a default judgment, and to require the said respondent herein to impanel a jury for the purpose of assessing plaintiff’s damages; for costs and all other proper relief.”

As an exhibit to the petition, the petitioner filed a copy of her motion for judgment by default made on March 13, 1934, and the vacation order made and signed on that date by the Hon. Neil Killough, the presiding judge. That order, signed by the judge, is as follows:

“At 9 o’clock a. m. on March 5,1934, the second division of the Poinsett County Circuit Court convened pursuant to statute, in regular session, at which time the business of said division of court was entered upon and the grand and petit jurors impaneled. At some time during the said day, Hon. Martin K. Fulk, of Little Rock, advised the undersigned as judge presiding at said court that he wished to be heard on a motion filed in the cause of Mrs. H. Y. Glenn v. Studebaker Corporation of America et al., number 96, then pending and docketed in the first division of the said Poinsett County Circuit Court, said motion being for a removal of said cause to the United .States District Court on the ground of diversity of citizenship and severability of causes; Mr. Fulk at that time advised the undersigned that he had filed his said petition and bond in proper form and had notified the Hon. Melbourne Martin, of Little Rock, opposing counsel, that the said petition for removal would be presented on that date. Mr. Melbourne Martin was not present in person, but it was stated by Hon. Marvin Watkins, of Harrisburg, that he, the said Mr. Watkins, was associated with Mr. Martin in the case, and that Mr. Martin could not be present on the said 5th day of March, but asked that the hearing on the petition be set for another day in the future, and suggested Friday of the same week. Mr. Fulk then stated that he had given proper notice to Mr. Martin and presented to the undersigned the said notice and objected to a continuance of the hearing. The undersigned then suggested to Mr. Watkins and Mr. Fulk that the first division of the Poinsett County Circuit Court was not in session, and that in his view the second division had no jurisdiction to take any step in a cause pending in the first division, unless said cause was transferred to the second division either by agreement of counsel on consent of the judge or court or by an order to that effect by the judge of the court, and that, if Mr. Martin had no objection to the transfer of said cause filed by him in the first division, it could and would be transferred, to the second division by agreement of counsel, and that the petition for removal could then be heard on the said Friday of the first week, or at any other time while the said second division was in session suitable and convenient to counsel. Mr. Watkins then stated that he was not authorized to say whether or not such transfer would be agreeable to Mr. Martin and could make no statement whatever about the matter. The discussion was then continued approximately two hours in order to enable Mr. Watkins to get in touch with Mr. Martin over the telephone. This he was unable to do. The matter wás then called up again by Mr. Fulk, and the undersigned advised Mr. Fulk that it was the universal practice in this district that civil canses should not stand for trial or disposition of any sort by the second division of the circuit court unless said canse had been originally filed in said second division, or unless they had been transferred, after filing, from the first division to the second division. The undersigned then suggested to Mr. Fulk that the apparent dilemma in which he was placed conld be solved by the removal of the petition, bond and notice from the files of the said first division of the Poinsett Circuit Court, and that under the circumstances the clerk would be directed by the undersigned to permit the said withdrawal of said papers. At that time the clerk had made no docket entry of any sort in regard to the filing of said papers, but the said papers were actually in the file of said cause No. 96, and had been stamped by the clerk with his filing stamp. Upon this suggestion being made and the statement to Mr. Fnlk, whether the undersigned was in error in that statement or not, that that would have the same effect as if the petition, bond and notices had not been filed at that time, Mr. Fulk did act upon the suggestion related to him, and the clerk, by direction of the undersigned, removed from said file and cause number 96, the said petition, bond and notice and delivered them to Mr. Fulk in the presence of the undersigned.
“Nothing else in this matter transpired until the 13th day of March, 1934, at which time the said second division of said circuit court was still in session. At that time Mr. Melbourne Martin, in person, presented his motion to enter the order of the court permitting defendant to withdraw upon its motion the petition and bond for removal to the Federal court, and this motion for default judgment in said cause number 96, at which time it first appeared that the clerk had entered on the civil docket in said cause the following notations:
“ ‘March 5-34. Petition for removal to Federal court filed. March 5-34. Bond for removal to Federal court filed. March 13-34. Motion to enter order of court permitting defendant to withdraw upon its motion the petition and bond for removing to Federal court filed. March 13-34. Motion for default judgment filed’; that none of said entries were made by the court or by the court’s direction or by the undersigned.
“The said undersigned, being of the opinion that the second division of the Poinsett County Circuit Court now in session has no jurisdiction whatever in this civil case, and, under the circumstances outlined above, has refused to either sustain or deny the said motions filed by the plaintiff on this 13th day of March, 1934, as a court, but does, at the request of plaintiff’s counsel, make this statement and explanation of his refusal in the form of a vacation order, and, for the reasons stated, refuses to take any jurisdiction of said cause. The defendants were not represented, either in person or by attorney, in any of these matters, except those outlined and detailed on the 5th day of March, 1934, nor was any notice given to defendant or counsel in regard to the motion to enter order or motion for default judgment. During all of the discussion had on this, the said 13th day of March, 1934, the plaintiff was present in person and by her attorneys, Hon. Melbourne Martin and Hon. Marvin Watkins, and also present Dr. A. L. Jobe, of Little Rock, a witness for the plaintiff.
“The clerk of the Poinsett County Circuit Court is directed to enter this order as a vacation order of the Poinsett County Circuit Court, First Division.”

To this petition the respondent filed a response by his attorney, admitting the allegations of the petition except denying that the said petition and bond were withdrawn from the files on motion of defendants’ attorney in action No. 96, but alleged that the same were withdrawn on the initiative of the court for the reason that the case had been filed in the first division of the Poinsett Circuit Court, the division in which, pursuant to law, civil actions are due to be. filed, and it was the practice that such civil actions were not due to be disposed of by the second division of the court unless said cause had been originally filed therein, or unless it had been transferred after filing, from the first to the second division. The respondent denied that any action had been taken on the 5th of March, 1934, or any orders made, or any notations authorized by the court to be made on the docket or record thereof, and that none of the entries copied in the petition for mandamus were made by the court or by its direction or by the respondent as judge thereof; that it was the opinion of respondent that the second division of said circuit court had no jurisdiction in cause No. 96, and, under the circumstances set out, refused to sustain or deny the motions filed by the plaintiff on March 13, 1934, as a court, but made a written statement and explanation of his said refusal in the form of a vacation order which appears in the transcript.

Supporting this motion was the affidavit of Martin K. Fulk, the attorney, who appeared in the Poinsett Circuit Court on March 5, 1934, and supporting the petition is the affidavit of the deputy circuit clerk, which is in effect that the withdrawal of the bond and petition and their delivery to the defendants’ counsel were made upon motion of said counsel.

The affidavits of Fulk and of the deputy circuit clerk are in conflict, but we think the facts are settled by the formal written findings of the presiding judge made and signed by him on March 13, 1934, which had been copied herein, and that these findings sustain the contention made by the respondent, to-wit, that the court refused to entertain the petition and bond for removal for the reason that the case was pending in the first division of the Poinsett Circuit Court, and that he, while presiding* over the second division of that court, had no jurisdiction to hear and determine any proceedings in cause No. 96 filed in the first division except in accordance with the procedure pointed out by the statute governing the practice in the second judicial circuit; that this practice was that, where a case was filed in one division, it might be transferred by the judge of that division to the other division, or might be heard by the judge of the division other than the one in which the cause was filed on consent of the parties. It also appears from the response and the written findings of fact made by Judge Killough that on March 5, 1934, both the plaintiff and defendants in cause No. 96 were present and represented in the court by counsel; that the court called the act governing the practice in that circuit to the attention of counsel and announced, upon the defendants’ request that he hear the petition for removal, that he would do so if the plaintiff (petitioner) would agree that the cause be lifted from the first division and heard by him in the second division, but to this proposition plaintiff’s counsel would not agree.

The majority of the court agree that the prayer of the petition should be denied for the following reasons :

1. The refusal of the plaintiff (petitioner) to agree that the cause be transferred from the First to the Second Division of the circuit court is the reason why this was not done and why Judge Killough did not proceed to determine the question presented by the petition and bond for removal and such as might subsequently follow, and that it would now present an anomalous situation for this court to mandamus the circuit judge and compel him to do those things on petitioner’s request, which he would have done had the petitioner, in the first place, agreed that he might. The refusal of the court to take any action in the cause while presiding in the Second Division was brought about by the action of petitioner, herself, and she is therefore in no position to complain of the failure of the court to act, and for that reason her prayer for mandamus should be denied.

2. We judicially know that the court will sit in the First Division on May 14, 1934, and at that time petitioner’s case No. 96 is due to be called for trial or other proceeding, whereas the Second Division over which Judge Killough presides (unless by agreement between himself and Judge Keck he presides over the First Division), will not be in session until a time subsequent to the convening of the court in its First Division. For these reasons whatever order this court might make would serve no useful purpose and courts are not called upon to do vain things. International Shoe Co. v. Wagner, 188 Ark. 59, 64 S. W. (2d) 82.

3. The majority are also agreed that the petitioner is not entitled to that part of the relief prayed which asks this court to direct the trial court to render a judgment in her behalf by default and to impanel a jury to assess her damage. The ground on which the prayer for this relief is based is that the defendants entered a general appearance when they filed their motion for leave to withdraw the petition and bond for removal from the files of the court for the. purpose of refiling in the First Division. In the first place, the finding of the presiding judge negatives this contention and clearly indicates that the filing marks on the petition and bond were stricken out and the papers returned to defendants’ counsel on the court’s initiative, and not by reason of any motion having been made for that purpose.

In the next place, if, under the circumstances narrated in the petition, response, and in the “vacation order” signed by Judge Killough, defendants had made the motion to withdraw their petition, it is certain that this was for the purpose of presenting it in the First Division, the one in which the cause was pending, their right to have the same heard in the Second Division having been denied without the agreement of plaintiff having been obtained, that agreement being refused by her counsel. So, all that was done was in furtherance of the assertion of the defendants’ right to have the case removed, and it was for that purpose that all the proceedings were. had.

It is well settled that the filing of a petition to remove a cause from a State to a Federal court does not amount to the entry of a general appearance, and it is especially the case where, as in the case at bar, the petition recited that appearance was made only for the purpose of presenting the petition; and, as we have seen, if it be granted that the petition was withdrawn on defendants’ motion, this was an act, in view of the position taken by Judge Killough, essential to secure a removal of the cause to the Federal court. The special purpose for which the petition was filed would still remain, during all the proceedings, to secure the relief prayed in the petition, and such proceedings would not amount to a general entry of appearance as contended by the petitioner. We have been cited to no authority to sustain her view, but the authorities cited by the respondent support our conclusion and comport with sound reason. In 4 C. J., § 34, p. 1344, the general doctrine is thus stated: “Where a petition for removal does not amount to a general appearance, a motion for leave to withdraw such petition is not a general appearance.” As authority for the text the author cites the. case of Bryan v. Norfolk, etc. Ry. Co., 119 Tenn. 349, 104 S. W. 523. In that case the court notices the argument that the motion to withdraw the petition, not being in pursuance of any federal statute, was a voluntary abandonment of a right under that statute, and amounted to a voluntary appearance, and answered that argument thus: “We do not think this contention is sound. The defendant company, having the acknowledged right to make a special appearance for the purpose of filing a petition for the removal of the cause to the Federal court, might properly appear and withdraw that petition without being charged with a general appearance. It was at least an appearance for a special purpose, whether for the filing of the petition for removal in the first instance or the withdrawal of that petition in the. last instance.” See also Flint v. Coffin, 176 Fed. 872; Coffin v. Flint, 217 U. S. 602, 30 S. Ct. 693.

Mr. Justice Smith, Mr. Justice McHaney and the writer are of the opinion that the petition should be denied, not only on the grounds stated above but for reasons which will appear in a concurring opinion. The Chief Justice, Justices Humphreys and Kirby dissent.

The writ is denied.

Smith, J.,

(concurring). I concur in the opinion written by Mr. Justice Butler, and agree that the writ of mandamus was properly denied for the reasons there stated. I am also of the opinion that the circuit .judge properly construed the practice under act 138 of the Acts of 1911 (General Acts 1911, p. 110), this being the act to provide an additional circuit judge for the Second Judicial Circuit and to regulate the practice in such court.

The Constitution has defined the jurisdiction of circuit courts, and, this being true, the General Assembly may neither increase nor diminish that jurisdiction. But it is equally true that the General Assembly may enact, and should enact, and does enact, legislation regulating the practice in such courts. It is perfectly proper for the General Assembly to provide when and where such courts may sit, and to enact the procedure pursuant to which their jurisdiction may be exercised (Belford v. State, 96 Ark. 278, 131 S. W. 953), and it has never been questioned that it is the duty of all courts, from the lowest to the highest, to exercise their jurisdiction in conformity with appropriate practice acts. If this were not true, there would be neither uniformity nor certainty in the practice before, and the practice of, the courts, and all procedure would be subject to the caprice of the presiding judge or judges.

Two judges being provided under the act of 1911 in the Second 'Circuit, instead of one, some recognition of that fact was necessary, and the direction as to procedure there found is proper and valid and indispensable, and constitutes no encroachment upon the jurisdiction of either judge in that circuit. Regulating the practice in and before a court is no encroachment upon or interference with its .jurisdiction.

The practice under this act was defined in the case of Blackstead Mercantile Co. v. Bond, 104 Ark. 45, 148 S. W. 262. There a civil case had been docketed in the second or criminal division without any order of the judge to that effect, and a judgment was rendered for the want of an answer. It was there said that the act provides that the circuit clerks of the counties in that circuit shall assign all civil cases to the first division, and all criminal cases to the second division, unless “the judges shall deem it expedient to divide said h-usiness into other than civil and criminal divisions,” which may be done by written order of said judges, but that “it shall not be reversible error that any case is tried in the division to which it has not been specially assigned, and by consent of parties any case pending in any county, or district thereof, may be tried in either division of said court. ’ ’ It was said that the jurisdiction of the court did not depend upon the proper assignment of a case to either division, and that it was not reversible error for any case to be tried in the division to which it had not been assigned. It was said, however, that the fact that a case is assigned to the wrong division, and' a litigant was misled thereby to his prejudice, might be sufficient ground for vacating the judgment under the statute which provides that a judgment may be vacated after the lapse of the term “for unavoidable casualty or misfortune preventing the party from appearing or defending. ’ ’ (■Section 4431, Kirby’s Digest). Section 6290, Crawford & Moses’ Digest. That relief was asked in that case, but was denied for the reason that the defendant was advised of facts which put it on notice that a civil case had been docketed in the criminal division, and no surprise was occasioned because of the appearance of the civil case on the criminal docket.

Here the facts are the exact opposite. The case of Glenn v. Studebaker Corporation did not appear on the docket of the second division then in session. It had not been assigned to that division by consent of parties, nor through the order of the judges, nor through the action of the clerk. The case had been assigned to and properly appeared on the docket of the first division. The presiding judge stated, in his vacation order, copied in the opinion of Justice Butler, what the uniform practice had been in that circuit, which was that: “It was the practice that such civil actions were not due to be disposed of by the Second Division of the court unless said cause had been originally filed therein; or unless it had been transferred, after filing, from the First to the Second Division.” This practice, said by the presiding judge to be universal, accords with § 4 of the act of 1911, which requires the circuit clerks to assign all civil cases to the first division and all criminal cases to the second division as soon as docketed unless the judges, by their option and agreement, had otherwise directed, or had, by their written order, provided for a different assignment.

Now, the presiding judge offered to hear and pass upon the defendant’s motion to remove the case to the Federal court provided the plaintiff would consent. But the plaintiff did not consent. The court then properly declined to hear and dispose of the motion for the reason that no. such case appeared on his docket, the judges had not ordered it assigned there, and the clerk had not assigned it there.

There can be no question about the power of the judge presiding in one division to transfer a case pending in that division to the other division. This is true because he has such a case before him and on his docket. It is, however, a wholly different proposition to say that the judge presiding in one division may reach over and transfer a case not pending before him- nor appearing on his docket but in fact pending in the other division, over which the other judge will preside, and remove the case from that docket, or make any order relating to the case while it is pending on the docket of the other division.

It must be remembered that this case was not on the docket of the division over which Judge Killough was presiding, and it could get there only in some manner authorized by law. The transfer could have been made by consent of parties, but the plaintiff refused to consent. Can it be contended that Judge Killough could have made any order in the case until it had in some manner reached his division, whether by order of the judges, the consent of the parties, or the action of the clerk?

A circuit court might transfer a case to the chancery court, or the chancery court might transfer a case to the circuit court, but would it be contended that, because either court then in session had the jurisdiction to try a case pending on the docket of the other, this jurisdiction to try the case conferred the right to reach over to the docket of the other and, without its consent, transfer a case there pending? Has the practice not always been, and should it not always be, to ask the court where the case is pending to transfer it to the other court? The respect due by one court to another, and the preservation of any semblance of orderly procedure, suggests and requires the practice- to be followed of having the court before which the case is pending to first make an order transferring it before the other court assumes jurisdiction.

Pulaski County has a circuit court consisting of three divisions, and each of the three judges have identical jurisdiction under the -Constitution, but must, or may, the judge sitting in the first or criminal division of that court, hear and dispose.of a motion to remove to Federal court a case pending in either the second or third division without having the cause, in some manner known to the law, transferred to the first division? I submit that the act of 1911 contemplates no such practice, and that Judge Killough properly refused to take any action relating to a cause not pending before him.

The practice is well defined that a party, to be entitled to a writ of mandamus, must show a clear legal right to the subject-matter and a lack of other remedy, and it is as equally well defined that where an inferior court has a discretion, and proceeds to exercise it, the discretion cannot be controlled by mandamus; but, if he refuses to act or to exercise such discretion, mandamus lies to put it into motion. Jones v. Adkins, 170 Ark. 298, 280 S. W. 389. The circuit court did not refuse to act when called upon to do so. The court proposed to pass upon the motion to remove to the Federal court if the cause were transferred to the division over which the judge was presiding, but the plaintiff did not consent. Can the plaintiff now have mandamus to compel the court to act after declining to consent that it might act?

Of course, mandamus will not lie to control the court’s discretion. To obtain the relief here asked it must be shown that the court should have acted, but declined to do so, and, as that showing has not been made, the writ should be denied for that reason. Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002.

At § 154 of High’s Extraordinary Legal Remedies, (3d ed.) p. 171, it is said: “The writ will be refused when its purpose is to compel a court to alter its record, so that it may correspond with the state of facts disclosed by affidavits filed with and made a part of the application for mandamus. And the action of a court in denying a motion to correct the record of its judgment in a cause is so far judicial in its nature, that mandamus will not go to review or to control such action. Nor will it be granted to compel a court to receive a particular plea offered by a party to a cause pending therein, even though the court may have erred in rejecting such plea.” For the reasons stated in this standard text, the right of mandamus should be denied.

It is my opinion that the writ should be denied for the reasons here stated, as well as for those stated in the opinion prepared by Justice Butler, and I am authorized to say that he and Judge McHaney concur in the views here expressed.

Johnson, C. J.,

(dissenting). The effect of the majority opinion is that there are two separate and distinct circuit courts in existence in Poinsett County having separate and distinct jurisdictions to be exercised at the will and pleasure of the circuit judge who may happen to preside in these respective circuit courts. If the opinion of this court in State v. Martin, 60 Ark. 343, wherein the letter “a” was construed to mean “many” was thought to be novel, then I wonder and ponder what the bench and bar will think when we assert that: “The circuit court shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution.” Section 11, article 7, of the Constitution of 1874, also provided: ‘ ‘ each circuit to be made up of contiguous counties,” etc. Section 13, article 7; “also a judge of the circuit court shall be a citizen of the United States, ’ ’ etc. Section 16, article 7, Constitution, provided also: “The judges of the circuit court shall be elected, ’ ’ etc. Section 17, article 7, of the Constitution also: “whenever the office of judge of the circuit court of any county,” etc. Section 21, article 7, Constitution also: “the qualified electors of each circuit shall elect a prosecuting attorney,” etc. Section 27, article 7, Constitution also: “the circuit court shall have jurisdiction,” etc. Section 27, article 7, Constitution also: “appeals from all judgments of the county courts or courts of common pleas when established may be taken to the circuit court under such restriction and regulation as may be prescribed by law.” Section 33, article 7, Constitution also: “the judge of the county court shall be the judge of the court of probate and * * * have jurisdiction in matters * * * as is now vested in the circuit court,” etc. Section 34, article 7 also: “that in all cases of allowances made for or against counties, cities or towns an appeal shall lie to the circuit court of the county,’’ etc. Section 51, article 7 also: “that-in all cases of contests for any county, township or municipal office an appeal shall lie * * * to the circuit court,” etc. Section 52, article 7, Constitution, means two or more circuit courts instead of “the circuit court,” as appears from a ■ casual reading of the Constitution? 'It occurs to me that but one construction can be .placed upon the language employed in the Constitution as hereinbefore quoted. “The circuit court” does not and cannot be consistently or logically construed to mean two or more circuit courts. The view that the Legislature may create two or more circuit courts to operate in the respective counties of the State is abortive of constitutional mandate. The mere fact that this court held in State v. Martin, supra, that two or more circuit judges might be provided by the General Assembly to preside in or over a certain circuit court in the State is neither decisive nor persuasive of the question here discussed. The indefinite article “a” which precedes “judge” in the Constitution of 1874 was there determined to be no definite limitation upon the legislative branch of the State government in providing additional judges to preside over the respective circuit courts of the State. Whether the opinion in Martin v. State, supra, be sound or unsound, logical or illogical, is not now open for discussion, but the indefinite extension of the doctrine therein announced should be condemned in no uncertain terms. Certainly, no member of the Constitutional Convention of 1874 ever conceived or dreamed that in 1934 this court would hold, in effect, that “the circuit court,” as used so many, many times in article 7 of the Constitution of 1874, would be construed to mean more than one circuit court. Just how this construction of the Constitution may be made to fit into other provisions of the instrument is not readily conceivable. How appeals from the county courts, probate courts, justice of the peace courts and municipal courts may be affected is thrown into utter confusion. Will such appeal be prosecuted to the first or second division of these circuit courts? Will prohibition, quo warranto, mandamus, injunctions and other remedial writs be returnable to the first or second division of these newly created courts? These questions can not be answered by saying that the Legislature may determine and settle them. Primarily, and until now, jurisdiction of subject-matter has been conferred by the Constitution, and, when so conferred, the Legislature is without power to change or modify it. The circuit court jurisdiction is conferred by § 11, article 7, of the Constitution of 1874, but the jurisdiction of this newly created circuit court is nowhere mentioned or referred to in the Constitution. Just which of these circuit courts will be said to have and hold the great residium of jurisdiction conferred upon the circuit court by constitutional mandate is not pointed out by the majority opinion. Martin v. State, supra, does not impair the reasoning here set out. There this court expressly said: “The act creates no new office and confers no new jurisdiction, nor does it in any manner change or take away any jurisdiction already conferred by the Constitution.” In contradiction of the doctrine thus announced, the majority is now holding that a new office is created; that a new jurisdiction is conferred which changes and takes away the jurisdiction conferred by the Constitution of 1874. The legislative act creating a second judge for the first judicial district is of no greater importance than that which creates the. judge for the sixth judicial district, which was construed in Martin v. State, supra, and I cannot conceive the importance or necessity for this apparent distinction.

It certainly and definitely appears from article 7 of the Constitution of 1874 that but one circuit court was created for Poinsett County, but by subsequent acts of the Legislature, as construed in Martin v. State, supra, it may be presided over by more than one judge. This construction not only meets the exigencies of prevailing conditions, but fits into constitutional mandate. If there is but one circuit court in Poinsett County, which is presided over by one or more circuit judges, then it inevitably follows that Judge Killough erred in refusing to exercise jurisdiction over the subject-matter of the suit pending in the Poinsett Circuit Court while presiding there on March 5, 1934. In the response filed here by Judge Killough, he asserts that the suit pending in the Poinsett Circuit Court and here under consideration was pending in the first division of the Poinsett Circuit Court and that he was presiding over the second division of the Poinsett Circuit Court on March 5, 1934, therefore, he had no jurisdiction of the case. Upon this response, we should direct the issuance of the peremptory writ of mandamus.

This court expressly held in Gilbert v. Shaver, 94 Ark. 234, 120 S. W. 833, that jurisdiction of subject-matter was purely a question of law, and the chancellor, having decided ho had no jurisdiction, should be required to exercise jurisdiction by mandamus in this court. The rule as stated by us-in Gilbert v. Shaver, supra, is not only supported by the great weight of authority on the subject, but I assert, without fear of contradiction, that no authority can be found holding otherwise. See Merrill on Mandamus, §§ 3'6 and 203. Wood on Mandamus, p. 20.

The majority endeavor to avoid the jurisdictional question here presented by saying: “First, the refusal of the plaintiff (petitioner here) to agree that the cause be transferred from the first to the second division of the circuit court” estops petitioner' invoking the jurisdiction of this court, It has ever been the settled law in this State that jurisdiction of subject-matter can not be conferred by agreement of the parties; therefore, any agreement of the parties would have been vain, useless and futile.

Moreover, no agreement of the parties was necessary because Judge Killough, then presiding, had jurisdiction of the subject-matter of petitioner’s suit then pending in the Poinsett Circuit Court. Thus it appears that this “agreement gesture” is without plausibility.

Next, the majority say that “we judicially know that the circuit court will sit in first division on May 14, 1934, etc.” Therefore, the issuance of the writ would have no useful purpose and because thereof should be denied. This assertion is palpably erroneous. On the same assumption the writ should never be granted. On the same assumption the writ in Gilbert v. Shaver, supra, should have been denied, because Judge Shaver mig*ht have died, voluntarily retired, or been removed from office before the writ could become effective. The test is and should be, what are the facts at the time the application for the writ is made? In the instant case, when petitioner’s application for the writ was made, Judge Killough was asserting his lack of jurisdiction in the premises and, when we judicially determine that he was in error in this assertion, the writ should follow as a matter of right.

The peremptory writ of mandamus should be awarded in the instant case commanding and directing the presiding circuit judge of Poinsett County to assume and exercise jurisdiction over the subject-matter of petitioner’s suit pending in the Poinsett County Circuit Court.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Denton v. State.
    Crim. 3882.
    .Opinion delivered May 14, 1934.

      J. H. Black and II. J. Denton, for appellant.

      Ral L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Butler, J.

The appellant, Boy Denton, was indicted in the Marion Circuit Court charged with the crime of murder in the first degree, the offense alleged to have been committed on November 25, 1932, by wilfully, with malice aforethought, after premeditation and deliberation, killing one Coy Aday, by shooting him with a pistol. No objection has been raised to the indictment. The trial resulted in a conviction for murder in the second degree and punishment fixed at seven years’ imprisonment in the State Penitentiary.

We have examined the record in this case and find substantial legal evidence to support the verdict of the jury. We do not detail this evidence because no point is made by the appellant that it was not legally sufficient to warrant the. verdict.

The contentions made by appellant for reversal of the judgment of the trial court are:

1. That the court erred in permitting a- witness for the State to testify to the effect that the defendant drank a great deal — gets drunk and fights a lot. On this contention it is pointed out by the appellee that this error was invited by the defendant, he having first brought out this testimony on the cross-examination of the witness. The question asked 'by his attorney was: “Why was Roy so bad,” and the answer was: “He drank, and was out with girls.” On redirect examination the witness was asked if Roy did not drink a good deal, get drunk and fight. On objection interposed, the court said: “You brought that out yourself — you asked the witness why he was so bad.” The witness answered the question in the affirmative.. The character of the defendant, not being put in issue, it would have been improper for the prosecuting attorney to have elicited the evidence complained of, but defendant, himself, having invited the error, he is now in no position to complain. Crawford v. State, 132 Ark. 518, 201 S. W. 784; Beck v. State, 141 Ark. 102, 216 S. W. 497; Harper v. State, 151 Ark. 338, 236 S. W. 263; Yelvington v. State, 169 Ark. 498, 276 S. W. 498; Wilhem v. State, 175 Ark. 455, 299 S. W. 739.

2. The next contention for reversal is raised by assignment of error No. 5 in the motion for a new trial which complains of error of the court in permitting the State’s attorney to cross-examine the defendant regarding other offenses than that with which he was charged. It is well settled that, when a defendant in a criminal proceeding waives his privilege of silence by electing to become a witness in his own behalf, he subjects himself to the rules governing the examination of any other witness, and the court has the discretion within reasonable bounds to permit the defendant to be questioned on those matters which, in his opinion, are proper to assist the jury in judging the present veracity of the witness. It has been often held that the trial court does not abuse its discretion in permitting inquiry to be made of a defendant witness on cross-examination regarding his personal habits, associations, and other offenses committed by him, for this tends to inform the jury of the degree of credit which may be attached to his statements and their probative worth. We do not think there was any abuse of discretion, Holliday v. Cohen, 34 Ark. 711; Bergstrand v. Townsend, 70 Ark. 602, 70 S. W. 307; Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41; Bullen v. State, 156 Ark. 148, 245 S. W. 493.

3. The next ‘assignment of error presented is the court’s refusal to give to the jury instructions Nos. 8 and 12, requested by the .defendant. Instruction No. 8 called to the attention of the jury the distinction between direct and circumstantial evidence, and that crime may be proved by either or both kinds of evidence; but, where circumstances are relied upon to establish guilt, they should be consistent with each other and with the guilt of the defendant and inconsistent with any reasonable theory of innocence. Instruction No. 12 required that the prosecution prove the defendant guilty as charged and beyond a reasonable doubt, and the jury was told that it should acquit unless the evidence measured up to the standard required.

This was not a case where the State relied wholly upon circumstantial evidence to establish the guilt of the defendant. The killing was proved by defendant’s own admission, and the law imposed upon him the burden of proving such facts and circumstances as would excuse or justify the homicide. Then, too, the court had presented to the jury the defendant’s plea of self-defense and fully and fairly instructed it respecting such plea. The jury had also been fully instructed as to the presumption of innocence, the credibility of witnesses, and the necessity for the State to establish defendant’s guilt as charged beyond a reasonable doubt, and that upon the whole case, if it should have a reasonable doubt as to the guilt or innocence of defendant, it should find him not guilty, requiring the jury to weigh all of the evidence, both direct and circumstantial. Where the court has instructed the jury, as in the case at bar, the rule is that refusal to give further instructions on circumstantial evidence, even where the case depends wholly upon evidence of that character, is not error. Griffin v. State, 141 Ark. 43, 216 S. W. 34; Jordan v. State, 141 Ark. 504, 217 S. W. 788; Payne v. State, 177 Ark. 413, 6 S. W. (2d) 832. In Ridenour v. State, 184 Ark. 475, 43 S. W. (2d) 60, it is said:

“This court has ruled that the refusal to give any instructions on circumstantial evidence where the case depends wholly upon such evidence is not error if he had already fully and correctly instructed the jury on the credibility of witnesses, the weight of evidence, the presumption of innocence, and reasonable doubt.”

Instruction No. 12, supra, was properly refused because it was fully covered by instructions already given relating to presumption of innocence and reasonable doubt.

4. It is also insisted that the giving of instructions Nos. 3, 4 and 5 constituted error because they omitted reference to defendant’s plea of self-defense. These instructions related to the degree of proof necessary to warrant the jury in determining the degree of homicide, and each began with the expression, “If you do not find the defendant not guilty under his plea of self-defense, etc.” Instructions given at the request of the defendant correctly and fully presented to the' jury the defendant’s plea of justification, and, with instructions Nos. 3, 4 and 5, made a harmonious whole. We find no reversible error, and the judgment is therefore affirmed.


author: Johnson, C. J.

text:
    Francis v. State.
    Crim. 3885
    Opinion delivered May 21, 1934.

      M. Rountree, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Johnson, C. J.

The grand jury of Hot Spring County, Arkansas, returned the following indictment against appellant at the regular January, 1934, term thereof:

“The grand jury of Hot Spring County, in the name and by the authority of the State of Arkansas, accuses Dewey Francis of the crime of assault with intent to kill, committed as follows, to-wit: The said Dewey Francis in the county and State aforesaid, on the 7th day of August, 1933, in and upon one J. R. Sirratt, then and there being, with a dangerous weapon, to-wit: a knife, with which the said Dewey Francis was then and there armed and which was then and there had and held in the hands of him, the said Dewey Francis, unlawfully, wilfully and of his malice aforethought, did make an assault with intent to kill the said J. R. Sirratt, then and there with the knife aforesaid, feloniously, wilfully and of his malice aforethought to kill and murder the said J. R. Sirratt by cutting and stabbing him with said knife aforesaid, against the peace and dignity of the State of Arkansas. ’ ’

Upon trial, appellant was convicted of assault to kill as charged in said indictment and his punishment fixed at five years in the State penitentiary.

Because of the views hereinafter expressed, it will be unnecessary to review the evidence in detail; it suffices to say that the evidence produced in behalf of the State was amply sufficient to sustain the charge of assault to kill.

Among other instructions given on behalf of the State, over appellant’s objections, the trial court gave to the jury instruction number 5 as follows: “You are further instructed that, if you believe from the evidence in this case beyond a reasonable doubt that the defendant cut J. R Sirratt with a knife, that the burden of proving circumstances of mitigation that justify or excuse the cutting is placed on the defendant.”

Appellant contends that the giving- of this instruction No. 5 was reversible error, and we agree with this contention. Section 2335, Crawford & Moses’ Digest, provides: “Whoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill, or shall administer or attempt to give any poison or potion with intent to kill or murder, and their counsellors, aiders and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than one nor more than twenty-one years.”

Since the pronouncement in Lacefield v. State, 34 Ark. 275, we have consistently held, to sustain an indictment for assault with intent to kill, the evidence must' be such as will warrant a conviction for murder if death had resulted from the assault. Allen v. State, 117 Ark. 432, 174 S. W. 1179; Deshazo v. State, 120 Ark. 494, 179 S. W. 1012; Davis v. State, 115 Ark. 566, 173 S. W. 829; Alford v. State, 110 Ark. 300, 161 S. W. 497; Jones v. State, 100 Ark. 195, 139 S. W. 1126.

Moreover, we have many times held that the evidence to warrant a conviction for assault with intent to kill must not only be such as to warrant a conviction for murder if death had resulted from the assault, but must further show a specific intent to take the life of the person assaulted. Chrisman v. State, 54 Ark. 283, 15 S. W. 889; Chowning v. State, 91 Ark. 503, 121 S. W. 735; Allen v. State, supra.

We have always held that the burden of proof was upon the State to establish the guilt of the accused as charged in the indictment beyond a reasonable doubt. 5 C. J., § 302, p. 778. The instruction heretofore quoted ignores this well-planted rule of law. It tells the jury, in effect, that, if appellant cut the prosecuting witness with a knife, the burden of showing mitigating circumstances devolves upon the accused.

Neither can the above instruction be justified under § 2342, Crawford & Moses’ Digest, which provides: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’

By the plain language of this section of the digest, it is only applicable in homicide cases. From a casual reading of the statute, just quoted, it definitely appears that this statute cannot be invoked in assault cases. The language, ‘ ‘ The killing being proved, ’ ’ is amply sufficient to sustain this position.

Moreover, we expressly determined in Parsley v. State, 148 Ark. 518, 230 S. W. 587, that it was reversible error for the trial court to invoke this statute in assault eases.

Other errors are pressed upon us for reversal, but we deem them not of sufficient importance to here discuss. It is entirely possible that these alleged errors will not recur upon another trial.

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


text:
    Martin v. Mutual Life Insurance Company of New York.
    4-3463
    Opinion delivered May 21, 1934.

      J. Ford Smith and W. J. Dungan, for appellant.

      Frederick L. Allen and Rose, Hemingway, Cantrell <& Loughborough, for appellee.
   Johnson, C. J.

This appeal involves the construction of the following exemption contained in the double indemnity clause of a life insurance policy issued by appellee as insurer upon the life of George W. Martin, deceased, in which Susie J. Martin, appellant, was designated as beneficiary, to-wit:

“The double indemnity will be payable upon receipt of due proof that the insured died as a direct result of bodily injury effected solely through external, violent and accidental means, independently and exclusively of all other causes, and of which, except in the case of drowning or asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after the date of such injury; provided that the double indemnity shall not be payable if death resulted from self-destruction, whether sane or insane, or from military or naval service in time of war, or from any act incident to war, or from engaging in riot or insurrection, or from committing an assault or felony, or from participation in aeronautics, or directly or indirectly from disease or bodily or mental infirmity. ’ ’

The insured was instantly killed when the airplane, in which he was an invited guest, crashed and struck the ground while navigating the air between Augusta, Arkansas, and St. Louis, Missouri.

The facts and circumstances of the crash and the death of the insured are identical with those narrated in Missouri State Life Insurance Company v. Martin, 188 Ark. 907, 69 S. W. (2d) 1081, and reference is here made thereto.

The exemption here employed by the insurer “or from participating in aeronautics” differs only from the exemption contained in Missouri State Life Ins. Co. v. Martin, supra, as’ follows: “Or for participation in aviation or submarine operations” by the elimination of the word “operations.”

It is true that the opinion in Missouri State Life Ins. Co. v. Martin, supra, was put upon the ground that the use of the word “operations” limited the meaning and effect of the word “participation” which preceded it, and, when thus construed, conveyed the definite meaning and effect of not exempting the insurer from liability as against an invited guest riding in an airplane. The opinion as thus construed ^s not in conflict with any other case which has been called to our attention in briefs. When the word “operations” is eliminated, however, a very different case, is presented and must be decided as of first impression by us. In Missouri State Life Ins. Co. v. Martin, supra, although stated as dictum, we said as a concurring basis of the opinion and the conclusion thereafter determined that: “The distinction thought by the courts to exist between ‘engage in aeronautics’ and ‘participation in aviation’ may be apparent to, and approved by, those learned in the niceties of the language and accustomed to its precise use, but it is to be doubted whether these hair-splitting and subtle distinctions would occur to, or be understood by, the majority of the thousands of persons who seek insurance against the many hazards to life and limb which are likely to occur to the most prudent and fortunate. Words and phrases used in insurance policies should be construed by their meaning as used in the ordinary speech of the people, and not as understood by scholars.

“It might well be imagined that if the average tradesman, artisan, or farmer, although he had many times taken passage on a railroad train and intended again soon to do so, if asked if he had participated, or intended to participate, in railroading, would at once answer, 'No’; and if then asked if he had engaged in, or intended to engage in railroading, would reply, ‘I have just told you, No.’ It might well be assumed that to his mind the word ‘participate’ in the connection used in the question would imply some action, some ‘taking part in’ the movement of the trains, the upkeep of the property, or management of its 1)118111088. He likely would not think that by the question was meant to learn if he had, or intended merely ‘to have, enjoy, or share in common with others’ the privilege of being transported as a passenger on the lines of railway companies.

“It is interesting, however, to note that, in these cases and others which discover a distinction between ‘engaged in’ and ‘participate in,’ the courts, when they abandon the role of the ‘precisian’ and discuss the case in the language of the ordinary (person, sometimes use the words ‘engaged’ and ‘participate’ or ‘participation’ as conveying a similar idea. In the case of Peters v. Prudential Ins. Co., supra, [233 N. Y. S. 500] in discussing the word ‘engaged,’ the court said: ‘It gives the impression of participation as an occupation.’ In Benefit Ass’n v. Hayden, supra, [175 Ark. 565, 299 S. W. 995] the court found for the beneficiary, saying: ‘ * * * The proper construction of those words (engaged in) is that actual employment or participation was contemplated, and not ‘merely riding as a passenger. ’ This case followed the case of Benham v. Insurance Co., 140 Ark. 612, 217 S. W. 462, 463, where the court defined the word ‘engaged’ as denoting action, thus: ‘It means to take part in.’ This is precisely one of the meanings of the word ‘participate’ which is apparent from the etymology of the word; ‘participate,’ a word coming from the Latin words ‘pars,’ a part, and ‘capio,’ to take, therefore meaning to take part in. 6 Words and Phrases, First Series, 5185.

“As defined by the leading lexicographers, ‘aviation’ is a more exact and specific term than ‘ aeronautics, ’ and means ‘the art or science of locomotion by means of aeroplanes.’ Webster. It might appear that, if aviation is the science of locomotion by aeroplane and the word ‘participate’ means ‘to take part in,’ the phrase ‘participate in aviation’ would connote an active share in its management; as, where a person would actually pilot a plane himself, or, as in the case of First National Bank v. Phoenix, supra, where he owned the plane and had authority to, and did, direct the pilot as to when he should make the flight. It would seem that this interpretation of the phrase ‘participate in aviation’ is not wholly unjustified. ’ ’

After the most careful consideration of all the cases cited, we now conclude that the reasoning employed by ns in Missouri State Life Ins. Co. v. Martin, supra, although dictum, when pronounced, is sound and logical and is aptly applicable to the language employed in the exemption clause in the instant case.

We grant that our conclusion thus announced seems to be in conflict with respectable authority on this question, but such must be the inevitable result so long as courts think and act independently of each other. The insurer had full power and opportunity to exempt itself from liability5' beyond any question, cavil, or doubt had it elected so to do. It must have known that the average purchaser of life insurance would not expect exemption from liability merely because he took passage as an invited guest upon one isolated trip by airplane. As stated by us in Missouri State Life Ins. Co. v. Martin, supra, “participate” does not connote to the average person the meaning that his mere presence is sufficient to participate or engage in such art or occupation. On the contrary, he would be warranted in concluding that the word “participate” has the meaning and effect of “engage in” and other words of similar import and meaning.

In this view of the situation here presented, the contract of insurance was ambiguous and susceptible to more than one reasonable -construction, and the one most favorable to the insured should be adopted. Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; National Life Ins. Co. v. Whitfield, 186 Ark. 198, 53 S. W. (2d) 10; Gits v. N. Y. Life Ins. Co., (C. C. A.) 32 F. (2d) 7; Charette v. Prudential Ins. Co., (Nov. 11, 1930) 212 Wis. 470, 232 N. W. 848.

For the error indicated, the cause is reversed and remanded.


author: Smith, J.

text:
    Mutual Life Insurance Company of New York v. Dowdle.
    4-3455
    Opinion delivered May 21, 1934.

      Frederick L. Allen, W. P. Strait and Rose, Hemingway, Cantrell •& Loughborough, for appellant.

      E. A. Williams, J. II. Reynolds and R. W. Robins, for appellee.
   Smith, J.

This is a suit on an insurance policy to recover disability benefits, and this appeal is from a verdict and judgment in favor of the insured.

The most difficult question in the case is the one of fact, whether the insured was totally and permanently disabled; but in the decision of that question we are required to give the testimony tending to establish disability its highest probative value.

The business of the insured is that of a farm manager, and as such he has charge of a farm owned by himself, another by his wife, and a third by the R. A. Dowdle estate, in which he was interested as executor and as an heir. For his management of this last-named farm he has been paid $600 a year for the past several years. He has complete control of all these places, pays the taxes thereon, prepares the chattel mortgages which the tenants execute, and makes all other contracts relating to the management of these farms. These facts being undisputed, it is insisted that the court should have declared, as a matter of law, that the insured was not totally disabled. The disabilities from which the insured suffers are conceded to be permanent. The insistence is that they are not total.

The testimony on the part of the insured is that prior to 1930 he gave these farms a most active and efficient management, but that since that time he has become less active, so that his management is much less efficient. The contention is that, whereas the insured formerly gave to his duties as farm manager the detailed attention which efficient management required, he is now able to give only supervisory attention, for the reason that his physical, disabilities have disqualified him from doing and performing all the duties which his employment require.

The insured has- become anemic and has lost much flesh and now weighs only 122 pounds. Formerly he rode horseback to and over his farms. He is now unable to do so, although he does occasionally make short trips on horseback, but it requires much fortitude to do this, -and that exercise occasions great pain in the manner hereinafter stated. The proper discharge of his duties requires much walking over the farms, and this he is now unable to do at all.

The insured has a fractured coccyx, and the doctors who have attended him believe this was caused by an injury sustained while riding horseback. It was not questioned by any of the doctors who testified, some on behalf of the insured and others on behalf of the insurer, that this condition caused pain, even in sitting quietly, and much more pain when riding horseback. The insured testified that horseback riding’ caused excruciating pain; that he rarely rode, and that for all practical purposes he had become unable to ride. It was conceded also that the insured could not remain seated, even at his home, for any length of time without suffering much pain, and to alleviate this condition as far as possible he used a circular rubber pad, filled with air, as a cushion, upon which he sat. He did not carry the air cushion around with him, as it was not convenient to do so, but he used one so constantly at his home that he had worn out two of these cushions and was now using a third.

The testimony shows that the insured has a bad case of fallen arches, and a foot specialist testified that this condition was permanent, and that no brace or arch support could be prepared or worn which would give material relief. It was testified that the anterior metatarsus in each foot had slipped down and out of place, and that this condition caused pain upon walking even for short distances; in fact, is painful if insured stands for any length of time. The insured’s feet were exhibited to and were manipulated before the. jury, and it is said that the grating of the bones caused by such manipulation not only could be seen but could be heard. It was shown that the tendons had stretched and had permitted the bones to drop down, causing the condition commonly spoken of as fallen arches or flat feet, and that to walk or stand caused pain, -which increased in intensity the longer the insured stood or the farther he walked, and became so great that he could not stand for any length of time or walk any considerable distance, although it was admitted that he could, and did, walk about town.

These conditions were aggravated by varicose veins in both legs, the existence of which condition was admitted by all the doctors who testified in the case. The insured’s legs would swell and throb if he stood long or walked far, and the insured testified that if he did either a feeling of numbness appeared and his legs became cold, and he would go home and wrap them in blankets to partially relieve the discomfort and pain.

The insured also testified that these complications caused such pain and suffering that he was frequently unable to sleep at night, and caused him to spend much time lying down during the day. He admitted that he went to the bank and other places in the discharge of his duties, but he stated that if he could not be served promptly he was required to sit down until he could be waited on.

Three doctors testified that, through the concurrence of these ailments, the insured was permanently and totally disabled from performing any duties which required him to walk or stand for any considerable period or to ride for any considerable distance, and that he was not able to perform all the duties of a farm manager. One of the doctors was asked to “state whether or not, in your opinion, after the examination you made, he is capable of doing ordinary work of any kind?” and he answered: ‘ ‘ That brings you again to the question of his intestinal fortitude or endurance. ’ ’ All the doctors agreed that slight physical effort caused some pain, and their differences all related to the extent to which this pain would disqualify and incapacitate the insured from performing the ordinary duties of his employment.

It is pointed out by the appellant that the policy sued on contained no agreement to compensate the insured for any pain suffered by him. And this is true. But the real question in the case is whether the insured’s condition is such that he can perform, and should continue to perform, his work. Insured admitted that he had performed numerous acts relating to his duties, and he stated that this was done because he had to earn a living and felt compelled to do so notwithstanding the pain and suffering occasioned by their performance, but that he had to forego many of the activities essential to the proper discharge of his duties because some of them he could not perform at all, and that he partially performed such other duties as his necessity and fortitude enabled him to bear.

For instance, it was shown on behalf of appellant that the insured drove to his farm in his car, and that he was able to do this without injury to himself. But the tenants by whom this showing was made testified that the insured would not leave his car, and did not walk about the farm as its proper supervision required that he do, and he had formerly done.

It is argued that the instant case is sufficiently similar to the recent case of Ætna Life Ins. Co. v. Person, 188 Ark. 864, 67 S. W. (2d) 1007, as to be controlled by it, and that the application of the principles there announced requires the reversal of the judgment here appealed from. It is true that Person, the insured in that case, was a plantation manager, and that the use of a light car enabled him to manage his farms in the usual and customary manner without being required to ride horseback. But the evidence in the instant case is not to the same effect. The evidence in the Person case was summarized in the statement: “But nowhere in the testimony is there any substantial evidence to the effect ■that appellee’s physical condition has prevented him from doing all the acts of his vocation in the usual and customary manner. ’ ’ As appears from what has already been said, there is such testimony in the instant case. Person had an arrested case of tuberculosis, and the testimony was to the effect that his condition had become practically normal. Not so in the instant case. The insured’s condition was very abnormal, and all the duties of his employment which he did perform entailed pain and suffering.

The extent and consequences of this condition were submitted to the jury under an instruction given at the request of appellant, reading as follows: “You are instructed that the plaintiff is not entitled to recover merely by showing that he is afflicted with some disease or condition which causes pain. In order to recover under the policy upon which he sues, thg plaintiff must show by a preponderance of the evidence that his diseases disable him to the point where he is unable to perform all of the material and substantial duties of his occupation. ” ■

Appellant requested another instruction which reads as follows: “If you believe from the evidence that the plaintiff is executor of the R. A. Dowdle estate, and that he can perform some of the material and substantial duties of such executorship, that he is manager of his wife’s farm, and that he can perform some of the substantial and material duties of such management, that he is the owner of a farm, and that he can perform some of the material and substantial duties of operating his farm, then the court instructs you that he is not totally disabled as the term is used in the insurance policy, and your verdict should be for the defendant.”

The court gave this instruction after substituting the word “all” for the word “some” wherever it appears, and this action is assigned as error. This question has been considered so frequently and so recently that it need not be again reviewed. The most recent of these cases is that of Missouri State Life Ins. Co. v. Case, ante p. 223, where it was said: ‘ ‘ Therefore, to come within the meaning of the contract of indemnity, it is not required that the insured shall be absolutely helpless, but he is totally disabled when the infirmity from which he suffers renders him unable to perform all the substantial and material acts of his business, or the execution of those acts in the usual and customary way.” (Citing cases.)

Another recent case, citing others, is that of Missouri State Life Ins. Co. v. Brown, 188 Ark. 1136, 69 S. W. (2d) 1075, which is to the same effect. See also Equitable Life Assurance Society v. Bagley, 188 Ark. 1009, 69 S. W. (2d) 394; Missouri State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. (2d) 407; Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Mutual Benefit Health Accident Ass’n v. Bird, 185 Ark. 445, 47 S. W. (2d) 812.

In the case of Standard Acc. Ins. Co. v. Bittle, 36 Fed. (2d) 152, it was held by the Circuit Court of Appeals for the Fifth Circuit (to quote the second headnote) that ‘ ‘ disability, within the meaning of a combined health and accident insurance policy, is total, if it prevents party from performing acts necessary to prosecution of his business in substantially the usual and customary manner, and does not mean state of absolute helplessness or inability to perform, at peril to health, some of acts required in conduct of business or occupation.” See also Metropolitan Life Ins. Co. v. Bovello, 12 Fed. (2d) 810.

One is ordinarily able to perform the duties of his employment, or he is unable to do so; and the fact that indulgent relatives might continue compensation for partial performance is not the final test of capacity, but is only a circumstance to be considered along with all other testimony. Nor does the law require one to perform duties at the peril of his life or health, nor to perform them if their performance entails pain and suffering which a person of ordinary prudence and fortitude would be unwilling and unable to endure.

Appellant requested an instruction numbered 5, reading as follows: “If you believe from the evidence that the plaintiff can, notwithstanding his illnesses, drive his automobile back and forth between Ozark and Morrilton, can drive his automobile over the plantations which he manages, can sit at his desk and transact his banking business, can walk about the streets of Morrilton and sell cotton, can make rental contracts with the tenants on his own place and other places which he manages, can collect the rents from such tenants, can take chattel mortgages, and that such activities, if any, on his part, will not aggravate his condition or make it imprudent for him to continue such activities, if any, then the court instructs you that the plaintiff is not totally disabled, and your verdict should be for the defendant. ’ ’

This instruction was properly refused as constituting a charge upon the weight of the testimony (Holmes v. Metropolitan Life Ins. Co., 187 Ark. 388, 60 S. W. (2d) 557), and leaves out of account certain duties which the testimony shows the insured would be required to perform to properly discharge, his employment, but which he is wholly unable to perform, and takes no account of the extent to which performance might be excused by reason of the pain and suffering which their performance would entail.

The judgment is affirmed.


author: Humphreys, J.

text:
    Barton v. Barton.
    4-3462
    Opinion delivered May 21, 1934.

      E. W. Mead and Carmichael & Hendricks, for appellant.

      Coleman Reeder and Williamson ■<& Williamson, for appellee.
   Humphreys, J.

William Barton, a resident of Stone County, died testate on the 26th day of January, 1933, having provided in his will of date February 16, 1926, that, after payment of his debts and certain bequests, the residue of Ms estate, real, personal, and mixed, should be divided equally among his eight heirs with the following proviso relative to appellee’s one-eighth interest in said estate, to-wit: “Provided my son Frank (appellee) shall receive only the sum of one dollar unless he shall have at the time of my death paid or otherwise satisfied all his indebtedness to me. ’ ’

E. E. Barton, one of the legatees, was designated in the will as executor, and, after the probation of the will and the appointment of E. E. Barton as executor, he paid his brother, the appellee herein, one dollar and took the following receipt from him:

“4-10-1933.
“Received of E. E. Barton, administrator, one dollar & no/100 dollars for settlement in full of estate of Wm. Barton.
“$1.00 “Marshall, Ark.”

Later, appellee demanded his one-eighth interest in said estate, and, when the executor refused to pay same, he filed a petition in the probate court of said county for his distributive share, alleging that the other heirs had then been paid $1,400 each by the executor. He prayed for a full one-eighth share in said estate.

Appellant filed a motion to require appellee to particularly set out and specify upon what grounds and conditions he claimed to be entitled to the share petitioned for.

Appellant also filed an answer alleging that appellee was indebted to Wm. Barton at the time of his death in sums evidenced by four promissory notes as follows:

“Note dated February 27, 1915, $360, 10 per cent, interest; note dated January 7, 1925, $240, 10 per cent, interest; note dated April 21, 1926, $135, interest 6 per cent.; note dated September 24, 1926, $55, interest 10 per cent.”

Also alleging that, on account of appellee’s failure to pay the notes, he was only entitled to one dollar under the terms of the will and that on account of the execution of the receipt set out above, he was estopped to claim a full one-eighth distributive share in said estate.

Upon a hearing of the cause, the probate court sustained the motion to make the petition more definite and certain and dismissed the petition of appellee for the allowance of the claim.

Saving his exceptions to the order of the court, appellee prayed and was granted an appeal to the circuit court.

In the circuit court on trial de novo, the motion to malee the petition more definite and certain was overruled, over the objection and exception of appellant. The cause was then submitted to the court, sitting as a jury, upon the pleadings and testimony, resulting in a finding that appellee was not indebted to the testator at the time of his death, and that he was not estopped to claim his one-eighth interest in said estate by the execution of the receipt, and he was entitled to recover under the will a one-eighth part of the estate less a credit of $401, which had been paid him from the estate.

A judgment was rendered in accordance with the finding, from which is this appeal.

Appellant contends the court committed reversible error by not requiring appellee to make his petition more definite and certain by stating whether he was indebted to the testator, and, if so, when and how he had paid same. We think appellee stated a good and sufficient cause of action when he alleged that under the will he was entitled to a one-eighth interest in the estate. The burden did not rest upon him to state and prove that he had been indebted to the testator in his lifetime but that he had paid same. If he was not entitled to take a one-eighth part under the will because he had not paid his indebtedness to the testator, it was a matter of defense, the burden of which must have been assumed by appellant. The court therefore did not err in holding that the burden of proof was on appellant, and in overruling his motion to make the petition more definite and certain.

The appellant also contends that the trial court committed reversible error1 in admitting proof of statements made by the testator as to what he proposed to do with •the notes executed by appellee to said testator. C. K. G-oddard testified that the testator when living told him that he. considered the notes of appellee paid, that is, that the indebtedness had been satisfied; that he had made an advancement of $400 to each of the other heirs, and that instead of giving appellee $400 in money, he just g*ave him credit on his indebtedness. Lecil Brown testified that he was tax assessor for Stone County for the years 1929, 1930, 1931 and 1932 and that, when he assessed the property of the testator in those years, the notes executed by appellee to the testator were not assessed because he said the notes had been paid or satisfied. These statements were against interest and were made to third parties after the execution of the will; hence not hearsay. Kirby v. Wooten, 132 Ark. 441, 201 S. W. 115; People’s Savings Bank v. McInturff, 147 Ark. 296, 227 S. W. 400. Neither do they offend against the rule forbidding the varying of written instruments by oral evidence. Bromley v. Atwood, 79 Ark. 357, 96 S. W. 356.

Appellant also contends that the court committed reversible error in finding that appellee was not bound and estopped by the receipt executed to appellant releasing all claim against the estate for $1. Estoppel in this case, was a question of fact, and there is substantia] evidence in the record tending to support the finding that appellee signed the receipt under the belief that it was necessary for him to do it in order for him to get his share of the estate. He testified to that effect himself, and the evidence indicates he was feeble minded. In addition, he was before the court, who had the opportunity to see, observe, and hear him testify. The letter appellee wrote in which he inclosed the receipt was not especially intelligible.

There is ample evidence in the record to sustain the verdict and judgment.

The judgment is therefore affirmed.


author: Mehaffy, J.

text:
    Lea v. Lewis.
    4-3466
    Opinion delivered May 21, 1934.

      Walter M. Purvis, Marshall Purvis and Dan Purvis, for appellant.

      Cooper B. Land and William G. Bouic, for appellee.
   Mehaffy, J.

The appellant was the owner and in possession of lots 4, 5 and 6 in block 156 in the city of Hot Springs, Garland County, Arkansas. She failed to pay the taxes assessed against said property, which were due and payable in the. year 1930. Said property was sold for the taxes, penalty and cost to the State of Arkansas.

On August 16, 1933, the appellees, W. E. Lewis, Sr., and W. E. Lewis, Jr., purchased said property from the State of Arkansas, paying the Land Commissioner therefor the sum of $744.51, and received a deed from the State Land Commissioner.

Immediately after receiving the deed, appellees served notice on the appellant and also on the caretaker in possession of the property, notifying them to vacate said property immediately, stating that they had purchased said property and intended to enter upon immediate possession.

The appellant filed this suit in the Garland Chancery Court to cancel appellees’ deed as a cloud on her title. A demurrer was filed, alleging that the complaint did not state facts sufficient to constitute a cause, of action, and, second, that the complaint does not set forth specifically facts to show the invalidity of appellees’ deed, and third, that there is no strength of title shown in the appellant that would entitle her to relief.

The court heard argument on the demurrer, and made an order that the demurrer should be treated as a motion to make the complaint more definite and certain, and sustained it as such motion, and gave appellant 15 days in which to amend her complaint. This hearing and order were on August 25, 1933'. Thereafter the court entered another order striking out that part of the order of August 25th which treated the demurrer as a motion to make the complaint more definite and certain, and struck out that portion giving appellant 15 days in which to answer.

On October 10, 1933, the court made an order sustaining the demurrer and dismissing the complaint. The complaint seems to have been reinstated, and on December 15,1933, the appellees filed motion to dismiss for noncompliance with §§ 3708 and 3709 of Crawford & Moses’ Digest. This motion was by the court sustained, and the complaint was dismissed and appellant denied the right to amend.

There were several motions, and an injunction granted and receiver appointed, but it is not necessary to discuss them here. The court finally sustained the demurrer because appellant had not complied with § 3708 of Crawford & Moses’ Digest.

The. above section requires the affidavit of tender of taxes only when the suit is for the recovery of lands or for the possession thereof. This suit was not a suit for the recovery of lands, nor a suit for the possession of lands. The appellant was in possession, and the appellees had never acquired possession. If the purchaser of a tax title is in possession of lands, there would be some reason for tendering the taxes and filing the affidavit before any writ was issued. He should be given the opportunity to accept the taxes and deliver the possession. But where the original owner is in possession and the suit is merely to remove a cloud from his title, § 3708 has no application. Of course the original owner is required to tender and pay the taxes, but he is not required to file an affidavit of tender.

This court, in referring to the above section, said: ‘ The effect of that section is that, before any suit for the recovery of lands held by virtue of a purchase at tax sale, and in some other cases, the claimant shall file, in the office of the clerk of the proper court, an affidavit to the effect that he had tendered the full amount of all taxes and costs paid on account of said lands, with interest on the same at the rate of 100 per cent, upon the amount first paid for said lands, and 25 per cent, upon all taxes, and costs paid thereafter, etc. This is neither an action for the recovery nor possession of lands. The provisions of the law are severe, and will not be extended beyond the letter.” Hare v. Carnall, 39 Ark. 196.

“If such an objection could in suits of the nature of the present, the object of which is not the recovery of the land or the possession thereof, but simply to clear the title from doubt and clouds, in any manner avail, it certainly could not by demurrer, which will only lie for objections apparent upon the face of the complaint, either from the matter inserted or omitted therein, or from defects in the frame or form thereof. But it will plainly be seen, by a reference to the statute, that such an affidavit is required only in actions for the recovery of the land, or for the possession thereof.” Chaplin v. Holmes, 27 Ark. 414; Burgett v. McCray, 61 Ark. 456, 33 S. W. 639; Hodges v. Harkleroad 74 Ark. 343, 85 S. W. 779.

Since this is not a suit for the recovery of land nor for the possession thereof, the affidavit provided for in § 3708 was not required, and the court erred in sustaining the demurrer and dismissing the complaint.

The decree of the chancery court is reversed, and the cause remanded with directions to overrule the demurrer and proceed with the trial of the case.


author: McHaney, J.

text:
    McCarty v. Cook.
    4-3472.
    Opinion delivered May 21, 1934.

      G. V. Holloway, for appellants.

      Price Shofner, for appellee.
   McHaney, J.

Appellee sued appellants, McCarty and wife, in replevin, for the recovery of an automobile or its value which was laid at $250, in the justice, of the peace court, on May 25, 1931. Proper affidavit and bond were filed to obtain immediate possession of the automobile. Retaining bond was filed in apt time with the other appellants as sureties. On June 15,1931, on motion of appellants, the case was removed to the common pleas court, where, on December 21, 1931, judgment was rendered in favor of appellee for the possession of the car or its value in the sum of $154.13. The car was delivered to appellee December 29, 1931, in a practically worthless condition, and same was sold by appellee to J. M. Mc-Kinny, a used car and junk dealer for $20, the best price-he could get, which amount was credited on the judgment. This sale was not advertised, nor was McCarty notified thereof. There is 'no dispute regarding the condition of the car or its value when delivered to appellee who refused to accept delivery in that condition in settlement of the judgment. On June 19, 1933, appellants filed a motion in the court of common pleas to require appellee to satisfy the judgment, which motion was granted and an appeal taken to the circuit court where judgment was entered reversing the lower court and reinstating the execution issued on the judgment, and appellants bring the case here for review.

The question is: Can appellant McCarty wrongfully retain possession of the property pending decision as to title, so use it during such time as to practically destroy its value, then satisfy the judgment against him for the property or its value by delivering the property in its damaged condition? We have answered this question in the negative many times in recent cases. Conlee v. Love, 178 Ark. 238, 10 S. W. (2d) 372; Commercial Investment Trust v. Forman, 178 Ark. 695, 10 S. W. (2d) 897; Love v. Hoff, 179 Ark. 381, 16 S. W. (2d) 12; Commercial Investment Trust v. Miles, 181 Ark. 77, 25 S. W. (2d) 3. The rule is thus stated in the case last cited: “The view we have adopted and the conclusions reached by us bring the case squarely within the principles announced in Commercial Investment Trust v. Forman, 178 Ark. 695, 10 S. W. (2d) 897, where it was held that, in cases like this, the seller or holder of the installment notes in a conditional sales contrac c was entitled to judgment against the sureties on the retaining bond as well as against the buyer for the balance due on the sales contract, against which the present value of the car should be credited. In that case it was held that where the buyer, in an action of replevin to recover an automobile sold with reservation of title, gave bond and retained possession of the car until it was worn out and then returned it to plaintiff the latter was entitled to judgment against defendant and the sureties on his bond for the balance due under the sales contract, against which the present value of the car should be credited.

“But for the retaining -bond, the car would have been returned to the seller when the suit was brought, at which time value- as found by the court was equal to the balance due on it. By virtue of the execution of the retaining bond, the buyer was enabled to keep the car until it was worn out, and he cannot now satisfy the judgment by returning a worthless car. The court in its judgment in the replevin suit fixed the value of the car as it was at the time the plaintiff was entitled to recover possession of it, which was at the commencement of the suit; and the defendant could not keep and use the car until it had become worthless, and then return it in satisfaction of the judgment.

“This principle was also recognized in Love v. Hoff, 179 Ark. 381, 16 S. W. (2d) 12, and applied in a case where the plaintiff in the replevin suit had kept possession of an automobile and had used it until it had become worn out. The court said the plaintiff in execution was entitled to have restored an automobile of undepreciated value, and that the plaintiff in the replevin suit could not satisfy a judgment against himself by returning a depreciated car in satisfaction of the judgment. ’ ’

The value of the car as fixed in the judgment referred to the value at the time suit was brought, and no doubt represented the balance due under a conditional sales contract, and this amount is the proper measure of its value in the absence of proof to the contrary. Commercial Investment Trust v. Miles, supra. Therefore the value of the car as fixed by the common pleas court referred to its value at the beginning of the action and not seven months later when the case was tried.

We think the testimony in the circuit court as to the value of the car at date of delivery to appellee was proper, and that the proceeding in the circuit court was not a collateral attack on the judgment of the common pleas court as contended by appellants. It was a direct attack by appeal on the order of the common pleas court directing the satisfaction of the original judgment entered in December, 1931. No attack is made on the original judgment.

No error appearing in the record, the judgment of the circuit court is affirmed.