text:
    Hurley v. Bryan.
    Opinion delivered October 1, 1923.
    1. Attachment — bond op plaintiff — harmless error. — While it was error, in an attachment suit, to permit the plaintiff to file a bond limited to $1,000, instead of a bond to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, as required by Crawford & Moses’ Dig., § 498, such error was not prejudicial where the ground for attachment, námely, the non-residence of the defendants, was undisputed, and where the cause was transferred to equity, and lis pendens notices were filed, which operated as attachments, so far as a transfer of the title was concerned,
    2. Appeal and error — insufficiency of abstract — presumption.— Where a decree recites that consolidated cases were heard on certain documentary evidence, some of which was not abstracted and not included in the transcript, it will be presumed on appeal that the testimony not abstracted would sustain the decree of the court.
    Appeal from Poinsett Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      H. E. Marshall, of Memphis, Tenn., for appellants.

      S. T. Mayo and Lamb & Frierson, for appellees.
   Smith, J.

Appellees, the plaintiffs below, are judgment creditors of M. J. Hurley, the judgments having been recovered in the courts of St. Louis, Missouri, and in a Federal district court in that State, and the suits were brought to enforce these judgments in this State. Hurley is a nonresident of the State of Arkansas, and, upon filing the suits on these judgments, the plaintiffs caused attachments to be issued against certain lands in Poinsett County, it being alleged that Hurley was the owner of the lands attached, but that, to defeat his creditors in the collection of their debts, he had caused the title to the lands to be taken in the name of Ellen C. Clark, née Hurley, his niece. There were five of these suits, and in each case plaintiff gave a bond to pay all damages which might be sustained by reason of the attachment, if the order therefor was wrongfully obtained, in a sum not to exceed one thousand dollars.

Mrs. Clark filed' an intervention in each case, alleging ownership of the lands under a deed to her in October, 1917, and there was a motion to dismiss the attachments on account of the insufficiency of the attachment bonds, it being insisted that there should be no limitation of the liability of the -sureties.

The defendant objected to the consolidation of the cases in the -court 'below, and a record was made up in each case, but they have, however, by permission of this court, been consolidated for hearing here, as the issues appear to be substantially the same in all cases.

Mrs. Clark’s father died while she was an infant, and her father intrusted the care of her person and estate to his brother, the defendant, M. J. Hurley, and the relation between Hurley and his niece has since been as close and as confidential as that of parent and child, and it is now insisted by Hurley that he bought the lands attached with funds belonging to Mrs. Clark, and that they are in truth and in fact her property.

The causes were transferred to the chancery court, and, in an elaborate review of the testimony, the court found the fact to be that Hurley was the lawful owner of the lands, and that the title thereto had been taken in the name of Mrs. Clark to defraud his creditors, and rendered decrees accordingly, except that, as to one of the plaintiffs, there was a decree in favor of the defendants, and no appeal has been prosecuted from that portion of the decree.

It is earnestly insisted that the cases should be reversed because the bonds were not conditioned as required by § 498> C. & M. Digest. The statute referred to does provide that a bond shall be given to pay all damages upon suing out an attachment, and the bonds filed by the plaintiffs did limit the liability of the sureties thereon to a thousand dollars in each case. But we think this defect did not operate to defeat the jurisdiction of the court. The lands were wild and unoccupied, and the defendants were all nonresidents, which was, of course, a ground for attachment if the judgments sued on were m fact valid, and there were five of these bonds, each for a thousand dollars. Notwithstanding the fact that tbe court may have thought these bonds were sufficient to cover any damage which could possibly have accrued, bonds should have been required which conformed to the statute. It appears, however, as has been stated, that Mrs. Clark filed interventions, and the causes were transferred to equity, where they were tried as suits to uncover property held in trust to defraud creditors, and lis pendens notices were filed, which operated as attachments so far as the transfer of the title was concerned, as the attachments were sued out for the purpose of preventing any one from acquiring the title under the claim of being an innocent purchaser. Indeed, J. F. Garner, one of the parties to this litigation, took a deed from Mrs. Clark after the filing of the lis pendens notices, but his purchase was, of course, subject to the final decree of the court, and it is not insisted that this purchaser acquired any greater rights than those of Mrs. Clark.

The causes were tried as suits in equity to uncover a secret trust, and the court found that the testimony Warranted that relief, and granted it.

For the reversal of these decrees it is strongly insisted that the foreign judgments were not properly proved, and that the testimony did not warrant the finding that Hurley was the owner of the lands.

Hpon these questions it must be said that the record in the combined cases, which is very voluminous, has not been sufficiently abstracted for us to pass upon the merits of those questions. The record has not been abstracted in the manner required by the rules of this court. The brief of counsel is an argument based upon this record, rather than an abstract of the record. Counsel have discussed the testimony without making an abstract of it. For instance, there is set out the objections to the exhibits to the complaints, which appear to have been pleadings filed in the cases, but the exhibits themselves have not been abstracted, and we cannot tell whether the objections were well taken or not.

The decrees in the cases recite that the cases were heard on certain documentary evidence, some of which, according to appellees, are not only not abstracted but are not even in the transcript; and in appellees’ brief many omissions and failures to abstract testimony are pointed out, as is also the failure to even discuss the testimony of certain witnesses heard at the trial. This failure to abstract the record was specifically pointed out by ap-pellees in numerous instances, and these omissions were not supplied by appellees. Appellants have filed a reply brief, which does not supply them or otherwise abstract the record.

In this state of the record we must assume, in accordance with many decisions of the court, that the testimony which was not abstracted would sustain the findings and decrees of the court, and they will therefore be affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Edmonson v. Akin.
    Opinion delivered October 1, 1923.
    1. Appeal and error — form of verdict — objection and exception. —Where plaintiff sued for $1,000 compensatory damages and for $500 punitive damages for malicious assault and battery, objection to the form of a verdict for plaintiff for $200, as not specifying the kind of damages awarded, will not be considered on appeal, where no objection was made nor exception saved thereto.
    2. Assault and battery — instruction as to mitigation. — In an action for assault and battery, in which there was no testimony tending to show that the blow was inflicted through provocation or fault of the plaintiff, an instruction on provocation as a circumstance to he considered in mitigation of damages was properly refused.
    3. Trial — instruction already given. — In an instruction for assault and battery an instruction requiring a finding that plaintiff had sustained actual damages before allowing him punitive damages held properly refused, in view of other instructions covering the same subject-matter.

      Appeal from Izard Circuit Court; W. L. Pope, Judge;
    affirmed.

      E. A. Northcutt, for appellant.

      Godwin & Sherrill and John E. Woods, for appellee.
   Humphreys, J.

Appellee instituted suit against appellant in the circuit court of Izard County to recover $1,000 compensatory and $500 punitive damages for maliciously, wantonly, and without cause, beating him on the head with a stick, thereby causing him great pain and suffering.

Appellant filed an answer, admitting the assault and battery, but denying that it was done maliciously, wantonly, and without cause, or that any pain or suffering resulted to appellee on account thereof. ■

The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and consequent judgment against appellant for $200, from which is this appeal. The form of the verdict is as follows: “We, the jury, find for the plaintiff in the sum of $200. J. L. Williamson, foreman.”

The facts are undisputed and show, in substance, that appellant met appellee in the road, and, after cursing and abusing him, said, “ lam going to whip you unless you pay me back that $30 fine I had to pay for my boy.” True to his word, he got into appellee’s wagon and struck him over the head with a green hickory stick, about three feet long, cutting a gash thereon, which bled profusely. The blow addled appellee’s mind, and pained him greatly, and continued to pain and hurt him for several weeks. A scar was left upon his head as a result of the blow. Some time before the assault appellant told E. J. Estes that appellee had indicted his boy, and he intended to make appellee pay the amount of the fine back to him. After the attack he told Estes that he hit appellee over the head with a stick and thereby compelled appellee to pay the amount back to him.

Appellant first contends ’for a reversal of the judgment because the form of the verdict does not indicate ■whether it was returned upon the count for actual damages or the count for punitive damages. According to the abstract, no objection was made and exception saved to the form of the verdict, so the question raised is not before us for determination.

Appellee next contends for a reversal of the judgment for the alleged reason that no injury was shown. The record reflects that the injury inflicted upon appel-lee was severe and caused much pain and suffering.

Appellant next contends for a reversal of the judgment because the court refused to instruct the jury as follows:

“You are instructed that, although you may believe the defendant was not acting in self-defense, if, making due allowance for the infirmities of human temper, the defendant had a reasonable excuse arising from the provocation or fault of the plaintiff, but not sufficient to justify entirely the act done, then damages ought not to be assessed by way of punishment, and the circumstances of mitigation should be considered.”

The instruction was properly refused as being abstract. There is no testimony in the record tending to show that the blow was inflicted through provocation or fault of appellee.

Appellant next contends for a reversal of the judgment because the court refused to give the following instruction :

“You are instructed that you must first find that the plaintiff has sustained actual damages before you can find he is entitled to punitive damages.”

The court instructed the jury to return a verdict in favor of appellee on account of the assault and battery in such sum as the testimony warranted, not to exceed $1,000, and that they might also return a verdict for punitive damages not to exceed $500. The two instructions given therefore covered the instruction refused. According to the abstract, no objection was made to the instruction given by tbe court, and they were warranted by tbe undisputed facts in tbe case, wbicb showed that tbe assault was unprovoked, cruel, and severe.

No error appearing, tbe judgment is affirmed.


text:
    Cox v. State.
    Opinion delivered October 1, 1923.
    1. Criminal law — credibility op intoxicated witness. — Testimony of a witness intoxicated at the time of the alleged sale of whiskey to him by accused held not unworthy of belief as a matter of law, in the absence of a showing that he was incapacitated at the time.
    2. Criminal law — credibility op witnesses. — The credibility of witnesses and the weight to be attached to their evidence are questions for juries, and not for courts.
    3. Intoxicating liquors — sufficiency op evidence. — In a prosecution for selling whiskey, evidence held to support conviction.
    4. Criminal law — evidence—declarations op third person. — In a prosecution for selling whiskey to S., exclusion of proof of W’s declaration that he had whiskey for sale, offered by accused to corroborate testimony that W. and not defendant sold the whiskey to S. was proper where such declaration was made some time before the sale, and hence constituted no part of the res gestae.

    5. Witnesses — impeachment.—A witness cannot be impeached by proof of specific acts or instances of bad conduct, as that he had been a heavy drinker for a year or two, it being necessary to establish character by proof of general reputation.
    6. Criminal law — waiver of arraignment. — Accused impliedly waived formal arraignment by going to trial without objection.
    Appeal from Greene Circuit Court, Second Division; G. E. Keck, Judge;
    affirmed.

      Jeff Bratton, for appellant.

      J. 8. Utley, Attorney General, Jolvn L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in tbe Second Division of tbe Greene County Circuit Court for selling whiskey, and, as punishment therefor, was adjudged to serve a term of one year in the State Penitentiary. Prom the judgment of conviction an appeal has been duly prosecuted to this court.

The first insistence for a reversal of the judgment is that the evidence is insufficient to sustain a conviction. An intimation is thrown out that, on account of the drunken condition of the only State witness, William Starr, to the alleged sale of whiskey, his testimony was unreliable and therefore insufficient to sustain the verdict. The testimony tended to show that Williapa Starr had been drinking and was under the influence of whiskey to some extent at the time of the alleged sale, but failed to show that he was so drunk he could not understand or converse intelligently. Without a showing that he was incapacited on account of drink at the time he claims to have purchased the whiskey, it cannot be said, as a matter of law, that his testimony was unworthy of belief. Again, it is argued that, because William Starr was flatly contradicted by several witnesses as to the alleged purchase of liquor from appellant, his evidence wholly failed to sustain the verdict. The testimony of a witness is not discarded, as a matter of law, because contradicted. The credibility of witnesses and the weight to be attached to their evidence are questions for juries and not for courts. Rhea v. State, 104 Ark. 162; Fields v. State, 154 Ark. 191. This court said, in the case of Nelson v. State, 139 Ark. 13, that, “in a prosecution for violating the law prohibiting the sale of intoxicating liquors, the credibility of the State’s witness was a question for the jury; and when he testified as to the sale it cannot be said that there was not substantial evidence to support the verdict. ’ ’ William Starr testified that, on the night of April 28, 1923, he got in appellant’s ■ car at Elmore’s cafe, in the town of Paragould, and went to his home, where he purchased a pint of whiskey from him for $2.50. Upon Starr’s return to town he was arrested by officers, who had seen him and appellant leave the cafe together a short time before the arrest, They found a pint of whiskey in lais possession, and arrested him for transporting liquor. His testimony, if believed by the jury, as to the sale and purchase of the pint of whiskey in question, was substantial evidence, sufficient to support the verdict.

The next insistence for a reversal of the judgment is because the court excluded the testimony of Walter Berry, to the effect that, on the evening cf the alleged sale of liquor from appellant to William Starr, he was leaning against a post in front of Elmore’s cafe and observed Woodrow Wilson, Clarence Scott, Bill Starr, Tim Cox and Vester G-rooms; that some one in the crowd asked Wilson where a fellow could get some whiskey, and Wilson replied that he had some down at the ball park; that he went in the cafe, ordered and drank a coca-cola; that about fifteen minutes thereafter he walked out and observed appellant and Starr get in a car; that he asked appellant where he was going, and was told that he believed he would go down to the ball park and see if he could buy a bottle of whiskey. This testimony was inadmissible in corroboration of appellant’s witnesses to the effect that Wilson sold appellant and Starr a pint of whiskey at the ball park, instead of appellant 'selling it to Starr at appellant’s home. The declarations were made by both Wilson and appellant some time before, and at a different place from the sale, and constituted no part of the transaction. As the declarations were no part of the res gestae, the court properly excluded the testimony.

The next insistence for a reversal of the judgment is because the court excluded the testimony of Bill Moore to the effect that the State’s witness, William Starr, had been a heavy drinker for the last year or two. A witness cannot be impeached by proof of specific acts or instances of bad conduct. Character must be established by proof of general reputation. Dean v. State, 130 Ark. 326.

The last insistence for a reversal of the judgment is that appellant was not formally arraigned. When appellant’s case was readied on the docket, he announced ready for trial, and entered a plea of not guilty. The jury was then selected, and the cause tried, without objection from appellant. After the jury retired to consider its verdict, appellant made the objection that he had not been formally arraigned and had not formally waived arraignment. By going to trial without objection he impliedly waived arraignment. Ransom v. State, 49 Ark. 176; Moore v. Slate, 51 Ark. 130; Hayden v. State, 55 Ark. 342.

. No error appearing, the judgment is affirmed.


text:
    Arkansaw Trading Company v. Southwestern Veneer Company.
    Opinion delivered October 1, 1923.
    1. Logs and logging — extension of time to Remove timber.— When a contract ior the sale of timber gave the purchaser two years to move the timber, and provided that, in the event of bad logging conditions, the purchaser should have an additional year, and the purchaser told the vendor during the second year that there was “no chance in the world to move this timber this year,” and the vendor replied that “probably things would be better next year,” and that “you have paid us; * * * I don’t want your money for nothing,” held that the conversation amounted to an agreement between the parties for an additional year in which to remove the timber.
    2. Logs and logging — extension, of time to remove timber — consideration. — A purchaser’s forbearance to remove timber within the period specified by a timber deed, held sufficient consideration to support an extension of time accorded him by the grantor.
    Appeal from White Chancery Court; Jolm E. Mar-tineau, Chancellor;
    affirmed.

      J. N. Rachels, for appellant.
    Under a contract granting the right to enter upon land and remove timber therefrom, if no time is specified within which to exercise that right, such right continues only for a reasonable time. 77 Ark. 117; 78 Ark. 408; 84 Ark. 603; 91 Ark. 292; 93 Ark. 5; 99 Ark. 112. Where a contract for the sale of timber provides that the vendee shall cut and remove the same as expeditiously as possible, and that, unless it is removed within a period of two years, the vendee shall be responsible for the taxes until it is removed, he is required to proceed expeditiously from the date of the deed and continue until the timber is removed. He has, under such a provision, no definite time, either of two years or otherwise, unless he proceeds expeditiously and continuously. Ill Ark. 253; 116 Ark. 393-398; 118 Ark. 94, 107; 126 Ark. 46, 50. See also, 56 Ala. 566; 130 Ark. 9; 134 Ark. 539; 145 Ark. 132, 136; 148 Ark. 445.

      John E. Miller and C. E. Yingling, for appellee.
    1. The timber deed is ambiguous, and parol testimony was necessary to aid the court in construing it. It was prepared by an officer of the appellant, and all doubts arising from its ambiguity must be resolved against appellant. 151 Ark. 81 et seq'; 113 Ark. 174; 150 Ark. 492; 112 Ark. 1; 115 Ark. 166; 89 Ark. 368; 81 Ark. 337. Appellant is bound by the written portion of the deed, which will control the printed portion. 126 Ark. 19, 25.
    2. Appellant is estopped to claim that appellee was not to have an additional year by the conduct and inducements held out by McGilton to Easley in the conversation between them in the early part of the year 1921, whereby the latter was induced to believe that appellee could rely on having an additional year. 131 Ark. 77, 82, and cases cited.
   Humphreys, J.

This suit was instituted in the White County Chancery Court by appellant against appellee to enjoin it from cutting gum timber on a 390-acre tract of land in said county, owned by it. Appellee was at the time asserting the right to cut the timber under and by virtue of a timber deed executed by appellant, to appel-lee on the ninth day of February, 19201. Appellee paid appellant $6,000 for the gum timber on the land, $4,000 •when the contract was executed, and $2,000 six months thereafter. During the spring and summer of 1920, and prior to the rainy season in the fall, appellee cut and removed 362,000 feet of the timber, hut made no effort to cut and remove the balance thereof until the expiration of the two-year period fixed in the contract for’removing same. It is appellant’s contention that, under the terms of the contract, appellee forfeited its right to the timber by failing to remove same within said period. It is ap-pellee’s contention that it had an additional year after the expiration of said period in which to remove the timber, on account of the bad logging conditions that existed during a part of the two-year period, and for that reason it had not forfeited its right to the timber when said suit was brought. Relative to the time in which the timber was to be removed, the timber deed contains the following provision:

“It is hereby agreed by the parties hereto that in the event of bad logging conditions, the party of the second part shall have one additional year within which to move the timber.”

“The party of the second part shall cut and remove said timber as expeditiously as possible, and it is agreed that, unless it shall have removed all the same within a period of two years from the date hereof, it shall be responsible for and pay to the first party the full amount of taxes assessed against said lands after the expiration of said period of two years after this date until the time said timber is removed and said possession returned to said first party.”

The difference between the parties arose out of the construction each party placed upon these paragraphs, and an issue, growing out of the construction of each, was joined between them in the pleading. In addition, appellee tendered an issue of estoppel against appellant in his answer and the testimony introduced in aid thereof The undisputed testimony showed that early in the year 1921, during the two-year period for the removal of the timber, R. L. Easley, representing appellee, went to see C. E. MoGrilton, representing appellant, concerning the removal thereof. On that occasion a conversation occurred between them, as shown by the following interrogatory propounded to R. L. Easley and his answer thereto:

“Q. Did yon ever talk to Mr. McGilton about removing the timber? A. I told Mr. Me., ‘There isn’t a thing in the world doing this year.’ He says, ‘No, Easley, there ain’t.’ I said, ‘There’s no chance in the world to move this timber this year.’ He said, ‘I don’t see any myself, Easley. Everything looks like it’s gone to hell,’ to use liis words. I said, ‘Well, probably things will be better next year, and we will do something.’ He said, ‘Mr. Easley, you have paid us $6,000, haven’t yon?’ ■ I said, ‘Yes sir.’ He said, ‘I don’t want that money for nothing.’ I said, ‘‘Thank you, Mr. Me.,’-and passed it off that way.”

In the light of this testimony we deem it unnecessary to determine whether the timber Was removed expeditiously or to determine the meaning of the clause, “bad logging conditions,” as used in the contract. What ivas said betAveen the parties amounted to an agreement between them for an additional year in which to remove the timber. The fact that appellee forbore its legal right to remove the timber within the two-year period constituted sufficient consideration to support the extension of time accorded appellee by appellant. Nothwang v. Harrison, 126 Ark. 548.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Webb v. Alma Cash Store.
    Opinion delivered October 8, 1923.
    1. Bills AND notes — assignment—burden of proof. — Under Crawford & Moses’ Digest, § 479, an assignee of a negotiable note is not required to prove the assignment “unless the defendant shall.annex to his answer an affidavit denying such assignment, and alleging that he verily believes that one or more of the assignments on such instrument was forged.”
    2. Bills and notes — assignment—right to question. — Where the proof showed that a promissory note payable to a bank was assigned in due form by the cashier of the bank, and the bank did not complain of any lack of authority on the part of its cashier to make such assignment, the makers of the note are in no attitude to question. such authority.
    3. Appeal and error — conclustveness of chancellor’s finding.— A finding of the chancellor not against the preponderance of the testimony will be sustained by the Supreme Court on appeal.
    Appeal from Crawford Chancery Court; J. V.■ Bour-land, Chancellor;
    affirmed.
    . J. E. London and E. D. Chastain, for appellant.
    While fraud will not be presumed, it may be proved by circumstances. 119 Ark. 578; 46 Am. St. Rep. 753; 57 Am. St. Rep. 591; 31 Am. St. Rep. 122; 12 Am. St. Rep. 29. Section 7404, C. & M. Digest, was not complied with. A sale under a mortgage without complying with the statute, is void. 84 Ark. 298; 79 Ark. 1; 219 S. W. 16. The collusion between Alexander and Petree rendered the transaction void. 128 Ark. 605; 97 Ark. 15; 99 Ark. 438; 81 Ark. 134; 100 Ark. 144.

      Starbird ■& Starbird, for appellee.
    Where the evidence is conflicting, the chancellor’s finding will not be disturbed. 112 Ark. 337; 101 Ark. 493; 81 Ark. 68. His findings are as conclusive as the verdict of a jury. 74 Ark. 336; 85 Ark. 414; 91 Ark. 292; 107 Ark. 368.
   McCulloch, C. J.

Appellee, a domestic corporation doing business at the town of Alma, in Crawford County, instituted this action in the chancery court of that county against appellants, Henry Webb, Arthur Webb and Wallace Webb, to recover on a note executed by appellants to appellee in the sum of $898, dated April 4,1921, and to foreclose a mortgage on personal property, executed by appellants to appellee on the same date to secure the payment of said note; also to recover from appellant Henry Webb on a note in the sum of $110.26 and a mortgage on the same personalty to secure the same, executed by Henry Webb to the Bank of Alma, a banking corporation, and assigned by the Bank of Alma to appellee.

Appellants answered, denying that they executed the note to appellee, or the mortgage securing the same, as alleged in the complaint, and denying that they were indebted to appellee in any sum whatever.

Appellant Henry Webb admitted the execution of the note and mortgage to the Bank of Alma, but denied that the same had been assigned to appellee, and also alleged that the note had been paid.

The cause was heard on the pleadings and the testimony of witnesses, and the court found in favor of ap-pellee as to the execution of the note and mortgage and the assignment of one of the notes to appellee, and referred the cause to a master to state an account between the .parties, after giving credit for certain bales of cotton delivered by appellants to appellee. The master made a report stating the account, after hearing further testimony on the subject, and the court overruled exceptions, and rendered a final decree in favor of appellee for the amount found due, and ordered a sale of the mortgaged property by the receiver appointed in the cause. .

On the first question raised, concerning the validity of the alleged assignment of one of the notes by the Bank of Alma, it is sufficient to say that appellant has not complied with the statute ('Crawford & Moses’ Digest, § 479), which provides that, in a suit brought by an assignee of an instrument made assignable by law, the plaintiff “shall not be required to prove said assignment, unless the defendant shall annex to his answer an affidavit denying such assignment, and alleging that he verily believes that one or more of the assignments on such instrument was forged.” In addition to the failure to comply with this statute so as to require proof of the validity of the assignment, it was proved in the present case that the instruments which were filed in the action bearing the assignment of the Bank of Alma in due form were assigned to appellee by the cashier of the bank for a valuable consideration, being the face value of the debt less fifteen per cent, discount, and that the cashier accounted to the bank for the loss sustained on the discount. The bank did not complain of any lack of authority on the part of its cashier to make the assignment, and appellants are in no attitude to raise that question.

A decision of the case in other respects turns solely upon the question, of the weight of the evidence, which is conflicting between the appellants themselves, on the one side, and the manager of appellee’s business, the cashier of the Bank of Alma, and several employees of appellee, on the other side. Each of the appellants testified that they did not sign the note or the mortgage alleged to have been executed to appellee on April 4, 1921, but the manager of appellee’s business, and the cashier of the Bank of Alma, who was a notary public and took the acknowledgments, testified that the mortgage was in fact executed and acknowledged. The- testimony does not appear to preponderate against the finding of the chancellor — in fact, the preponderance of the evidence on the issues involved supports the finding of the chancellor. The same may /be said with respect to the issue as to the amount of the balance due on the note.

The decree is therefore affirmed.


text:
    Tanner v. Manos.
    Opinion delivered October 8, 1923.
    1. Reformation of instruments — evidence.—It is not essential in order to entitle one to reformation of a deed as against a subsequent purchaser of the land to prove any formal notice to the latter; it being sufficient to show circumstances which put the purchaser upon inquiry.
    2. Reformation of instruments — against whom enforced. — Where a debtor and his wife executed a mortgage of his own homestead which correctly described the land intended to be conveyed, and thereafter conveyed the land to his wife, who subsequently executed a conveyance to a third person, since the wife had no further interest in the land, the mortgage may be reformed as to the subsequent purchaser, so as to describe the land properly.
    Appeal from Benton Chancery Court; Ben F. McMahmi, Chancellor;
    affirmed.

      Rice & Rice, for appellant.
    A mortgage is good between the parties, though not acknowledged or recorded. 71 Ark. 517. An unrecorded mortgage is not void or ineffectual as. a lien between the parties. 68 Ark. 162. The chancery court cannot reform the deed of a married woman. 53 Ark. 55. A married woman cannot relinquish her dower save in the manner prescribed by statute. 104 Ark. 226; 148 S. W. 257.

      G. A. Fuller, for appellee.
    Where a mortgage by mistake incorrectly describes land intended to be conveyed, the mortgagee is entitled to a reformation thereof as against the mortgagor, or any subsequent purchaser with notice of such mistake. Section 5578, C. & M. Digest; 89 Ark. 259; 87 Ark. 371; 104 Ark. 226; 72 Ark. 534. A married woman’s conveyance can he reformed. 72 Ark. 534.
   McCulloch, C. J.

This action was instituted by appellee in the chancery court of Benton County, seeking reformation of a mortgage on real estate in that county so as to correctly describe the land which it is alleged was intended to be conveyed.

E. D. Hogan, who was one of the defendants below, but who has not appealed from the decree, was the owner of the land in controversy, and executed a mortgage thereon to appellee to secure a debt in the sum of $800 for borrowed money. Hogan’s wife, Lillie, joined in the conveyance for the purpose of relinquishing her homestead and dower rights.

The land in controversy contained sixty acres, and is properly described as the east half of the northwest quarter of the northeast quarter, and the southwest quarter of the northeast quarter of section twenty-four, township twenty north, range thirty-four west, in Benton County. It will be noted that of the two contiguous tracts in this description, one is a twenty-acre tract and the other a forty-acre tract. The mortgage correctly described the tract containing twenty acres, but the other tract in the mortgage was described as the' southwest quarter of the northwest quarter of the northeast quarter of said section twenty-four, which 'contains only ten acres and is in a different subdivision from that which Hogan owned. The mortgage recites, however; that the two tracts contain sixty acres, but, according to the description of the two tracts in the mortgage, they really contain only thirty acres. The mortgage was duly placed of record.

After the execution of the mortgage, Hogan and wife separated and were divorced, and he conveyed the land to his wife, who. subsequently sold and conveyed to appellant, B. F. Tanner and wife, who were joined as defendants in this suit!

It is alleged in the complaint, and has been proved by a preponderance of the evidence, that the land in controversy was the same land owned by Hogan and wife, who, at the time the mortgage was executed, were in actual occupancy of the land as their homestead, and had so occupied it for a great many years, and that it had been thus occupied by Hogan’s father. It was also alleged that appellants were informed as to the mortgage on the land at the time they purchased it and received a conveyance from Lillie Hogan. Neither Hogan nor his wife made any defense, as they had parted with the title, and had no further interest in the land.

Appellants filed an answer, denying all the allegations of the complaint with respect to the alleged mistake in the execution of the mortgage, and asserted that, if there was a mistake, appellants were innocent purchasers for value, and had no information as to the fact that there had heen a mistake in the description or that the land in controversy was intended to be described. It was also alleged that the twenty-acre tract described in the mortgage was not owned by either Hogan or his wife, but that it was owned by a man named "Wilson, from whom appellant had received a deed of conveyance.

On the final hearing of the cause, on oral and documentary. evidence, the court found the facts in favor of appellee, and granted the relief prayed for by reforming the mortgage and ordering it foreclosed.

It is contended, in the first place, that the decree was erroneous as to the twenty-acre tract for the reason that appellee failed to prove, as alleged, that the Hogans were the owners of that tract. We are of the opinion that the proof shows overwhelmingly that Hogan was the owner of this tract, and that he and his wife had been in actual occupancy for a great many years — long enough to constitute an investiture of title by limitation. It is true that there was a break in the record title, which showed that the title had been in Wilson, but there is scarcely any dispute in the facts which established the title of Hogan by adverse possession for the statutory period of limitation.

There is a great volume of testimony on the question as to the information of appellant concerning the mistake in the description of the land in the mortgage. It is unnecessary to discuss the testimony in detail, for we are clearly of the opinion that it sustains the finding of the chancellor that appellant B. F. Tanner was advised, when be bought the land, that appellee held a mortgage on it for $800. The information was sufficient to put him on notice as to the error in the description. The land was the homestead of the Hogans, actually occupied by them, and was the only land, they owned. The testimony of numerous witnesses is to the effect that appellant Tanner was present at a certain trial between appellee and Mrs. Hogan, where testimony was drawn out to the effect that appellee held a mortgage on this land for $800. There is other testimony tending to show that appellant Tanner received other information on this subject, and that he knew, when he bought the land, that there was a mortgage on it. According to the undisputed evidence, he bought the land at a grossly inadequate price — he paid $400 for it, whereas the lowest estimate of value is $2,000.

It is not essential, in order to entitle appellee to a reformation of the deed, to- prove any formal notice to appellants that a mistake had been made in the preparation of the mortgage. It is, as before stated, sufficient to show circumstances which put them upon inquiry. The evidence is, we think, abundant for that purpose.

Finally, it is contended that there can be no reformation for the reason that the land was the homestead ,at the time the mortgage was executed. The contention is, in other words,'that there can be no reformation of the instrument because a married woman was a party to it. The land was the homestead of R. D. Hogan, but the-fact that his wife had to join him in the execution of the conveyance in order to make it valid does not prevent a court of equity from reforming the instrument so as to correct a mutual mistake of the parties to it. Sledge & Norfleet Co. v. Craig, 87 Ark. 371. -We held in Morris v. Covey, 104 Ark. 226, that this rule does not apply to a reformation of a married woman’s relinquishment of dower, and that a court of equity will not grant any such relief. Appellants are not, however, as purchasers of the land from Lillie Hogan, in an attitude to resist the reformation of the deed by the correction of the mutual mistake. Even if the Hogans bad not parted with the title, appellee would be entitled to a reformation as against R. H. Hogan, and the relief would fail only as to the wife’s relinquishment of dower. Since the execution of the mortgage, Lillie Hogan’s dower interest was merged into the legal title by the conveyance to her from • her husband, and she then parted with the title by a conveyance to appellants. The dower interest has thereby been extinguished and is no longer an element of the controversy. In other words, it is not essential to the relief granted to appellee that there should be a reformation of the relinquishment of dower, which has, as before stated, been entirely extinguished. The case in that respect stands as if there had never been any dower interest'.

Our conclusion is therefore that the decree of the chancellor is correct in all respects, and the same is affirmed.


text:
    Missouri Pacific Railroad Company v. Walnut Ridge-Alicia Road Improvement District.
    Opinion delivered October 8, 1923.
    1. Appeal and ERROR — former decision on appeal. — The decision of this court on a former appeal herein becomes the law of the case, which must control throughout the litigation.
    2. Highways — abandonment of improvement — apportionment of expenses. — Where, in determining appellant’s proportion of the expenses of an abandoned road project, it appears that the tax on appellant’s property, based upon the county assessment exceeds the amount of the benefits assessed against the land, the court should reduce the tax on such property so as not to exceed the total of the assessed benefits.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    reversed in part.

      Ponder & Gibson and T. B. Pryor, for appellant.
    Act 43 of the special session of 1919 was an act to amend act 426, and confirmed the assessments which had previously been made by the commissioners and declared them to be the assessment of benefits of the district, thereby repealing by implication § 30 of act 426 forming tbe district. There is a distinction between the conditions found in 153 Ark. 51, 81 Ark. 562,, and 107 Ark. 285, and in the present instance, as here the Legislature had determined the benefits. The assessment on the valuation for State and county purposes is arbitrary and unreasonable. The present case is distinguished from that in 153 Ark. 51, in that there the assessments had not been approved, and were therefore incomplete and furnished no certain means to know just what the assessment would finally have been. Here the assessments were approved by the Legislature. The assessment is arbitrary and unreasonable, and a taking of property ■without due process of law. The figures as set out in the transcript are conclusive. 153 Ark. 587. The law as attempted to be enforced is an infringement of fundamental rights and in violation of the 14th Amendment to the Constitution of the United States. 204 U. S. 241. This amendment clearly constitutes a limitation on the power of States. 12 C. J. 1194; Id. p. 1195, and cases.

      Rose, Hemmgway, Cantrell & Loughborough, for appellee.
    To give the act of 1920 the effect contended for by appellant would be to deprive creditors of any method of collecting their debt, and would be in contravention of art. 1, § 10 of the Const, of the United States. 102 U. S. 206. Such acts levying an ad valorem tax ■have been sustained many times.' 81 Ark. 562; 121 Id. 105; 72 Id. 119; 77 Id. 384; 108 Id. 421; 98 Id. 116; 103 Id. 127, and recently reaffirmed in 157 Ark. 354. For decisions holding that acts or court decisions cutting off constitutional rights or remedies are invalid, see 5 Ark. ■ 506; 25 Id. 625; 24 Id. 91; 15 Howard 304. Controverting the contention of appellant that the assessment against appellant should be upon the assessment of benefits and against the remaining property owners on the
      ad valorem basis, as a violation, of the equality clause of the Constitution, see 32 Ark. 31; 48 Ark. 251; 48 Ark. 370 ; 57 Ark. 554; 130 Ark. 74; 119 Ark. 203. Only one method is provided for paying the debts of the district, and, if that be stricken down, the claims of the creditors go unpaid. See 150 Ark. 525.

      Thos. B. Pryor and Ponder & Gibson, for appellant, in reply.
    The Legislature has determined for itself the validity of the assessments made on the property of the district, and anything in excess of this amount would be a taking of property without due process of law. See 113 Ark. 364; 107 Ark. 285; 97 Ark. 322; 86 Ark. 1; 51 Wash. 12, 23 L. R. A. (N. S.) 286. As held by the trial court, appellant will be required to pay $255.14 more than the benefits assessed against its property. The taxes, in other words, cannot exceed the anticipated benefits.
   McCulloch, C. J.

Appellee is a road improvement district created by a special statute enacted by the General Assembly .at the regular session of 1919. Road Acts 1919, vol. 2, p. 1752. The statute provided for an assessment of benefits for the purpose of raising funds to pay for the construction of the improvement, but § 30 of the statute provided that, if the improvement should not be made, “all expenses and costs accrued at that time shall be charged against the real property of the district, and the amount necessary to discharge all such indebtedness shall be levied by the chancery court of Lawrence County upon real property in proportion to the county assessment, and collected by a receiver to be appointed by said •court. ’ ’

The assessment made by the assessors of the district, pursuant to the 'statute, was confirmed and approved by special act of the General Assembly, enacted at the extraordinary session in February, 1920. Later it was ascertained that it was impracticable to construct the improvement, and it was abandoned. This was after there had been preliminary expenses, consisting of engineers’ fees and other expenses. After the abandonment of the work, the engineers who performed the preliminary work, and other creditors, commenced an action in the chancery court of Lawrence County, pursuant to § 30 of the statute, supra, for the ascertainment of the amount of their, claims and the levy of assessments in accordance with the section mentioned. Owners of land in the district, including the present appellant, intervened in that suit to contest the claims of the creditors. The court rendered a decree ascertaining the amount of the claims against the district, but refused to levy assessments according to the mode prescribed in § 30. The court, on the contrary, discarded that method of assessment and levied a proportionate tax on the assessments of benefits. According to that method of assessment, appellant’s tax amounted to the sum of $172.58. The benefits on appellant’s property in the district were .assessed by the district assessors at the total sum of $6,637.50.

In resisting the assessments, appellant and the other protestante attacked the validity of the district. There was no appeal from that part of the decree which adjusted and fixed the claims of creditors, but, on an appeal from the other features of the decree, we decided that the attack upon the district by the owners of property was unfounded. In dealing with the question as to the method of assessment, we held that the tax to pay. the preliminary expenses must be levied “in proportion to the county assessment,” as prescribed by §30’ of the statute. Neterer v. Dickinson & Watkins, 153 Ark. 5. In disposing of that question we said:

“Even if it be held that the presumption of the legislative determination that benefits will accrue in that proportion is excluded by the further provision in the statute for an actual assessment of benefits, it does not render invalid the provisions for the payment of preliminary expenses by taxation in proportion to the assessment for county purposes. The two methods of assessment are for wholly different purposes. One is for the payment of the cost of the completed improvement, which must he by taxation based upon and apportioned on benefits to accrue. The other is a mere provision for the payment of preliminary expenses where the improvement is not undertaken at all. This provision necessarily implies a determination by the Legislature that there are anticipated benefits, at least to the extent of the cost of the preliminary expenses, apportioned according to assessments for county purposes, but it is neither unfair nor violative of any right of landowners to provide that, in the event the contemplated improvement is not undertaken, the preliminary expenses shall be paid according to value, and not according to anticipated benefits. The distinction lies between the payment of preliminary expenses and payment of the actual cost of the improvement. Where an attempt to construct the improvement proves abortive and has to be abandoned, it is fair to exact contributions from all of the lands according to value, provided the taxation does not exceed the anticipated benefits, and, as before stated, this feature of the statute must be treated as a determination that a proportionate assessment of taxation for the payment of preliminary expenses will not exceed the anticipated benefits. It is not even shown in the present instance that the assessments apportioned according to assessed value will exceed, as to any tract of land, the assessed benefits.”

The cause was reversed, and remanded “with directions for further proceedings in accordance with this opinion.”

On the remand of the case the present anpellant renewed its protest against the assessments and set up the fact, in support of its contention, that, under the statutory method of assessment on valuations fixed bv the county assessments, the across amount of anpellant’s assessment would be $6,992.64, which is $355.14 more than the assessment of benefits as approved by the legislative act referred to above. The chancery court rendered a decree levying the taxes on t'be valnation fixed in the connty assessment, as directed by this court, and appellant has prosecuted an appeal to this court.

■ It will be observed, from the above recitals of the history of this litigation, that the present appeal is but a continuation of the suit involved on the former appeal, and, that being true, the decision of this court on the former appeal becomes the law of the case, which must control throughout the litigation. The chancery court was therefore correct in levying the assessments in accordance with the statute levying the taxes on the valuation assessed for county purposes, but, when it was brought to the attention of the court by the plea of the appellant that its property under this- assessment exceeded in the sum of $355.14 the total benefits as assessed and confirmed, the tax on appellant’s property should have been reduced to that extent so as to conform to the law as announced by this court.

It will be observed, from the opinion on the former appeal, that we declared the law to be that, where the improvement is abandoned, the tax to pay the preliminary expenses shall be levied “according to value, provided the taxation does not exceed the anticipated benefits.” The fact that the assessment of this particular property owner exceeds the total assessed benefits on the' property of that owner does not render the whole assessment invalid, but calls for a reduction of the assessment down to the amount of assessed benefits so as to conform to the law as decided in the case. This does not constitute a change in the basis of the assessment, but merely makes the assessment conform to the methods prescribed by the statute, that the limitations which we have set must be read into the statute — that the tax cannot exceed the total assessed benefits.

The .decree is therefore reversed in part, and the cause will be remanded with directions to reduce the amount decreed against appellant’s land to the above specified total amount of the assessed benefits

Hae-t, J., dissents.


author: Wood, J. McCulloch, C. J.,

text:
    Jerome Hardwood Lumber Company v. Jackson-Vreeland Land Corporation.
    Opinion delivered October 8, 1923.
    1. Judgment — suit to vacate — effect of dismissal. — Where judgment defendants filed a complaint seeking to vacate the decree under Crawford & Moses’ Digest, § 6290, to which respondents filed an answer and cross-complaint, wherein affirmative relief was prayed, and the motion to vacate was subsequently dismissed, the cross-complaint was properly dismissed, as the only issues that can be raised under the statute are, first, whether or not there exist the grounds alleged for vacating the judgment, and, second, whether or not thqre is a valid defense to the action.
    2. Judgment — suit to vacate — dismissal.'—On a complaint to vacate a judgment under Crawford & Moses’ Digest, § 6290, the court does not come to the issue as to whether or not there is a valid defense until it has first determined whether or not there are any grounds to vacate the judgment; and when the complaint is dismissed, there is no longer a cause of action pending for vacating the judgment.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      J. G. Willimnson, Lamar Williamson and Adrian Williamson, for appellant.
    The pleading filed by Munsell et al. conformed strictly to the provisions of C. & M. Digest, § 6292, and constituted, in fact, a complaint, the beginning of what is called a “suit” or “case,” and proceeds as a new action. That they denominated their pleading a “motion” did not change its substance, nor its real nature and purpose. C. & M. Digest, § 6293; 15 R. C. L. 673-674; 122 Art. 71-72. When appellant answered, and joined issue, properly filing a cross-complaint and counterclaim, as was its duty, in order to plead every defense, both legal and equitable, it had, the court was thus given complete jurisdiction both of the subject-matter and the parties. C. & M. Digest, § 1194; 70 Ark. 505; 71 Ark. 484; 87 Ark. 148; 134 Ark. 311-314; 135 Ark. 531. The cross-complaint filed in answer to' the interveners’ pleading, being a proper counter-demand and cross-action, service of summons on them was not necessary. 49 Ark. 431, 437; 146 Ark. 595, 598; 43 Ark. 496 et seq. Q3ut the relief sought in the cross-complaint made Jackson-Vreeland Land Corporation a necessary party. C. & M. Digest, § 1196. The dismissal of the original complaint of Mnnsell et al. did not have the effect of destroying the jurisdiction of the court, hut leaves the cross-complaint unaffected. C. & M. Digest, § 6236; 14 Ark. 666; 29 Ark. 612; 45 Ark. 177; 18 Corpus Juris, 1161 and note; 89 Tex. 622; 35 S. W. 1056; 101 Ark. 142, 146. Equity should adjudicate all issues, having acquired jurisdiction. 130 Ark. 107; 114 Ark. 206; 83 Ark. 554; 2 Crawford’s Ark. Digest, “Equity,” 1865, et seq.

      Henry & Harris and Streett, Burnside & Streett, for appellees.
    The filing of a pleading to vacate or modify a judgment or order rendered at a former term is not the beginning of a new action. It is a statutory proceeding, and the statutory requirements will control. C. & M. Digest, 6290, 6294, inch; 120 Ark. 255; 104 Ark. 449; 83 Ark. 17. The first inquiry is, has the petitioner legal grounds to vacate? and, second, has he a valid defense to the original action? 99 Ark. 377; 97 Pac. 1028; 133 Ill. 444; 134 N. W. 628; 112 Pac. 1170; 83 Atl. 755; 23 Cyc. 958; 15 R. C. L. 717; Id. 719; Id. 724.
   Wood, J.

The case of Jerome Hardwood Lumber Company et al. v. Jackson-Vreeland Land Corporation, E. Gr. Munsell, A. W. Askins and A. A. Dixon, was prosecuted to final decree in the Chicot Chancery Court on January 20, 1922, an adjourned day of the regular November term of said court. On May 1, 1922, the November term of said court having lapsed, E. Gr. Munsell, A. W. Askins and A. A. Dixon filed their motion to vacate the decree above mentioned. The motion to vacate contained allegations relied upon by proponents in justification of their prayer. On September 7, 1922, respondents filed an answer and cross-complaint to the motion to vacate, wherein they prayed affirmative relief. On September 13, 1922, a day in vacation, proponents dismissed or withdrew their motion. On November 6, 1922, a day of the November term of the court, respondents prayed judgment upon the cross-complaint.

The above is a brief statement of the facts made by the 'Chancery court upon which it entered a final order, dismissing the cross-complaint of the Jerome Hardwood Lumber Company on the ground that the court was without jurisdiction, from which order is this appeal.

The ruling of the chancery court was correct. Section 6290 of Crawford & Moses’ Digest provides, “the court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order,” on certain grounds therein enumerated.

Section 6292 provides, “the proceedings to vacate or modify the judgment or order on the grounds mentioned * * * shall be by complaint, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the part}^ applying was defendant. On the complaint, a summons shall issue and be served, and other proceedings had as in an action by proceedings at law.”

Section 6293 provides, “a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered.”

■Section 6294 provides, “the court may first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action.”

In the case of Knights of Maccabees of the World v. Gordon, 83 Ark. 17-21, the court, having under review proceedings under this statute, said: “The statute provides that a complaint shall be filed, and, after issue and service of summons, other proceedings shall be had as in proceedings at law. Accordingly, if an answer should be filed denying the existence or truth of the defenses alleged in the complaint, it would devolve upon the plaintiff to adduce some evidence to sustain his complaint in this respect. For the statute expressly provides that a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered, etc. It would necessarily follow that, if the judgment could not be set aside upon motion or complaint, evidence must be heard by the court before it could adjudge that there is a valid defense. But, as the truth of the defenses are not finally tried in the proceedings to vacate the judgment, enough evidence to make a prima facie showing of the truth or existence of the defenses would be sufficient to authorize the court to vacate the judgment. When this is done, the judgment should be set aside and a new trial granted in the action in which the judgment was rendered.”

These statutory provisions show clearly that a cross-complaint asking affirmative relief, in answer or response to the motion or complaint to vacate, is not contemplated. Such an action would be entirely beyond the scope of the issue raised by the special statutory proceeding to vacate a judgment or final order. ' The only issues that can be raised under this -statute are, first, whether or not there exist the grounds alleged for vacating the judgment, and second, whether or not there is a valid defense to the action.

The court, under the express terms of the statute, does not come to the issue as to whether or not there is a valid defense until it has first determined whether or not 'there are any grounds to vacate the judgment. See Knights of the Maccabees v. Gordon, supra; Ryan v. Fielder, 99 Ark. 374; Smith v. Minter, 120 Ark. 255.

Since the court must first determine whether any grounds exist for vacating the decree, when the complaint setting forth such grounds is dismissed there is no longer a cause of action pending for vacating the judgment. The issue as to whether'or not there is a valid defense necessarily falls wlien the proponent or plaintiff withdraws or dismisses his motion or action to vacate, and the defendant in the action cannot, by any answer or cross-complaint, compel the plaintiff to litigate •the issue as to whether or not any grounds exist to vacate the judgment.

The excellent written opinion handed down by the chancellor in this case shows a clear comprehension of this statutory proceeding when he said: “A motion to vacate, having been withdrawn before submission, robs the court of any pleading’ whereby it could determine whether or not there were sufficient grounds to vacate the decree, a condition precedent to the filing of a pleading such as is offered by respondent. Such pleading is in no way responsive to the issue raised by the motion to vacate. It was premature in that it had no place in the files of the court until after the decree had been vacated.”

In 23 Cyc. 958, it is said: “The party seeking to sustain a judgment, as against a motion to set it aside, may present for the consideration of the court affidavits in opposition to those of the moving party, in regard to the alleged grounds for vacating the judgment or the matters set up in excuse of. defendant’s failure to make his defense in due time, provided such counter-affidavits set forth facts, and not merely matters of inference, conjecture, or belief; but the affidavit of merits cannot be thus controverted. As it is only required to show a prima facie defense, and the court is not to inquire into its truth, counter-affidavits as to the facts of the defense are not admissible.” See also 15 R. C. L. 717.

To construe the act as contended for by learned counsel for the appellees would be to annul § 6294, C. & M., supra, and would campel’the court to hold the cause in order to give the defendant in the action to vacate an opportunity to try out the issue raised by his cross-complaint. Such procedure, as already stated, is not contemplated in an action under the statute to vacate a judgment or final order. The doctrine of Coats v. Milner, 134 Ark. 311, and the other eases upon which the appel-lees rely, have no application to actions brought under the above provisions of onr statute.

Let the decree be affirmed.

McCulloch, C. J.,

(dissenting). The conclusion of the majority seems to he based entirely on the- separation of the two issues on a motion to vacate a judgment or decree. In the opinion it is said (erroneously,- I think) that, under-the express terms of the statute, the court “does not come to the issue as to whether or not there is a valid defense until it has first determined whether or not there are any grounds to vacate the judgment.” This statement is, I think, in the face of the language of the statute itself, which provides that “a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action.” This means that the court -must have an opportunity to ascertain whether or not there is a valid defense — not merely that a defense is tendered; and we have held in many cases, as conceded by the majority, that the party seeking to set aside the judgment or decree must introduce enough testimony to make a prima facie defense. The two issues must he presented and considered together and determined before any order can be made vacating the judgment. It is true that the statute does not contemplate that there shall be a trial anew of the case on the motion to vacate, hut the statute does not prohibit such a procedure. There is no rule of procedure provided in the statute as to the trial of the motion, further than to require that the judgment shall not be vacated “until it is adjudged that there is a valid defense to the action.”

All of our cases dealing with this subject related to motions in courts of law to set aside judgments, and of course the rule must necessarily he- followed in a court of law, that the merits of the controversy are not to be completely tried out on the motion to vacate, for the reason that, after the court has set aside the judgment, the parties are entitled to a trial on the merits before a jury. Therefore it is correct to say that, on the hearing of a motion to set aside a judgment at law, it is only necessary to introduce enough proof to make out a prima facie case, and that, after the judgment is set aside, the cause will then be heard on its merits as if there had been no former judgment. However, in an application to a court of equity to set aside its own decree, there is nothing in the statute which prevents the court from hearing the whole proceedings at once, and it seems to me to be good practice to do so.

The language of the statute is very plain that a motion to vacate must present two issues — one as to the grounds for vacating the judgment, and the other as to the defense to the original action. In any event, there must be an adjudication upon a prima facie showing that there is a valid defense. In the recent case of Osborne v. Lawrence, 123 Ark. 447, we said:

‘ ‘ The only attempt made by the petition to show the existence of a. valid defense was to introduce the answer above mentioned; and we think this showing insufficient to meet the requirements of the statute. It is true that only a prima facie showing of a valid defense is required, and it is not contemplated that the cause shall be fully heard upon its merits; but such showing should be made as that, in the absence of proof to the contrary, a finding would be made that a valid defense existed to the cause of action sought to be set aside. We think the mere filing of an answer insufficient to meet this requirement.

It is unimportant to inquire as to the correctness of the statement of the law quoted in the majority opinion from the encyclopedias, to the effect that evidence cannot be offered in opposition to the showing of merit, though that statement seems to be in conflict with the law stated by Judge Battle in the opinion in Knights of Maccabees of the World v. Gordon, 83 Ark. 17. Whether that be the correct rule or not, it is certain that the motion must, as before stated, present the two issues, and-.proof must be introduced in support of them. These two issues are tendered from tbe moment that the motion is filed, and I can see no reason why the party seeking to uphold the judgment should not be allowed to file a cross-complaint, which, if sustained, would obliterate or annul the defense set forth in the motion.

• The opinion in the case of Knights of Maccabees of the World v. Gordon, supra, shows clearly that the filing of an answer in opposition to the. motion is-contemplated, and, if this be true, it surely is permissible to file a cross-complaint with the answer. ■ It should necessarily follow, I think, that, if an answer and cross-complaint can be filed before the judgment is vacated, then a dismissal of the, motion to vacate does not cut off the right to prosecute the counterclaim.

The decision of the majority in this case tends to narrow instead of broaden the wholesome provisions of our Code of Practice in allowing counterclaims for the purpose of settling all litigation in one action. The lawmakers themselves have, by the recent statute, greatly broadened the scope of the counterclaim (Crawford & Moses’ Digest, §1195), and the present decision is not, I think, in harmony with the liberal policy indicated by the lawmakers.

My conclusion is therefore that appellants. had a right to file a cross-complaint as soon as the motion to' vacate was filed setting forth, as it was necessary to do, a defense to the action, and that the dismissal of the motion did not cut off appellant’s right to prosecute the cross-complaint.


author: Hart, J.,

text:
    Nissen v. Flournoy.
    Opinion delivered October 8, 1923.
    1. Work and labor — implied contract to pay for another’s services. — In an action by a sister against her brother’s estate to recover for taking care of him for five years, it was error to , instruct the Jury that she cotild not recover without establishing a special or express promise to pay her, and that the law presumes, in view of their relationship, that the services rendered by her to her brother were gratuitous.
    2. Work and labor — services of member of family — jury question. — Though the law generally implies a contract to pay for another’s services, such implication does not arise as a matter of law where the parties live together in the family relation; but in such case it is a question for the jury to determine from all the surrounding circumstances whether the services were rendered under an implied contract to pay for them.
    Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    reversed.
    STATEMENT OE EAOTS.
    Eva Baw Nissen filed her claim in the sum of $4,700 against the estate of her brother, Otis Gr. ‘Baw, deceased, in the form of a complaint in the probate court, in substance, for the support of her brother for about five year's before his death. To this there was a general denial by the administratrix of her brother’s estate.
    Upon the trial of her contested claim in the probate court there was a judgment in her favor for the amount, claimed by her. There was an appeal to the circuit court, where the 'case was tried before a jury upon substantially the following evidence:
    Otis Gr. Baw was a railroad brakeman, and had both of his legs cut off above the knees, in 1911. The railroad company paid him $18,000 as damages on account of his injury. He was placed in a hospital for some' time after he received his injuries, and then went to live with his sister, Eva Baw Nissen, at her home in Prairie County, Arkansas. He lived with her for over five years, until the date of Ms death on the 2d day of December, 1918. During most of this time Baw suffered pain which rendered him very nervous and irritable. His physical condition was such that he required a great deal of care and attention, whiclqwas bestowed upon him by his sister. He told several people, at different times, who came to see him, that he intended that his sister, Eva Baw Nissen, should have all of his property that was left after his death. He had no wife or children. His sister would have inherited one-half of his estate and the defendants the other half.
    The jury returned a verdict in favor of the defendants, and from the judgment rendered upon the verdict the plaintiff, Eva Baw Nissen, has duly prosecuted an appeal to this court.

      J. F. Holtsendorf and Trimble & Trimble, for appellant.
    The court erred in instructing the jury that any service under any circumstances rendered by a sister to a brother is gratuitous. Where a relative accepts services from another under circumstances which render an implied contact to pay therefor, the law will imply a contract to pay the reasonable value of such services. 75 Art. 191; 82 Ark. 136; note 11 L. E. A. (N. S.) 873.

      Geo. W. Emerson and Cooper Thweatt, for appellee.
    Where the parties are members of the same family, the presumption is that the services were rendered gratuitously. 56 Ark. 385; 40 Cyc. 2823; 4 Pa. Co. Ct. 177; 30 Mo. App. 176; 67 N. W. 37. Objection to the verification of a pleading cannot be taken for the first time on appeal. C. & M. Dig., §1246; 88 Ark. 433; 71 Ark. 609.
   Hart, J.,

(after stating the facts). The errors complained of are that the court erred in instructing the jury. Without quoting the language of the charge, it may be said that the court, in effect, told the jury that the plaintiff could not recover without establishing a special or express promise to pay her. The court also told the jury that the evidence showed that the relationship between the claimant and the deceased was sister and brother, and that, where this relationship exists, the law presumes that the services were rendered gratuitously and without compensation.

We are of the opinion that the court erred in its instructions to the jury. It is an elementary principle of the law of contracts that, where a party accepts the beneficial results of another’s services, the law implies a previous request and a subsequent promise. Ford v. Ward, 26 Ark. 360.

It is also an elementary principle of law that the contract which the law ordinarily implies to pay for services and maintenance is not presumed between parent and child, or in any other ease of near relationship where the parties live together and create the family relation, and this well-known exception to the general rule has been recognized by this court in the following cases: Hogg v. Laster, 56 Ark. 362; Lewis v. Lewis, 75 Ark. 191, and Williams v. Walden, 82 Ark. 136.

A careful reading and consideration of the decisions just cited leads us to the conclusion that, in all such cases, it is a matter for the jury to determine, from all the surrounding circumstances, whether the services were rendered under an implied contract or .not; and this doctrine we consider to be according to the better reasoning on the subject. While, in a case like this, no contract can be said to be implied by law or implied as a matter of law on the ground that a legal obligation exists because the services have 'been performed, still a contract may have been found to have existed in fact from all the circumstances and conditions proved.

It was incumbent upon the plaintiff to show that she performed the services which were at the foundation of her claim, expecting, at the time, to be paid therefor, and that her brother so understood it, or that, under the circumstances, he had sufficient reason to believe that she expected pay for her services.

A leading’ ease on the question, and one which is frequently cited, is Guild v. Guild, 15 Pick. (Mass.) 129. In that case, the matter was well summed up hy Shaw, C. J., as follows: “But the .court are all of opinion that practically the question is of much less importance than at first view it would appear. Those who think that the law raises no implied promise of pecuniary compensation, from the mere performance of useful and valuable services, under the circumstances supposed, are nevertheless of opinion that it would be quite competent for the jury to infer a promise, from all the circumstances of the case; and although the burden of proof is upon the plaintiff, as in other cases, to show an implied promise, the jury ought to be instructed that if, under all the circumstances of the case, the services were of such a nature as to lead to a reasonable belief that it was the understanding of the parties that pecuniary compensation should be made for them, then the jury should find an implied promise, and a quantum meruit; but, if otherwise, then they should find that there was no implied promise.”

No hard and fast rule can be laid down, and every case must be governed by its peculiar circumstances. It is incumbent upon the claimant to show that, at the time the services were rendered, it was expected by both parties that she should receive compensation, but she may show this by circumstantial as well as by direct evidence. All the surrounding circumstances under which the services were performed may be proved.

It results from our views that the court erred in substantially telling the jury that' the claimant can only recover upon an express contract, and that the relationship of brother and sister raises a presumption at law that the services were gratuitously rendered.

Therefore the judgment must be reversed, and the cause will be remanded for a new trial.


author: Hart, J.

text:
    Sheppard v. State.
    Opinion delivered October 8, 1923.
    1. Homicide — indictment.—An indictment of three persons for murder which alleges that defendant did unlawfully, etc., kill and murder, etc., will be construed to intend to allege that defendants did kill and murder.
    2. Homicide — sufficiency of indictment. — An indictment of three persons alleging that they did kill and murder, etc., with a pistol in the hands of one of them, is legally sufficient to sustain a conviction of the accused.
    3. Homicide — sufficiency of testimony. — Testimony held insufficient to sustain a conviction of voluntary manslaughter.
    4. Homicide — INSTRUCTION.—Where three persons were accused of murder, it was not error to instruct the jury that they might find one or all of them guilty as the evidence warranted.
    5. Homicide — instruction—burden of proof. — It was not error to instruct the jury that, “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused unless, by proof on the part of the State, it is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing the homicide. However, the burden on the ease rests upon the State to show the defendant guilty beyond a reasonable doubt.”
    Appeal from Union Circuit Court; L. S. Britt, Judge; reversed as to Palmer,
    affirmed as to Sbeppard.

      Mahoney, Yocum, & Saye and J. N. Saye, for appellants.

      J. S. Utley, Attorney General, and Jno. L. Garter, Assistant, for appellee.
   Hart, J.

Johnson Palmer, Jim Sheppard and Johnnie Palmer were jointly charged with the crime of murder by an indictment the body of which is as follows: “The grand jury of Union County, in the name and by the authority of the State of Arkansas, on oath, accuse the defendants, Johnson Palmer, Jim Sheppard and Johnnie Palmer, of the crime of murder in first degree, committed as follows, to-wit: The said defendant, on the 20th day of March, 1922, in Union County, Arkansas, did unlawfully, wilfully, feloniously and of his malice aforethought, and after premeditation and deliberation, kill and murder one Roosevelt Kidd, a human being, by then and there shooting him, the said Roosevelt, with a certain pistol, which he the said Johnson Palmer then and there- had and held in his hand, the said pistol being then and there loaded with gunpowder and leaden ball, with the wilful, felonious, malicious, premeditated and deliberate intent then and there to kill and murder him, the said Roosevelt Kidd, against the peace and dignity of the State of Arkansas.”

The jury returned a verdict of not guil'ty against Johnson Palmer. Jim Sheppard was convicted of murder in the second degree and his punishment was fixed by the jury at 5 years in the State Penitentiary. Johnnie Palmer was convicted of voluntary manslaughter and his punishment was fixed by the jury at two years in the State Penitentiary. Jim Sheppard and Johnnie Palmer have appealed to this court.

The first assignment of error relied upon for a reversal of the judgment is that the indictment is void for ’ ambiguity.

It is insisted that the indictment jointly accuses Johnson Palmer, Jim Sheppard and Johnnie Palmer of killing Roosevelt Kidd with a pistol in the hands of Johnson Palmer, and that this rendered the indictment too uncertain to be the basis of a charge of murder against Jim Sheppard and Johnnie Palmer. "When the indictment is read as a whole, it is plain that the use of the words “defendant did unlawfully, etc., kill and murder one Roosevelt Kidd” is a clerical error, and that it was intended to use the word defendants. All of the defendants were joined in the same indictment and properly charged as principals in the first part of the indictment. Of ¡course it is quite improbable that three persons, in the midst of a deadly conflict, could at the same time fire a certain pistol held in the hands of one of them, but, however improbable that such an occurrence may be, it cannot be -said to be impossible. Our statute provides that no indictment is insufficient which does not tend to the prejudice of the substantial rights of the defendant on the merits.

The indictment properly charged all the defendants jointly as principal offenders in the crime of murder. Therefore we hold that the indictment is legally sufficient to sustain the judgment of conviction. Evans v. State, 58 Ark. 47; Jackson v. State, ante, p 198; and Patrick v. State, 104 Ark. 255.

In the latter case the court sustained an indictment charging James Patrick and H. J. Patrick with killing Sterling Rose by stabbing him with a certain knife held in the hands of said James Patrick and H. J. Patrick.

In this connection we wish to call attention to the fact that it has been well said that the dignity of judicial proceedings requires that the forms employed in the administration of justice should not be incongruous or untruthful on their face, and that prosecuting attorneys should be careful to draw their indictments in plain and concise language so that a person of common understanding could readily know with what crime he is intended to he charged in the indictment. It is one thing, however, to say that an indictment is loosely drawn, and a quite different thing to say that it is not legally sufficient to support a judgment of conviction.

The testimony was sufficient to warrant the conviction of Jim Sheppard.

On the part of the State, the testimony was that Johnson Palmer was the father of Johnnie Palmer and the father-in-law of Jim Sheppard. The killing took place at a negro dance in Union County, Arkansas, and all of the participants and the witnesses are negroes. It appears that Jim Sheppard became angry because a negro named Hall was dancing with his wife, and made her stop dancing. Texas Kidd, a brother of Roosevelt Kidd, made objections to this. Soon afterwards several shots were fired, and Roosevelt Kidd was killed by a shot fired from a large pistol. Right after the killing, Jim Sheppard was seen with a large pistol in his hand, and stated to several persons present that he had killed Roosevelt Kidd, and that was his business at the dance that night.

Jim Sheppard denied having shot Roosevelt Kidd, and introduced witnesses to substantiate his testimony. The verdict, however, shows that the jury believed the witnesses for the State, and the evidence is legally sufficient to support a verdict of murder in the second degree.

With regard to the case of Johnnie Palmer, however, the evidence is not so plain. Jim Sheppard married a sister of Johnnie Palmer. When Sheppard snatched his wife away from Hall, with whom she was dancing, and took her off the floor, Hall asked Sheppard if he did not want him to dance with his wife. Texas Kidd then interfered, and asked them why they couldn’t all dance without starting something. Johnnie Palmer and another negro grabbed Texas Kidd and pulled him down in a corner. In a minute or two the shooting started, and Roosevelt Kidd was killed by some one. Jim Sheppard almost immediately afterwards was seen with a pistol in his'hands, and admitted that he had killed Roosevelt Kidd: This evidence, when taken in its strongest probative force, is not legally sufficient to show a concerted plan between Jim Sheppard and .Johnnie Palmer to kill either Roosevelt or Texas Kidd. The row appears to have been started suddenly, and there is nothing to show that Johnnie Palmer in any wise participated in the killing of Roosevelt Kidd. In this connection it may be stated, that' all the witnesses testified that Johnson Palmer ran out of the room as soon as the row started.

Because the testimony is not legally sufficient to warrant the jury in finding that there was a conspiracy to kill or injure Roosevelt Kidd, and because Johnnie Palmer took no part whatever in killing him, we are of the-opinion that the testimony is not legally sufficient to convict him. The jury evidently thought that the testimony against him was very weak, for it only found him guilty of voluntary manslaughter and fixed bis punishment at two years in the State Penitentiary.

It is next urged that the court erred in giving instruction No. 2, which reads as follows:

“You are instructed that, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendants, or either of them, in Union County, Arkansas, before the return of the indictment into court, did unlawfully, wilfully, feloniously, of their malice aforethought, kill one Roosevelt Kidd by shooting him with a pistol, as alleged in the indictment, it will be your duty to find the defendant, nr either of them, guilty of murder in the second degree, and to assess his or their punishment at imprisonment in the State Penitentiary for not less than five years nor more than twenty-one years.”

We cannot agree with the counsel for the defendants in this contention. As we have already seen, the defendants were jointly indicted and charged with being principal offenders in the killing of Roosevelt • Kidd. The jury might return one or all of them guilty, as the evidence warranted, under this instruction.

Again it is insisted by counsel for the defendants that the court erred in giving instruction No. 7, which reads as follows: “You are instructed that, the killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by proof on the part of the State, it is sufficiently manifest that the offense amounted to only manslaughter, or that the accused was justified or excused in committing the homicide. However, the bnrden on the case rests upon the State to show the defendant guilty beyond a reasonable doubt.”

No specific objection was made to this instruction. The instruction follows the language of the statute, and, as construed by this court, only amounts to telling the jury that, if it found that the killing by the defendant was proved, then the burden of proof was upon him to establish self-defense, unless the evidence for the State showed it. A number of cases supporting this view are cited in Wilson v. State, 126 Ark. 354.

It results from the views expressed above that the judgment against Jim Sheppard should be affirmed, and the judgment against Johnnie Palmer, because the evidence is not legally sufficient to support the verdict, should be reversed, and the cause as to him will be remanded for a new trial.


text:
    Harrington v. Citizens' Investment & Security Company.
    Opinion delivered October 8, 1923.
    Bills and notes — FAILURE of consideration — renewal.—.The giving of a renewal note with the knowledge at the time of the failure of the consideration for the original note, waives such defense, and the maker is thereby estopped from pleading such failure in an action on the renewal note.
    Appeal from Pulaski Chancery Court; Marvin Harris, special chancellor;
    affirmed.
    STATEMENT OP PACTS.
    The Citizens’ Investment & Security Company instituted this action in the circuit court against W. E. Harrington to recover upon a promissory note for $1,000.
    The defendant pléaded a failure of consideration for the note, and moved to transfer the ease to equity. By agreement between the parties the case was transferred to equity and determined there.
    It appears from the record that the note sued on was executed under the following circumstances:
    The Citizens’ Investment & Security Company was a banking corporation with $25,000 paid-up capital, engaged in business in the city of Little Rock, Arkansas. Its officers thought its capital was not sufficient to operate profitably, and planned to enlarge its capital stock to $100,000, and to change its name to Citizens’ Trust Company. Tlie plan was to get subscribers for the additional stock, and, when the capital stock was raised to $100,000 by subscriptions, to issue the stock in the .name to the Citizens’ Trust Company to the subscribers. W. E. Harrington was induced to subscribe for $1,000 of the stock at par value and to pay therefor $1,100. Harrington paid $100 in cash for the stock and gave his note for $1,000 to the Citizens’ Investment & Security Company for the balance of the purchase price of the stock. Harrington subscribed for the stock in 1914, and it was understood that his subscription was conditional upon the stock of the Citizens’ Investment & Security Company being enlarged from $25,000 to $100,000. The officers of the corporation were unable to secure subscriptions to $100,000, but did secure subscriptions which increased the capital stock from $25,000 to $75,000. The officers of the Citizens’ Investment & Security Company then secured from the State Bank Commissioner permission to increase its capital stock from $25,000 to $75,000, but the name of the corporation was not changed.
    On May 31, 1915, R. E. Waite, president of the Citizens’ Investment & Security Company, wrote W. E. Harrington a letter in which he recited substantially the facts stated above. In the conclusion of his letter he stated that the corporation had passed a resolution, with the full knowledge and approval of the State Bank Commissioner, authorizing the corporation to increase its stock from $25,000 to $75,000. The note sued on was dated March 6, 1916, and was a renewal note of the original note given by Harrington when he subscribed for the stock as above stated.
    It was decreed that the' Citizens’ Investment & Security Company have and recover from the defendant, W. E. Harrington, the amount of the note sued on, together with the accrued interest.
    To reverse that decree, W. E. Harrington has duly prosecuted an appeal to this court.

      D. K. Hawthorne, for appellant.
    Where one subscribes for stock in a proposed corporation which is not organized, he is not bound by his subscription. 121 Ark. 541; 24 L. R. A. 259; 33 L. R. A. 593. Also, where one subscribing for stock in a corporation, to be called a certain name, with a certain amount of capital stock, be is not bound by bis agreement to take stock in a corporation with a different name and a lesser amount of capital stock.

      McConnell é Henderson, for appellee.
    The right of a party to rescind depends upon bis own affirmative action as soon as be knows of that right. 95 Ark. 488. It must be within a reasonable time. 35 Ark. 483; 38 Ark. 334. The contemplated change of the name of the corporation did not diminish defendant’s liability. 14 Corp. Jur. 321, par. 386; Am. & Eng. Anno. Cases, vol. 19, p. 1236; 141 U. S. 520; 12. S. Ct. 60; 31 Ark. 476. The defendant could not vary, the written subscription agreement by parol testimony. 126 Ark. 400; 92 Ark. 504; 125 Ark. 502; 111 Ark. 238; 106 .Ark. 462; 92 Ark. 504. The burden was on appellant, to establish hi® 'allegations of fraud by clear and satisfactory evidence. 82 Ark. 21. The evidence wholly fails to establish fraud. 47 Ark. 148; 150 Ark. 480; 148 Ark. 653; 226 S. W. 522; 143 Ark. 592; 95 Ark. 375, One who gives a note in renewal of another note, with knowledge at the time of partial failure of consideration for -the original note, is estopped from setting up the defense, of such failure of consideration, in an action on.' the. renewal note. Ill Ark. 353; 118 Ark. 465; 104 Ark. 517.,
   Hart, J.,

(after stating the facts). It has been held by this court that the giving of a renewal note with the knowledge at the time of a failure of the consideration for the original note waives such defense, and the maker is thereby estopped from pleading such failure in an action on the renewal note. Stewart v. Simon, 111 Ark. 358, and Haglin v. Friedman, 118 Ark. 465.

It is true that the consideration for the original note failed because the note was given upon the condition that the capital stock of the Citizens’ Investment & Security Company should he increased from $25,000 to $100,000. This was not done. The capital stock of the bank, however, was increased to $75,000, with. the approval of the State Bank Commissioner. Harrington was notified of this fact, and that his subscription as originally made had been applied to increase the capital stock of the bank from $25,000 to $75,000. After he received notice .of this fact by letter, he signed the note sued on in renewal of his original note.

. Hence the case calls for the application of the rule announced above, and the decree of the chancery court will be affirmed.


author: Smith, J.

text:
    Biddle v. Missouri Pacific Railroad Company.
    Opinion delivered October 8, 1923.
    Limitation or actions — nonsuit and new action within year. — ■ Where plaintiff brought suit in the court of a justice of. the peace, and recovered judgment, from which defendant appealed to the circuit court, whereupon plaintiff took a nonsuit and within a year brought a new suit in the circuit court, he was not barred of his action under Crawford & Moses’ Digest, § 6969, providing that a plaintiff suffering a nonsuit may commence a new action within one year.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    reversed.

      Fred M. Piclcens, for appellant.
    It was error to dismiss appellant’s cause.of action. A cause on appeal to the circuit court from a,justice court is tried de novo. 92 Ark. 425; 131 Ark. 127; § 6518, C. & M. Digest. A nonsuit is not a judgment on the merits, and will not prevent another suit on the same cause of action. 47 Ark. 120; 133 Ark. 570; 131 Ark, 36,

      Thos. B. Pryor and Ponder & Gibson, for -appellee.
    A judgment having been rendered in favor of appellant in the justice court, and a judgment agreed to by attorneys in the circuit court, appellant could not take a nonsuit and thereafter bring another action. Section 6518, C. & M. Digest, provides for taking an appeal, and that it shall be heard, tried and determined, and this provision must be complied with.
   Smith, J.

Appellant, who was the plaintiff below, filed suit against the railroad company in the court of a justice of the peace on October 6, 1921, for wages due him and for the statutory penalty for failure to pay the same. He recovered judgment, and the railroad company appealed to the circuit court, where an agreed judgment was rendered in plaintiff’s favor. On February 21, 1922, a later day in the term, this judgment was vacated, and plaintiff took a nonsuit. On August 21, 1922, appellant brought a new suit in the circuit court on the same cause of action. A motion to dismiss this suit was sustained, and the cause was dismissed, and this appeal is from that judgment.

In support of the action of the court below it is insisted that, the original cause having been brought in the court of a justice of the peace, the new suit should also have been brought there, and that the nonsuit taken in the circuit court gave no right to bring a new suit in that court.

The case of L. R., M. R. & T. Ry. v. Manees, 49 Ark. 248, appears to be against that view. In that case there had been a previous suit between the parties to that record about the same subject-matter. It was instituted before a justice of the peace to recover damages to a horse, and there was a judgment in the justice court and in the circuit court on appeal in the plaintiff’s favor for $125, which judgment was reversed on appeal to the Supreme Court, on the ground that the justice could not entertain jurisdiction of an injury to personal property where the amount in controversy was more than a hundred dollars. Within a year after the judgment -was vacated, but more than a year after the injury complained of was inflicted, the plaintiff brought a suit in the circuit court on the same cause of action. The railroad company pleaded and relied solely on the statute of one year as a bar to the action, the statute of limitation on actions of that character being one year at that time.

The court quoted §4497 of Mansfield’s Digest as being decisive of the question raised. That section is now § 6969, C. & M. Digest, and reads as follows: “Sec. 6969. If any action shall be commenced within the time respectively prescribed in this act, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after judgment for him, the same be reversed on appeal or writ of error, such plaintiff may commence a new action within one year after such nonsuit suffered or judgment arrested or reversed # ?

The court said the question for decision was whether the plaintiff had brought himself within the letter or the spirit of the statute when he shows that his judgment was vacated in the Supreme Court and his action dismissed because the trial court had no jurisdiction of the subject-matter in the first proceeding instituted to collect his demand. After a review of the authorities, the court said that the words, “suffer a nonsuit,” have not been construed to mean a nonsuit as understood at common law merely, but included a voluntary dismissal by the plaintiff. The court then quoted from the opinion in the case of State Bank v. Magness, 11 Ark. 343, as follows: “ ‘It is quite apparent,’ says Judge Walker for the court, in State Bank v. Magness, sup., ‘that the intention of the framers of the act was to secure that class of suitors from loss who, from causes incident to the administration of the law, are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them a cause of action yet undetermined, by giving them a reasonable time in1 which, to renew such action. * # * The remedy was evidently intended to be coextensive with the evil, and will be so held, unless some sensible reason to the contrary can be shown. ’ ’ ’ And the court held that the prior action, although brought in a court having no jurisdiction of the subject-matter, avoided the bar of the statute of limitations where the second action was brought within the year.

The causa of action here sued on might have been brought in the circuit court originally, and it did in fact reach that court on appeal and was pending there when the nonsuit was taken. The pendency of that suit arrested the running of the statute of limitations until the nonsuit was taken, and by § 6969, C. & M. Digest, quoted above, the right was given to reinstate the suit within a year of the date of the nonsuit. This the plaintiff did, and the court erred in dismissing the complaint, as plaintiff had the statutory right to reinstitute the suit in the court in which the nonsuit had been taken within a year.

The judgment of the court below dismissing plaintiff’s complaint will therefore be reversed, and the cause remanded with directions to overrule that motion.