text:
    Barnett v. McCray.
    Opinion delivered November 16, 1925.
    1. Officers — right of action for office. — Crawford & Moses’ Dig., § 10326, authorizes persons entitled to an office to sue therefor, and the action need not he instituted by the prosecuting attorney, although three months have elapsed since the usurpation, but the State and the person entitled to an office may join in instituting the action.
    2. Officers — qualification.—In Acts 1925, No. 21, § 16, providing that failure of any of the commissioners of Road Improvement District No. 1 of Hot Spring County to “qualify” within 10 days from- passage of the act shall be deemed a non-intention to serve, the use of the word “qualify” refers to qualifications required in the Constitution, and it is sufficient for the commission to take the oath prescribed by the Constitution; the provision as to the form of oath prescribed in Special Acts 1921, Nos. 16, 143, as amended by Special Acts 1923, No. 11, requiring a different form of oath, being superseded by the later act.
    3. Statutes — record of yea and nay vote. — Where the House journal on the final passage of a bill recites the names of 64 as voting for the bill and 36 as absent, the specific recital of the affirmative vote will control, although the summary of the vote states that only 63 voted for the bill.
    4. Statutes — revival or extension of prior act. — Acts 1925, No. 21, superseding the provisions of Special Acts of 1921, Nos. 16 and 143, and special act No. 11 of 1923, did not constitute either a revival or an amendment or an extension of the former acts by reference to title merely, since it was a complete enactment of all the provisions intended to be incorporated into the statute.
    Appeal from Hot Spring Circuit 'Court; Thomas E. Toler, Judge;
    affirmed.

      Oscar Barnett, for appellant.

      D. D. Glover and John L. McClellan, for appellee.
   McCulloch, C. J.

Road Improvement District No. 1 of Hot Spring* County was created by special statute enacted by the General Assembly of 1921, and the statute was amended in some respects, not important in the present inquiry, by another special statute at the session of 1923. ,Act No. 16, session of 1921, and acts No. 43 and No. 11 of 1923. The statute provided that the county judge, acting ex officio, and two other persons should be the commissioners of the district, and appellants E. 0. Barnett and W. L. Collie were.the two commissioners of the district, acting with the county judge, who is also one of the appellants.

The General Assembly of 1925, by act No. 21 of that session, abolished the board of commissioners of this district as created by the former statute, and created in succession a new board of commissioners to perfonmall of the duties prescribed in the statute and named the appellees, six of them, as commissioners-Section 3 of thenew statute names the six commissioners and provides that the terms of office “shall extend from time of qualification until January 1, 1927, and whose successors shall be elected at the general election to be held in the year 1926, for a period of two years. ’ ’ Section 16 provides that a failure on the part of any of the commissioners to “qualify within ten days from the passage of this act shall be deemed a non-intention to serve, and such a vacancy shall be filled by appointment by the county judge.” There are other provisions of the new statute with reference to the collection of taxes and depositing the funds of the district, and some other provisions, the validity of which is not involved in this controversy. The new statute contained no emergency clause, and therefore went into effect ninety days after the adjournment of the regular session of the General Assembly of 1925. Appellants refused to yield to appellees as the new commissioners named in the statute, and the latter instituted this action against them. There was a judgment of ouster rendered by the court below, and an appeal has been prosecuted to this court.

The first contention of counsel for appellants is that appellees have no right to maintain the action, which it is contended should have been instituted by the prosecuting attorney. Section 10326, Crawford & Moses’ Digest, under which this suit was instituted, reads as follows:

“Whenever any person usurps an office or franchi' to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the State or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise.”

The statute just quoted clearly confers authority on persons entitled to an office to maintain an action, but the State and the persons entitled to the office may join in the institution of the action. Whittaker v. Watson, 68 Ark. 555.

There is a further contention that the action should have been brought by the prosecuting attorney, and not by appellees, on the ground that appellees had not instituted an action within three months after the alleged usurpation. This contention is based on the language of the statute (Crawford & Moses’ Digest, § 10327), which is that where “the person entitled fails to institute the same for three months after the usurpation, it becomes the duty of the prosecuting attorney to initiate such action.” It is not true that appellees failed for a period of three months to institute the action. There being no emergency clause, the action instituted on July 10, 1925, was within three months after the statute abolishing the old board of commissioners, and creating the new, went into effect. In the next place, it may be said in reply to this contention that the authority given to the State to institute the action, if not institued by the party entitled to the office within three months, does not restrict the right of action of the person entitled to the office. This is not a statute of limitation, but an authority conferred upon the State to institute the action.

The next contention of appellants is that appellees are not entitled to exercise the duties of commissioners, and therefore are not entitled to recover in this action, for the reason that they have not legally qualified themselves by taking the proper oath of office. The old statute which created the board of commissioners prescribed an oath of office to “faithfully discharge his duties, and that he will not be interested directly nor indirectly in any contract let or made by the board.” The statute further provides that a failure to take the oath within twenty days will be deemed to be a resignation of such office. The new statute, it will be observed, says nothing about the form of the oath, 'but merely provides in § 16, supra, that there shall be a vacancy upon the failure to “qualify” within ten days. The provisions of the old statute were superseded by those of the new, which abolished the old commission and created a new one and prescribed the method of taking office. The new provisions completely covered the subject and operated as a repeal of all the requirements of the old statute on that subject. The use of the word “qualify” in the new statute, if effective at all, must be deemed to have had reference to the qualifications required in the Constitution, as none other was specified in the statute. Appellees took the general oath provided by the Constitution to support the Constitution of the United States and the Constitution of the State of Arkansas and to faithfully discharge the duties of the office. That was sufficient for induction of appellees into the office to which they had been named by the Legislature.

The validity of the statute is assailed on the ground that on its final passage by the House of Representatives the names of the members voting for and against the same were not entered on the journal. Constitution of 1874, art. 5, § 22. It appears from an examination of the journal of the House that on the final passage of this bill the vote was taken bv yeas and navs, and the names of sixtv-three members were recorded as voting in the affirmative. The record contains a summary of the vote,

specifying that there were sixty-four members present •and voting, and thirty-six absent and not voting, and that all present voted in the affirmative. The names of the absentees were recited in the journal. It is thus seen that the only omission, if it may be so termed, is that the names of only sixty-three of the members are recorded as voting in the affirmative, whereas the summary of the vote recites that there were sixty-four. This was obviously a clerical misprision, and is not sufficient to defeat the enactment of the staute. The purpose of this requirement of the Constitution was to place upon record the names of those who are responsible for legislation, and it would carry the effect of the provision too far to say that , a clerical misprision omitting the name of one of the members was fatal to the validity of legislation thus enacted. If sufficient names were omitted to reduce the number of votes below a majority, there would be much force in the argument that the provision of the Constitution had not been complied with, but in the present instance we have an affirmative recital that the votes of all present were in the affirmative, and sixty-three names are mentioned as present and voting. The absentees were also mentioned, and the fact that there was an error in reciting that sixty-four voted in the affirmative must be treated as .an error in summarizing the number of votes. The specific recital of all the names must control over the general summary of the number of votes cast.

The new statute did not constitute either a revival or an amendment or an extension merelv bv reference to title, so as to offend against the provision of the Constitution on that subject fart 5, § 23), as there was a complete enactment of all the new provisions intended to be incorporated into the statute.

The judgment of the circuit court is in all things correct, and the same is affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Galloway v. LeCroy.
    Opinion delivered November 16, 1925.
    1. Beceivers — jurisdiction . op person. — In a proceeding to re- . move a receiver as having been appointed before jurisdiction of the person of petitioner Was acquired, the irregularity of making the appointment prematurely was an irregularity merely which was cured by the court’s subsequent acquisition of jurisdiction.
    2. Prohibition — discretion to award writ. — The remedy by prohibition -is discretionary with the-court, and a petitioner will be denied-relief where he , waited an unreasonable length .of time without excuse before seeking the Writ.
    Prohibition to Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor;
    writ denied.

      G. L. Báss and Powell, Smead <& Knox, for petitioner.

      Haynie, Parks & Westfall, for respondent.
   McCulloch, C. J.

The petitioner, J. 0. Galloway, seeks to obtain from this court a writ of prohibition restraining respondent as chancellor of the Second Division of the Seventh Chancery Circuit, from proceeding further in a- cause pending in -the Union Chancery Court for the removal of petitioner as trustee of a certain estate and the appointment of a receiver to-manage and control the estate. The jurisdiction' of the chancery court is challenged in the petition, and the 'chancellor has responded, the substance of the record being agreed upon.

It appears from the record that prior to August 23, 1923, petitioner was the trustee of a certain estate embracing oil interests- in Union County, Arkansas, the business of the estate -being conducted under the name of the J. 0. Galloway Oil Interests, and there were numerous units of interest represented by certificates issued to purchase. The nature of the trust is not set forth in detail in the record, and it is left merely to inference as to what the provisions were. On the date mentioned above, J. E. Straughan, representing himself and all other unit holders in the trust estate, filed a complaint in the chancery court of Union County alleging that J. 0. Galloway, as trustee, was incapacitated from futher management of the trust, and asking that he be removed and receivers be appointed to manage and control the estate and wind it up for the benefit of the unit holders. The chancellor appointed two receivers, A. Meek and J. D. Reynolds, and they qualified, gave bond and assumed control of the estate. Shortly thereafter, the plaintiff or petitioner in that proceeding, J: E. Straughian, amended his complaint by setting forth the fact that Galloway was a non-resident of the State, and filed an affidavit for warning order, which was duly issued and published, and upon proof of publication the court re-affirmed or ratified its former order appointing the receivers, and, Reynolds having resigned, Meek was retained as sole receiver and continued to manage the trust estate.

On September 17,1924, petitioner herein, J. 0. Galloway, appeared in the proceedings in the chancery court of Union County and filed his answer or other plea seeking to have the receiver discharged and the proceedings dismissed. His plea was overruled, and nothing further has been done in that proceeding-, so far as we are advised by the record now before us, except that the proceeding is still pending below and that the trust estate is still under the management of the receiver.

The validity of the proceedings and the jurisdiction of the court are assailed on the ground that the proceedings were not of an adversary character, there being no defendant named, and that the issuance and publication of the warning order was not sufficient to constitute due process and confer jurisdiction on the court over the person of petitioner herein. The trust estate being-situated within the territorial jurisdiction of the chancery court, and the petitioner herein having voluntarily appeared in the court below, the jurisdiction of the subject-matter and of the person of the petitioner was complete. It is unnecessary to discuss the effect of the publication of the warning order. The premature appointment of a receiver, if indeed the appointment was premature, was a mere irregularity which has been cured by the subsequent acquisition of jurisdiction over tbe persons of tbe interested parties. At any rate, a mere irregularity in tbe appointment would bave to be corrected by appeal. Moreover, tbe remedy by prohibition is subject to the discretion of tbe court, and tbe petitioner has barred himself from that remedy by waiting an unreasonable length of time, without excuse, after he made himself a party to the proceedings below. Weaver v. Leatherman, 66 Ark. 211. No grounds are shown for the exercise of'the extraordinary remedy of prohibition, and the prayer of the petition is therefore denied.


author: Wood, J.

text:
    Hampel-Lawson Mercantile Company v. Poe.
    Opinion delivered November 16, 1925.
    1. Attorney and client — negligence—instruction.—In an action by client against attorney for failure to file a chattel mortgage in the proper county, it was error for the court to declare as a matter of law that the attorney was not negligent if, in reliance on the client’s statement that the mortgagor was a foreign corporation, he filed the mortgage in the county where the chattels were situated, instead of in the county of the mortgagor’s residence (it being in fact a domestic corporation), where there was evidence that the attorney’s attention was called to the fact that the validity of the filing Was questioned, so that it became a question for the jury whether the attorney exercised ordinary care despite this statement.
    2 Attorney and client — negligence.—The exercise of reasonable and ordinary care by an attorney contracting to .perform services for his client means that he should use such care, skill and diligence as men of the legal profession commonly exercise in matters of professional employment.
    4. Attorney and client — negligence—jury question. — In an action by client against attorney for negligence in filing the client’s mortgage in the wrong county, it was not error to refuse to instruct that the attorney was negligent if, after filing the mortgage, the client advised the attorney that some question had been raised as to the validity of the mortgage on account of its being filed in a particular county, whereupon this attorney stated that it was properly filed, since whether or not such facts constituted negligence was a question for the jury.

      5. Attorney and client — negligence—instruction.—In an action against a lawyer for negligence in filing his client’s mortgage in the wrong county, while it was competent for the attorney to prove that he made inquiry of the president of the client as to whether the mortgagor was a domestic corporation, and was assured that it was a foreign corporation, as tending to show that the attorney exercised ordinary care in filing the mortgage in the proper county; it was error for the court under the circumstances to declare that the attorney was not negligent in relying upon such statement.
    6. Attorney and client — negligence—evidence.—In an action by a mortgagee for negligence of its attorney in filing a mortgage for future advances in the wrong county, testimony of a witness tending to .prove that such mortgage had been satisfied was competent as tending to prove that no damages had been sustained by reason of the attorney’s negligence.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    reversed.

      Owens & Ehrman, for appellant.

      Pace é Davis and R. E. Wiley, for appellees.
   Wood, J.

This is an action instituted by the Hiampel-Lawson Mercantile Company, 'hereafter called appellant, a domestic corporation engaged in the mercantile business at Bigelow, Arkansas, against Sam T. and Tom Poe, a firm of practicing attorneys of the Little Rock bar, hereafter called appellees. It is alleged in substance in the complaint that the appellant employed the appellees on or about the 15th day of October, 1920, to prepare a chattel mortgage to be executed by the Fourche River Lumber Company, la domestic corporation, hereafter called the Fourche Company; that the mortgage was to secure an existing indebtedness of $25,000 and to secure additional advances; that Sam T. Poe of the appellees prepared the mortgage, and the same was executed by the Fourche Company and delivered to the appellant, and the appellant had directed its secretary in the preseDce of 'Sam Poe to file the same in Perry County, Whereupon Poe stated that he had agreed with the Fourche Company to withhold the mortgage from record four or five days in order that the same might be paid, and that if the same were not paid he would see that it was properly filed; that the note evidencing the existing indebtedness of $25,000 was paid on the 24th of January, 1921, at which time the Fourche Company owed the appellant an additional sum aggregating $25,257 for supplies which had been furnished the Fourche Company between October 15, 1920 and January 24, 1921; that about October 25, 1920, the appellant received a statement from the clerk of Saline County of an account for the filing of the mortgage in that county, whereupon the appellant communicated such fact to Sam Poe and notified him that the mortgage had been filed in the wrong county. Poe assured the appellant that the mortgage had been properly filed. A short time thereafter appellant learned that a question had arisen as to whether the mortgage had been properly filed, and it again, through its manager, called Poe land advised him of the importance of seeing that the mortgage was properly filed and requested him to file the same, in Perry County in order to avoid any mistake. Poe again advised the appellant that the mortgage had been properly filed, and that the appellant could furnish the Fourche Company merchandise thereunder, if, in appellant’s opinion, the mortgage security was worth the amount of the merchandise furnished; that on the 24th of January, 1921, when the indebtedness of the Fourche Company to appellant evidenced by the note was paid, the secretary of the company stated that the'mortgage was not worth the paper it was written ou, and appellant again - at that time advised Poe of the situation, and Poe again assured the appellant that the mortgage was a valid lien upon the property.

The appellant alleged that on the 9th of February, 1921, the Fourche Company executed a mortgage on three shay engines, the property which had been previously mortgaged to the appellant, to the Central Supply Company, which company filed its mortgage in Perry County; that a short timé thereafter insolvency proceedings were instituted, against the Fourche Company in the United 'States District Court at Little Rock, and that the appellant and the Central Supply Company filed interventions setting up their respective claims in the bankruptcy proceedings against the Fourche Company; that, upon the final hearing of said cause in the Federal Court, it was determined that the Central Supply Company’s mortgage lien on the property was superior to that of the appellant, because of the fact that its mortgage had been filed in Perry County, the domicile of the Fourche Company, and the mortgaged property was directed to be sold, which sale resulted in the payment to the Central 'Supply Company of the sum of $13,329 out of the proceeds of such sale, and to the appellant the balance in the sum of $471. The appellant alleged thiat thus, through the gross negligence of the appellees in .failing to file the mortgage in the proper county, the appellant failed to receive the sum of $13,329, which it would have received if the mortgage had been properly filed; that this sum would be subject to a deduction of approximately fifteen per cent., which it was estimated would be paid to the common creditors by the receiver, making appellant’s net loss the sum o,f $11,334.65, for which, with interest, it prayed judgment against the appellees. The appellant filed with, and made an exhibit to, the complaint a copy of the mortgage executed by the Fourche Company to appellant, and also a copy of the mortgage executed by the Fourche Company to the Central Supply Company.

The appellees, in their answer, admitted their employment by the appellant as attorneys, but denied that they were employed to prepare a mortgage; they alleged that they were engaged by the appellant to make collection of a note for $25,000 which the Fourche Company had executed to the appellant; that, in the course of their efforts to collect this note, they had the mortgage executed by the F'ourche Company to the appellant, and on their own motion and without any instruction from the appellant they inserted the provision in the mortgage for the securing of further advances. They admitted that they prepared the mortgage covering the property described in the complaint, and that they caused the same to be filed in Saline County, where the property mortgaged was located, and alleged that they did this in good faith and without negligence on their part as one of the steps in the service they were to render the appellant in the collection of the note. They further alleged that they filed the mortgage in Saline County by a mistaken belief on their part, which mistake was not induced by any negligence on their part, that the mortgagor was a foreign corporation, and that the mortgage should be filed in Saline County, where the property was located; they further alleged that the note they were employed to collect was fully paid as a result of their efforts, and that it wtis paid with the agreement and understanding with the appellant that the mortgage should be canceled and the property embraced therein released. They denied specifically all the ¡allegations of negligence and all the other material allegations of the complaint.

The testimony adduced by the respective parties tended to sustain the allegations of their pleadings. C. L. Sailor, over the objection of appellant, was allowed to testify that, when he paid the note of $25,000, evidencing the indebtedness fat the time the mortgage was executed, the money was plaid and accepted with the understanding that the mortgage was to be fully satisfied.

It is the contention of the appellees that the mortgage executed by the Fourche Company to the appellant was recorded in Saline County because of the misapprehenision o.f fact on the part of Sam T. Poe, and that such misapprehension was caused by a statement made to him by the president of the appellant to the effect that the Fourche Company was a foreign corporation. Sam Poe testified that, after the mortgage was executed, he asked Lawson, president of the appellant, whether the Fourche Company was a foreign or domestic corporation, and that Lawson replied that it was a foreign corporation. Poe stated that he then explained to the appellant that Saline County was the proper place to record the mortgage because that was the place where the property was located at that time. On the other hand, Lawson testified that he did not say anything to Sam Poe with reference to the Fourche Company being a foreign, corporation — that it never entered his mind. His testimony was that, when Sam Poe brought back the mortgage to appellant, the secretary and treasurer of appellant was instructed to carry the mortgage to Perryville and record it, whereupon Sam Poe stated that he had promised not to have the mortgage recorded for a day or so, and remarked that he would take care of the filing of the mortgage. The testimony of Lawson was corroborated by George Volman, secretary and treasurer of appellant, who testified in effect that Sam Poe took the mortgage away with him for the purpose of filing, and filed the same in Saline County. The testimony of both Lawson and Volman was to the effect that, a short time after this, appellant received a statement of account from the clerk of Saline County for the filing of the mortgage; that appellant paid the account, and immediately communicated with Poe, and asked him if the mortgagewas filed in the proper county, stating to him in effect that they were furnishing the Fourche Company merchandise on a mortgage, and that they did not want any mistake made in regard to the filing of same in the proper county, and that Poe replied to this, saying, “I am running this job.” Their testimony was to the effect that the appellant had employed Poe to protect its interest in properly filing the mortgage; that it had implicit confidence in him and depended absolutely on him, and asked him to record the mortgage in Perry County if that was the proper county.

H. S. Spivey, who was the vice-president of the appellant, testified' in substance that, as soon as he learned that the mortgage had been filed in Saline County, he went to Poe’s office and told him that he had learned from a reliable source that the mortgage was filed in the wrong- county, and suggested to Poe that appellant wanted the mortgage to be absolutely safe, and that witness thought it would be a good policy to file the mortgage in both counties; thereupon Poe replied, “You don’t know anything about it; it is filed in the proper place.” This witness stated that he was in Poe’s office several times in regard to it, expressing his uneasiness albout it, and Poe each time stated that it was all right. This witness also stated that appellant was relying upon Poe, and the information he gave him concerning it was that appellant was selling merchandise on the mortgage security. Poe knew that fact.

Poe, in his testimony, stated that he did not remember any conversation with Spivey or Lawson about the mortgage being recorded in the wrong place; he said it was barely possible they had asked him if the mortgage was recorded, but there was never any suggestion by them that it was recorded in the wrong place. Poe’s testimony further was that, he was only employed to collect the existing indebtedness, and when he did this his employment was at an end; that the provision in the mortgage covering further advances was inserted on his own motion, and that he was not employed to have the mortgage executed to cover future advances. But the testimony of the witnesses for the appellant was to the effect that appellant employed Poe to draft the mortgage so as to secure the existing account and also future advances.

It will thus be seen that there is a sharp conflict in the testimony on the issues of fact in the case, and the verdict of the jury in favor of the appellees would be conclusive here on these issues, if they hiad been submitted to the jury under correct declarations of law. The court instructed the jury at the request of the appellees in their prayer for instruction No. -2 that, if they believed that the appellant informed Poe that the Pourche Company was a foreign corporation, and that Poe, in reliance upon that statement, filed a mortgage in Saline County where the property mortgaged was situated, their verdict should be in favor of the appellees; and further, in their prayer for instruction No. 3, if the jury believed that the appellees were employed only to collect the existing indebtedness of $25,326.34, and that the provision for securing future advances was written in the mortgage by the appellees as a voluntary service for the accommodation of their clients, and for which they made no charge and received no compensation, then the verdict should be in favor of the appellees. The court, at the request of the appellant, granted its prayer for instruction No. 2, which, in substance, told the jury that if they found from the testimony that -the appellees were employed for a valuable consideration to prepare the mortgage so as to secure present indebtedness and future advances, and if they found, from the testimony, that the appellees undertook, in connection with such employment, to file the mortgage so as to make the same a valid lien on the property embraced therein, and negligently filed the same in the wrong county, by which the appellant was damaged, then the verdict should be in favor of the appellant.

The appellant’s prayer for instruction No. 5 is as follows: “You are instructed that if you find from the testimony that, after said mortgage was filed by the defendants, and prior to the mortgage being executed by the Fourche River Lumiber Company to the Central Supply Company, of Little Rock, Arkansas, the plaintiffs advised said defendants that some question had been raised about the validity of its mortgage on account of it being filed in Saline County, instead of Perry County, and that said defendants advised the said plaintiff that the mortgage was properly filed, land that the plaintiff could go ahead and continue to furnish the mortgagor supplies nn the strength of the mortgage being a valid one, and that plaintiffs, acting on the advice of said defendants, did so, and as ia result charged quantities of supplies to the mortgagor, the defendants would be liable to the plaintiffs for such damage as it sustained by virtue of the mortgage subsequently being declared to be invalid, on account of the negligence of said defendant in failing to properly file said mortgage.”

The court refused the above prayer as offered, but modified aiid gave the same after adding at the conclusion thereof the following: “Unless you find from the evidence that the defendant, Sam T. Poe, believed and relied upon a statement alleged to hiave been made, that the Fourche Lumber Company was a foreign corporation.” The appellant objected to the ruling of the court in refusing its prayer for instruction No. 5, and to its ruling in modifying and giving the instruction as modified. The appellant also presented prayers for instruction Nos. 6 and 7, which were refused.

On its own motion, t'he court gave the following instruction: “If you find for plaintiff, you will assess its damages at whatever additional amount you may find from the evidence it would have received if the mortgage had been properly filed in Perry County. By additional amount is meant the amount in addition to the $471 paid on plaintiff’s claim, against Fourche Biver Lumber Company, and the maximum dividend to be paid by Fourche River Lumber Company on the eommón claim' of the plaintiff.” ■ . .

The court erred in granting appellees’ prayer for instruction No. 2, and in modifying appellant’s prayer for instruction No. 5, and giving the same as modified. The effect of these rulings of the court was to declare, as a matter of law, that, if the president of the appellant told ¡Sam Poe that the Fourehe Company was a foreign corporation, then Poe was not negligent in having the mortgage filed for record in ¡Saline County. The testimony of witnesses Lawson, Volman,. and Spivey, bn behalf of the appellant, tended to prove that the appellees were employed to draft for it a mortgage to be executed by the Fourehe Company' which would secure not only the existing indebtedness of that company to the ¡appellant, but ¡also any future advances-made by the appellant to the Fourehe Company. The testimony of these witnesses for the appellant tended to prove that the appellees undertook as a part of their contract of employment to file the mortgage so as ho give the appellant a valid mortgage to cover any present or future indebtedness of the Fourehe Company to ¡appellant. Their testimony tended to prove that, after the mortgage had. been filed by Poe in Saline- County, a question was raised as to its validity by reason of the same being filed in Saline County, instead of Perry County, and that Poe, after being so advised, still persisted in saying that the mortgage was properly filed, and that he was taláng care-of it, and that he recognized the fact that it was his duty to protect the interests of the appellant in seeing that the mortgage was properly filed. There was testimony on behalf of the appellant tending to prove that, after the mortgage to the Central Supply Company had been filed, the appellees had the mortgage to appellant filed in Perry County and instituted for the appellant an action to foreclose the same. Under these circumstances, even though the president of the appellant did tell Sam Poe that the Fourehe Company was a foreign, corporation, it was still a question for the jury to determine whether or not the appellees had exercised ordinary care to see that the mortgage to the appellant was filed in the proper county to give the appellant a superior lien over subsequent mortgages.

■ The facts which the appellant’s testimony tended to prove would have warranted a finding, if the jury had been properly instructed, that it was a part of the appellees ’ contract with the appellant to see that the mortgage was properly filed, and, if such were the contract, the jury might have found that the appellees failed to exercise ordinary care to protect the interests of their clients, even though they were informed ¡by its president that the Fourche Company was'a foreign corporation. Whether or not such company was a foreign or domestic corporation depended upon whether such company had been incorporated under the law of la foreign state. The jury, under proper instructions, might have concluded that the appellees, as attorneys under their contract' with the appellant, could not halt their investigation simply by being informed by its client that the Fourche Company Was a foreign corporation. The jury might have found that the ¡appellees, in the exercise of ordinary care, should have gone further and ascertained from the highest and best source, to wit, the public records, as to whether or not the Fourche Company was a foreign or domestic corporation.

'The vice of the court’s ruling was in singling out a particular phase of the evidence and telling the jury that, if the fact were established which this evidence tended to prove, it constituted a complete defense to the action; whereas, if the fact were proved which this testimony tended to establish, it was still only evidentiary, but not conclusive, that the appellees had exercised the ordinary care that the law1 requires of attorneys in such matters. The ruling of the court in this form was argumentative and ignored other phases of the testimony adduced by the appellant. It was still a question for the jury, after the consideration of this, in connection with all the other testimony, to determine whether or not the appellees had fulfilled the requirements of the law hy exercising ordinary 'care to protect the interests of their clients.

In the case of Pennington v. Yell, 11 Ark. 212, 227, Justice Scott, speaking for the court, said: “Reasonable diligence and skill constitute the measure of an attorney’s engagement with his client. He is liable only for gross negligence or gross ignorance in the performance of his professional duties; and this is a question of fact to be determined by the jury, and is sometimes to be ascertained by the evidence of those who are converslant with and skilled in the same kind of business. These doctrines are sustained by all the authorities with unanimity and distinctness.”

The authors of the Ruling Case Law announce the rule as follows: “The law implies a promise on the part of attorneys that they will execute the business intrusted to their professional management with a reasonable degree of care, skill and dispatch, and they are liable to an action if guilty of a default in either of these duties whereby their clients are injured.* * * An attorney in the management of his professional business is not bound to extraordinary diligence, but only to use a ■reasonable degree of care and skill, reference being had to the character of the business he undertakes to do, and is not to be answerable for every error or mistake, but, on the contrary, will be protected if he acts in good faith, to the best of his skill and knowledge, and with an ordinary degree of attention.” 2 R. C. L. p. 1012, § 95.

And in 6 Corpus Juris, at page 696, it is stated: “An attorney must be held to undertake to use a reasonable degree of care and skill, and to possess to a reasonable extent the knowledge requisite to a proper performance of the duties of his profession. If injury results to the client as a proximate consequence of the want of such knowledge or skill, or from the failure to exercise such care, he must respond in damages to the extent of the injury sustained by his client. This liability exists, even though the attorney acts gratuitously.” Numerous cases are cited in notes to support the aibove texts. The -exercise of reasonable and ordinary' care upon the part of an attorney who contracts to perform services for his client means that he should use such skill, care and diligence as men of the legal profession commonly possess and exercise in matters-of professional employment. 6 C. J. 698; Evans v. Watrous, 2 Port. 205; Gambert v. Hart, 44 Cal. 542; Morrison v. Burnett, 56 Ill. App. 129; Lawall v. Groman, 180 Pa. St. 532, s. c. 57 A. S. R. 662. Note to Hill v. Mynatt, 52 L. R. A. 884.- Because the relation between an attorney and client is one of trust and confidence, our own court, in, Pennington v. Yell, supra, declared that the failure to exercise ordinary care as above defined on the part of an attorney is crassa negligentia — gross negligence. When our court declared that an attorney is liable only for gross negligence or gross ignorance in the performance of his professional duties, it was but tantamount to- saying that an attorney is liable to his client for a failure to exercise ordinary care as above defined. 6 Corpus Juris, § 226; Holmes v. Peck, 1 R. I. 242; Goodman v. Walker, 30 Ala. 482, 495.

Now, as-we have already stated, the testimony -on behalf of the appellant would have warranted the jury in finding that the appellees expressly contracted with the appellant to have the mortgage properly recorded. The law on this subject is announced in 6 Corpus Juris at page 702, as follows: “An attorney employed to prepare deeds, contracts, or other papers which are required to be registered in order to be effective as to third parties is not bound, in the absence of la special contract, to file such papers for recordation, or to see that they are recorded; that is do part of his duty as attorney, unless he has especially undertaken it. He may be liable, however, in eases where he has expressly contracted to attend to their -being recorded, where the special circumstances are such as to raise the implication of such a contract qr where the record or registration is necesisairy to effectuate the purpose of his employment.” See cases cited in note;

To he sure, the appellees were entitled to have the jury consider the testimony of Sam T. Poe tending to prove that he made inquiry of the president of the appellant as to whether the Fourche Company was a foreign or domestic corporatioui, and that the president replied that it was a foreign corporation. This testimony wlas relevant to the issue as to whether or not the appellees had exercised ordinary care in discharging their duty under their contract with the appellees, hut, under the principles of law above announced, it was error for the court to declare as a matter of law that the appellees were not negligent and not liable if the president of appellant informed them that the Fourche Company was a foreign corporation. It was still an issue for the jury as to whether appellees had exercised ordinary care, as above defined, to protect the interests of their clients.

Likewise it was error for the court to declare as a matter of law that the facts as set forth in appellant’s prayer for instruction No. 5, if true, constituted negligence. It should have been left for the jury to say whether these facts, if true, constituted negligence on the part of the appellees which rendered them liable.

The law was correctly declared in appellant’s prayers for instructions numbered 2 and 6, the first of which the court granted and the latter of which refused. Appellant’s prayer for instruction No. 7 was sufficiently covered in the instruction given by the court on its own motion.

The appellees’ prayer for instruction No. 3, under the principles of law above announced, was not a correct declaration of law and should not have been given.

The court did not err in allowing the testimony of witness Sailor to go to the jury. This testimony was relevant on the issue as to the measure of damages, 'because it tended to prove an accord and satisfaction of the debt for future advances. Dreyfus v. Roberts, 75 Ark. 354; Lilly v. Verser, 133 Ark. 553; Collier Com. Co. v. Wright, 165 Ark. 338, 345. Even if the appellees were negligent in failing to file the mortgage, there would he no damage to appellant if the debt for future advances had been settled by an accord and satisfaction.

For the errors indicated in the ruling of the court, the judgment is reversed, and the cause is remanded for a new trial.

       Prayers for instructions Nos. 6 and 7 were as follows:
      “6. You are instructed that, even though you may find from the testimony that at the time said defendant, Sam Poe, had said mortgage recorded, he was not advised as to the statutory requirements to 'be followed to' make said mortgage a valid lien, but that thereafter and before the execution and filing of the Central Supply Company’s mortgage, his attention was called to the fact that the lien sought to be created by plaintiff’s mortgage was probably invalid on account of same not being filed in the proper county, and that after the matter was called to his attention he negligently and carelessly failed to heed said suggestion, then your verdict will be for the plaintiff.
      “7. If you find for the plaintiff, you will assess the damages in the sum of $13,329, provided you further find from the testimony that the maximum dividend to be paid by the Fourche River Lumber Company, on the common claim of the plaintiff, plus $471 paid to it, will not reduce its claim below the above sum.” (Rep.)

       Appellant’s prayer number 2 which was given by the court was. as follows :
      “2. You are instructed that if you find from the testimony in this case that the plaintiff entered into an agreement with Sam T. Poe, one of the above named defendants, whereby it employed- him for valuable consideration to prepare a chattel mortgage on certain property to be executed by the Fourche River Lumber 'Company to secure said plaintiff for certain indebtedness that then existed and to cover future advances to be made to the Fourche River Lumber Company by said plaintiff, and that, pursuant to 'said contract of employment, defendant, Sam T. Poe, entered upon said engagement and prepared said mortgage, and that he -undertook, in connection with said employment, to file said mortgage, so as to make it a valid lien upon the property covered by said mortgage and that said mortgage was by him negligently filed in the wrong county, which rendered the lien supposed to be created thereby invalid, and as a result of the negligence, .if any, of said defendant in filing said mortgage in the Wrong county plaintiff was damaged, your veidict will be for the plaintiff.”


author: Hart, J.,

text:
    Papan v. Arkansas Light & Power Company.
    Opinion delivered November 16, 1925.
    1. Interest — stay op process on- judgment. — Where part of. a judgment was stayed by order of the court until a garnishment against the judgment-debtor should ibe dismissed, and the judgment-creditor took no appeal from such order, he cannot hold the judgment-debtor liable for interest on the amount so stayed where the latter paid the remainder of the judgment which was'so stayed as soon as the garnishment was dismissed.
    2. Courts — control over process. — Courts have jurisdiction to restrain the issuance and execution of their own process.
    Appeal from Prairie Circuit Court, Southern District; George W. Cla’rTp, Judge;
    affirmed.
    STATEMENT OP PACTS.
    This is an application by' the .Arkansas Light & Power Company to restrain John A. Papan from suing out any further execution on the judgment against.it in the circuit court. The material facts are undisputed and are as follows:
    On February 11, 1922, John A. Papan instituted an action against the Arkansas Light" & Power Company in the circuit court -to recover judgment' for • $15,675. On the same day a writ of garnishment was "served upon the Arkansas Light '& Power Company in a cáse in the chancery court wherein the Bank of Stuttgart & Trust Company wais plaintiff and John A. Papian wias the defendant. This writ of 'garnishment was issued (before a decree was had in the case 'and the statutory bond required by law was given.
    In its answer to the suit in the circuit court against it by John A. Rapan, the Arkansas Light & Power Company set up the fact that it had been garnished in the suit above referred to, but made no tender or offer of payment, and asked for no tender or relief of any kind against the garnishment.
    At the March term, 1922, of the circuit court, John A. Papan recovered judgment against the Arkansas Light
      & Power Company in the snm of $11,128.94 with interest from the date of the rendition of the judgment until paid at the rate of 8 per cent, per annum. At the time the judgment, was rendered the garnishment proceedings in the chancery court had not been disposed of, and a clause was inserted in the judgment obtained by Plapan against the Arkansas Light & Power Company in the circuit court which reads as follows:

      ‘ ‘ That a writ of garnishment has been served on the defendant herein on February 11, 1922, in a certain cause pending in the chancery court, Arkansas County, Arkansas, in which the Bank of Stuttgart & Trust Company is plaintiff, and John A. Papan the plaintiff herein is defendant; that no execution shall issue upon $6,000 of the amount due under this judgment until dismissal of said writ of garnishment.”
    In a short time after the judgment was rendered against it in the circuit court, the Arkansas Light & Power Company paid Papan the sum of $5,128.94, leaving due him on said judgment a balance <of $6,000. The chancery court decided in favor of Papan in the suit in which garnishment proceedings were had, and this operated to discharge the garnishment. Thereupon the Arkansas light & Power 'Company offered to pay Papan $6.000 in full of the judgment against it in his favor in the circuit court. Papan declined to accept the $6,000 ns full payment, but demanded interest at the rate of 8 per cent, per annum from the date of the judgment until the date of the tender, which amounted to $906.65. Papan then accepted the payment of $6,000 and gave receipt for it expressly stating that the payment was without prejudice to his claim for interest on the judgment. Papan then caused lan execution to be issued out of the circuit court against the Arkansas Light & Power Company for the amount of said interest.
    The Arkansas Light & Power Company filed its petition in the circuit court, stating the facts above set forth and asking for lan injunction against Papau- to restrain the levy of said execution.
    The circuit court issued a temporary restraining order, and, upon the final hearing of the case upon the facts stated above, expressed the opinion that the remedy of Papan for the .collection of Ms said interest wlas upon the garnishment bond in the case of the Bank of Stuttgart & Trust Company against himself, and that he was not entitled to recover the interest against the defendant Arkansas Light & Power Company.
    The temporary restraimng order was made perpetual, and Papan has duly prosecuted an appeal to this court.

      George C. Lewis, for appellant.

      J ohn L. Ingram, for appellee.
   Hart, J.,

(after stating the facts). The judgment of the circuit court was correct. The Blank of Stuttgart & Trust Company sued out a writ of garnishment against Arkansas Light & Power Company in a case wherein it wtas the plaintiff and John A. Papan was the defendant. The garmshment proceedings caused the money owed by the Arkansas Light & Power Company to Papan in the sum of the amount sued for by the Stuttgart Bank & Trust Company to be tied up. This was without the fault of the Arkansas Light & Power Company, for it could do nothing until a decree was rendered in the case of the Bank of Stuttgart & Trust Company against J ohn A. Papan in which it was garnished.

In the meantime John A. Papan recovered judgment against the Arkansas Light & Power Company in the sum of $11,128.94. The judgment recites the issuance of the garnishment in the ciase of wMch the Bank of Stuttgart & Trust Company is plaintiff and John A. Papan is defendant. It then provides that no execution shall issue upon $6,000 of the amount due under the judgment until the dismissal of the said writ of garnishment.

This had the effect to withhold the payment of the $6,000 until the garnishment proceedings were disposed of. No appeal was taken from' this judgment. If Papan thought that that part of the judgment holding up the execution upon $6,000 of the amount recovered -by him was erroneous, he should have prosecuted an appeal to reverse the judgment in this respect. Not having done so, .he can not now complain that it was erroneous, if indeed it was so.

■ "We dan not perceive how the Arkansas Light & Power Company could have done anything in the garnishment proceedings which would have helped Papan any. If the garnishee had paid the money into the court, it would not have ‘been paid to Papan. It would have been held in the registry of the court until the case was disposed of. As soon as the Arkansas Light & Power Company was released in the garnishment proceedings by the-decree of the chancery court, it tendered the amount tied up in the garnishment proceedings to Papan.

Under the terms of 'the judgment in the circuit court Papan had no right to lan execution until the dismissal of the writ of garnishment. It was his duty to have accepted the $6,000 in full payment of his judgment, and under the circumstances of the case he was not entitled to an execution against the Arkansas Light & Power Company for the interest claimed by him.

-- The -circuit court had inherent jurisdiction over process issued out of its court, and the order restraining Papan from issuing the execution against the Arkansas Light & Power Company was properly granted. ■

The judgment will therefore be affirmed.


author: Hart, J.

text:
    Cash v. St. Louis Southwestern Railway Company.
    Opinion delivered November 16, 1925.
    1. Taxation — uniform valuation. — Under' the Constitution, all property must be taxed according to its value, to be ascertained as the General Assembly shall direct, making the same equal and uniform throughout the State.
    2. Taxation — effect of illegal assessment. — Taxpayers are not bound by an illegal assessment, though it relieves them from part of the assessment which would otherwise be imposed.
    3. Taxation — assessment at full valuation for county purposes. —Where the Tax Commission, complying with an order of a federal court, directed the county authorities to multiply by two the taxes already extended against the property of a railroad company for bounty purposes only, which order was 'complied with, this amounted in effect to an assessment by the’Tax Commission of the railroad company’s property at its full' value fot county purposes only, and violated the uniformity clause (art. 1&, § 5) of the Constitution.
    Appeal from Cleveland Chancery Court; John M. Elliott, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    On August 31,1922, the St. Louis Southwestern Bail-way Company, 'brought suit in the Cleveland Chancery Court against J. E. Smith, ns sheriff and collector, to enjoin what is alleged to be an illegal assessment of taxes for county general purposes for the year 1921.
    • On May 25, 1923, a similar suit was filed by the railway company against Dave Cash, as sheriff and collector of Cleveland County. By agreement both cases were consolidated for trial, and, Dave Cash having succeeded J. E. Smith as sheriff and collector of Cleveland County, his name was substituted for the name of J. E. Smith las defendant in the first suit. ;
    . The record shows that the assessments of the St. Louis Southwestern Bailway Company, and the other railway companies in the State of Arkansas, were made by the Arkansas TaxOommission at a basis of 50 per cent, of the actual value of their property for the years 1923 and 1922. The portion of the taxes due each county through which the St. Louis Southwestern Railway Company runs was certified to the various county collectors of said counties. The record shows the assessment as appointed and certified for Cleveland County on the property of the St. Louis Southwestern Railway Company for the years 1921 and 1922.
    On September 9, 1922, the Arkansas Tax Commission sent a letter, signed by its chairman and secretary, to the tax assessor and to the circuit and county clerk of Cleveland County, which reads as follows:
    “In obedience to a judgment of the United States Court you are hereby ordered to multiply by two, for county purposes only, all assessments of property made by this commission and certified to the tax "assessor of Cleveland County for the year 1922.”
    A similar letter was sent to them with regard to the taxes for the year 1921, which was by some means lost, and its contents was proved by the county clerk of Cleveland County.
    In obedience to the letter of the Arkansas Tax Commission, the assessment of the railroad property for said years was made out and certified on the tax books' at double the amounts as shown by the returns of the Arkansas Tax Commission.
    The record also shows that the Federal District Court at Little Rock, on April 4, 1921, rendered a judgment requiring 4he assessment of property in Cleveland County for county general purposes at 100 per cent, of its value, and that this order was duly '.served upon the Arkansas Tax Commission and the County judge of Cleveland County, Arkansas. Acting under this judgment of the Federal Court, the Arkansas Tax Commission wrote thé county clerk and the assessor of Cleveland County a letter directing them to multiply the taxes as returned against the property of the St. Louis Southwestern Railway Company by two and extend the value upon the assessment books for county general purposes.

      The record also shows that on the 21st day of April, 1921, the judge of the Federal Court set aside said mandatory order at the instance of J. H. Meek, who had become the . owner of the judgment against Cleveland County under which the original order had been made.
    The railroad company paid the county taxes extended against its property for the years 1921 and 1922, based upon the 50 per cent, valuation assessments, and also paid all the other taxes due by it in said county for said years. ■ •
    It was decreed by the chancery court that the sheriff and collector of Cleveland County be perpetually enjoined from collecting taxes against said defendant for the years 1921 and 1922 for county general purposes for more than 50 per cent, of the value of .the property of said' railway company as shown by the original assessment. The case is here on appeal. ' '

      D. A. Bradham, for appellant.

      J. B. Turney, A. H. Kishaddon, W. T. Wooldridge and H. T. Wooldridge, for appellee.
   Hart, J.

(after stating the facts). The judgment of the chancery court was correct. At the outset it may be stated that the act of the county authorities in doubling the assessed value of the property of the railroad company for county purposes under the circumstances" was a mere clerical act, and that the real raising of the taxes was done by the Arkansas Tax Commission. The record shows that the Arkansas Tax Commission had assessed the property of the railroad company on a basis of 50 per cent, of its value, just as it had assessed the value of all other railroads in Arkansas. Under the judgment of the federal court, it was ordered to assess the property of the defendant railway company in Cleveland County for county purposes only at its full value. Hence the direction" of the Arkansas Tax' Commission to the local authorities to multiply the taxes as already extended against the property of the railway company and the compliance with the order by the local authorities amounts in'fact to an assessment by the Arkansas Tax Commission of the property of the railway company at its full value for county purposes only. This action was in direct 'violation of the principles of' law decided in Hays v. Missouri Pacific Railroad Co., 159 Ark. 101, and State ex rel. Craighead County v. St. Louis-San Francisco Railway Co., 162 Ark. 443.

In those oases it was held that under our Constitution all property shall be taxed according to its value to be ascertained as the General Assembly shall direct, making the same equal and uniform throughout the State.

In the case last cited it was expressly held that a judgment of a federal court directing an assessment of all property in a county at its full valuation contemplates an assessment for all purposes, and that an assessment of property at its full valuation for county purposes only is invalid.

In that case the court further held that taxpayers are not bound by an illegal assessment, though the effect is merely to relieve them from part of the assessment which otherwise would be imposed.

. In the case at bar the letter of the Arkansas Tax Commission shows on its face that the judgment of the federal court directed it to assess for county purposes only all assessments of property made by it in Cleveland County for the year 1922, and it undertook to raise the assessment in compliance with the order of the federal court, for county purposes only. As we have just seen, this violated the uniformity clause of our Constitution and rendered the tax to that extent void.

The order by the Arkansas Tax Commission to the county assessing authorities of Cleveland County for the year 1921 was ..lost, but the oral proof shows that it was the same as that for the year 1922. Hence the raise, having been made for county purposes only, was illegal and void as being in violation of the uniformity clause of our Constitution with regard to taxation, and for that reason the chancery court also properly enjoined the sheriff and collector from, collecting the excess taxes for that year.

It is also sought to uphold the decree under the judgment of the federal court of March 28, 1923, which set aside and revoked the mandamus issued on the 21st dlay of April, 1921. This order was made 'by -the federal court upon the application of J. H. Meek, who had become the owner of the judgment against Cleveland 'County for the collection of which the mandamus was issued in the first place- This order shows on its face that it is only intended to operate prospectively and has no bearing whatever on the proceedings in this case Which had been had before the díate of the order revoking the mandamus.

The result of our views is that the decree of the chancery court was correct in each case, and it will therefore be affirmed.


author: Smith, J.

text:
    Brown v. State.
    Opinion delivered November 16, 1925.
    1. Criminal law1 — corroboration of testimony of accomplice.— Testimony of the wife of an accomplice held a sufficient corroboration of the testimony of such accomplice if she herself was not likewise an accomplice.
    2. Criminal law — instruction as to accomplice. — In a prosecution for burglary, an instruction which submitted the question whether the wife of an accomplice was also an accomplice held sufficient to submit the issue.
    Appeal from Calhoun Circuit Court; W. A. Speer, Judge;
    affirmed.

      J. S. McKnight, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smith, J.

Appellant, Acide B. Brown, and one England Bunn were jointly indicted for the crime of burglary, alleged to have been committed by breaking, and entering a store of one Charlie McLendon.

Bunn confessed Ms participation in tlie crime, and at tbe time of ■•appellant’s trial had been sentenced to tbe penitentiary. He testified that he and appellant broke into and entered tbe store and took a sack of flour, some sausage, a Watch, some pocket knives and some bacon, and carried these things to tbe home of tbe witness and placed them in a trunk, wMcb they took into a thicket and Md. This witness testified that bis wife went with him and appellant to a place about fifty yards from tbe store, where she stopped, and that his wife did not know what be 'and appellant bad planned to do and was not present at tbe time tbe store was broken into and entered, although be admitted that she returned home with them and was present when tbe stolen articles were placed in tbe trunk.

Rosie Bunn, the wife of England Bunn, was also called as a witness, and she testified that she went down tbe road, toward tbe store, with her husband and appellant, but that she did not know they intended to rob tbe store until after they bad done so. On her cross-examination she admitted she was only about twenty feet from tbe place where the store was entered, but she also testified that she did not know what her husband and appellant bad planned to do until after they bad entered the store and Were carrying tbe stolen articles to her home.'

England Bunn was, of course, an accomplice, and the corroboration of bis testimony required by § 3181, Crawford & Moses’ Digest, depends on that of bis -wife, as tbe other testimony in the case merely showed tbe commission of the crime and tbe circumstances thereof. The testimony is sufficient to sustain tbe conviction if Rosie Bunn was not herself .an accomplice in tbe commission of tbe crime. .

Tbe court submitted to tbe jury, under correct instructions, tbe question whether Rosie Bunn was in fact an accomplice, and told the jury that, if they found tbe facts so- to be, her testimony could not be considered as corroboration of that of her husband.

Appellant asked only-one instruction, and it reads as follows:

“You are instructed that if Rosie Bunn was present at the time the burglary was alleged to have been committed and watching for the purpose of assisting in the commission of siaid ¡burglary, to see if any one approached while the defendant, Aekie B. BroWn, and England Bunn are alleged to have been in the store, then .she was an accomplice. ’ ’

This -instruction was refused, but the court gave the following instruction:

‘ ‘ 7. You are further instructed that there is another witness by the name of Rosie Bunn who has testified in -this case, and the court instructs you that you onlay take into consideration all-of her testimony -in this case and determine yourselves whether or not she is an accessory. The court don’t instruct you as a matter of law that the witness is an accessory, but the court leaves that to the jury to determine — first, as to whether or not the witness, Rosie Bunn, is an accessory in the commission of this offense. You are to decide yourselves whether or not she is an accessory, that is, Whether she was present, aiding, either as principal or accessory. The principal is the party who actually commits the -crime, and -an accessory is one who stands by and laids and encourages and assists in the perpetration of the crime, and not being present and aiding in the perpetration of the crime, or had advised and encouraged beforehand. And if you -believe from the testimony in this case that Rosie Bunn had any part in the commission of this offense, either as principal or accessory along with this defendant, then her testimony alone is not -sufficient to convict this defendant; that is, unless it is sufficiently corroborated with other testimony independent of and in addition to her testimony which connects or tends to connect the defendant with the commission of the offense. And that corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof, but it must show that the defendant was connected with the commission of the offense itself, and unless you so believe from the testimony that he was connected with the commission of the offense beyond la reasonable doubt, then it will be your duty to acquit.”

Appellant insists very earnestly that the controlling question in the case was whether Rosie Bunn was present watching while her husband and appellant entered the store, and that an instruction submitting this concrete question should have been given. It is the opinion of the majority, however, that instruction No. 7, set out above, correctly and sufficiently submitted this question.

Instruction No. 7 told the jury to determine whether Rosie Bunn was an accomplice, and that they should find that she was an accomplice if she was present, aiding either as a principal or accessory to the parties who actually committed the crime, and the instruction necessarily meant that if she was watching while others committed the crime she was necesslarily a party to it; that is, if she was watching, she was present and aiding its commission. It is the opinion of all the judges that the refused instruction might well have been given, but the majority think the instruction which the court gave necessarily embraced the proposition of watching; that is, if she watched while her husband and appellant entered the store, s'he aided in the commission of the crime and was therefore an accomplice.

The jury evidently accepted as true the testimony of Bunn and his wife that she was not a party to the crime, that she did not know it was to be committed and Was not present for the purpose of watching while it was being committed, and, if this be true, Rosie Bunn was not an accomplice, and her testimony is corroborative of that of her husband and is legally sufficient to sustain the conviction. The verdict of the jury is therefore affirmed.


author: ■Smith, J.

text:
    American Trust Company v. Netherlands-American Mortgage Bank.
    Opinion delivered November 16, 1925.
    1. Corporations — authority of foreign corporation to do business. — In a suit by a foreign corporation, its authority to do business in the State was sufficiently proved by introducing a certificate of the Secretary of State, reciting compliance with Crawford & Moses’ Dig., § 1826, and receipts showing payment of its annual corporation franchise tax.
    2. Corporations — charter as evidence of incorporation. — The original charter of a foreign corporation is primary evidence of its existence and is competent proof, even though a certified copy is admissible in evidence.
    3. Evidence — existence of corporation. — Parol evidence is admissible to prove the existence of a corporation.
    4. Corporations — ratification of loan. — Though the charter of a foreign corporation provided that no loan should be made by it until approved by its board of supervision, a loan made without such approval was ratified where the corporation actually made the loan, and paid taxes on the mortgaged land and obtained a decree foreclosing the mortgage.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      Cooley, Adams & Fuhr, for appellant.

      Church & Ga/mcmay and Coleman, Robinson & House, for appellee.
   ■Smith, J.

The Netherlands-American Mortgage Bank, hereinafter referred to as the mortgage company, is a corporation having its situs in the kingdom of the Netherlands, and on the first day of September, 1920, it loaned to the Holland Delta Company, a corporation having its principal place of business at Lake Village, Chi-cot County, Arkansas, and hereinafter referred to as the Delta Company, the sum of $300,000, land to secure the payment thereof a deed of trust was taken on two plantations owned by the Delta Company in Chicot County. The Delta company failed to pay the taxes on the land for the years 1921 and 1922, and the Mortgage Company paid those taxes. The Delta Company defaulted in the. payment of certain installments of both principal and interest, and the mortgage company brought suit to foreclose the deed of trust. In this suit the American Trust Company, a -banking corporation, hereinafter referred to as'the hank, and having its situs at Jonesboro, Arkansas, was made a party defendant. The bank had obtained a judgment against the-Delta -company in the circuit -court of -Craig-head -County for $20,081.40,- which was filed in Chicot County, -and under lan execution issued on this judgment the plantations Were sold to the bank .for $2,500, and later a sheriff’s -deed biased on this execution sale was executed to the bank. It was alleged that this title of the bank was junior and sub-ordinate to that of the mortgage company, and there was a prayer for -a decree of foreclosure of the deed of trust to the mortgage company, and that its lien be adjudged paramount to that of the bank.

The bank filed an answer denying that the mortgage company was a corporation under the laws of the kingdom1 of the Netherlands, -and denying -that it was authorized to do business in this State, and for these reasons it alleged that the mortgage company could not maintain this suit. It was also alleged by the bank that the authority of the mortgage company to make this loan was not shown.

There was a general decree- in fav-or of the mortgage company, and its deed of trust was adjudged- to be a first lien, and its foreclosure was decreed and a commissioner was appointed to sell the two plantations under the directions contained in the decree. A. J.. Prins, who was in possession of the land' as lessee of the mortgage company, was -made a party to the proceeding, and the decree contained directions that a master appointed for that purpose should ascertain and report what rents had been collected by the mortgage company as mortgagee in -possession. The bank excepted to the decree foreclosing the lien 'of the mortgage company, and has appealed from that order'. ' '

The first, and principal, insistence of the hank is that the corporate existence of the mortgage company, which was specifically denied, was not established by the testimony. G-. Vandertuuk, of St. Paul, Minnesota, testified that he was the American manager of the mortgage company, which was incorporated under the laws of the kingdom of the Netherlands, and that it was authorized to do business in' this State, and in support of this testimony he offered in evidence the certificate of the Secretary of State authorizing the mortgage company to do business in this State, together with a copy of the articles of incorporation, a resolution of the board of directors of the corporation lappointing the Secretary of State as agent for service, and the certificate of authority to do (business in this State, issued to the mortgage company by the Secretary of State. These documents were all duly certified by the Secretary of State as being copies from the originals thereof on file in the office of that official- There was also offered in evidence the receipts for the annual corporation franchise tax paid in this State.

The deposition of the president of the mortgage company was taken,, and it was therein shown the number of shares of the capital stock which had been issued and the par value thereof.

This testimony was sufficient to establish the corporate existence of the mortgage company. In the recent case of Sturdivant v. Ka-Dene Medicine Co., ante p. 535, a foreign corporation had brought suit on a promissory note. The defendant in that case filed an answer denying the corporate existence of the plaintiff, and pleaded also that the note was void because the alleged corporation was doing business in this State without having complied with the laws thereof by filing with the Secretary of State its articles of incorporation, etc.. In that case the plaintiff offered in evidence its original charter as proof of its corporate existence, but it was objected that the corporate existence of the plaintiff could be established only by offering a certified copy of the charter. We disposed of this 'contention, (by saying: ‘ ‘ The original charter is the primary evidence of its existence, and is competent proof, even though .a certified copy be admitted in evidence. 3 Enc. of Ev. 602; 1 Fletcher on Corporations, § 472.” We there also further said: “Moreover, the witness, who was president of the corporation, testified concerning the fact of incorporation, and we have held that parol evidence is admissible to prove 'corporate existence. Kelley v. Stern Pub. & Novelty Co., 147 Ark. 383.” Here the president of the mortgage company testified as to its corporate existence. . ...

The mortgage company appears to have fully complied with the laws of this State in regard to foreign corporations doing business herein and received from the Secretary of State a certificate reciting that it had “filed in the office of the Secretary of State la duly certified copy of its articles of incorporation, etc., on February 19,1912, and the resolution of the board of directors designating the Secretary of State as the agent of the company upon whom service of summons or other process might be had in any of the courts of the State,” and further reciting in detail a compliance with the requirements of the laws of this State regulating the right of foreign, corporation to do business in the State. Crawford & Moses’ Digest, § 1826.

As we have said, the mortgage company offered in • evidence receipts for its annual franchise tax, and by § 9818, Crawford & Moses’ Digest, it is provided that:

“When any corporation'shall have paid the franchise tax prescribed by this act, the State Tax Commission shall issue to it a certificate authorizing it to do business'in this ¡State for the term of five years from the date thereof, upon, condition that it pay annually the franchise tax prescribed by law, and such certificate shall be evidence in all the courts of this State of the right of such corporation to do business in this State during the term of such certificate.”

As we have said, a certified copy of the mortgage company’s charter as filed in the office of the Secretary of State was offered in evidence, and this charter was duly certified hy the officers of the corporation itself. • This charter contains elaborate directions and limitations in the management and control of its corporate affairs by its officers. One of the articles of the charter provided how loans mJay- be made, and that no loan should be made until it was- authorized and approved by the board of supervision provided for by the charter, and it is insisted that this authorization -and -approval was not shown. Of this contention but little need be said. The loan " was actually made. The mortgage company paid the taxes on the land and received interest on the loan and has obtained a decree ordering a foreclosure of the deed of trust, and by these acts has ratified the mortgage.

The decree is correct, and is therefore affirmed.


author: 'Smith, J.

text:
    Ballentine v. State.
    Opinion delivered November 16, 1925.
    1. Homicide — admissibility op evidence. — In a prosecution for murder in the second degree, proof that deceased shortly before the killing swore out a warrant against accused for stealing watermelons was admissible, as tending to- show the state of feeling between accused and deceased, also a motive for the killing, -and whether deceased or accused was the aggressor.
    2. Homicide — remark op accused as evidence. — In a prosecution for murder in the second degree, -a remark of the accused to deceased’s (brother, -after accused’s arrest, instigated by deceased, for stealing watermelons that “no s— of a b— had better swear I was in their watermelon patch” was admissible as tending to ■show his state of feeling toward deceased, and whether accused was the aggressor.
    • 3. Criminal law — repetition op instructions. — (Refusal of requested instructions fully covered by those- given held not error.
    4. Homicide — instruction as to justification. — In a -prosecution , for murder in the -second degree, a requested instruction justifying the killing, independently of any imminent peril, merely because deceased brought on the difficulty, unless he had withdrawn therefrom, held erroneous.
    5. Criminal law — explanatory testimony. — Testimony that, immediately after defendant killed deceased, some one in the crowd remarked that some one should take charge of defendant was admissible as explanatory of defendant’s statement made in response thereto'.
    6. Witnesses — impeachment.—Where a witness in a criminal case admitted that he took five ears of corn from a field and pleaded guilty and paid a fine therefor, refusal of the court to permit the witness to state that in taking the corn he did not believe the owner would object to taking so small a quantity held not error.
    7. Homicide — voluntary manslaughter — evidence.—Evidence held to sustain a verdict of guilty of voluntary manslaughter.
    Appeal from Montgomery Circuit Court; Earl Witt, Judge;
    affirmed.

      Gibson Witt, Jerry Witt and Norwood & Alley, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   'Smith, J.

Appellant wias indicted for the -crime of murder in the second degree, alleged to have (been committed by shooting one Fielding Vines, and upon his trial was convicted of voluntary manslaughter, and sentenced to seven years imprisonment in the penitentiary.

The first assignment of error for the reversal of the judgment is that the evidence is not sufficient to sustain the conviction. We think it will sufficiently appear from the facts hereinafter recited that this assignment of error is not well taken, as the evidence is legally sufficient to support a 'conviction for an even higher grade of homicide.

On July 17, 1924, deceased swore out a warrant for the arrest of appellant, one Lum Baggs and another person, charging them with .stealing Watermelons, and the cause was set for trial for the following day before a justice of the peace. Objection was made to the admission of testimony showing this fact; but we think it was competent as tending to show the state of feeling between the men and the probable motive for the killing, defendant being tried on an indictment for mnrder in the second degree, land was also competent touching the disputed question whether deceased or appellant was the aggressor in the fatal encounter.

When -appellant was arrested on the larceny charge the officer maiking the arrest told him that he- would take him to Mount Ida, where he could make bond for his appearance the next day at the trial. Before starting for Mount Ida, the officer allowed appellant to go home for the purpose of changing his clothes, and appellant admits that while in the house for this purpose he put his pistol in his pocket. He explained that he did this because the officer told him that he would take him to Mount Ida but he could not bring him home, and appellant put the pistol in his pocket for protection during his return home from Mount Ida.

On the day appellant was arrested, he made the remark in the presence of Sterling Vines, a brother of the deceased, that “No son-of-la-bitoh better not swear I was in their watermelon patch,” and the admission of this testimony is also assigned as error. But we think it was admissible for the same reason as was the testimony that a warrant for appelllant’-s arrest had been sworn out -by deceased.

Appellant testified that -the constable told him he did not know Baggs, for whom the officer also had a warrant of arrest, and appellant volunteered to find Baggs for the officer, and for this purpose he went to Sims, where he found Baggs, and he and Biaggs then arranged to go to Mount Ida in Baggs ’ car, and Baggs got a wrench to make some repair about the car, and, as they were walking down the road, they were followed by deceased, who called to them and -asked them to “Wait there a minute.” When appellant heard deceased calling to them, he and Baggs turned and walked back to meet deceaseds

The testimony of Sterling Vines was to the effect that his brother was going down the ro-a-d, and he was following him, and when appellant and Baggs discovered the presence of Fielding Vines they turned around and walked back to where Fielding Vines was. Some conversation had taken place before Sterling Vines came up to the party, and as he walked up he heard appellant and his brother each say to the other “go to your eyes,” and following these remarks his brother struck at appellant and reached down to pick up a rock. As his brother straightened up, appellant began firing. -Appellant had gotten partly behind Baggs, and this shot powder-burned Baggs’ arm. At the first shot deceased turned to run, and as he ran he was shot twice. One of these shots entered the right shoulder from the rear and killed deceased.

The court gave a very full and comprehensive charge on the issues involved, and no objection is made to the instructions given-, but it is insisted that the court erred in refusing to give instructions A, B and 0 requested by appellant.

Instruction A dealt with -the right of a person assaulted by another to stand his ground and to repel force with force. The propositions there advanced were fully covered by instruction number 8 given by the court.

Instruction B told the jury that defendant’s right to fire the pistol in his necessary self-defense was not destroyed by the fiact that 'he was carrying the pistol unlawfully at the time. But this proposition was fully covered by instruction numbered 11 given by the court.

Instruction C reads as follows: “If you find from the evidence that the deceased Was the aggressor in bringing on the difficulty, and further find that, after thus beginning the difficulty, deceased undertook to withdraw before fatal injury was inflicted, the defendant under these circumstances would be justifiable in killing the deceased; unless you find from the evidence and circumstances in proof beyond a reasonable doubt, that the defendant, situated as he was and acting as a reasonable person at the time, knew that deceased had withdrawn in time for defendant to know this fa-et before the fatal shot was fired.”

No error was committed in refusing this instruction. It declared the law to be that appellant had the right to kill Vines if Vines had brought on the difficulty unless appellant knew that Vines had withdrawn from the encounter in time for appellant to know that Vines had withdrawn before firing the second and third shots. Appellant would have been justified in killing Vines simply because Vines had brought on the difficulty under ■the instructions declaring that if this were true appellant had the right to kill Vines unless Vines had withdrawn from the difficulty and appellant knew that fact. The instruction takes no account of imminent peril or the absence of it. There was testimony from which the jury might have found that appellant was standing behind Baggs, and was therefore not in peril, and also that Vines was running away when the second and third shots were fired, and the instruction did not require the jury to find that appellant was in imminent danger of receiving great bodily harm, but the instruction required only that the jury find that Vines had been the aggressor, and that appellant did not know that Vines was withdrawing.

The court covered in instruction numbered 12 this phase of the case.

In the case of Luckinbill v. State, 52 Ark. 46, this court declared the conditions under which one might kill a retreating adversary, and instruction numbered 12 conformed to the declarations there contained.

The court permitted witness C. A. Snider, near whose store the killing occurred and who was one of the first persons to get to the scene of the killing, to testify that immediately after the killing some one in the crowd which gathered remarked that some one should take charge of appellant. The court permitted this testimony to be admitted because it was in response to this remark that appellant made a statement in regard to the killing, and this remark was explanatory of appellant’s statement. There was therefore no error in this ruling.

Baggs testified as a witness in appellant’s behalf, and his testimony tended to sustain the defense that the killing had been done by appellant in his necessary self-defense.

In the cross-examination of Baggs he was asked if he had not pleaded guilty to a charge of taking corn from a neighbor’s field. Baggs answered that he took five ears of corn and had entered a plea of guilty to doing soBaggs then offered to explain that in taking the corn he did not believe the owner would object to his taking la quantity so very small. The court refused to permit this explanation, and this action is assigned as error.

We think no error was committed in this ruling. Baggs admitted taking the corn, and that he had pleaded guilty to so doing, and had paid a fine. He stated that he took only five ears, and there was no error in refusing Baggs the right to express the opinion that the owner of the com should not have complained of a loss so slight.

The jury might have found that deceased was not the aggressor, but that appellant brought on the difficulty, and that when deceased saw appellant was about to shoot him he ran away and was shot in the back while he was so doing. This testimony sufficiently supports the verdict, and as no error appears the judgment is affirmed.


author: , Humphreys, J.

text:
    Dodson v. State.
    Opinion delivered November 16, 1925.
    1. Intoxicating liquors — making mash — evidence.—In a prosecution of one as principal in making mash, evidence that defendant, pursuant to agreement, bought ingredients for others to make the mash, -without showing that he was present at the time the mash was made or that he actually participated in the making thereof, was insufficient to sustain a conviction.
    2. Criminal law — conviction in felony. — One cannot be indicted and tried for a felony as a principal unless present, aiding and abetting in the crime.
    Appeal from Clark Circuit Court; J. H. McCollum, Judge;
    reversed.

      Eardage é Wilson, for appellant.

      E. W. Applegate, Attorney General, -and Darden Moose, Assistant, for appellee.
   , Humphreys, J.

Appellant was indicted in tbe circuit court of Clark County under act 324 of the Acts of tbe General Assembly of 1921 -as a principal in making masb and possessing a still. Subsequently be was tried and convicted of making masb, and was adjudged to serve a term of one year in tbe State Penitentiary as punishment therefor. Appellant bad duly prosecuted an appeal to this court from tbe judgment of conviction, seeking a reversal thereof upon the ground that tbe evidence is insufficient to support tbe verdict and consequent judgment.

Tbe evidence tended to show that appellant was interested in making tbe masb by virtue of an agreement on bis part to furnish the materials out of which to make same to Jobn Ledbetter and Walter Dodson for a part of the whiskey.

John Ledbetter testified that be and Walter Dodson made such an agreement with appellant in Arlcadelphia, and that, pursuant to tbe agreement, appellant bought ingredients for them to make tbe mash; that they were in tbe act of making the third run when tbe officers arrested Walter land himself.

The still was operated about a mile and one-half from the home of appellant, and Ledbetter testified that it belonged to appellant.

There is no evidence whatever in the record tending to show that appellant was present at the time the mash wlas made or that he actually participated in making same.

By reference to the act under which appellant was indicted, it will be seen that it does not make one merely interested in making mash a principal as is the case in the act prohibiting the manufacture or sale of intoxicating liquors; hence it was unlawful to indict appellant as a principal. He should have been indicted and tried as an accessory to the crime of making mash. One cannot be indicted and tried for a felony as a principal unless present, aiding, and abetting in the crime- The evidence fails to show that appellant was present, aiding and abetting in making the mash. For this reason, the judgment must ¡be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.


author: Humphreys, J.

text:
    Standard Oil Company v. Couch and Stainton.
    Opinion delivered November 16, 1925.
    Principal and agent — apparent authority. — A principal is bound, • not only by the acts of the agent which were expressly authorized, but also by all the acts of a general agent which are within the apparent scope of his authority, whether they have been authorized by the principal or not, and even if they are contrary to express directions.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    affirmed.

      T. J. Gaughan, J. T. Sifford, J. E. Gaughan and Elbert Godwin, for appellant.

      G. B. II ay me, for appellee.
   Humphreys, J.

Appellees instituted separate suits against appellant in the circuit court of Ouachita 'County to recover alleged ¡balances due them on open account for work done by themselves and teams in excavating an earthen tank to be used in storing crude oil flowing from appellant’s wells in the oil field of said county.

Separate answers were filed in each suit by appellant, denying the indebtedness.

The cases were consolidated by agreement of counsel representing the parties, and both causes were presented to a jury upon the testimony adduced by appellees and appellant under instructions given by the court, presenting the theory upon which appellees sought a recovery and appellant an exemption from liability.. The trial resulted in a verdict in favor of W. Q. Couch for $370.45 and O. J. Stainton for $367.48, upon which judgments were entered. From these judgments an appeal has been duly prosecuted to this court.

The only question presented on an appeal for determination grows out of the refusal of the court to instruct a verdict for appellant. It is contended that there is no substantial evidence in the record upon which to base the finding of the jury to the effect that the employment of appellees to do the work was within the apparent scope of the authority of appellant’s agent, who employed them with their teams to assist in digging said earthen tank. According to the undisputed testimony, appellees, with their teams, were employed by Ed Bupple, who was appellant’s foreman in charge of the work. He had actual authority to employ men to work in excavating the earthen tank and to discharge men and teams when through with them, ¡but he had no actual authority to hire teams. Bupple admitted that he hired appellees with their teams to do the work, but testified that he told them that he was employing them for H. T. Long, who had a contract to supply J. T. Stiles with men and teams, who, in turn, had a contract to furnish appellant with teams and drivers. Appellees denied that Ed Bupple informed them that he was employing them for H. T. Long or J. E. Stiles. They testified that they did the work under the belief that Ed Rupple employed them on the laecount of appellant.

■Summing up and treating the testimony in the most favorable light to appellees, which we must do under the law, appellant’s foreman, who was its general agent, employed appellees with their teams to assist in constructing a tank without first telling them that he was employing them for or on account of H. T. Long.

These facts bring the instant case well within the rule announced in the case of Chalmers & Son v. Bowen, 112 Ark. 63, and reaffirmed in the cases of Three States Lumber Co. v. Moore, 132 Ark. 371, and Empire Rice Mill Co. v. Stone, 155 Ark. 623, to the effect that a “principal is not only bound by the acts of the lagent done under express authority, but is also bound by all the acts of a general agent which are within the apparent scope of his authority whether they have been authorized by the principal or not, and even if they are contrary to express directions.”

No error appearing, the judgment is affirmed.