author: 'Smith, J.

text:
    Schirmer v. Baldwin.
    Opinion delivered November 3, 1930.

      Otis Gilleylen, Feasel <& Steel, Abe Collins and King, Mahaff ey, Wheeler <& Bryson, for appellants.

      Shaver, Shaver é Williams and James D. Head, for appellee.
   'Smith, J.

This appeal involves the validity of the alleged last -will and testament of Mrs. Lillian M. Gathright. The probate of the will was opposed in the probate court upon the grounds that the execution of the will had been procured by undue influence, and that the testatrix lacked mental capacity to make it. There was a finding in favor of the will, and the same issues were tried in the circuit court, with the same result, and this appeal is from that judgment.

A number of witnesses gave testimony bearing upon these questions, and, while it is contended that the verdict of the jury was contrary to the preponderance of the evidence, it is conceded that the testimony is.legally sufficient to support the finding that the execution of the will was not procured through the exercise of undue influence, and that the testatrix had the mental capacity to make the will. It will not, therefore, be necessary to discuss these questions of fact, or to make any recital of them, further than is necessary to present the assignments of error raised on this appeal.

We are asked to reverse the judgment of the circuit court admitting the will to probate for the reasons that error was committed in the admission of the testimony of Dr. George B. Fletcher, and that of Mrs. Helen Knight, and in giving instructions numbered 5 and 12. These assignments of error will be considered in the order stated.

The contestants introduced, over the objection and exception of contestee, the certificate of death issued by the registrar of Vital Statistics of the State, which was based upon the report of Dr. George B. Fletcher, who had attended Mrs. Gathright in her last illness. This certificate recited the cause of death to have been chronic alcoholism, with myocardial failure as a secondary or contributing cause.

Dr. Fletcher was called as a witness at the trial from which this appeal comes by contestee, who was named as executrix off the will and who had qualified as such after its probate had been ordered !by the probate court. Dr. Fletcher was asked what the mental condition of Mrs. Gathright was on the day of the execution of the will, and the objection was made that this testimony was privileged and incompetent under § 4149, C. & M. Digest, which reads as follows:

“No person authorized to practice physic or surgery and no trained nurse shall be compelled to disclose any information which he may have acquired from his patient while attending him in a professional character, and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse. ”

Many cases are cited in the briefs of opposing counsel on the nature of this privilege, and upon the question of the right to waive it, whether by the heir or the personal representative; but we find it unnecessary to decide this question.

Mrs. Gathright was a childless widow at the time off her death, and her father and mother were both dead. She was survived by two brothers and two sisters, none of whom were mentioned in the will, and the sole devisee was contestee, a niece, who was not an heir, for the reason that her mother, one of Mrs. Gathright’s sisters, is living, and the contest is on behalf of the other sister and the two brothers, who, together, would, in the absence of a will, take a three-fourths interest in the estate.

In Jones on Evidence (2d ed.) § 2198, page 4194, it is said: “By the weight of authority, it is held that, since the patient may waive the privilege for the purpose of protecting his rights, the same waiver may be made by those who represent him after his death, for the purpose of protecting rights acquired by him. It has been held, in some states, that this privilege cannot be waived by the heirs; that the right of waiver belongs to the personal representative alone.”

We have here a contest between all the heirs, except the mother of contestee, and the executrix, although the latter’s right to act as such is, of course, dependent upon the validity of the will, which is the question in issue. We think the record made at the trial below, to which reference will later be made, shows that first one and then the other of the parties have waived the privilege of the statute.

That the statute may be waived by a proper party in interest is clearly established by the great weight of authority. In the case of National Annuity Association v. McCall, 103 Ark. 206, 146 S. W. 125, 48 L. R. A. (N. S.) 418, it was said: “This statute accords the privilege to a patient of objecting to disclosures of matters communicated to or information obtained by a physician ás such, and this privilege does not cease with the death of the patient. But this privilege may be waived by the patient himself and after his death by his representative; and so, too, where one occupies a relation to the deceased by reason of a contract, such as is involved in this case, wherein he is made the beneficiary of a life insurance policy, he has by virtue of this statute a right to object to testimony relative to the communications therein named as privileged, and he has also the right to waive this privilege conferred by it. 4 Wigmore on Evidence, § 2387; Penn. Mut. Life Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769.” See, also, 40 Cyc. chapter witnesses, page 2397, and cases cited in the note to that text, and cases cited in the notes by the annotater to the cases of Maine v. Maryland Casualty Co., 15 A. L. R. 1536, and Schornick v. Schornick, 31 A. L. R. 159 ; Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 Ark. 387, L. R. A. 1916A, 519 ; Bradway v. Thompson, 139 Ark. 154, 214 S. W. 27.

We are not unmindful of the case of Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. (N. S.) 493, where it was held, (to quote a head-note) that ‘ ‘where a policy of insurance does not contain any provision waiving the statutory privilege as to the testimony of attending physicians concerning information received in the course of professional employment, the privilege is not waived by plaintiff who introduces an affidavit by a physician of the death of the insured.” That was a case, however, where the 'beneficiary in a policy of insurance had furnished, as part of the proof of loss, the certificate of a physician in an attempt to secure an amicable adjustment and settlement, and there was no litigation then pending. Here the death certificate was offered by the heirs in the trial before the court, and when this was done the right to object to the testimony of the physician who made the certificate was waived, if, indeed, the contesting heirs had the right to object to its introduction.

The statute quoted may therefore be waived, and we 'think the record shows that it has been. It was waived by the- heirs when they introduced the record of the Registrar of Vital 'Statistics, which contained, and was based upon, a certified copy of the death certificate prepared by Dr. Fletcher as the attending physician during the last illness of the testatrix. This certificate was not introduced to prove her death, for that was an admitted fact, and, had it not been, could easily have been proved without reference to the certificate. The purpose of its introduction was to prove death from chronic alcoholism, a circumstance calculated to affect mental capacity, and which, according to the testimony of a medical expert offered by contestants, did affect the mental capacity of the victim who had died from that cause.

Bo, therefore, when this certificate was offered in evidence (over contestee’s objection), the purpose of the statute could no longer ¡be affected. The patient’s life had been laid bare; her infirmity, against which she had vainly struggled and had sought to conceal, as is shown by other testimony in the case, was disclosed. When this had been done by the heirs, we perceive no reason why the physician who made the certificate might not be called by the executrix to explain and interpret his certificate, as no purpose which § 4149, C. & M. Digest, was intended to subserve could then prohibit this from being done. Dr. Fletcher testified that Mrs. Gathright was sane on the day the will was made, and we think no error was committed in admitting this testimony under the facts stated.

Mrs. Helen Knight, who was the superintendent of the hospital where Mrs. Gathright died and was one of the attesting witnesses to the will, was permitted, over contestants’ objection, to answer “Yes, sir” to the following question: “Q. In your opinion or judgment was she capable of making a will on the date that it was made?” It was specifically objected that this was the very question which the jury was called upon to determine and should not have been answered by the witness for that reason, and that the competency of a person to make a will could not be proved by a lay witness.

It may be first said that this question and answer appear in the testimony of Mrs. Knight taken at the trial in the probate1 court, a transcript thereof being read in the circuit court as her deposition. No specific objection was made to this question and answer in the probate court, and the witness was not present at the trial in the circuit court. But, when this deposition is read in its entirety, it appears that the witness stated fully the facts upon which the opinion was based, and that she had the opportunity to observe Mrs. Gathright to a sufficient extent to express an opinion on Mrs. Gathright’s sanity.

Had objection been made to the form of this question -when it was propounded to the witness at the trial in the probate court, it might then have been reformed to call for an opinion on Mrs. Gathright’s sanity, rather than on her testamentary capacity, but no such opportunity existed when the deposition was read at the trial in the circuit court.

In the case of Sloan v. Newman, 166 Ark. 259, 266 S. W. 257, it was said: “It is next contended that the court erred in permitting a witness, Miss Rose, who was a nurse in the hospital in New Orleans where Mrs. Rogers died, to state, by comparison with other persons with whom the witness came in contact professionally, her opinion of the mental capacity and strength of the testatrix, Mrs. Rogers. 'Conceding that the form of the question constituted an awkward method of eliciting the testimony, yet it was perfectly competent to take the statement of the witness as to Mrs. Rogers’ mental capacity at the time she was in the hospital, which was a short time after the execution of the will, and while she was attended professionally by the nurse, who was shown to be a person of long experience and who had opportunities of .judging the mental capacity o|f Mrs. Rogers. There was no error in allowing the witness to testify on this subject, and the form of the question was not prejudicial. ’ ’

' So, here, we say that, conceding that the form of the question constituted an awkward method of eliciting the testimony, yet it was perfectly competent to take the statement of the witness as to Mrs. Gathright’s mental capacity at the time she was in the hospital, when and where the will was signed.

Moreover, while Mrs. Knight was a lay witness, she was an attesting witness. There was no contention that Mrs. Gathright was normally a person of unsound mind, but the cause was tried upon the theory that her illness had progressed to such an extent that her mind was so far affected by the disease from which she died that she could not remember the nature, character and extent of her property, and did not know the disposition she was making of it, and did not appreciate the merits of those persons who, as her heirs-at-law, might have claims upon her bounty. Conscious intelligence upon these questions constitutes what is known in the law as testamentary capacity, and the existence of this capacity is the question which the jury was called upon to decide. But attesting witnesses, although lay and not expert, are permitted to express opinions on this subject. Of course, the value of this testimony may be tested by an examination of the witness to disclose his or her own intelligence and the opportunities the witness had to form the opinion and its consequent value.

In the early and well considered case of McDaniel v. Crosby, 19 Ark. 533, it was said: “The attesting witnesses to a will are regarded in law as placed around the testator, that no fraud may be practiced upon him in the execution of the will, and to ascertain and judge of his capacity. (Citing, among other cases, that of Kelly’s Heirs v. McGuire, 16 Ark. 600, and Abraham v. Wilkins, 17 Ark. 292). On this ground these witnesses are permitted to testify as to the opinion they formed of the testator’s capacity at the time olf executing his will, and their opinions, and the facts they state as occurring at the time are, generally, to be particularly regarded by the court, though the opinions of other witnesses are ordinarily inadmissible, at least unless founded upon facts testified to by themselves or others in the cause. (See 1 Jarman on Wills, 74). Witnesses, other than the attesting witnesses, must state the facts, but not their opinion or judgment merely of the sanity or insanity of the testator. See Kelly v. McGuire, supra; Abraham v. Wilkins, supra; Jarmian on Wills, 75.”

That opinion was based upon the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, which has always been regarded as> a landmarik in this State, and in that case it was said: “To this instrument, there were four subscribing witnesses. Subscribing witnesses, it is said, are placed around a testator to ascertain and judge of his capacity. 3 Mass. 237; 4 Mass. 593. Their attention is supposed to be directed to that point, and they may give their opinions in respect to the sanity or capacity of the testator. 1 Greenl. Ev. 440. * * * There are strong reasons for it (the rule just stated). Human language is imperfect, and it is often impossible to describe, in an intelligible manner, the operation of the mind of another. We learn its conditions only by its manifestations, and these are indicated not alone by articulate words, but by signs, gestures, conduct, the expression of the countenance, and the whole action of the man. Nor is there any danger in such opinions, when the reasons for them are disclosed. The value and force of the opinion depended on the general intelligence of the witness, the grounds upon which it is based, the opportunities he had for accurate and full observation, and his entire freedom from interest and bias. ('Citing cases.) ”

See, also, Potts v. House, 6 Ga. 324, 50 Am. Dec. 329, and cases cited in the annotater’s note to that case, and vol. 7 of Notes to American Decisions, page 695, further annotating the case of Potts v. House, supra, and Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681.

One olf the instructions specifically objected to was numbered 5, and reads as follows: “You are instructed that the law presumes that Mrs. Lillian Gathright, at the time of the execution of the will by her, was of sound and disposing mind and memory, and the burden is upon the contestant's to prove, by a preponderance of the evi- • dence, that she was not of sound mind. ’ ’

This instruction musit, of course, be read in connection with the other instructions -given by the court, one of-which, given at the request of contestants, told the jury that: “If you further find from a preponderance of the evidence that on said day and at the time of executing said will she did not have the mental capacity, as defined in these instructions, to make a will, you will find against the will. ’ ’

A similar instruction was given on the question of undue influence, but that feature of the case is not insisted upon for the reversal of the .judgment of the court admitting- the will to probate.

Instructions similar to the one quoted have been frequently approved by the court, beginning with the case of Kelly’s Heirs v. McGuire, supra. A late case is that of Hamilton v. Hamilton, 178 Ark. 241, 10 S. W. (2d) 377, where it was said: “In cases involving- the- issues of insanity, ineompetency and undue influence, this court has ruled that the burden rests upon the contestants of the will, when it appears upon its face to- have been executed in accordance with the statutory requirements and when properly proved and probated. McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 690 ; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264 ; Miller v. Carr, 94 Ark. 176, 126 S. W. 1068. Section 10514 of Crawford & Moses’ Digest provides that a will so proved, recorded, and signed by the clerk of probate and attested by the seal of office, may be read as evidence, without any' further proof thereof. In other words, when such a will is introduced, it malíes a prima facie case which must be overcome ;by the pro.of introduced by the contestants of such a will. ’ ’

A similar instruction was approved in the case of Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405.

The subject was reviewed by Mr Justice Battle, with his usual care, in the case of Bims v. Collier, 69 Ark. 245, 62 S. W. 593, where he said: “In McCulloch v. Campbell, 49 Ark. 373 (5 S. W. 590), Mr. Justice Smith, in delivering the opinion of the court, said: ‘ There is some confusion in the reported cases on the adjustment of the burden of proof of insanity in will contests. But we think the weight of authority, both in England and in this country, establishes the rule that the production of a proper writing purporting to be the will of a deceased person, which is rational on its face, and which is proved to have been executed and witnessed in accordance with the statute, makes a prima facie case, and devolves upon the contestants the onus of showing the testator’s incompetency. The rule rests upon the presumption that all men are sane until the contrary is proved. ’ ’ ’ He proceeded further to1 say: “We d;o not think that the presumption of sanity in a case in which a will is contested has any greater force than any other rebuttable or disputable presumption of law has in any ordinary civil case. When such presumptions are overcome by evidence, the conflicting evidence on the question of fact is to be weighed, and a verdict rendered in favor of the party whose proofs have most weight; and the presumption is olf value only as it has probative force, ‘ exlcept it be that on the entire case the evidence is equally balanced, in which event the arbitrary power of the presumption of law will settle the issue in favor of the proponent of the presumption.’ In Graves v. Colwell, 90 Ill. 616, it is said: ‘It has been said that presumptions of law derive their force from jurisprudence, and not from logic, and that such presumptions are arbitrary in their application. This is true of irrebuttable presumptions, and, primarily, of such as are rebuttable.- It is true of the latter until the presumption has been overcome by proofs, and the burden shifted; but when this has been done, then the conflicting evidence on the question of fact is to be weighed, and the verdict rendered, in civil cases, in favor of the party whose proofs have most weight, and in this latter process the presumption of law loses all that it had of mere arbitrary power, and must necessarily be regarded only from the standpoint of logic and reason, and valued and given effect only as it has evidential character. Primarily, the rebuttable legal presumption affects only the burden of proof, but if that burden is shifted back upon the party from whom it first lifted it, then the presumption is of value only as it has probative force, except it be that on the entire case the evidence is equally balanced, in which event the arbitrary power of the presumption of law would settle the issue in favor of the proponent of the. presumption.’ ”

The will in this case is rational on its face, and was executed and witnessed in accordance with the statute, and we do not think that the instructions, when read together, offend against the law as announced in the opinion by Judge Battle and the other cases cited.

The other instruction alleged to be erroneous and prejudicial was numbered 12, and the portion objected to reads as follows: “The fact that it leaves all of her estate to one relative to the exclusion of others does not raise a presumption of lack of capacity in her to make such will.”

It is argued that the instruction was a charge upon the weight of evidence, and excluded from the consideration of the jury the question whether the will was an unnatural one and such a will as a sane person would •have made and in conflict with other instructions which permitted the jury to consider the circumstances stated in the instruction for that purpose.

We think the objections 'Stated are not well taken. It is true that instructions were given at the request of contestants which permitted the jury to consider the fact that the will excluded the persons who, in the absence of a will, would be the heirs-at-law, as a circumstance to be considered in determining whether the will was that of a sane person; but there is no conflict in the instructions in this respect. Instruction numbered 12 does not tell the jury not to consider this circumstance, but only declared that the circumstance did not raise a presumption of lack of capacity to make a will. It was not a charge upon the weight of testimony, but was a declaration of law to the effect that one might ignore his heirs-at-law in the disposition of his property by will, and the cases are unanimous to this effect. It is, of course, a circumstance to be considered in determining the sanity of one who makes such a will, but the instruction did not exclude it (for that purpose. It merely told the jury that the circumstance itself created no presumption against sanity, and there was therefore no error in giving it.

Upon a consideration of the whole case we find no error, and the judgment must be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Brewer v. St. Louis-San Francisco Railway Company.
    Opinion delivered November 3, 1930.

      Bruce Ivy, James G. Goston and J. T. Goston, for appellants.

      E. T. Miller, E. L. Westbrooke, Jr. and E. L. Westbrooke, for appellee.
   Humphreys, J.

Three separate suits were brought against appellee in the circuit court of ¡Mississippi County, Osceola District, for damages growing out of the death of Mrs. Katie Lomax Brewer, wife of H. D. Brewer and mother of George and H. D. Brewer, Jr., in a collision between appellee’s train and an automobile driven by Mrs. Brewer at a public crossing near Wilson, Arkansas, through the alleged negligence of appellee’s employees in operating said train.

One suit was brought by H. D. Brewer as administrator of the estate of H. D. Brewer, Jr., for pain and suffering; one by him as next friend of George Brewer for the loss of the care, custody and training of his mother; and one by himself for the loss and companionship of his wife.

Appellee filéd an answer in each case denying’ negligence on its part, and alleging that the deaths were the result of the sole negligence oif' Mrs. Brewer in driving the automobile onto said public crossing.

. The causes were consolidated for the purposes of trial and submitted upon the pleadings, the testimony adduced by the respective parties and the instructions of the court, resulting- in a verdict and judgment in favor of appellant for $-3,000 as next friend for his son, George Brewer, from which no appeal wias taken; and adverse verdicts and consequent judgments dismissing his complaint for the loss of his wife and for the pain and suffering of his son, H. D. Brewer, Jr., from which adverse verdicts and judgments he has duly appealed to this court.

The testimony introduced by appellant tended to show that the train approached the crossing at a speed of thirty-five miles an hour without giving the statutory warnings, struck and demolished the automobile in which his wife and children were riding, killing her instantly and fatally injuring his son, H. D. Brewer, Jr., who was only nine years of age and who suffered pain and anguish for about seven hours after the injury and before hi® death.

The testimony introduced by appellee tended to show that the statutory signals were given as its train approached the crossing, and that Mrs. Brewer drove the automobile upon the crossing without heeding the warning, -and so suddenly that it was impossible to stop the train before it struck the automobile.

Appellant contends for a reversal of the judgment dismissing his complaint as administrator of his son, H. D. Brewer, Jr., because the court amended instruction number six requested by him so as to prevent a recovery if H: D.-Brewer, Jr., was guilty of contributory negligence. The amendment or modification of the instruction was erroneous because contributory negligence on his part was not pleaded as a defense, and because same was entirely abstract. He was riding in the back seat, was only nine years of age and" did nothing whatever to contribute to his injury. As amended the instruction was inherently erroneous, and was in conflict with other instructions which had been given by the court.

Appellant also contends for a reversal of the judgment dismissing his complaint for the loss of his companion in life because the trial court refused to instruct the jury, after the argument began, that they could not consider the fact that Mr. Brewer had married again in passing on the question of the liability of defendant (appellee) or measure of damages. The only reference to'such an instruction 'being requested and refused is in the bill of exceptions, and it does not appear that an exception was saved to the action of the court in refusing to give the instruction. In view of the fact that no exception wias saved to the refusal of the court to give the requested instruction, this court cannot decide whether the trial court abused its discretion in refusing to give same.

The judgment dismissing appellant’s complaint as administrator of the estate of H. D. Brewer, Jr., is therefore reversed and remanded for a new trial, and the judgment dismissing his complaint for the loss of his wife is affirmed.


text:
    Irby v. Day.
    Opinion delivered November 3, 1930.

      Balter & Gautney, for appellant.

      Wm. F. Kirsch and Oliver & Oliver, for appellee.
   Humphreys, J.

Appellant, one of the opponents of appellee for representative in the county of Clay in the Democratic primary election, held on the 12th day. of August, 1930, brought suit in the circuit court of said county to contest appellee’s certificate of nomination by the county central committee, alleging that he (appellant) received 1,198 votes, a plurality of all legal votes cast for representative in said primary election, whereas appellee received 907 legal votes and 450 illegal votes, specifically charging that 450 persons in certain townships in said county voted for appellee who were not qualified electors by reason of having failed to pay their respective poll taxes as required by law.

Service was obtained upon appellee on August 23, 1930, and, on application of appellant, a special term of said court was called for September 8, 1930, to try the contest.

On the 1st day of September, 1930, eight days before the special term of court convened, appellee over appellant’s objection filed a motion to quash the service upon him which the court overruled when it convened on the 8th day of September, 1930, and, reserving exception to the court’s action in overruling his -motion to quash the service, appellee filed, also over appellant’s objection, a plea in abatement alleging that prior to November 30, 1921, appellant was postmaster at the town of St. Francis in Clay County, Arkansas, and as such postmaster had in his custody the money received from said office, said money being the property of the United States of America; that said appellant feloniously embezzled a large sum of money, the property of the United States of America and became a ¡fugitive from justice, concealing himself under an assumed name in the State of Mississippi ; that the said Irby was indicted for embezzlement under § 225 of the Revised Criminal Code of the United States in the District Court of the United States for the Jonesboro Division of the Eastern District of Arkansas, and was arrested in the State of Mississippi and brought back to Arkansas for trial; that said cause was transferred to the Little Rock Division of said District Court for trial, and at said trial, said W. O. Irby was convicted on the 17th day of February, 1922, and séntenced to serve a year and a day in the Federal Penitentiary at Atlanta, Georgia, and that he was never pardoned.

Appellant objected to the filing of the plea in abatement because more than ten days had elapsed after the complaint had been filed and service had upon appellee.

After overruling appellant’s objection to the filing of same, without waiving his objections and exceptions, appellant filed a demurrer to the plea in abatement on the following grounds;

"First: The court is without jurisdiction to hear and determine the question raised by the plea in abatement.
"Second. That the plea in abatement does not state facts sufficient to constitute a defense to- plaintiff’s cause of action.”

The demurrer was overruled by the court, over appellant’s objection and exception, and, appellant refusing to plead further, the court dismissed his complaint, from which judgment of dismissal is this appeal.

Appellant’s first -contention for a reversal of the judgment is that the trial court was without authority to allow appellee to file his plea in abatement after ten days from the filing of the complaint. Appellant relies for this contention upon the last sentence in § 3772 of Crawford & Moses’ Digest, the procedure section for election contests, 'which sentence is as follows: “A complaint shall be answered within ten days. ” It is apparent from reading Initiated Act Number 1 of the Acts of 1917, of which § 3772 of Crawford & Moses’ Digest is a part, that one purpose of the act was to afford speedy trial in contested election cases, but certainly not so speedy that a contestee might not be permitted to file an answer after the expiration of ten days from the filing of the complaint if good reason is shown why the answer was not filed within the statutory period. It was not intended by the act that a contestee should be denied the right to file an answer after the lapse of ten days if he had a good excuse for not doing so and if by doing so the progress of the trial would not be delayed. These expressions as to the real purpose and intent of the act in question force us to conclude that the ten-day limit within which to file an answer in contest election cases is directory and not mandatory, and that answers may be filed in such cases after the limit within the sound discretion of the trial court. In the exercise of such discretion an unreasonable time and one that would unnecessarily delay the trial of the cause should not be allowed. It is true that this court ruled in the case of Logan v. Russell, 136 Ark. 217, 206 S. W. 131, that the statute in question was mandatory respecting the time for filing complaints in election contests, but that holding was based upon the theory that the proceeding was a special one and that the time limit within which to file the complaint was jurisdictional. Failure to file an answer in the specified time would not oust the jurisdiction of the court to try the cause. The filing of the answer has relation to procedure only and not to the matter of jurisdiction of the cause. A liberal rule may therefore be indulged relative to filing an answer, provided filing same would not interfere with a ■ speedy trial of the cause. Powell v. Horn, 159 Ky. 532, 167 S. W. 928, 930 ; Roach v. Malotte, 23 Tex. Civ. App. 400, 56 S. W. 701. In the instant case the excuse for not filing the answer was that appellee, in good faith, questioned the sufficiency of the service upon him and waited for a ruling of the court on that question before filing the answer and thereby entering his appearance. Immediately after obtaining a ruling of the court upon the sufficiency of service, appellee filed his plea in abatement which did not delay the progress of the trial. The trial court did not abuse its discretion in allowing the plea to be filed.

Appellant’s second and last contention for a reversal of the judgment is that the plea did not constitute a defense to the cause of action. The plea was sufficient to show that appellant was ineligible to hold the office of representative from Clay County, and for that reason had no right to contest appellee’s certificate of nomination. Section 9 of article 5 of the Constitution of 1874 provides that no person convicted of embezzlement of public money shall' be eligible to hold an office of representative in the General Assembly.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    First National Bank of Corning v. Teters.
    Opinion delivered November 3, 1930.

      F. G. Taylor, for appellant.

      J. L. Taylor, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the chancery court was without jurisdiction and erred in dismissing its claim in the first suit for want of equity and in adjudging it not entitled to recover any more than the money advanced for payment -of taxes, the interest on the Federal Land Bank’s mortgage, etc. There was no presentation of any claim by the bank to the administrator for allowance within the time fixed by law for presentation of s-uch claims and the court did not err in so holding. Any renewal or attempted renewal by the administrator of the notes of the decedent to the bank secured 'by the mortgage made by him, or of the mortgages given by the administrator, under the order of the pro-bate court, to secure advances from the bank for supplies for tenants cultivating the lands of the estate, could not constitute a presentation of the cl-aim of the bank against the estate -of the decedent within the meaning of the requirements of the law, and the court did not err in holding the bank’s claim barred by the statute of nonclaim. Jordan v. Morrilton, 168 Ark. 117, 269 S. W. 53.

The p-robate court was without jurisdiction to make an order authorizing the mortgaging of the lands off the estate by the administrator for carrying on farming operations for three years. Doke v. Benton County Lumber Co., 114 Ark. 1, 169 S. W. 327 ; Massey v. Doke, 123 Ark. 211, 185 S. W. 271 ; Lewis v. Rutherford, 71 Ark. 282, 72 S. W. 373 ; Beakley v. Ford, 123 Ark. 383, 185 S. W. 796 ; Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39.

Appellant insists, however, that Mrs. Annie B. Teters was estopped from denying the validity of the mortgages made by the administrator to secure the advances for farming purposes, having agreed thereto in consideration that the bank would not proceed with the foreclosure of its mortgage against the estate. No estoppel was pleaded, however, and, if the conduct could amount to an estoppel, which we do not decide, it would in no wise dispense with the necessity for presentation of the bank’s claim to the administrator of the decedent’s estate, nor prevent the operation of the statute of non-claim. Gerard B. Lambert Co. v. Rogers, 161 Ark. 307, 255 S. W. 1089 ; Arkansas National Bank v. Boles, 97 Ark. 43, 133 S. W. 195 ; Hasty v. Hampton Stave Co., 80 Ark. 409, 97 S. W. 675.

The bank did not advance any money to the administrator to make the crop for the year 1928, and had no right whatever to or claim against the rents of the lands for that year, .and the court having correctly held all its claims against the decedent’s estate barred by the statute of nonclaim, except as to interest advanced and taxes paid, which had been returned to it, the bank had no interest in or claim to the rents for the year 1928, and no error was committed against the bank in the decree for recovery and distribution of said rent.

The appellant applied for permission to intervene in the equity suit and asked for affirmative relief and the appellees also prayed for equitable relie1!, cancellation of the mortgage, etc., and no objection was made to the jurisdiction of the court before the appeal wa.s prosecuted. The court therefore had jurisdiction, and it is too late now for the appellant to complain here that the court was without jurisdiction, even if there were grounds for such objection.

We find no error in the record, and the decree must be affirmed. It is so ordered.


author: Iyirby, J.,

text:
    McGehee v. State.
    Opinion delivered November 3, 1930.

      G. L. Grant, for appellant.

      A. B. Gy pert, Prosecuting Attorney, Fred! A. Isgrig, George B. Pugh, J. H. Carmichael, Charles B. Thweatt and A. F. House? for appellee.
   Iyirby, J.,

(after stating the facts). It is insisted that the circuit court was without jurisdiction to hear the cause and that the testimony is not sufficient to support the verdict. It is true that the Supreme 'Court only can license attorneys to practice law in the courts of the State of Arkansas under the statutes now existing, § 598, C. & M. Digest, and amendatory act 32 of 1929. The court held in Wernimont v. State ex rel Bar Association, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156, that the power to disbar an attorney is inherent in all courts having authority to admit attorneys to the practice of law. The statute, however, now authorizes the circuit court to hear and determine disbarment proceedings and provides for a trial by jury. Sections 610-2-6, C. & M. Digest; State ex rel. v. Huddleston, 173 Ark. 686, 293 S. W. 353 ; Maloney v. State, ante p. 510.

The court also held that defendant in a disbarment' proceeding was entitled to a trial by jury, that such proceedings were informal, and could be conducted in the name of the State by the prosecuting attorney or by any member of the bar required by the court to present the charges, which were to be heard according to the rules of practice adopted by the court, and not contrary to the procedure adopted by statute. It was als-o said that such power1 should be exercised with caution and only for reasons which would render the continuance cuf the attorney in practice “inimical to the just and proper administration of justice or subversive of the integrity and honor of the profession,” and “if an attorney is 'guilty of unprofessional conduct, he i-s subject to suspension or disbarment by the court according to- the degree of the moral turpitude evinced by such unprofessional conduct.”

The statute, § 621, C. & M. Digest, also provides: “That in all cases of conviction, the court shall pronounce judgment of removal or suspension according to the facts found.” In State ex rel. v. Huddleston, supra, the court held that the statute vests the trial court with discretion, either to remove or suspend the attorney, which discretion should not be disturbed on appeal, save for its abuse.

The majority olf the court is of th© opinion that the court 'abused its discretion in pronouncing the judgment of removal — permanent disbarment — of appellant, from the practice of law under the facts of this record. The attorney had but recently been admitted to the practice, was grateful to his brother attorney, in whose office he read law and under whose instruction he was able to pass the bar examination, and in Whose ability he had great confidence, had brought such clients to him for redress of their wrongs as hei came in contact with or applied to him for advice and professional services. The suits were instituted by the experienced attorney, the fees were paid to him and he made division thereof, and also conferred with the witnesses about the pro olf that was necessary and could be produced on the hearing of the cases. There was no testimony tending to show that the appellant was appointed attorney for the nonresident defendant in this case at his own instance, and the positive statement of the witness, whose testimony is relied upon for the conviction, is that he refused to agree to testify that the plaintiff in the divorce suit was a resident of Pulaski County, and that he did not testify to' any such fact, the court not inquiring of him on that point, and would not have done so had such inquiry been made. The affidavit of this witness, procured after the charges had been preferred and the refusal of the court to grant a continuance to appellant, that he might have opportunity to prepare for the trial, in which he had no notice until after the charges were filed, has little weight and is entitled to no consideration at all, having occurred long before the alleged unprofessional conduct and was admissible only to go to the credibility of the testimony of appellant, who denied having made any suggestive statements or suggested to the witness that his testimony should reflect anything but truth in the trial of the divorce case.

The majority is of opinion, therefore, that the court erred in rendering the judgment of disbarment, and should not have rendered judgment of more than a temporary suspension from the practice beyond one year in extent, and on this account the judgment is modified to show such suspension and as modified will ibe affirmed. It is so ordered.

Smith and Humphreys, JJ., dissent from the modification.


author: Mehaeey, J.

text:
    Norton v. Maryland Casualty Company.
    Opinion delivered November 3, 1930.

      R. W. Wilson, for appellant.

      Ashley Cockrill, for appellee.
   Mehaeey, J.

This is an appeal from a decree of the Desha Chancery Court in favor of the appellee. In August, 1926, J. T. Carr entered into a contract with the State Highway Commission to- construct a road in Desha County 21.18 miles in length. The contractor executed a bond with the Maryland Casualty Company as surety for the faithful performance of the contract and the payment of all bills for labor and material entering into the construction of said road or used in the course of the performalice of the work. The contractor did not get estimates as he claimed he should have gotten, and he was unable to pay bills for labor and material. He requested appellant to assist him, and on March 1, 1927, appellant let the contractor have $1,000 to meet his payroll on the road that he was building. On June 11, 1927, appellant indorsed note .of Frank Carr, son of the contractor, for $500, which he afterwards had to pay. This money was also borrowed to meet payrolls. On July 14, 1927, appellant let contractor have $3,000 to meet payrolls. On the same day, July 14, Carr gave appellant a note for $4,000 for the $1,000 advanced on March 1, and the $3,000 which appellant had let him have on July 14, but did not include the $500 above mentioned. There was written in the corner of the note: “This note is given as advanced money for road work.” Carr told them to pay it out for actual labor and material, and appellant testified that he was to take the place of the laborer on the payroll when they got the estimate. Carr was unable to complete the job, and on December 12, 1927, he made an assignment to the Maryland Casualty Company. The following is the assignment:

“assignment
“I, J. T. Carr, hereby assign to Charles F. Guild, representing the Maryland Casualty Company, all estimates, funds and moneys now due or hereafter becoming due. under contract for the construction of a gravel road from McGehee to Watson in Desha County, Arkansas, known as ‘Federal Aid Project No. 189-A,’ and authorize the State Highway Commission of the State of Arkansas to make out and deliver all future estimates and to pay all such sums due thereon under said contract to said Charles F. Guild. Dated this 12th day of December, 1927.”

This assignment was signed by J. T. Carr and witnessed by J. T. Harris. After this assignment the Maryland Casualty Company took over the contract and work and completed the construction of the road. Some time in the latter part of 1927, after consulting his attorney, appellant went to McGehee and had a conversation with J. T. C'arr and Charles F. Guild, the representative of the Maryland Casualty Company. Appellant went to Mc-Gehee to institute suit for his money if he-could not get some kind of promise. He was, according to his testimony, assured hy Carr and Guild that the job was in good shape, and they would pay all the indebtedness due the different ones. Carr is indebted to appellant in the sum of $4,400. The court entered judgment against J. T. Carr but held that the Maryland Casualty Company was not liable, and dismissed the complaint against it.

It is first contended by appellant that the surety company is liable under the assignment from Carr. We find nothing in the assignment to .justify this claim, and appellant has called our attention to. nothing upon which to base this claim.

Appellant next urges that the Maryland Casualty Company is liable under express agreement to pay appellant’s claim. The evidence on this question is in conflict, but, if appellant’s evidence was -not contradicted, it is not sufficient to sustain his contention. There is no evidence that appellant promised appellee that he would not bring suit if appellee would promise to paj". The evidence of appellant only tends to show that the job was in good shape and that he would get his money. Doubtless both C'arr and Guild thought that was true at that time. Nothing was done to induce appellant to postpone bringing suit. If appellee was liable, a promise would add nothing to the obligation or liability. If it was not liable, there was no consideration for the promise and therefore no liability growing out of the promise. Goode v. Ætna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6.

It is also claimed by appellant that the surety company is estopped by the representation of Guild. We do not find anything upon which to base estoppel. It is true that one by his conduct or statements may be estopped from asserting rights which might otherwise have existed; but, before he will be estopped, it must be shown that another has in good faith relied on such conduct or statements and has been thereby led to change his position for the worse. This court has many times held that contracts and bonds of this character should be construed most strongly against the surety company. That, however, does not mean that the bond or contract shall be construed so as to impose burdens not within terms of the bond. The main question to be determined is whether appellant, by advancing' money to the contractor in the manner he did, thereby become entitled to a lien or claim against the surety company. Of course, no one would claim that the surety company became liable for all of the contractor’s personal debts, but it is claimed that, because appellant advanced or loaned money to the contractor to meet the payroll of laborers and the money was used to pay for labor and material, the appellant thereby ¡became a subcontractor and is entitled to enforce his claim against the surety company. We do not agree with appellant in this contention. It makes no difference what the purpose was in lending’ the money, it was a loan from appellant to the contractor. The contractor used the money or most of it to pay for labor and material, but this did not make appellant a subcontractor, and he did not furnish either labor or material. The surety company was compelled to pay materialmen and laborers, and, as shown by the evidence, lost a large sum of money. It was not a volunteer but under its bond it became obligated to pay all bills for material and labor used in the work. ‘ ‘ That the equity of a surety on a bond given by the contractor, who by reason of the contractor’s default has been obliged to pay materialmen and laborers, is superior to that of a bank loaning money to the contractor, secured by assignments of amounts to become due, has been recognized by this court in Fidelity & Deposit Co. v. Merchtmts’ & Farmers’ Bank, 120 Ark. 519, 179 S. W. 1019. In that case the court quoted with approval from the case of Prairie State National Bank v. United States, 164 U. S. 227, 17 S. Ct. 142, the following: ‘That a stipulation in a building contract for the retention, until the completion of the work, of a certain portion of the consideration is as much for the indemnity of him who may be guarantor for the performance of the work as for him for whom the work is to be performed; that it raises an equity in the surety in the fund to be created; and that a disregard of such stipulation by the voluntary act of the creditor operates to release the sureties, is amply sustained by authority.’ American Bank & Trust Co. v. Langston, 180 Ark. 643, 22 S. W. (2d) 381 ; Southern Surety Co. v. J. R. Holden Land & Lbr. Co., 14 Fed. (2d) 411 ; People’s National Bank v. Southern Surety Co., 288 Pac. 827 ; First National Bank v. Omil, 176 Minn. 258, 223 N. W. 298.”

Many cases might be cited, but the question is settled by the decision of this court in cases above cited. It becomes unnecessary to decide other questions discussed by counsel.

The decree is affirmed.


author: MoHaney, J.

text:
    Ellis & Lewis v. Warner.
    Opinion, delivered November 3, 1930.

      Chas A. Walls, for appellant.

      Trimble, Trimble & McCrary and Reed & Beard, for appellee.
   MoHaney, J.

This is the second appeal of this case. See Ellis & Lewis v. Warner, 180 Ark. 53, 20 S. W. (2d) (320, where the facts, which are substantially the same on this appeal, and the conclusions of law reached therein, are fully stated. We deem it unnecessary to repeat the facts here. On the former appeal the case was reversed and remanded for a new trial. Another trial resulted in a verdict and judgment for appellee. For a reversal of the case on this appeal it is first urged that the court committed reversible error in permitting counsel for appellee to inform and advise the jury that appellants carried liability insurance while it was being selected to tryUhe case. The question arises in this manner: When the case was called for trial, 'both sides announced ready. Counsel for appellee stated to the court in the absence of the jury that they had information that appellants carried liability insurance, and they desired to ask counsel for appellants whether he represented them, or the insurance company, or both. Whereupon counsel stated that he represented both Ellis and Lewis and the United States Fidelity & Guaranty Company, with whom appellants carried liability insurance. Counsel for appellee' then stated that they desired permission to ask some of the jurors some questions touching their connection, if any, with the United States Fidelity & Guaranty Company. The court permitted such questions to be asked over the objections and exceptions of appellants. When the regular panel of the jury was called the court permitted one of the jurors, Mr. John C. Bradford, to be asked, over appellants’ objections and exceptions, these questions: “Do you represent or are you connected with the United States Fidelity & Guaranty Company?” “Do you write any insurance for that company?” “Do you or your people write any insurance for them?” All of these questions were answered in the negative. The court permitted these questions to be asked under the authority of Cooper v. Kelly, 131 Ark. 6, 198 S. W. 94, and Williams-Echols Dry Goods Co. v. Wallace, 142 Ark 363, 219 S. W. 732. Counsel for the appellants insist that the two cases above mentioned are distinguishable from, the case at bar, and that it is controlled by the case of Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250. In Cooper v. Kelly, supra, the court reviewed its former decisions in Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S. W. 83, and Williams v. Cantwell, supra, and distinguished them from the case then under consideration. The court said: “In those cases it was manifest that the conduct of the attorney representing the successful party and the rulings of the court were well calculated to impress on the minds of the jury that the attorney ostensibly appearing for the defendants in the respective cases was not really their attorney, but was an attorney for an indemnity insurance company that had insured the defendants against any loss that they might sustain on account of such accidents as were therein complained of, and that the defense was really being made for the benefit of such indemnity company or companies. In tooth of those cases it is expressly recognized that it is within the province of an attorney representing a plaintiff to question veniremen concerning their relation to any casualty company whom the attorney might know or might honestly believe to have insured the defendant against loss for the injury which the plaintiff had sustained at the hands of the defendant.” The court further held in that case that trial courts have a wide discretion in permitting questions to be asked jurors touching their competency, and that this court will not reverse on such grounds unless there is an abuse of discretion. In that case counsel for appellee asked one juror on his voir dire whether or not he represented any accident or casualty insurance company, another whether he was under any obligation or was the agent of such company, and others were asked, “Do you know of any accident company or of any agent of such company that has any influence or control over you in the city of Hot Springs?” ' All of which questions were answered in the negative. Many other questions were asked concerning insurance companies, all of which were answered in the negative, hut this court held that the court did not abuse its discretion in permitting same to be asked over objections of appellant. In the Williams-Echols Dry Goods Co. case, supra, the court again followed Cooper v. Kelly and held that where counsel had reason to believe 'that an insurance company was interested in the result of the action, it was not improper to permit counsel to ask prospective jurors concerning their connection with liability insurance companies. In this case only one juror was questioned as above indicated, and there was nothing in the record to disclose that counsel for appellee was not acting in good faith in asking the questions to determine whether the juror had any bias or prejudice for or against either party. We think this case falls clearly within the rule announced in the cases above cited, and that no error was committed in this regard.

It is next insisted that the court permitted an issue to be tried which was not joined by the pleadings, to-wit: Whether appellants were negligent in employing Cooper to operate the truck in hauling gravel. The complaint is the same in this case as it was in the former trial, no additional pleadings being made by either side. Appellee alleged that Jack Cooper, the driver of the truck that injured him, was an employee of the appellants, and negligently ran his truck against him, causing the injuries complained of. Appellants defended then and now on the ground that Cooper was an independent contractor, was not their employee, for whose acts and negligence they were in no way responsible. In the former case appellants asked the trial court to declare as a matter of law that Cooper was an independent contractor and to instruct a verdict in their favor, which the court refused to do. It then asked the court to submit the question as to whether Cooper was an independent contractor to the jury, which the court refused to do. We held on the former appeal that the court did not err'in refusing to declare as a ¡matter of law that Cooper was an independent contractor, bnt that it was a question for the jury, and that the court did err in not submitting it to the jury. We there said: “Even though the jury should find that this relationship- did exist, still appellant might be held liable, if the jury should further find that appellants were negligent in employing Cooper as an independent contractor to do this work. He was only seventeen years old, was driving rapidly in loose rock over an important highway, which appellants knew — one much used by the public, and which the public had the right to use. The jury would or should take into consideration all the facts and circumstances in the case in determining this question.” On the retrial of the case, from which this appeal comes, the court submitted this question to the jury under instructions 1, 2, 3 and 4. We do not think a new question has been injected into the case which is not covered by the pleadings. As above stated, appellee sued on the theory that -Cooper was an employee, and the defense was interposed that he was an independent -contractor. In our former opinion we quoted from 3 Elliott on Railroads, 3d Ed., § 1407, p. 70, stating’ the general rule to' be that: “When an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable,” etc., so in submitting the case to the jury it was proper for the court in announcing the rule relative to independent contractors to submit the question as to whether the employer was negligent in selecting the contractor. This might be done in one instruction or in separate instructions. In this case the court submitted the question on instructions separate from the definition of an independent contractor. We think no error was committed in this regard. It is further said that the instructions on the subject given by the court are conflicting and contradictory. We have examined them carefully and do not think the jury could have been misled. The instructions announced correct principles of law in accordance with onr former holding in this case.

It is next said that the court should have told the jury as a matter of law that Cooper was an independent contractor for whose acts appellants were in no way responsible, and that appellee was guilty of contributory negligence. Both of these questions were considered on the former appeal and decided adversely to appellants’ contentions, and since the evidence in the case on this trial is substantially the same as in the former, the decision of the court on the former appeal becomes the law of the case, and appellants’ contentions ■ in this regard must be overruled.

We find no error, and the judgment is affirmed. ■


author: McHaney, J.

text:
    Pate v. Peace.
    Opinion delivered November 3, 1930.

      Saxon & Warren, for appellant.

      D. W. Harrell and Gaughan,, Sifford, Godwin & Gaughmi, for appellee.
   McHaney, J.

Appellees brought this action against appellant to recover the value of the pine timber cut and removed from 120 acres .of land in 9-14-17, Ouachita County. The facts are as follows: The owners -of the land from which the timber in controversy was cut executed and delivered a mortgage thereon to one Milner in February, 1926, to secure an indebtedness of $1,750, which mortgage was promptly recorded. Thereafter the-note and mortgage were assigned to Phillips Petroleum Company, who in October, 1927, the note not having been paid in full, brought suit to foreclose. The petroleum company, while the suit was pending, sold and assigned the note and mortgage to one F. F. Neeley, who was substituted as party plaintiff in the foreclosure suit. While this suit was pending, and with the knowledge and consent of Neeley, who agreed to release same from the mortgage, all the pine timber on the land was sold by the mortgagors to appellee and a deed executed therefor dated December 10, 1927, and recorded January 3, 1928. The consideration for the timber deed was seven hundred dollars ($700), which was paid by appellee to Mr. Neeley, and this amount was credited upon the indebtedness covered by the mortgage, reducing it to seven hundred and two dollars and fifty cents ($702.50). Later a decree of foreclosure was taken under the mortgage, the land sold, and one Walter F. Tate became the purchaser for the balance due on the note, receiving a certificate of purchase therefor dated October 16, 1928, which he assigned to appellant. On the same day the report of the sale was approved and commissioner’s deed executed to appellant, who thereafter went upon the land and cut and removed the pine timber therefrom to the value, as found by the jury, of nine hundred dollars ($900), on an instructed verdict of the court to find for appellee the value of the timber. The facts further show that counsel for appellant, in examining the records before appellant acquired the certificate of purchase from Tate, found the record of the timber deed to appellees and was advised that the timber had been sold.

Appellant challenges the correctness of the holding in this case on the ground that, since the mortgage under which he purchased at the foreclosure sale, or at which his assignor purchased, was of record prior to the record of the timber deed, he had a right to rely upon the record which did not show the release of the timber from the mortgage. We think the appellant is wrong in his contention on several grounds, but it is necessary to mention only one of them. The sale at which he or his assignor purchased was a judicial sale, and the rule of caveat emptor applies. Guynn v. McCauley, 32 Ark. 97 ; Blade v. Walton, 32 Ark. 321 ; New England Securities Co. v. West Helena Consolidated Co., 177 Ark. 849, 8 S. W. (2d) 440 ; Robb v. Hoffman, 178 Ark. 1172, 14 S. W. (2d) 222. In 16 R. C. L., page 138, it is said: “A judicial sale carries only the interest, estate, and rights in the premises that the parties to the proceedings had and could have asserted, no more and no less. The purchaser succeeds to their rights and attitude in respect of the property sold, ‘takes their shoes,’ stands in their places, acquires their interest as it existed in their hands, subject to all infirmities of title then attaching to the estate, and to all equities, known or secret, which operated as a limitation upon the nominal or apparent estate which they had * * #. A bona fide purchaser at a judicial sale is affected, to the same extent as the person whose title he buys, by an estoppel in pais which prevented the latter from asserting title.” Appellant therefore acquired no better title by reason of the judicial sale than the parties to the action had. It is undisputed that the mortgagors, defendants in the action, sold the timber to appellees with the knowledge and consent of Neeley, the plaintiff in the action, who received the proceeds of the sale and applied it on the deed. Neeley could not therefore have asserted a superior title to appellees under his mortgage, nor could he have done so had he been the purchaser at the judicial sale. Appellant is in no better position, for he acquired only such title as the parties had by reason of the sale, and the commissioner’s deed to him purports to convey only “all the right, title, interest or claim, either in law or equity, of the parties to- said suit in chancery in or to the ¡said parcel .of land hereinbefore described, and all and singular the rights and privileges, hereditaments and appurtenances thereunto belonging, or in any wise appertaining.”

We are therefore of the opinion that the court correctly instructed the jury to return a verdict for appellees for the value of the timber cut- and removed from the land by appellant.

Affirmed.


author: Butler, J.

text:
    Chaffin v. Crow.
    Opinion delivered November 3, 1930.

      J. M. Shinn, for appellant.

      M. A. Hathcoat and S. W. Woods, for appellee.
   Butler, J.

On the 29th day of December, 1928, Claude Crow and his entire family, consisting .of his wife and five children, were injured in an accident. Crow, his wife, and four children were killed outright, and the oldest daughter, Irene Crow, a child under the age of fourteen, lived until some time the next day. At the time of his death Crow was the owner jby warranty deed of certain lands in Boone and Newton counties. He died intestate, and this suit was brought by Bunk Chaffin, appellant, the father of Mrs. Claude Crow, and the maternal grandfather of Irene Crow, seeking to he declared the owner of one-half interest in the lands of which Clande Crow died seized and possessed, and asking for a partition.

The suit was prosecuted by the appellant on the theory that he inherited a one-half interest in the lands owned by Claude Chow by virtue of the statute of descents and distributions, and upon the further theory that, although the legal title to the lands was in Claude Crow, his wife Mrs. Claude Crow was an equitable owner of an interest therein, and that a trust should be declared inuring to the benefit of the appellant. The evidence adduced by the appellant tended to show that he had at one time given his daughter, Mrs. Claude Crow, the sum of $750 and that she did a part of the work on the farm of her husband, that she also attended to a considerable part of the business, keeping* the books and issuing checks, and was consulted and considered in all business transactions. In addition to this, she did her housework and raised a number of chickens each year.

It is settled by the decisions of this court that as a general thing a trust results by operation of law in real estate to -the one paying the purchase money where deed is taken by another, but it is essential that such purchase money must be paid at the same time'or previous to the purchase, so as to be a part of that transaction, and while parol evidence is admissible to establish such trust that evidence must be clear and satisfactory. Sayle v. McLean, 29 Ark. 612 ; Dillard v. Battle, 166 Ark. 241, 266 S. W. 80 ; Marable v. Hamilton, 169 Ark. 1079, 277 S. W. 876.

The evidence in this case fails to meet the requirement of the rule above stated, for it was nowhere shown that Mrs. Claude Crow ever used any of the money given by her father toward the payment of the purchase price of the lands herein involved, or that any of 'her earnings were used for such purpose. *

Irene Crow, having survived her father and being his sole living heir, became seized and possessed of the lands of her father by inheritance, and, she dying without descendants, the descent of the lands is controlled by § 3480 of the Digest, which is as follows: “In cases where the intestate shall die without descendants, if the estate conle by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; * * This statute was first considered and construed in the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, and the conclusions there reached have been followed by this court in a number of decisions down to and including the case of Eason v. Highley, 181 Ark. 933, 28 S. W. (2d) 1048. In the case of Kelly’s Heirs v. McGuire, supra, the court had under consideration each of the provisions of the statute of descent and distribution, and, after a careful analysis, said: “After carefully considering each of the provisions of the statute, and all together as a whole, we have come to the following, conclusions: * * * ”

“3rd. that, as to real estate, it was the design of the Legislature, where there were no descendants, to point out the lines of the succession, and that this is to depend on the fact, whether the inheritance is ancestral or new; and, if ancestral, then whether it come from the paternal or maternal line.
“4th. If the inheritance was ancestral, and come from the father’s side, then it will go to the line on the part of the father, from whence it came, notin postponement, hut in exclusion, of the mother’s line; and so, on the other hand, if it come from the mother’s side, then to the line on the part of the mother, from whence it came, to the exclusion of the father’s line.” '

As the conveyances were made to Claude Crow, the title devolved to Irene Crow, his daughter, by inheritance, and as it came from the father it will go to the line on the part of the father to the exclusion of the maternal kin. The decree of the trial court in dismissing the hill of the appellant for want of equity and finding for the interpleaders, the paternal grandparents, uncles and aunts of Irene Crow, appellees, must be sustained.

The decree is therefore affirmed.


author: Hart, C. J.,

text:
    Hoyer v. Edwards.
    Opinion delivered November 10, 1930.

      Jeff Bratton, for appellant.

      Won. F. Kirsch, for appellee.
   Hart, C. J.,

(after, stating the facts). According to the allegations of the complaint and from the findings made by the chancellor, this is a suit to reform the description of land in a deed. The question raised by the appeal is one of fact because the law relating to the reformation of written instruments by parol evidence has been well settled by the repeated decisions of this court. There is no doubt that a court of equity may reform a deed or other written instrument where, on account of mutual mistake, such instrument does not reflect the intention of the parties thereto, and the mistake may be proved by parol evidence only. To justify reformation, however, against the will of one of the parties thereto, the evidence of the mistake must be established by clear, convincing, and decisive evidence. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52 ; and Sewell v. Umsted, 169 Ark. 1102, 278 S. W. 36. So, too, parol evidence is admissible in an action to reform a written instrument on the grounds of fraud and mistake, but the evidence to warrant a reformation must be clear and convincing. Welch v. Welch, 132 Ark. 227, 200 S. W. 139. This rule of law is so well established in this State that a further citation of authorities is useless. The only difficulty lies in applying the rule to each particular state of facts. The law does not permit the title to real property to rest in parol, and does not allow the plain language of a deed to be changed on jjarol testimony of promises and agreements had prior to the execution of the instrument. The reason is that deeds are supposed to be the best possible protection to owners of land, and it is the policy of the law to make them so. While they may be reformed by parol evidence alone, such evidence must be clear and convincing; otherwise the title to land would rest in complete confusion and doubt.

Here there is irreconcilable conflict in the testimony of the parties to the transaction. It is true that the plaintiff introduced the testimony of several witnesses to the effect that the defendants had subsequently acknowledged that the fence which had been erected was the boundary-line between them. While this evidence is competent, it is not very trustworthy. The language of the deed is plain and unequivocal, and should not be set aside by declarations or conversations made and had after its execution which may have been incorrectly understood or which have been consciously or unconsciously changed by the witnesses or imperfectly heard at the time. The record does not show precisely when the pleadings were filed in this case, but it does show that the taking of depositions was commenced on the 26th day of January, 1929. The deed to the land was executed on the first day of July, 1921. The fence between the two tracts was erected in 1924. Thus it can not be said in any sense that the plaintiff has acquired a title to the twenty-acre strip of land by adverse possession, and we do not think that her testimony and that of the other witnesses in her behalf establishes her right to a reformation of the deed by that clear, convincing, and decisive evidence which the law demands.

Nor do the facts in this case call for an application of the rule with regard to agreed boundaries. This court has held that where adjacent owners are in dispute as to their dividing line, their oral agreement as to the boundaries establishing the line, when followed by possession with reference thereto, is valid and binding on the parties. Agreements in such cases do not operate as a conveyance so as to pass title from one to another, but they proceed upon the theory that the true boundary line, is in dispute, and that the agreement serves to fix the true line to which the title of each extends. The parties thereafter hold to the line as if by virtue of their respective deeds. The theory is that the parties have simply, by agreement, settled their boundary line which was in doubt, instead of having the court settle it for them. Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348 ; and Glasscock v. Mallory, 139 Ark. 83, 213 S. W. 8.

According to the testimony of Mrs. Edwards, when she purchased the land and received her deed in July, 1921, Hoyer told her that the boundary between them would be a line running- north from the corner between the Allison and the Asbury land which was situated south of the tract in question. On the other hand, Hoyer denied that he made any such representation to Mrs. Edwards as to the boundary line. They both agreed that Hoyer intended to convey to her one-half of a tract of land containing in the aggregate 187.62 acres; that she was to receive the western half of the tract, and that Hoyer was to retain the eastern half thereof. Evidence was introduced by each of the parties to corroborate their testimony in this respect.

There is no need in this connection to determine where the preponderance of the evidence on this point lies, because, even if Hoyer had pointed out the boundary line at the time the deed was executed, this would not be an agreement settling the boundary line. It would simply amount to a misrepresentation which might entitle Mrs. Edwards to rescind the contract. 'She does not ask for a rescission of the contract, but only for a reformation thereof. The fact that she asked for a reformation of the contract so as to include the disputed strip of land recognizes that she does not think that the disputed strip is within the calls of her deed. She states that she went into the possession of the land in 1921, and that sometime in 1924 a fence was built between them which was to be the boundary line. Hoyer denied this in positive terms. He testified that he did not know where the fence was built, and only agreed that a fence might be erected between them. The testimony of Hoyer’s tenant shows that he made the agreement with Mrs. Edwards to erect the fence for the purpose of protecting their crops and that Hoyer had nothing to do with the erection of it.

The burden of showing that there had been an agreement between the parties to establish the boundary line rested on Mrs. Edwards, and we are of the opinion that she failed to meet the burden in this regard. Hoyer admitted that he blazed a line for timber cutters to follow, but said it was done as a matter of precaution so that the timber cutters would not trespass on the land of Mrs. Edwards, and that it was not made with a view to establishing a boundary line between them. Mrs. Edwards was not present and had nothing to do with establishing this line. This question is not raised in the original briefs of the parties; but, inasmuch as the case is in equity and equity cases are tried de novo upon appeal, the question raises itself. After a careful consideration of the testimony, we are of the opinion that Mrs. Edwards failed to establish by a preponderance of the evidence that there had been an agreement between her and Hoyer as to the boundary line between them. Each of them testified that she was only to get one-half of the tract which would amount to 93.81 acres. After the dispute as to the boundary line on the east end of the tract conveyed to Mrs. Edwards, she went upon a tract of land on the west side and cut timber which would not be included within the 93.81 acres if the boundary line on the east claimed by her is to be considered the true boundary line. This tends to show that she intended to claim 93.81 acres of land irrespective of the disputed strip. In any event we do not think she has shown by a preponderance of the evidence that there was an agreement between her and Hoyer for the establishment of a boundary line between the two 93.81-acre tracts in question.

¥e now come to a consideration of the damages claimed by Hoyer in his cross-complaint. He asks for rents on the disputed strip- for the past three years and for the value of the timber out therefrom by Mrs. Edwards.' In a case note to 33 A. L. R. at 1039, it is said that the right of a vendee to base an affirmative or defensive claim upon the ground of the vendor having fraudulently misrepresented or concealed the position of boundary lines, has been affirmed in numerous cases. In Haynes v. Harper, 25 Ark. 541, the boundaries were misrepresented in such a manner as to lead the vendee to suppose that all the tract sold was of good quality, whereas it really embraced a parcel of poor, wet land. In Cooper v. Merritt, 30 Ark. 686, the vendor pointed out to the vendees, boundary lines which, if they had been as represented, would have included much more cleared land than that actually contained in the parcel sold.

The cross-complaint of Hoyer was tantamount to an action by him under the contract, and Mrs. Edwards, his vendee, had a right to defend the cross-complaint on the ground that she had been induced to enter into it by the vendor’s fraud. Therefore, after a careful consideration. of the evidence on this point, we are of the opinion that Hoyer was not entitled to recover anything from Mrs. Edwards on his cross-complaint, either by way of rents or by way of damages for cutting and removing the timber from the disputed strip of land.

It is true, as pointed out above, that Mrs. Edwards has not asked for a rescission of the contract on the ground of fraud in the pointing- out of the boundaries to her when the sale of the land was made. 'She may have elected to keep the land notwithstanding the fraud, but this did not prevent her from setting up the fraudulent misrepresentations in pointing out the boundary line to her as a defense to the cross-complaint of Hoyer for damages for cutting and removing the timber on the disputed strip of land and for rents which had accrued for the past three years just prior to the suit.

The result of our views is that the decree will be reversed, and the cause will be remanded to the chancery court with directions to dismiss the complaint of Mrs. Edwards for a. reformation of the contract for want of equity and also to dismiss the cross-complaint of Hoyer for want of equity, in so far as his right to recover damages for cutting and removing the timber and for rents is concerned. It is further ordered that a decree shall be rendered in favor of Hoyer for the recovery of the possession of the disputed strip of land.


text:
    Cain v. McGregor.
    Opinion delivered November 10, 1930.

      ■Boy D. Campbell, for appellant.

      Reece Jones, Ross Mathis and W. J. Dtmgcm, for appellee.
   Hart, C. J.,

(after stating the facts). The complaint was filed on the 21st day of August, 1930, and the answer to1 it was filed on August 30, 1930. Thus it will be seen that the complaint and answer were filed within the time prescribed by § 3772 of the Digest.

On the 16th day of September, 1930, the contestee was allowed to file an amendment to his answer to the effect that the list of poll taxpayers duty authenticated by the affidavit of the collector in person, as required by § 3740 of the Digest, was not filed with the county clerk as required to the end that it should be recorded by the clerk and a certified copy thereof delivered by Tirm to the election commissioners.

Recognizing the importance to the public as well as to the parties of an early decision in primary election contests, the Legislature assumed that ten days would be sufficient time for one proceeding with due diligence in a contest of this kind to learn of the grounds upon which he proposed to contest the election and to file his complaint in the case. Crawford & Moses’ Digest, § 3772. The language of the statute in this respect is mandatory, and a compliance with its provisions is a pre-requisite to the exercise of the jurisdiction of the court. Introducing new grounds of contest would surprise the contestee, and require the postponement of the trial to enable him to meet such grounds. Hence we have held that amendments setting up new grounds of contest after the statutory period should not be allowed. Bland v. Benton, 171 Ark. 805, 286 S. W. 976 ; and Gower v. Johnson, 173 Ark. 120, 292 S. W. 382.

The same reason does not apply to the time a contestee was required to answer. He is not contesting the election. .The statute properly fixes a time for him to file his answer in order to expedite the trial o!f the contest, and the court may permit him to answer the complaint at any time in the discretion of the court before the trial commences. Where the contestee alleges new matter therein for his defense, an amendment to his answer is the proper pleading in which to do so, and the court may allow this to be done, at any time which, does not delay the trial of the contest. Irby v. Day, ante, p. 595. Besides, where the contestant fails to show any legal grounds of contest by reason of failure of proof or for any other reason, defense thereto can be made by motion to dismiss or by objection to the evidence offered as not being competent.

It is next insisted that the court erred in holding that there had not been a substantial compliance with § 3710 of the Digest. The record shows that the collector of taxes did not authenticate the list of poll taxpayers filed with the county clerk by his affidavit. The collector did not even file the lists with the clerk. The clerk procured the lists from the deputy collectors and filed them in his office with his certificate that the lists were true and complete copies of the original lists of poll taxpayers filed in his office by R. H. ¡Smith, collector, and that said lists contain the names of all electors who have paid their poll taxes for the year 1929. This was not a substantial compliance with the statute.

In McLain v. Fish, 159 Ark. 199, 251 S. W. 686, it was held that in al contest of a certificate of a primary nomination, voters whose names do not appear in the published list of qualified voters were properly excluded where the evidence of their qualification was not returned by the election officers as required by § 3777 of the Digest. The basis of the holding was that it was a reasonable and practical way in which to inquire into the matter in a contested election proceeding. The court said that, if the election was over, and a contest had arisen, it might be difficult to produce proof, pro and con, as to the qualifications of a voter, but iif that evidence Was produced at the time of the election and preserved, all uncertainty on the subject was eliminated.

Again, in Storey v. Looney, 165 Ark. 455, 265 S. W. 51, the court said that the provision of the statute was mandatory, and in a contest of an election where a list was published as. required by statute, the qualification of voters not on the' list must be proved in accordance with the statute or be excluded. By parity of reasoning, the qualification of voters on the list must be proved by it as required by the statute.

Such was the holding of the court in Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314. In that case the court held that in an election contest by one claiming to be the rightful nominee, basing’ his claim almost entirely on the printed list of legal voters furnished to the election judges, his complaint was properly dismissed where the printed list was invalid for want of substantial compliance with Crawford & Moses’ Digest, § 3740. In that case, the clerk took the tax books and himself made a list of the poll taxpayers which he delivered to a printer to be printed, and it was held that this was not a substantial compliance with the act.

That case governs here. The collector did not furnish the list to the county clerk and did not authenticate the same by his affidavit as required by statute. The county clerk obtained the list from the deputy collectors, and the list was not verified by the collector. One object of the act was to provide for the making of a full and complete list of all persons having the right to vote at an approaching election except only those who might become of age or be authorized to vote under other provisions of the statute. This would prevent interruption at the election by challenges or inquiries as to the right of voting. Then too, as decided in the case above mentioned, it would furnish a practical guide for the court in primary election contests.

The whole proceeding is statutory, and the statute must be substantially followed in all proceedings, even to the trial of the contest provided by the statute. There is a presumption that the election was conducted according to law, and that the candidate legally entitled thereto received a certificate of election, and the presumption cannot be overcome by mere charges of fraud or illegalities in the conduct of the election. If the' Legislature thinks that the collectors are not performing the duties required of them by statute in the premises in addition to the remedy by mandamus which now exists, it might by appropriate penalties amend the statute so as to punish the offender, even to the extent of removing him from office if he failed to comply with the statute.

It f ollows that the judgment of the circuit court was correct, and it will be affirmed.


author: Smith, J.

text:
    Darmer v. White.
    Opinion delivered November 10, 1930.

      Elmo Carl-Lee, for appellant.

      Roy D. Campbell, for appellee.
   Smith, J.

This appeal involves a contest for the nomination of the Democratic Party for the office of tax assessor in Woodruff County. On the face of the returns Prank Darmer received 630 votes and W. B. White a total of 617. Three other contestants for this office received a scattering vote, the total of all of these being less than the vote received by either Darmer or White.

White demanded a recount by the central committee, and in due time filed a contest containing numerous allegations of fraud. and illegal voting, to his prejudice. He also alleged that a correct count of the votes oast would show that he had received a' plurality off the votes.

A recount of the ballots cast was had, presumably under the order of the court in which the contest was pending, and as each precinct was counted a stipulation was entered into and signed by the parties showing the result of the recount. A tabulation of the figures disclosed by these stipulations shows that Darmer received 619 votes and White 624 votes, so that White, and not Darmer, bad received a plurality of tbe votes as shown by tbe ballots which bad been returned by the election officers as tbe ballots cast in tbe election.

Upon calling tbe case for trial Darmer filed a motion to- dismiss tbe complaint, for tbe reason that tbe collector of taxes did not at any time prepare and file with tbe county clerk a certified list of poll taxpayers as required by § 3740, CL & M. Digest. Counsel for White conceded tbe truth of tbe allegation of this motion, but stated that be was standing on tbe recount, and not on tbe certified list, and that be bad some testimony to offer. Whereupon tbe court ruled as follows: “I am going to- sustain tbe motion as to tbe list, -but I am going to refuse to dismiss tbe cause, because counsel announces that be has other proof which be wishes to offer, which be stands upon, other than tbe alleged certified list.”

Tbe court then permitted counsel for White to offer in evidence tbe stipulations, which, as has been stated, show that White bad received a plurality of tbe votes as shown by tbe -ballots which bad been duly returned by tbe election officers. Objection was made a-s each stipulation was read into tbe record, and exceptions were saved to tbe action of tbe court in admitting them in evidence. After this evidence bad been admitted, tbe court asked counsel for Darmer if be wished to offer any testimony, but none was offered, whereupon tbe court found that, prima facie, White was tbe nominee, and judgment was rendered to that effect.

It was held by a majority of tbe court in tbe case of Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314, (to quote a head-note), that: “In an election contest by one claiming to be tbe rightful nominee, basing bis claim almost entirely on tbe printed list of- voters furnished to tbe election judges, bis complaint was properly dismissed where the printed list was invalid Ifior want of substantial compliance with 'Crawford & Moses’ Digest, § 3740,” and that bolding was adhered to in tbe opinion banded down today in tbe case of Cain v. McGregor. But the ruling of the court below on this question conformed to the ruling in the case of Brown v. Nisler, supra.

It does not follow, however, and we have never held, that there can be no contest of an election where § 3740', C. & M. Digest was not complied with.

When this section has been complied with, and the collector has furnished a list of persons who have paid their poll tax, authenticated 'by the collector’s affidavit, and the county clerk has recorded this list, .and has furnished a certified copy thereof to the election commissioners, who have caused the list to be printed, and copies of the list so printed have been furnished to the judges of the election, a prima facie evidence of the right to vote has been supplied. But the failure of the collector to perform his duty in this behalf, or the omission to print the name of an elector who has paid his poll tax, does not exclude the elector from voting who is otherwise qualified to do- so. The case of Brown v. Nisler, supra, reviews the statute (§ 3777, C. & M. Digest) declaring what evidence may be offered of one’s right to vote, whether his name appears upon the printed list or not, or whether that list has been authenticated by the collector or not.

There was no showing whether the electors had complied with the provisions of ’§ 3777, -C. & M. Digest, upon the failure of the collector to comply with § 3740.

The effect of appellant Danmer’s contention is that he is the nominee, not because he received the plurality of the votes cast, but because all the votes were illegal. According to the undisputed testimony, Darmer did not receive the plurality df the votes as evidenced by the ballots returned by the election officers, and there was no testimony showing what number, if any, of the electors were not qualified to vote. The testimony showed only that neither party was entitled to rely on the printed list of the electors, for the reason that it had not been certified as required by § 3740, O. & M. Digest. But this fact did not invalidate the election nor prevent a contest of it. Enough testimony was offered to make a prima facie showing that White had received the plurality of the votes cast at the election, and no testimony was offered to the contrary, nor was any testimony offered that any of the electors had voted illegally.

The court therefore properly declared White the nominee, and the judgment to that effect must be affirmed, and it is so ordered.