text:
    McLain v. Fish.
    Opinion delivered May 28, 1923.
    1. Elections — primary nomination — contests.— Under Crawford & Moses’ Dig., § 3772, providing that a complaint in a pro- . eeeding to contest the certification of a primary nomination “shall be supported by the affidavits of at least ten reputable citizens and shall be filed within ten days after the certification complained of,” the affidavits are jurisdictional, and the complaint and affidavits must be filed within the time specified.
    2. Elections — primary nomination — contests..—Where plaintiff filed a contest of the certification of a primary nomination supported by affidavits as required by Crawford & Moses’ Dig:, § 3772, alleging irregularities in the conduct of the election, and defendant filed an answer containing countercharges of irregularities, defendant is not required to file supporting affidavits with his answer.
    3. Elections — primary elections — canvass of returns. — The requirements in Crawford & Moses’ Dig., § 3768, as to the time of completing the canvass of a primary election and the issuance of certificate of nomination concerning same are directory, and strict compliance therewith is not essential.
    4. Elections — primary elections — test of voters. — The duly constituted authorities of a political party, having a right to prescribe the tests for voters at a primary election, may provide that persons who voted against a nominee of such party at a general election- held within two years preceding or who espoused the cause of another than the party nominee, may be excluded from voting in such primary.
    5. Elections — primary elections — contest.—On a 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 qualifications were not returned by the election officers as required by Crawford & Moses’ Dig., § 3777.
    Appeal from Lincoln Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      W. F. Kirby and R. W. Wilson, for appellant.
    The court erred in not holding that that the Democratic Central Committee should have declared appellant the nominee of the party for sheriff, on the day it met to canvass the primary election returns, since, on the face of the regular returns, he was shown to have received a plurality of eight votes, and no formal request or demand for a recount had been made or contest filed. Sec. 3768, C. & M. Digest. The statute is mandatory, and, no contest being filed, the committee was required to certify the result, the nominees, not later than Monday following the primary. 50 Ark. 85. Court erred in not granting motion to strike out appellee’s cross-complaint, which was not supported by affidavit of the qualified electors. Sec. 3772, C. & M. Digest; 136 Ark. 220. Votes of the qualified electors at Grould should have been counted for appellant. Sec. 11, art. 3, Constitution of Arkansas; Govern v. Jackson, 32 Ark. 553; 101 Ark- 112. The court erred in deducting from appellant’s vote, and rejecting the ballots of 23 voters, who had regularly paid their poll-tax and were otherwise qualified, because their names did not appear on the voters ’ list, and of 7 electors who had come of age since the last assessing time. They were all qualified and none challenged. Jones v. Floyd, 129 Ark. 185. Primary elections having ¡been legalized, the qualification of electors is not different from those in regular elections, except as to party affiliation. If the court holds that appellant was entitled to the nomination, its judgment must provide for ouster of appellee. Secs. 3772, 3773 and 3776, Crawford & Moses’ Digest.

      Johnson & Smith and Danaher & Danaher, for ap-pellee.

      The statute prescribing the time for canvass of primary election returns is directory only. 20 C. J. 199, and cases cited. The law does not require the answer but only the complaint in contested elections to be supported by the affidavit of 10 electors. Sec. 3772. 136 Ark. 220, not applicable here. The ten electors at Gould were properly denied rig-ht to vote in primary, having-violated the party rules and voted for other than nominees at preceding election. 148 Ark. 83; 149 Ark. 343. The 30 votes were also properly rejected and deducted from appellant’s number. Sec. 3777, 3740, C. & M. Digest; 149 Ark. 343.
   McCulloch, C. J.

Appellant and appellee, together with one other person, were candidates for the Democratic nomination for sheriff of Lincoln County at the primary election held on August 8, 1922, and, on the face of the returns made by the judges of election, appellant received a plurality of eight votes, but the county central committee recounted some of the votes and in other respects inquired into the returns and found that ap-pellee had received a plurality of one vote, and certified the "latter’s nomination.

Appellant instituted this action in the circuit court of Lincoln County, and, on the hearing of the cause, judgment was rendered in appellee’s favor, reciting that he had received a plurality of thirty-two votes.

- Appellant alleged in his complaint, as grounds for contest, that the committee did not certify appellee’s nomination until after the expiration of the time provided by law for the certification of nominations, and also that in one of the townships ten qualified electors who offered to vote for appellant had been rejected. There is an allegation in the complaint with respect to fraudulent votes being cast by persons lacking qualifications as voters.

Appellee answered, denying the allegations of the complaint with respect to fraudulent votes, and also alleged that there were returned by the election judges votes cast for appellant by persons whose qualifications were not shown by the returns and whose names did not appear on the certified list of electors. The answer also contained a statement that the rejected voters set forth in appellant’s complaint were not qualified electors, in that they had, contrary to party rules, voted against the nominees at the previous election.

Appellant filed a motion to strike out the affirmative allegations of the answer with respect to charges of illegal voting, on the ground that these allegations constituted a cross-complaint, 'and that such an attack could not be filed except within ten days after the date of the certificate of nomination, and must be supported by the affidavits of ten qualified electors. The court overruled the motion, and appellant saved his exceptions.

The election under inquiry and the contest involved in this appeal was held under an initiated statute adopted by the people, and now found in Crawford & Moses’ Digest, § 3757 et seq. Section 3772 provides that the complaint in a contest “shall be supported by the affidavit of at least ten reputable citizens, and shall be filed within ten days of the certification complained of. ’ ’ We have decided that this statutory requirement is jurisdictional, and must be complied with in order to support the contest. Logan v. Russell, 136 Ark. 217.

The contention of counsel for appellant is that the allegations in the answer containing countercharges‘are, in effect; a contest of the election on cross-complaint, and that'the statute applies. We do not think so, and the decision of this court in Ferguson v. Montgomery, 148 Ark. 83, appears to be against the contention of counsel, though the point is not expressly decided. The opinion shows that there were similar allegations in the answer, or cross-complaint, of the defendant with respect to fraudulent or illegal votes in townships other than those named in the complaint, and, without deciding the point expressly concerning the application of this statute, it was held proper to investigate charges thus made in order to determine which of the parties had rightfully received the nomination. In the opinion attention is called to the fact that “the real inquiry in election contests was as to whether the contestant or the respondent received the highest number of legal votes, and was not confined to the ground specified in the contestant’s notice of contest,” citing Govan v. Jackson, 32 Ark. 553. Continuing, the court said: “,So here the object of the pleadings was to produce a single issue, and that issue was whether or not certain illegal votes of a designated kind had been received at the primary election. ’ ’

The contestee, or defendant, in such a contest is not required to file the affidavit for the reason that he holds a certificate of nomination and is not in a position to contest the result of the election. Being the holder of a certificate of nomination, he cannot initiate a contest, and any allegations made by him in a contest instituted by an adversary are necessarily matters of defense, whether presented in an answer or in the form of a cross-complaint. A contestee, for the purpose of raising issues of fact concerning the true result of an election, may present new matter without being required to comply with the statute with respect to the time and manner of instituting the contest. Our conclusion is therefore that the point made by appellant cannot be sustained.

It is next urged that the certificate of nomination-issued to appellee was void because it was made by the committee after the expiration of the time provided by law. The statute (Crawford & Moses’ Digest, § 3767) provides that the central committee shall convene at noon on Friday following the primary, and that the returns-shall be delivered to the committee on or before that time. Section 3768 reads as follows:

“If the returns and ballots -of any precinct are not then delivered, the committee shall send any peace officer for the returns and ballots, and the peace officer' so’ selected is authorized to take the same forcibly, if necessary, from any one in whose possession they may he, and immediately bring the same to said committee. If all returns and ballots are not before the committee by Friday noon, it may adjourn until it receives them, not later -than Saturday noon. The committee shall canvass the returns, and, when demanded, examine the ballots, may hear testimony, if offered, of fraudulent practices and illegal votes, and may cast out illegal votes, fraudulent returns, and find the true and legal vote .cast for each candidate, and shall certify the results not later than Monday following the primary.”

It is shown in the present instance that the county neutral committee met on Friday, August 11, both of the parties to this contest being present in person and by attorneys, and with appellee demanding- a recount of the ballot. The committee adjourned over to August 17 for the purpose of recount, and the meeting was so held, and, as before stated, the certificate of nomination was awarded to appellee. The argument of appellant’s counsel is that the statute is mandatory, and that any certificate issued after Monday following the primary is void. The general rule established by the authorities on this subject is that statutory requirements as to the time of completing the canvass of an election and the issuance of certificates concerning same are directory, and .that strict compliance is not essential. 20 C. J. 199. There is nothing in the form or subject-matter of this statute that is sufficient to take it out of the operation of that rule. On the contrary, we think that a mandatory application of this statutory requirement might result so disastrously that the Legislature could not have had in mind a strict enforcement to the extent of rendering the result of an election illegal merely because the committee had not acted within the statutory time. The language of the statute manifests an intention on the part of the lawmakers to require expedition in ascertaining and declaring the result of a primary election, but the statute does not declare the certificate of the election to be void on account of failure to comply with, tbe statute as to time for the certification. If the lawmakers had intended to avoid the result, they would have manifested it by a plain declaration to that effect.

The next contention is that the court erred in not counting in appellant’s favor the votes of ten electors who offered to vote in the town of Could, but were rejected by the election officers for the alleged reason that they had violated party rules with respect to voting for party nominees.

One of the rules of the Democratic party provides that if any person presents himself to vote “who is known to have voted against a Democratic nominee at a general election, held within two years last preceding, or who by his words or action has espoused the cause of other than Democratic nominees preceding a general or special election within said time, his right to vote at such Democratic primary may be questioned by any well known Democrat or by any of the election officials, and, upon satisfactory proof of such person’s action, the said judge shall prohibit such person from voting at such primary election.” It appears in the proof that the ten persons were qualified electors, but that at the regular biennial election in 1920 these persons had signed a petition of nomination of independent candidates for justice of the peace in opposition to the Democratic nominees, and had voted for such independent candidates. Counsel contend, in the first place, that this rule is void because it is an unreasonable restriction upon the constitutional right to vote, and that such restriction cannot be imposed by party rules.

In Ferguson v. Montgomery, supra, we held that political parties “have exclusive jurisdiction as to the regularity of primary elections, except as taken away by statute,” and that party rules prescribing test for qualifications of voters will be upheld unless in conflict with th e statute. ■ Continuing further, we said:

“The act in question prescribes no tests for party affiliations. Therefore the duly constituted authorities of the recognized political parties had a right to prescribe the tests for the voters at the primary elections to be held by such political parties. To hold otherwise would be to destroy the usefulness of the act and to render it unreasonable in its application or practical effect.”

It is urged that the ten persons in question had hot violated the party rules, and that the rejection of their ballots was not authorized by those rules. The contention is that the circuit court of Lincoln County had declared the whole election invalid on account of the failure of the clerk to publish a list of voters, and that there were therefore no Democratic nominees before the people at the regular election. This contention is not sound, for the judgment of the circuit court only related to a contest for the office of sheriff, and, whether rightfully so or not, the nominees for other offices were dute' certified as Democratic nominees. The refusal to abide by the nominations certified constituted an infraction of party rules and barred those persons from voting at the next Democratic primary election.

Where nominations are duly certified, voters have no right to question the nominations collaterally, and if they do so they thereby bid defiance to party rules and subject themselves to party discipline. They cannot justify themselves under the rule by saying that the nominations were not legal.

The final contention of counsel for appellant is that the court erroneously excluded thirty votes for appellant on the ground that their names did not appear on the published lists of electors, and that the evidences of their qualifications as electors were not returned by the election cfficers in the manner provided by law. A solution of this question turns upon the interpretation and validity of a section of the statute (Crawford & Moses’ Digest, § 3777), which reads, in part, as follows:

“No person shall be allowed to vote at any primary election held under the laws of this State who shall not exhibit a poll-tax receipt, or other evidence that he has paid his poll-tax within the time prescribed by law to entitle him to vote at the succeeding general State election. Such other evidence shall be (a) : A copy of such receipt, duly certified by the clerk of the county court of the county where such tax is paid, (b) Or such person’s name shall appear upon the list required to be certified to the judges of election >by § 3740. Or, if any person offering to vote shall have attained the age of twenty-cne years since the time of assessing taxes next preceding such election, * * * and possesses the other necessary qualifications, and shall submit evidence by written affidavit, satisfactory to the judges of election, establishing that fact, he shall be permitted to vote. All such original and certified copies of poll-tax receipts and written affidavits shall be filed with the judges of election and returned by them with their other returns of election, and the said judges of election shall, in addition to the regular list of voters, make an additional list upon their poll-books of all such persons permitted by them to vote, whose names do not appear upon the certified list of poll-tax payers, and such poll-books shall have a separate page for the purpose of recording names of such persons. * * * In any contest arising upon any election held under this act it shall be a ground of rejection of any ballot cast by an elector whose name (a) does not appear upon the certified list of poll-tax payers; or (b) who has not filed with the judges of election his original or certified copy of poll-tax receipt, or written affidavit of the attainment of his majority; or (c) if such original or certified copy of such poll-tax receipt or written affidavit has not been returned by the judges of election; or (d) the name of such person listed separately and certified as required by this act.”

It is urged against the validity of this statute that it is a restriction upon the constitutional qualifications of voters at elections. Constitutional provisions with respect to elections do not apply to party primaries. Hester v. Bourland, 80 Ark. 145. We said in Ferguson v. Montgomery, supra, that primary elections were unknown at common law, and that they are purely the creatures of statute. Whether or not a statutory restriction upon the right to vote in a party primary could be declared to be unreasonable and violative.of a natural right or as being wrongfully discriminatory, we need not decide in this case, for the statute now under consideration does not restrict the right of a voter, but it merely regulates the method of voting and the preservation of the evidence of an elector’s right to vote.

The statute quoted above provides that, if the name of an elector does not appear on the certified list, he must produce his poll-tax receipt or a copy thereof, or, if he has come of age since assessing time, he must furnish an affidavit to that effect, and that such original poll-tax receipt or copy or affidavit must be filed with the election officers and returned by them. This requirement rests upon the voter himself, as well as a duty imposed upon the election officers. The individual voter is chargeable with knowledge of the law, and, when his name does not appear on the certified list, he must prove, in the manner prescribed by statute, his qualification as an elector so as to entitle him to vote, and if he fails to do so, his ballot may be rejected, and if permitted to vote by the judges without presentation and preservation of such evidence, his ballot may be rejected on a contest in the court. ¡But it is further contended that, if the election officers permit a voter whose name is not on the certified list to vote without furnishing other evidence of his qualification, the court has no right to reject the ballot on a contest. This contention is in the face of the statute itself, which expressly provides that the court may reject the ballot where the evidence of the qualification of the voter has not been preserved in the manner prescribed by statute. This is a matter entirely within legislative control, and we perceive no reason why the Legislature should not prescribe such a method of preserving the evidence of a voter’s qualifications and for the rejection of a ballot not supported by such evidence. Appellant proved in the trial that these thirty electors were duly qualified, twenty-three of whom had paid poll-tax, and that the other seven were young men who had come of age since assessing time, but this is not sufficient, in the face of the statute, which requires other evidence. The lawmakers had a good reason for prescribing this requirement concerning the qualifications of electors whose names do not appear on published lists. The reason is that it may be difficult, after an election is over and a contest arises, to produce proof pro and con as to the qualifications of a voter, but, if that evidence is produced at the time of the election and preserved, all uncertainty on the subject is eliminated. This makes the provision a reasonable one and in the interest of fairness in elections.

Mr. Justice Hart dissents from the conclusion on this feature of this case.

After examination of the whole record, we are of the opinion that there is no error in the proceedings, so the judgment is affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Thomas Cox & Sons Machinery Company v. Blue Trap Rock Company.
    Opinion delivered May 28, 1923.
    Fixture — Machinery attached to leasehold — reservation op title. —If a landlord knew, when machinery was attached to its land 'by its lessee, that the vendor of the machinery had reserved title until the purchase money was paid, the machinery did not become a fixture and was removable; but if the landlord was ignorant of such reservation, and the machinery was of a character that, when attached, it would become a fixture and could not be removed without injury to the freehold, the vendor was not entitled to remove it.

      Appeal from Pulaski Circuit Court, Second Division; W. B. Brooks, Judge;
    reversed.

      Coleman, Robinson & House, for appellant.
    The court erred in declaring’ as a matter of law that the articles of machinery sued for were fixtures and in directing a verdict for appellees. 124 Ark. 341; 26 C. J. 689, § 60; 7 A. L. R. 1573. The judgment should be reversed, and judgment entered here for appellant for the property, or its value.
    No brief for appellees.
   Wood, J.

This is an action in replevin by Thos. Cox & Sons Machinery Co. (hereafter called the appellant) against Gr. R. Pulton to replevy'certain machinery sold by the appellant to Pulton. The appellant alleged that it owned the machinery, which it described in its complaint, and was entitled to possession thereof; that Pul-ton wrongfully detained the property from the appellant. It prayed judgment for the return of the property or its value in the sum of $529, and for wrongful detention thereof in the sum of $453. After service of the writ it was discovered that the property was in the possession of the Blue Trap Rock Company (hereafter called company). Appellant then amended its complaint, making the company a party defendant. The company executed a bond for the detention of the property, and answered denying that it was in the possession of the property without right, and denying that it unlawfully detained same. It further alleged that on April 1, 1919, by written agreement, it leased to Pulton its rock quarry plant; that Fulton agreed to operate the plant at his own expense and make such necessary repairs as might be needed, and that it was provided that he should not bind the lessor on any obligation whatever; that the appellant had notice of the conditions of the lease; that in September, 1919, Pulton purchased the machinery and supplies for making the repairs from the appellant, and the company notified the appellant o.f the conditions under which Pulton was operating the plant';-that the company indorsed certain notes of Fulton to the appellant, in which the appellant retained title to certain machinery that had been installed in the plant of the company, and, at the time of indorsing these notes, warned the appellant that Fulton was obligated to make the repairs to the plant and not authorized to bind the company. The company further alleged that the lease of its plant to Fulton had expired and been surrendered to the lessor several months before the appellant instituted this action. The company also alleged that the property in controversy had been permanently attached to the realty.

The secretary and treasurer of the appellant testified that he sold the property in controversy to Fulton. He demanded $1,000 in cash of Fulton, and required also that he have the notes for the balance of the purchase money indorsed by the company. Witness talked the matter over with Ledwidge of the company, and the company agreed to indorse the notes, and did indorse for the first part of the machinery ordered. When the balance of the order arrived, appellant took two notes of $210 each. The notes recited that they were given for certain machinery, which is described therein. The notes contained a recital that the sale was on the express condition that the title and right of possession did not pass from the appellant until the balance of the purchase money was paid in full. The property was sold and delivered to Fulton upon an understanding with him and Ledwidge that the company should indorse the notes. The notes for $210 each are still due. The machinery which was purchased by Fulton consisted of pulleys, bearings for a shaft, and a conveyor belt running over two pulleys. The machinery sold Fulton could be taken out without damaging the machinery that was there before it was put in. The present value of the machinery is, as second-hand machinery, about $500. The fair estimate of the damage to the machinery since it had been put into the plant was $453. In. September, 1919, the appellant refused to deliver the other machinery that. had been ordered until the company indorsed the notes. All the machinery was bought about the same time, but at the time it was purchased it was impossible to have all of the articles delivered at once. That accounts for the fact that the two notes sued on were taken after the other notes. The first notes which were taken when the machinery was purchased (and which are indorsed by the company) were paid. The notes in suit dated Jan. 1, 1920, were presented to the company for its indorsement immediately thereafter. Witness took the notes to the company for indorsement, which the company refused.

Fulton testified that he executed the notes in controversy, got the machinery described therein, and installed it at the plant of the company. He had not paid the notes. The machinery purchased is a belt conveyor to handle rock. It is absolutely separate from the rest of the plant, and would work if the rest of the plant were gone. It could be taken out and not affect the rest of the plant. Before installing’ tills belt conveyor he removed an elevator which was in the plant. The company knew that witness was buying these supplies, and talked it over with him before the purchase, and gave witness $1,000 to make the first payment. The items which composed the belt conve3mr are fastened together, and the frame is bolted to the plant. It could be removed without damaging the rest of the plant.

The president of the appellant testified corroborating substantially the testimony of the secretary and treasurer. He stated that the whole'thing was practically one transaction, but the execution of the notes in suit was delayed because the machinery was not all delivered at once, but in relays. The machinery was not a part of the machinery of the plant.

Ledwidve testified, for the company, that the com-•>mnv’s lease to Fulton expired in April, 1920. After Fulton bad leased'the plant he wanted to install a belt eonvevor. and the company let him have $1,000 upon his representation that he could finance the rest of the purchase. After the machinery had come, Williams, the secretary and treasurer of appellant, stated to witness that he had promised to indorse Fulton’s note. Witness didn’t think he had made Williams that promise; He had no authority to make such a promise, but the machinery had come, and Fulton could not get it unless the notes were indorsed, and so witness indorsed the notes. Witness told Cox at the time he indorsed these notes that if he sold Fulton any more machinery witness hoped Fulton would beat him out of it. That was the last witness heard of the matter until several months afterward, when Williams advised witness that he had taken two other notes for $210 each from Fulton, and asked that the company indorse them. The notes in suit were dated January 1, 1920, but witness had never heard of that up to the time of his renewal of one of the original notes on January 19, 1920. It was witness’ understanding with Fulton that the whole transaction was completed at the time the company indorsed the first notes. Witness thought that Fulton had a separate running account with the company, and that the new notes represented the balance due on that account.

Cammack, who is also an officer of the company, testified that there was some confusion about notes, but after going into the matter the company agreed that it would indorse the first notes given in purchase of the machinery. Later witness heard Ledwidge tell Cox that if he sold Fulton anything more he did so at his peril. That was at the time -the original notes were signed. Witness understood that that was a complete transaction. Witness never heard of the notes in suit. Witness didn’t think that the machinery could be removed without dismantling the plant. The company had always had a conveyor, and could not operate without it.

The appellant prayed the court to instruct the jury to the effect that whether the articles in controversy are fixtures is a question to be determined by the intention of the parties in placing them in the plant; that, if the intention of the parties was that .appellant should recover the articles upon Fulton’s failure to pay for the same, then such articles were not fixtures; tliat, if the jury found that the articles had become fixtures, hut that the company agreed to pay for them, the appellant would be entitled to a verdict against the company for the return of the articles, or their value, and for damages. The court refused to so instruct the jury. On its own motion the court instructed the jury to the effect that the articles in controversy had become fixtures by attachment' to the realty, and that the appellant could not recover the property from the company, and directed the jury to return a verdict in favor of the company. The court further directed the jury to return a verdict in favor of the appellant against Fulton for the return of the articles or for the value of the property, $420, with interest from January 1, 1920’ at the rate of 10 per cent, per annum, or $520.70.

The jury returned a verdict as directed. Judgment was entered in favor of the company against the appellant, from which is this appeal.

The trial court erred in declaring, as a matter of law, that the articles sued for were fixtures. Under the evidence this was an issue for the jury. The jury might have found from the testimony that the company knew when the machinery for which the notes in controversy were executed was purchased by Fulton and installed by him on land leased to him by the company, that the company had knowledge of the fact that the machinery would be installed on its land, and that it also had knowledge of the fact that the appellant had retained title thereto until the purchase money was paid. If the company had this knowledge, then it would be estopped from asserting that the appellant had no right to remove the property from its land; and if it had such knowledge, it could not set.up in defense to appellant’s action that the articles in controversy were fixtures to which the company had acquired title by virtue of its ownership of the soil. See Fears v. Watson, 124 Ark. 342, and oases there cited.

On the other hand, if appellant sold Fulton machinery and reserved tlie title thereto, which machinery appellant knew at the time Fulton intended to attach to the realty of the company, and if the appellant knew at the time that the machinery was of a character that, when attached, would become a fixture and could not be removed without injury to the freehold, and if the company was ignorant of the fact that appellant had reserved the title to the machinery for which the notes in - controversy were executed, then the appellant would not be entitled to recover. Peck & Hammond v. Walnut Ridge Dist., 93 Ark. 77.

The issues under the evidence were not properly submitted to the jury, and for this error the judgment is reversed, and the cause is remanded for a new trial.


author: Hart, J.

text:
    Jones v. State.
    Opinion delivered May 28, 1923.
    Homicide — assault with intent to kill — INSTRUCTION.—In a prosecution for assault with intent to kill, it was error to refuse to charge that the State must prove ¡beyond a reasonable doubt that the defendant, at the time he fired the gun, intended to kill the persons alleged to have been assaulted, and that the intent must he proved and not presumed.
    Appeal from Arkansas Circuit Court, Northern District; George W. Clark, Judge;
    reversed.

      J. E. Ray, for appellant.
    The evidence is insufficient to support the verdict. The court erred in refusing appellant’s requested instruction numbered 1, requiring proof of a specific intent to kill, and in giving instruction numbered 6 on the point. 34'Ark. 280'; 65 Ark. 410; 49 Ark. 159; 91 Ark. 505; 54 Ark. 286. Also in giving instruction numbered 3. 96 Ark. 55.

      J. S. Utley j Attorney General, John L. Garter, and Wm. T. Hammock, Assistants, for appellee.
    The evidence is sufficient to support the verdict. The shooting is undisputed, and, had death resulted, it would have been murder in second degree. 55 Ark. 556; 29 Ark. 248; 76 Ark. 515; 103 Ark. 28; 99 Ark. 407; 54 Ark. 188. No specific objection was made to instruction 6 and no error committed in giving it. 110 Ark 117; 115 Ark. 555; 93 Ark. 521; 54 Ark. 287. No error in refusing instruction 2, which is not the law, and number 4- is not applicable to this case.
   Hart, J.

Eugene Jones prosecutes this appeal to reverse a judgment and sentence of conviction against him for assault with the intent to kill, charged to have been committed .by shooting Winfiéld Edwards with a shotgun.

According to the evidence for the .State, Winfield Edwards was in a houseboat of Miles Edwards on White River, in the Northern District of Arkansas County, Ark., at the time he was shot, in September, 1922. Eugene Jones came to the houseboat in the night time and asked for Goldie Ridgeway. Miles Edwards told Jones that Goldie Ridgeway was in the houseboat. Jones went away, and came back in about an hour. He asked Edwards to tell Ridg*eway to come out of the boat, and Edwards did so. Ridgeway refused to leave the boat. The wife of the defendant was also staying all night in the boat. Jones then said that he was going to shoot the “whole damn bunch” if Ridgeway did not come out of the boat. Ridgeway -still refused to leave the boat, and J ones then fired an automatic shotgun into the boat three times. Some of the shot hit Winfield Edwards, but did not hurt him much. Some of the shot also struck the wife of the defendant, but did not hurt her much.

■ Aeording to the testimony of .the defendant, he was drinking at the time, aiid did not intend to shoot into the boat or to harm any one in there. He admitted that he did not have a friendly feeling towards Eidgeway.

The evidence for the State was sufficient to warrant the jury in finding a verdict of guilty.

The first assignment of error is that the court erred in refusing to give the following instruction: “You are instructed that, before you can convict the defendant, Jones, for assault with intent to Mil, the State must prove beyond a reasonable doubt that the defendant, at the time he fired the gun, intended to Mil May Jones and Winfield Edwards, and in determining the intent you may consider the nature of the weapon and the manner of using it, together with all the other circumstances of the case. The intent must be proved and not presumed. ’ ’

This assignment of error is well taken. This court has several times held that when one intending to kill A shoots B, or if it be doubtful which 'he shot at, he cannot be convicted of an assault with an intent to kill B. Lacefield v. State, 34 Ark. 275; Scott v. State, 49 Ark. 156; Chrisman v. State, 54 Ark. 283; Chowning v. State, 91 Ark. 503; Roberson v. State, 94 Ark. 69, and Hankins v. State, 103 Ark. 28.

In the Lacefield case the court said that, while it is true that every person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does not arise where the act fails of effect, or is attended by no consequences; and where such act is charged to have been done with a specific intent, such intent must be proved, and not presumed from the act. In all of these .cases the court has held that, as the essence of the crime charged was the specific intention to take the life of a certain person named in the indictment, it was necessary to prove the intent laid in the indictment, to the satisfaction of the jury.

Tested by the ruling of this court in these cases, the refusal to give the instruction asked for by the defendant constitutes reversible error. Whether the defendant assaulted Winfield Edwards -with, the specific intent to take his life, as alleged in the indictment, was a question of fact which it was his right to have determined by the jury, upon the evidence in the cause.

The court did not give any instruction covering this phase of the case. Hence, for the error we have indicated the judgment must he reversed, and the cause remanded for a new trial.


author: Hart, J.,

text:
    Kelley Trust Company v. Lundell Land & Lumber Company.
    Opinion delivered May 28, 1923.
    1. Judgment- — amendment nunc pro tunc. — Where a judgment or decree has -been actually rendered hut not entered on the record in consequence of an accident or mistake, or the neglect of the ■clerk, the court has power at a subsequent term to order that the judgment or decree be entered of record nunc pro tunc, provided the fact of its rendition is satisfactorily established.
    2. Judgment — amendment—omission.'—-Where anything has been omitted from a decree which is necessarily or properly a part of it, but failed to be incorporated in it through the negligence or inadvertence of the court or clerk, the omission may be supplied by an amendment after term.
    3. Judgment — amendment—correction op errors. — While the court may amend its judgment or decree -after term to speak the truth, it has no power to correct its mistakes or errors or to make the judgment or decree speak what should have been done but was not done.
    4. Limitation op actions — payment op taxes. — Title to wild and unimproved land was not acquired 'by payment of the taxes thereon for seven consecutive years under color of title, under Crawford & Moses’ Dig., § 6943, where during some of those years the land was. exempt from taxation as the property of a certain levee district under Acts 1893, p. 308.
    Appeal from Phillips 'Chancery Court; A. L. Hutclmis, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    On the 14th day of April, 1920, the Kelley Trust Company brought suit against Lundell Land & Lumber Company to recover eighty acres of land in Phillips County, Ark. Both parties claim title to the land hy mesne conveyances from purchasers at overdue tax sales. The plaintiff also claims title on account of having paid the taxes more than seven years in succession, three of which were subsequent to the statute passed hy the General Assembly on March 18, 1899, which is § 6943 of Crawford & Moses’ Digest.
    It appears from the record that the eighty acres of land in question was forfeited to the State for the nonpayment of taxes for the year 1876. On Sept. 30, 1882, this tract of land was included in a suit brought hy the State of Arkansas under and by virtue of the overdue tax act of 1881.
    A decree was rendered in the chancery court in said cause on the 27th day of November, 1882, which was a day of the November teim of the chancery court of Phillips County, Ark. It was decreed that the forfeiture and sale of said land to the State of Arkansas was void, and that no title was vested in the State by virtue of said sale. It was further decreed that a commissioner be appointed for the purpose of selling certain lands, including the tract in controversv, for the nonpayment of the taxes charged against said lands. Said tract of land was duly struck off and sold to the State of Arkansas for want of a private bidder. The title to the land in controversy passed to the State in this overdue tax sale and remained in the State until the uassage of act 176, approved April 14, 1893. This act donated the land in controversy to the Laconia Levee District for the purpose of building and maintaining levees in said district. Acts of 1893, p. 308.
    On the 15th day of June, 1901, a final decree was rendered in the Phillips Chancery Court, in a suit brought by the Laconia Levee District to quiet and confirm the title to certain lands, including the land in controversy, and the title to the land in controversy was vested in the predecessors in title of the Lundell Land & Lumber Company.

      On the 18th day of June, 1883, being a day of the May term, 1883, of the chancery court of Phillips County, Ark., what purports to be a decree nimc pro tunc was entered of record in the overdue tax suit above referred to, and the lands embraced in that suit, including the land in controversy, were again ordered sold by a commissioner appointed for that purpose. At the sale the land was duly purchased by the predecessors in title of the Kelley Trust Company.
    It was stipulated that the land in question is wild and unimproved, and is not in the actual possession of any one. The plaintiff and its predecessors in title paid the taxes on the land in question for more than seven years consecutively, and three of such payments were made subsequent to the passage of the act of March 18, 1899, which is § 6943 of Crawford & Moses’ Digest.
    The chancery court found the issues in favor of the defendant, and a decree was entered accordingly. To reverse that decree the plaintiff has duly prosecuted this appeal.

      Osero G. Breiver and John G. Sheffield, for appellant.
    Title was acquired by appellant through the sale under the nunc pro tunc order. Said order was valid, no fraud being shown. Title by limitation; also by payment of taxes for 7 years under color of title. 1 Burris’ Law'Dictionary, Kawles, 527; § 6943, C. & M. Digest; 121 Ark. 33. Appellee is also estopped to claim title to the lands.

      John I. Moore, Sr., J. G. Burke and John I. Moore, Jr., for appellee.
    Appellee claims ownership of the lands through two chains of title, one of which is not controverted in appellant’s brief, but only its claim through the sale in the overdue tax proceeding. The only question for determination is whether appellant or appellee and their predecessors in title acquired the lands by purchase under the overdue tax proceedings. Appellant claims the title passed under sale to West and Ark.-Miss. Timber Land Association, while appellee holds that the title passed under the original final decree rendered in said suit to the State of Arkansas. The order confirming’ the sale under the final decree is conclusive, and appellant and its grantors cannot question validity of the sale. 97 Ark. 76. The nunc pro tunc decree was void, and no title passed by sale thereunder. 51 Ark. 224; 129 Ark. 301; 143 Ark. 543. Final decree was rendered Nov. 27, 1882, and the mmc pro tunc order June 18, 1883. Court had no power to vacate a judgment after lapse of the term. 148 Ark. 325; 144 Ark. 301; 97 Ark. 314; 113 Ark. 237; 46 Ark. 552; 33 Ark. 105; 36 Ark. 513; 52 Ark. 316. The title rested under the first sale, and the attempted sale under the-nunc pro tunc order was void. Appellant could not acquire title by limitation Tinder 7 years -statute of paying t-axe-s under color of title; no -taxes were due while lands held by State, and they were exempt from taxation while held by Laconia Levee District, and he did not pay the taxes for 7 years in succession, under provisions of § 6943, C. & M. Digest. 56 Ark. 276; 66 Ark. 539; 75 Ark. 146. Appellant cannot raise question of estoppel for first time here.
   Hart, J.,

(after stating the facts). The plaintiff and the defendant both claim title at a sale under a decree in the overdue tax proceeding. The defendant deraigns title under the original decree rendered at the November term, 1882, of the Phillips Chancery Court, and the plaintiff deraigns title under what purports to be a decree mmc pro tunc rendered in tbe overdue tax case at the May term, 1883.

It is well settled that, in any case where a judgment or a decree has been actually rendered but not entered on the record, in consequence of an accident or mistake, or the neglect of the clerk, the court has power at a subsequent term to order that the judgment or decree be en-fcered of record nunc pro tunc, provided tlie fact of its rendition is satisfactorily established.

If anything has been omitted from tlie decree which is necessarily or properly a part of it, but failed to be incorporated in it through the negligence or inadvertence of the court or the clerk, then the omission may be supplied by an amendment after the term.

If, on the other hand, the amendment is for the purpose of changing the judgment actually rendered to one which was not rendered, this cannot be done. The power to amend the judgment as entered cannot be used for the purpose of correcting errors or omissions of the court. Such procedure cannot be allowed so as to enable the court to review or reverse its action in respect to what it has already done. Such amendment would not speak the truth, but would speak what should have been done and was not done. Gregory v. Bartlett, 55 Ark. 30; St. L. & N. Ark. Rd. Co. v. Bratton, 93 Ark. 234, and Sloan v. Williams, 118 Ark. 593.

In the case at bar the record shows that the decree rendered at the November term, 1882, in the overdue tax case, was in every respect a complete decree. A sale was had under it, and the predecessors in title of the defendant became the purchasers at the sale. ■ It is not clearly shown what the purpose of the decree rendered at the May term, 1883, of the court in the overdue tax ■ sale was, but it is in no sense a mine pro tunc decree, for, as we have already seen, the former decree was in all respects as complete a decree as the one purporting to be a decree nunc pro twic. Each decree is very lengthy, and we do not deem it necessary to set either one out in extenso. It is sufficient to say that each is a complete decree and covers everything that is essential to be set out in an overdue tax decree. Hence, under the authorities cited above, and many others which might be cited, the chancery court could not correct its original decree b3;r nunc pro tunc decree after the term at which the' first decree had been entered of record had lapsed. After the term was ended the court lost its power over the decree, and under the guise of an amendment had no power to revise the decree or to correct a judicial mistake or any errors or irregularities in the sale under the original decree.

It follows that the court had no authority to render what purports to be the nunc pro tunc decree in the overdue tax case, and consequently the purchasers at the sale under it derived no title whatever.

The plaintiff also claims title because the land in controversy is wild and unimproved, and it and its predecessors in title has paid the taxes on the land for seven 3rears in succession, three of which payments were made after the passage of the act of 'March 18, 1899, which is § 6943 of Crawford & Moses’ Digest.

It is a sufficient answer to this contention to say that the plaintiff can only avail itself of the payment of taxes for the years 1899 to 1903 inclusive, which is only five years. The reason is that the Legislature of 1893 granted the land in controversy to the Laconia Levee District and exempted it from State and county taxes for the term of five years from the passage of the act. The act was approved April 14, 1893. Acts of 1893, p. 308. Moreover, in Robinson v. Indiana, & Ark. Lbr. & Mfg. Co., 128 Ark. 550, it was held that land in the hands of a levee district is exempt from taxation for State and county purposes.

It thus appears from the record that the'title to the land in question was in the Laconia Levee District during a part of the seven years relied upon by the plaintiff to obtain title to the land by the payment of taxes for seven years in succession, and the plaintiff acquired no title by the payment of taxes.

Tt follows that the decree will be affirmed.


text:
    S. B. Locke & Company v. Forrester.
    Opinion delivered May 28, 1923.
    1. Appeal and error — second appeal — scope and extent of review. — Where a cause is appealed to the Supreme Court and the judgment is reversed and the cause remanded to the circuit court for a new trial, and a second appeal is taken, it brings up for review nothing but the proceedings subsequent to the reversal.
    2. Appeal and error — former decision as law of case. — The decision of the Supreme Court, upon a given state of facts becomes the law of the case only as applicable to the same facts; and if the cause be remanded for a new trial, the parties have the right to introduce new evidence, and when this is done the decision upon the former appeal ceases to be the law of the case.
    3. Partnership — sufficiency of evidence. — Evidence held to establish that plaintiffs constituted a partnership, and not a corporation.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge;
    reversed.

      Hill & Fitzhugh, for appellants.
    The undisputed testimony shows that appellant company was a partnership; and the court erred in giving instructions Nos. 2 and 3, there being nothing in the record upon which to base them. The record herein is altogether different from that on former appeal set out in 149 Ark. 233. The corporation company. thought it was not doing business in Arkansas, and it is doubtful whether it was (151 Ark. 269), and, on advice of counsel, formed itself into a partnership on Oct. 10, 1918, a year and a half before any of the transactions involved in this suit were had. The partnership was duly formed and certificate made thereof as required by laws of Oklahoma. Rev. Statutes Oklahoma, 1910, §§ 4469, 4473-4. The testimony of J. M. Locke was sufficient, even if all the other testimony had not shown the partnership. 80 Ark. 396; 101 Ark. 532. Exceptions to rule in 82 Ark. 86. The unimpeaehed and uncontradicted testimony of these witnesses takes case out of exception, and, in addition, it is shown by the cashier of the bank and the records of the corporation made at the time. The court erred in submitting- this issue to the jury.

      Joseph R. Brown and James B. McDonough, for appellees.
    On tbe former appeal the case was reversed 'because the question of whether or not the appellant wa.s a partnership or a foreign corporation had not been submitted to the jury. 149 Ark. 225. Appellant introduced some new testimony in this trial which, however, does not take away the issue of fact and questions of law raised and decided by this court in the previous bearing. The court did not err in not directing- a verdict for appellant. Only interested witnesses testified as to the existence of the partnership, and one 'Contradicted tbe others to a certain extent. 47 Tex. Civ. App. 24; 103 S. W. 708; 82 Ark. 89; 106 Ark. 571; 88 Ark. 550. The opinion in 80 Ark. 396 does not vary the rule announced in 82 Ark. 89. The trial court in the hearing of this case pursued the course ordered by this court, and .the .judgment should be affirmed. Ill Ark. 196.

      Hill & Fitshugh, in reply.
    The law of the case on the former appeal, as erroneously contended by appellees, is not the law of the case now on a different record. 79 Ark. 475; 129 Ark. 43; 135 Ark. 201. Tbe testimony on the issue of a partnership is totally different from the testimony in the former record. Case of 103 S. W. 708, cited by appellees, and others to like effect distinguished, the rule as to uncontradicted and .unimpeached reasonable testimony of interested witnesses being different in this State. 101 Ark. 532; 129 Ark. 369. There was not contradiction or dispute of the testimony in the question of partnership, and the giving of the instructions submitting- the question of its being* a foreign corporation calls for a reversal.
   Hart, J.

S. B. Locke & Company sued C. E. For-rester and others to recover damages for tbe breach of an implied warranty of quality of forty-four bales of cotton bought by the for.ro.er from the latter. The plaintiffs recovered judgment in the circuit court against the defendants, and upon appeal to tliis court the judgment was reversed because the lower court erred in holding that the undisputed evidence showed that S. B. Locke & Company was a partnership at the time of the purchase of the cotton.

One of the defenses to the case was that S. B. Locke & Company was a foreign corporation, and was doing business in the State of Arkansas contrary to the provision of our statute. Hence the materiality of the issue as to whether S. B. Locke & Company was a foreign corporation or a partnership.-

Because of the error in the circuit court in holding 'that the undisputed evidence showed that S. B. Locke & Company was a partnership, the judgment was reversed and the cause was remanded for a new trial. Forrester v. Locke, 149 Ark. 225.

1 Upon the-remand of the case and the retrial thereof in the circuit court, the question of whether or not S. B. Locke & Company was a foreign corporation doing business in this State without complying with our statute, was submitted to the jury. The jury returned a verdict in favor of the defendants, and the plaintiffs have duly prosecuted an appeal to this court.

The only assignment of error is that the court erred in not telling the jury that, under the undisputed evidence in the case, S. B. Locke & Company was a partnership. S. B. Locke & Company did not claim to have complied with our statute relative to foreign corporations doing business in this State, and it would be necessarily prejudicial to their rights if the court erroneously submitted to the jury the question of whether S. B. Locke & Company was a partnership, as claimed by the ■ plaintiffs, or whether it was a foreign corporation, as claimed by the defendants.

Counsel for the defendants insist that the holding of this court on the former appeal, that the undisputed pvi-dence did not show that S. B. Locke & Company was'a partnership at the time it purchased the cotton is the law of the case, and is conclusive of that question upon this appeal.

We do not agree with counsel in this contention. Of course it is well settled in this State that, if a cause be appealed to the Supreme Court, and the judgment be reversed, and the cause remanded to the circuit court for a new trial, and a second appeal be taken, it brings up for review nothing but the proceedings subsequent to the reversal.

It is equally well settled that the decision of the Supreme Court rendered upon a given state of facts only becomes the law of the case as applicable to the same facts, and if the cause be remanded for a new trial, the parties have the right to introduce new evidence and establish a new state of facts. When this is done, the decision of the Supreme Court upon the former appeal ceases to be the law of the case, and the circuit court is not conclusively bound by the decision of the Supreme Court on the former appeal, but should apply the law applicable to the new 'and changed state of facts. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, and Rushing v. Horner, 135 Ark. 201.

This brings us to a consideration of the question of whether or not, upon the second trial in the circuit court, the evidence on the question of whether or not S. B. Locke & 'Company was a partnership or a foreign corporation was in all essential respects the same as upon the first trial of the case.

W. R. Locke was the manager of the business of the plaintiffs at Fort Smith, Arkansas, and purchased the cotton in question. Upon the former appeal the court said that the only evidence in the record to the effect that S. B. Locke & Company was conducting the business at Fort-Smith was that of J. M. Locke, and that J. M. Locke was one of the parties to the suit. The court also said that his evidence was disputed by that of W. R. Locke. The opinion of the court recites that W. R. Locke first testified that S. B. Locke & Company constituted a partnership and afterwards that it was a corporation in Oklahoma and a partnership in Arkansas. Later on he said that he did not know whether it was doing business in Arkansas as a corporation or as a partnership, although he was the manager of the business in Arkansas.

Upon the present appeal the testimony is much stronger in favor of the plaintiffs, and is practically undisputed. S. B. Locke & Company was organized as a corporation under the laws of the State of Oklahoma on the 6th day of June, 1913. The stockholders were S. B. Locke, J. M. Locke, and J. C. Fahnstock. Subsequently the latter sold his stock to W. P. Cowan. The principal place of business of the corporation was Muskogee, Olda., with authority to establish branch offices at other places. The corporation opened a branch office in Fort Smith, Arkansas, in 1915, with W. R. Locke, a brother of S. B. Locke, as manager, and bought cotton there. It first thought that it was doing business at Muskogee, Oklahoma, but it was advised by counsel that it was doing business in Arkansas, and was required to file articles of incorporation under our statute regulating the doing of business in Arkansas by foreign corporations.

In 1918 the stockholders of the corporation decided to form a partnership, and, under the advice of counsel in October, 1918, all the stockholders were present at a meeting of the corporation and sold its assets to a partnership, of which they became the members with the same interests they respectively had in the corporation, and the partnership was called S. B. Locke & Company. The corporation still retained its entity because of certain unsettled matters. It ceased, however, to buy and sell cotton, and the business was conducted thereafter by the partnership. On the 10th day of September, 1919, a certificate of partnership was filed in the office of the court' clerk at Muskogee, certifying that the partnership of S. B. Locke & Company was composed of S. B. Locke, J. M. Locke and W. P. Cowan, and that their residence was Muskogee. Immediately the hank where the funds were kept was notified of the change from a corporation to a partnership. The hank at Fort Smith, through which the branch office there transacted business, was likewise notified of the change. The corporation made its return to the United States Government for the year ending August 31, 1920, and showed that all its capital had been retired except $360. The partnership continued to transact the business of buying and selling cotton, and the transaction herein sued on began in December, 1919, and continued during that month and in January, 1920. The fact of the change from the corporation to a partnership, as stated above, was testified to by S. B. Locke, J. M. Locke and W. P. Cowan.

J. P. Solomon, the cashier of the First National Bank of Muskogee, testified that S. B. Locke & Company had been a customer of the bank for ten-years. He was advised when the change was made from a corporation to a partnership. He required them to make financial statements to the bank. They made a final statement dated in August, 1918, of S. B. Locke & Co. as a corporation. In September, 1919, they made a statement to the bank as a partnership, and these statements were on file at the bank. The bank extended credit to S. B. Locke & Company as a partnership since October, 1918, and the funds carried in deposit in the name of S. B. Locke & Company belonged to them as a partnership since that time. They were so regarded by the bank.

J. P. Solomon was a disinterested witness. His testimony is corroborated by the income tax returns made to the United States Government, by the bill of sale of the assets of the corporation to the .partnership, and by the certificate of partnership filed in the office of the court clerk at Muskogee. The reason for the change from a corporation to a partnership is apparent. They had a branch office at Fort Smith in which they did a large bus-in'ess, and they did not wish, to comply with our laws reg: nlating foreign corporations doing business in this State. Hence the reason for a change from a corporation to a partnership. This they had the right to do, and it was done prior -to the time the transactions involved in this lawsuit occurred.

There is no evidence in the record tending to dispute the testimqny as above recited. W. R. Locke was a witness in the case, and testified at length as to the merits of the case. It will be. remembered that he is tbe manager of the business at Fort Smith, Ark., and bought the cotton which is the subject-matter of the lawsuit.

On cross-examination he was asked whether or not there was a corporation under the name of S. B. Locke & Companjr in Oklahoma, and he answered that he did not know whether there was a corporation of that name in Oklahoma or'not, but that there used to be. This testimony is not sufficient to contradict the testimony of the plaintiffs bearing on this question. Under his testimony it would be oidy a matter of conjecture as to whether or not S. B. Locke & Company was a corporation. There is no substantial contradiction in the testimony of the plaintiffs, and it shows that S. B. Locke & Co. was a partnership during the entire time involved by the transactions in question. Hence the court erred in submitting to the jury the question of whether or not .S. B. Locke & Company was a foreign corporation doing business in the State -without complying with our laws, and therefore not entitled to recover in the action.

We cannot know whether the verdict of the jury was based upon a finding that S. B. Locke & Company was a foreign corporation doing business in Arkansas without complying with our laws, and therefore not entitled to sue in our courts, or whether the decision was against them on the merits of the case. Hence the instruction was necessarily prejudicial to tlie rights of the plaintiffs, and the giving of it constituted reversible error.

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


author: Smith, J.

text:
    Snider v. Dennis.
    Opinion delivered May 28, 1923.
    1. Mortgages — foreclosure—necessary parties. — In a suit to foreclose a deed of trust executed to secure an indebtedness of the grantor, the original trustee, as holder of the legal title, is a necessary party, but a substituted trustee need not be made a party.
    2. Mortgages — limitation.—Where a suit to foreclose a deed of trust is brought before the note which is secured is barred, and service is had upon the mortgagor, the fact that the trustee was not made a party until after the period of' limitation had expired is immaterial.
    Appeal from Columbia Chancery Court; J. 7. Stevens, Chancellor;
    affirmed.

      Wade Kitchens and II. M. Barney, of counsel, for appellants.
    Under the deed of trust the' trustee was a necessary party t othe foreclosure suit, and the chansellor erred in not sustaining the demurrer to the complaint. Secs. 1189, 1192, C. & M. Digest; 75 Ark. 288; §§ 1092, 8126, C. & M. Digest; § 537, Civil Code; 3 Ark. 364; 32 Ark. •297; 49 Ark. 100, 4 S. W. 282; 21 Wall. 36; 2 Jones on . Mortgages, § 1397; 111 Ark. 362, 164 S. W. 746; 139 Ark. 121, 213 S. W. 409. Court should have had trustee made a party. Sec. 1011, C. & M. Digest. The trustee was not made a party. Sec. 1011, C. & M. Digest. The trustee was not made a party till after note was barred by statute of limitations. Case should be reversed and dismissed.

      Henry Stevens, for appellees.
    - The original trustee was made a party by amendment to the complaint, and the complaint, not showing the substituted trustee, was not demurrable. Sec. 1189, C. & M. Digest. German National Bank y. Young, 123 Ark. 504. Answer was-filed Jan. 1, 1922, and the demurrer April 27, 1922, without withdrawing the answer, and it was properly overruled. 6 Am. Encyc. of Pleading & Practice 424; Baxt. (Tenn.) 217; 11 Heisk. (Penn.) 711. The complaint as amended showed Alsobrooks was trustee, and the demurrer admitted truth of allegation. Adams v. Primmer, 102 Ark. 380; 104 Ark. 466; 106 Ark. 157. The action was not barred by limitation. 90 Ark. 40; 121 Ark. 518; 120 Ark. 37 and 99; 100 Ark. 55; 122 Ark. 189, 235, 370 and 600. Suit was brought within 5 years of date note became due. 140 S. W. 200; 59 Ark. 441. No new case of action was stated by the amendment, and Dennis, plaintiff, was the owner of the note sued on.
   Smith, J.

This suit was brought to foreclose a deed of trust, and the appeal is from a decree ordering its foreclosure.

The complaint alleged that on February 14, 1916, Calvin Snider executed a note due October 1, 1916, to the order of J. H. Askew, and, to secure its payment, also executed on the same day a deed of trust conveying an eighty-acre tract of land to P. H. Alsobrooks as trustee for Askew. Snider died intestate May 14, 1916, and his heirs are the defendants to this suit. A -credit of $219.82 of date February 15, 1919, was indorsed on the note by Askew, and on the same date Askew assigned the note and deed of trust to Charles Clark, who, in turn, assigned the note and deed of trust on February 14, 1920, to B. D. Dennis, appellee, the plaintiff in the foreclosure.

Subsequent to the recording of said deed of trust, and prior to the assignment thereof to Clark, Askew, on February 14, 1919, under the power of substitution contained in said deed -of trust, by indorsement on the margin of the record thereof, appointed W. H. Bussell as substituted trustee in lieu of Alsobrooks.

Defendants demurred to tbe complaint on the ground that there was a defect of parties, in that the trustee was not a party thereto. The demurrer was overruled, and exceptions saved. On January 23, 1922, plaintiff amended the complaint and made Alsobrooks a party plaintiff. On April 28, 1922, defendants again demurred to the complaint on the ground that Russell, the substituted trustee, was a necessary party to the action. This demurrer was overruled, the court holding that the substituted trustee was not a necessary party.

It is now insisted that the decree of the court below should he reversed for the failure to sustain the demurrers. There was testimony challenging the credit indorsed on the note under date of February 15, 1919, it being the insistence of the defendants that no such payment was ever made, and that the note was barred by the statute of limitations. The court found the payment had been made, and allowed credit therefor; but we do not review this testimony, as, in our opinion, the debt was not barred, whether that payment was ever made or not.

It is true that the trustee was not originally made a party, and, as he is a necessary party in a proceeding of this character, the original demurrer should have been sustained, but, before the rendition of the decree, that error was cured by making Alsobrooks a party.

It is insisted that Alsobrooks was not made a party until the bar of the statute had fallen, and that the cause of action was therefore barred. It is true that full five years expired after the maturity of the note before the trustee was made a party, but this did not bar the cause of action, for the reason that before the bar of the statute had fallen suit liad been begun by the owner of the debt secured — the real party in interest; and before the rendition of the decree the trustee to whom the title had been conveyed was made a party. The party who had the right to foreclose was the plaintiff, and lie commenced the action before the statute of limitations had run, and the heirs of the mortgagor were the defendants.

It is unimportant that the substituted trustee was never made a party. The substituted trustee was not a necessary party. By the act of substitution he had merely been clothed with- the power which the deed of trust authorized the beneficiary to confer. The title was conveyed to Alsobrooks, as was also the power to sell. By the substitution which the deed of trust authorized the beneficiary to make, this power to sell was transferred from Alsobrooks to Russell, but the title remained in Alsobrooks, and he was made a party before the rendition of the decree.

We conclude therefore that the proper and necessary parties to foreclose the deed of trust were before the court, and that decree is affirmed.


text:
    Ashmore v. Hays.
    Opinion delivered May 28, 1923.
    1. Appeal and error — final decree. — In an action of unlawful de-tainer, which was transferred to equity, the court on April 7 made an order reciting that defendant had not paid his rent since December 1, and directed him to pay the same within 20 days. On May 10 the court found that defendant was in arrears in a sum named, and decreed that a writ of possession issue unless certain sums were paid within designated times. On June 10 the court denied a motion to modify the above decree. Held that the order of April 7 was interlocutory, hut the decree of May 10 was final and appealable.
    2. Landlord and tenant — action for possession — counterclaim. —Where, in an action by a landlord for possession of the leased , premises, on account of lessee’s failure to pay rent, the lessee set up that he had sustained damages in excess of the rents due by reason of the landlord’s failure to make certain repairs which he had'agreed to'make, it was error to award a writ of possession to the plaintiff without ascertaining the amount of defendant’s damages sustained by plaintiff’s failure to repair.

      Appeal from Greene Chancery Court; Archer Wheatley, Chancellor;
    reversed.

      Arthur Sneed, T. A. Turner and Kirby, Hays & .Pringle, for appellant.
    The court erred in forfeiting the lease and directing the issuance of the writ of possession against lessee for nonpayment of rent, instead of trying out the .question on appellant’s claim of recoupment of damages of a larger amount than the rent claimed unpaid by appellee. The landlord agreed to make repairs, and failed to do so, and the law does not warrant his declaring a forfeiture of the lease .and recovering possession under facts of this case. 99 Ark. 193; 93 Ark. 472; 88 Ark. 49; 100 Ark. 565. Forfeitures are not favored in equity. TOO Ark. 565. The lessee would have been justified, under the uncon-troverted evidence, because of the lessor to make repairs, in rescinding the contract and vacating the premises. 93 Ark. 472; 99 Ark. 193. He was not required to do this, however, and remained in possession, as he had the right to do, relying upon the covenant of the lessor to keep ■the building in good repair throughout the term, and his own right to recoupment of damages, for breach of the covenant to repair, against a recovery of the rents. Young v. Bowman, 96 Ark. 78; 24 Cyc. 1206; 123 Ark. 594; also 3 Sutherland on Damages, 3236; 16 R. C. L., § 450; 144 N. T. 34; 56 N. Y. 420. The court erred in not allowing appellant to recoup his damages for breach of the contract to repair in the sum' proved and reduce his rent dues accordingly. The repairs agreed to be made were extensive and expensive in comparison with the rent reserved, not such as lessee would be required to make and take credit for, and the measure of damages was the difference between the rental value of the premises as-they were and what it would have been if the premises had been put and kept in repair, taking into consideration the purposes for which they were to be used. 123 Ark. 594; 134 Ark. 245; 96 Ark. 7i8; 24 Cyc. 1097; 1 Tiffany, Landlord & Tenant, p. 589; 2 Underhill, Landlord & Tenant, 789; 94 Pao. 2G6, 16 L. R. A. (N. S.) 737, and note; 15 Am. & Eng. Ann. Cas. 565, and note. Undisputed testimony shows the rental value without repairs was from 40 per cent, to 50 per cent, less than the rent recovered. In addition, appellant was entitled to damages to furnishing and fixtures. 8 Wise. 39; 28 N. Y. Supp. 519. Damages would have been greater under rule announced in 30 Atl. (Conn.) 852; 35 N. Y. 269; 63 N. Y. .561; 144 N. Y. 34, 39 N. E. 7. Insolvency of lessee was not alleged, and such insolvency would not constitute a breach of the contract. 100 Ark. 565. The decree should be reversed, and judgment rendered here for amount of damage suffered by appellant.

      D. G. Beauchamp and Bloch & Kirsch, for appellee.
    The chancellor found appellant in arrears on rent .$1,950 on May 10, 1922, and ordered that a writ of possession issue unless same was paid as directed. Appel-lee filed a motion to modify this order, and set up his claim for damages, and alleged that repairs had not been made as directed, and from the order refusing to modifv made June 10, 1922, appealed, filing a supersedeas- bond. The order -of June 10, being only an order refusing to modify previous order of May 10, 1922, was not appeal-able. 134 Ark. 386; 108 Ark. 523; 2 R. C. L. 46/ No appeal was taken from order of May 10, 1922, and the appeal should be dismissed. Writ of possession was properly issued. Williams v. Wheeler, 131 Ark. 582. It was appellant’s duty, having remained in possession under his lease, to continue to pay rent reserved. He waived breach of contract to repair by remaining in possession. 245 S. W. 311; 96 Ark. 78. Appellee could not have been responsible for damages after the appointment.of the receivers to make the repairs. Appellant can not insist on recoupment of damages, for the court below refused to pass on the question, which was not fully developed by appellant, nor at all by appellee.

      Arthur Sriecd, T. A. Turner and Kirby, Bays & Pringle, in reply.

      Appeal was taken in time from both orders of Maj’ .10 and June 10,1922, last being final order, being granted by clerk of Supreme Court on November 10, 1922. Sec. 2140, C. & M. Digest; 135 Ark. 412; 81 Ark. 258; 134 Ark. 386. Orders could be appealed from, notwithstanding tliey were made in vacation. Sec. 2190, C. & M. Digest. The order of May 10 was conditional, while that of June 10 directed the writ of possession issued, and was final. The question of appellant’s right to recoupment was not determined till June 10. Breach of covenant to repair not waived by appellant, hence, remaining in possession. 123 Ark. 594; 96 Ark. 78. The receivers could only relieve lessor from damages by performing his covenant to repair, which they failed to do.
   Smith, J.

On February 1, 1920, James A. Hays, the appellee, brought suit against appellant, E. B. Ash-more, for the alleged unlawful detention of a hotel in the city of Paragould, alleging the nonpayment of the rent covenanted to be paid under a written contract existing between the parties. The lease contained a provision whereby the lessor might declare the lease forfeited if the rent was not paid.

Appellant denied a failure to pay rent, and alleged a default upon the part of appellee in making certain necessary repairs which appellee had expressly covenanted to make. On appellant’s motion the-cause was transferred to equity, where it was tried.

After the transfer of the cause appellee applied for the appointment of a receiver to collect the rents, and that appointment was made. Upon appellant’s objection, this receiver was removed and another appointed, who was also removed, at appellant’s insistence. Thereafter two receivers were appointed to act together, one at the instance of each party.

The case remained on the docket until April 7, 1922, at which time a decree was entered which, appellee insists, was a final decree if, in fact, a final decree has been entered. Prior to the rendition of this decree the court had made orders in which the receivers were directed to make repairs, and the receivers made report of the repairs which they had made.

On April 7, 1922, the court made an order, in which it was recited that appellant liad not paid the rent since December 1,1921, and directed him to pay the same within twenty days. The receivers were ordered to make certain additional repairs. Appellant failed to pay the rent, whereupon appellee filed a motion asking the court to issue a writ of possession. To this motion appellant filed a lengthy response. At the hearing on May 10, 1922, the court found appellant was in arrears for rent to the extent of $1,950, and ordered that a writ of possession issue unless he should pay $500 before noon of May 16 and $700 before noon of June 5, and the monthly rental thereafter before the fifth day of each month. The payments so to be made were to be held by the receivers subject to the order of the court. Appellant excepted to said order, and thereafter filed a motion to modify the decree of May 10, alleging that appellee had failed to make repairs. He took testimony on his motion, which the court heard on June 10, and on that date the court found that appellant had not complied with the order of May 10, and refused to modify that order. Appellant prayed an appeal from the refusal of the court ■to modify its order of May 10.

It appears, from the recitals of the orders and decrees to which we have referred, that neither the plaintiff nor the defendant had fully developed his testimony on the question of damages for failure to make repairs, but appellant insists that the testimony taken shows that his-damage was largely in excess of the sum claimed as rent.

After praying and perfecting an appeal, appellant gave a supersedeas bond and has remainded in possession, and on August 12, 1922, he filed a petition asking that the receivers be directed to make certain repairs. At the hearing .of this motion the receivers were directed to make repairs of an extensive and expensive character.

It is first insisted that there was no final decree from which an appeal would lie. We think there was a final decree from which an appeal was properly taken, and this decree was that of May 10, as the decree of Jnne 10 was a mere refusal to vacate or modify the decree of May 10. Oxford Telephone Mfg. Co. v. Arkansas Nat. Bank, 134 Ark. 386; Pearce v. People’s Savings Bank & Trust Co., 152 Ark. 581.

The appeal from the decree of May 10 was perfected on November 10, which was exactly in time.

The decree of- April 7 was interlocutory, and did not become final until May 10, but the decree of the last date was final because it granted the relief sought by plaintiff, to-wit: the recovery of the possession of the premises. Branstetter v. Branstetter, 130 Ark. 301.

Here the plaintiff insisted the defendant was in default in payment of rent. The defendant insisted that he was not in arrears, that his rents had been more than paid by the damages resulting to him from the plaintiff’s failure to repair. This was a valid defense, if true, as defendant could not be required, to pay if his damages exceeded his rents, it being his insistence that the repairs were so extensive and_ expensive in comparison with the rent reserved as that he would not be required to make them on the -lessor’s default and take credit therefor on his rent account. Brunson v. Teague, 123 Ark. 594; Johnson v. Inman, 134 Ark. 345; Young v. Berman, 96 Ark. 78; Berman v. Shelby, 93 Ark. 472; Tedstrom v. Puddephatt, 99 Ark. 193.

The order of the court awarding the writ of possession is defended upon the ground that it was merely a method employed by the court to enforce obedience to its decree ordering the appellant to pay rent; but the court should not have made the order awarding the writ of possession. Upon the contrary, the case should have been tried upon its merits, and the fact ascertain e/1 whether appellant was in default in the payment of his rents, or had paid them by sustaining damages as the result of appellee’s failure to repair.

The lease contained the provision that the lessor might declare the lease forfeited for nonpayment of rent, but the question is whether there has been a failure to pay rent. Williams v. Shaver, 100 Ark. 565.

It is appellant’s insistence that he is not in default, and, if this is true, the possession should not have been awarded to appellee, the lessor.

In other 'words, the court granted appellee the relief originally prayed by him, and has reserved for decision the very question which must determine whether appellee is entitled to have that relief, which is, did appellant default in paying his rent?

For the error indicated, the decree of the court below is reversed, and the cause remanded, with directions to set aside the decree awarding appellee the possession of the property before the final hearing of the cause, and to restore the possession of the property to the reviver. if the court is of opinion that the receivership should be continued.