author: Baker, J.

text:
    Fries v. Phillips.
    4-3540
    Opinion delivered October 8, 1934.

      Robert Bailey, for appellants.

      Reece Caudle, for appellee.
   Baker, J.

This is an appeal from the circuit court of Pope County, in a cause wherein a controversy has arisen between appellants and Nora Phillips, appellee, as to the right of appellants to adopt a child, Dolores Sulzer, whose parents, Joseph Sulzer and Myrtle Phillips Sulzer, are both dead; the said Dolores Sulzer being a niece of appellants and a grandchild of Nora Phillips.

The cause originated in the probate court of Pope County, in which county the appellants filed their verified petition, therein stating that Dolores Sulzer was born on March 30, 1928, of Joseph Sulzér and Myrtle Phillips Sulzer; that Myrtle Phillips Sulzer has predeceased her husband by several months. Joseph Sulzer died March 5, 1933, at Harlingen, Texas. His wife, the mother of Dolores, had been in the hospital for several months prior to her death, and Nora Phillips, the grandmother of the child, had cared for it a larger part of the time since its birth, and particularly during the period the child’s mother was confined to the hospital. Prior to the death of the mother of the child, it is alleged in the proof that the mother and father -both had asked the appellee to take the child and rear it, and prior to the death of Joseph Sulzer, but after the death of his wife, he had written several letters and sent telegrams to his sister, Catherine Fries, requesting that she come and get the child and take it to her home in California.

The Fries lived within about four blocks of her father and mother, William Sulzer and wife, who were also the father and mother of Joseph Sulzer. The Sulzers and Fries were ordinarily well-to-do people, having good homes and pleasant surroundings.

An older child of Joseph Sulzer and his wife, a boy, had been given to the father and another of Joseph Sulzer and Mrs. Fries, and had been taken by them to California and was living with them. It was the intention of the appellants herein to adopt Dolores and take her to their home in California, and they had left their home and had gone to southern Texas for the purpose of getting the child, but found'that the appellee had left her husband in Texas and had taken the child to Pope County.

After getting to Pope County, the appellee, Mrs. Phillips, had taken the child to the home of her brother and mother, who lived a few miles from Russellville. Mrs. Phillips’ mother, the child’s great-grandmother, is an old lady about eighty-two years of age, receiving a Federal pension of $50 a month. The brother of Nora Phillips is on a small tract of land, is not indebted in any amount, except for taxes, and the four of them are living together in a small four-room house.

A younger 'brother of Mrs. Phillips had. been working for some, of the governmental agencies and had but recently returned to this home, living there at the time the trial was had in the circuit court.

At the time Mr. and Mrs. Fries filed the application to adopt the child in probate court of Pope County, the. probate judge made an order fixing the date for the hearing and directed the sheriff to bring the child to probate court on a day fixed in the order.

At the time of .the hearing, Mrs. Nora Phillips, the appellee, filed a response to the application of Mr. and Mrs. Fries, denying the right of Mr. and Mrs. Fries to adopt the child and praying that she be permitted to adopt it. The probate court made an order permitting Mr. and Mrs. Fries to adopt Dolores. An appeal was prayed to the circuit court by the appellee herein. In the circuit court the matter was submitted to a jury, and the jury returned its verdict in favor of Mrs. Phillips, the appellee. Upon this verdict the court rendered judgment, with findings of fact as follows:

“That the child is a minor, five years of age, and the daughter of Myrtle Phillips Sulzer, who died July 11,1932, and Joseph Sulzer, who died March 5,1933'; that the said child, Dolores Sulzer, is a resident of Pope County, Arkansas; that Catherine Fries, sister of Joseph Sulzer, deceased, and her husband, Xavier Fries, are residents of Oakland, California, and that Mrs. Nora Phillips, mother of Myrtle Phillips Sulzer, deceased, and grandmother of Dolores Sulzer, is a resident of Pope County, Arkansas. The court further finds that the minor, Dolores Sulzer, is now and has been, of necessity, continuously since her birth, in the care and custody of petitioner, Mrs. Nora Phillips, the appellee herein, and that it is to the best interest of the minor, Dolores Sulzer, that she remain with petitioner, Mrs. Nora Phillips, until further orders of the court.”

The court then ordered and adjudged that the petition of Catherine. Fries and Xavier Fries, be denied, and that petition of Nora Phillips for adoption also be denied, but that Mrs. 'Nora Phillips have custody of the minor, Dolores Sulzer, until further orders of the court, and retained jurisdiction of the case to make such further orders as might he proper.

Considerable testimony was taken, touching- largely upon the proposition of the desires of the father and mother of the child, as to what person should have its care and custody. This evidence was conflicting, and, presumptively, the court submitted to the jury whatever questions it was thought expedient to be settled by the jury. The instructions are not brought forward in the abstract. Therefore, necessarily, we must further presume that whatever instructions were given, correctly submitted each point in controversy.

Motion for a new trial was filed and overruled. The appeal was prayed and granted. The motion for new trial, however, is not brought forward in the abstract. Three matters, however, are argued in the brief as reasons why we, as a matter of law, should reverse the case.

First is the asserted desires of Joseph Sulzer, father of Dolores, that his sister and brother-in-law have custody of Dolores for the purpose of rearing- her. The love of the father for the child is earnestly argued, but the evidence, as abstracted, as to his conduct toward the child, and also as to what his desires were, we find, is conflicting, and the jury’s verdict upon that question is conclusive. We deem -it unnecessary to set out this testimony.

The next, or main question, that is argued is that the welfare of the child should be the controlling factor in the rendition of the decision. We have already stated sufficient facts concerning Mr. and Mrs. Fries; and it has already been shown that the appellee, Mrs. Fora Phillips, had the custody of this child and has practically reared it. The appellants would have us infer that she most probably left southern Texas and made her trip to Pope County in order to avoid having the child taken from her upon the arrival of Mr. and Mrs. Fries, who went from California to Texas for that purpose. The inference may be a correct one, and we are willing to assume that it was, but, if so, it tends to prove at least that Mrs. Phillips had a very strong affection for her grandchild, and that she was willing to suffer almost any discomfort or inconvenience in order that she might have the child with her and under her control.

It is forcefully presented that the two children should be brought up together, but it was the father who brought about their separation and whose own conduct made it impossible for them to be together. The children do not know each other, and the condition of each is now, and probably has been, far from ideal, but the courts must deal with conditions as they find them at the time causes are presented.

It is argued we should be controlled by the order of the probate court, as in the case of Deffenbaugh v. Roden, 182 Ark. 348, 31 S. W. (2d) 406. The question there decided was whether or not the appellee had a right to appeal from an order of adoption made by the probate court, the appellee not being a party to that proceeding but having filed another and independent petition for adoption of the same children. The appellee also appealed from an order denying the right of adoption upon her application, and the circuit court overruled a-motion filed by the appellants to dismiss appellee’s appeal from the probate court, because of the fact appellee was not a party to appellant’s proceeding in the probate court. The court decided that one question and also made comment on the fact that the probate court, being acquainted with the facts, most probably, was right in permitting the appellants to adopt the two children.

The case here presents a different condition. Mrs. Phillips made herself a party to the proceeding’ by filing a response to appellants’ petition to adopt, and she also prayed for the adoption on her own behalf. By making 'herself a party, she had a right to appeal and to a trial in the circuit court upon this appeal.

Upon conflicting and controversial testimony, properly submitted, we cannot, and do not, find any error in the trial court. It is unnecessary to set forth the evidence adduced at that trial, or to argue the same, for the reason that in this court we cannot try the case de novo.

The judgment of the circuit court is such that, the trial judge has retained jurisdiction, so as to control the custody of the child. We are impelled to defer to the discretion and judgment of that court.

The judgment of the circuit court is therefore affirmed.


source: Caselaw Access Project

author: Per curiam. Smith, J.,

license: Public Domain

text:
    Clark v. American Exchange Trust Company.
    4-3660
    Opinion delivered October 8, 1934.

      C. B. Nance and R. V. Wheeler, for appellant.

      J. H. Carmichael and Sam Rorex, for appellee.
   Per curiam.

Appellee moves the dismissal of the appeal herein because filed one day too late. The facts are the six months provided by statute for lodging appeals in this court expired on Sunday, August 26, 1934, and this appeal was lodged here on Monday following. Under authority of Bank of El Paso v. Neal, 181 Ark. 788, 27 S. W. (2d) 1024, this appeal was lodged here one day too late and must be dismissed.

The view here expressed does not conflict with the opinion of this court in McNutt v. State, 163 Ark. 122, 258 S. W. 1. In the case last cited we were dealing with a statute which required an act to be done within a certain number of days, whereas the statute here under consideration requires the act to be done within a certain number of months, and this marks the difference in construction and interpretation as determined by practically all, if not all, the courts.

Let the appeal be dismissed.

Smith, J.,

(dissenting). In dismissing this appeal because the transcript was not filed until Monday, August 27, 1934, for the reason that the six months expired on August 26, which day was Sunday, the majority have followed the dissenting opinion of Chief Justice McCulloch in the case of McNutt v. State, 163 Ark. 122, 259 S. W. 1, rather than the opinion of the majority of the court in that case written by Justice Hart.

That case recognized that there was a division in the authorities, and the dissenting opinion of Chief Justice McCulloch makes that fact clearly appear. In his dissenting opinion it was said: “It seems clear to me that this court, in holding that Sunday is to be excluded when the last day for appeal falls on that day, is deciding contrary to the almost unanimous decisions of other courts, and I think the ruling is contrary to the express language of the statute, which requires that the appeal must be perfected within sixty days. In excluding- Sundays we are reading something into the statute which cannot be found there, for the manifest purpose of the lawmakers' in framing this statute was not to allow sixty juridical days within which to perfect an appeal, but to fix a period of time, namely, sixty calendar days, within which an appeal must be perfected. The fact that, in some instances, we have statutes requiring appeals and such other proceedings to be completed within' a very short time, should be very persuasive to the Legislature, either to lengthen the time or to exclude Sundays, but it affords no reason why we should read something into the statute which is not found in its language.”

However, this argument made by the learned Chief' Justice did not convince the majority, and his view was not adopted by the other members of the court, and it occurs to me that the only question now presented is whether we should adhere to the majority opinion, or should recede from it and adopt the view so ably expressed in the dissenting- opinion.

It is true the McNutt case, supra, was a criminal case, whereas the instant ease is not; but this fact makes no difference. The rule for computing time is the same in both.

It is true also that the statute construed in the Mc-Nutt case related to the number of days within which an appeal must be perfected, whereas the statute here considered relates to the number of months within which to perfect an appeal; but it is respectfully submitted that this difference is of no controlling importance. The opinion of the majority in the McNutt case was based upon the ground that, both at common law and by statute in this State, Sunday is not a juridical day, and that when the last day allowed by law for lodging a transcript in the offiee of the clerk of this court falls on Sunday, the transcript may be filed on the following Monday. The transcript in that case was not filed within sixty days, as the statute there construed required, but the failure so to file was excused because the last day on which it should otherwise have been filed was a Sabbath day, which we said was dies non.

If August 26, 1934, had not been a Sabbath day, the transcript could, without doubt, have been filed on that day. That fact is not questioned. But inasmuch as that day was not a juridical day, the transcript could be legally filed, under the authority of the majority opinion in the McNutt case, supra, on the following day.

Bank of El Paso v. Neal, cited in the majority opinion, does not hold to the contrary. It was decided in that case that an appeal granted on January 16, 1930, from a judgment rendered July 15, 1929, was not taken within six months as required by § 2140, Crawford & Moses’ Digest, but the preceding day in that case, the 15th, was not a Sabbath day. As a matter of fact, it was a Wednesday. The holding in that case, as applied to the instant ease, means only that the transcript should have been lodged with the clerk, of this court on or before August 26, 1934, provided August 26 had not been a Sabbath day. Filing a day later, under the authority of that case, would have been a day too late but for the circumstance that this day was a Sabbath day, a dies non, and it conld therefore under the majority opinion in the McNutt case, supra, have been filed on the following day, but not later than that day.

The case of Armstrong v. McGough, 157 Ark. 173, 247 S. W. 790, supports the view I have just expressed. That case involved the payment of rent to keep in force a mineral lease in which time had been made of the essence of the contract, under the terms of which the rent was payable on or before September 11, 1921. That day was a Sabbath day, and the payment was not actually made until the following day, September 12. The chancellor held that the payment had not been made in apt time. In reversing that holding we there said: “The general rule with regard to contracts is that, when an act is to be performed within a certain number of days, and the last day falls on Sunday, the person charged with the performance of the act has the following day to comply with his obligation. The majority rule is that Sunday cannot, for the purpose of performing a contract, be regarded as a day in law, and should, as to that purpose, be considered as stricken from the calendar. In computing the time mentioned in a contract for the doing of an act, intervening Sundays are to be counted, but when the last day for performance falls on Sunday, it is not to be taken into computation.”

A number of cases are there cited'in support of that declaration of the law, and the cases support the declaration made. But, whether they in fact accord with the majority view as there stated or not is now unimportant, as we then laid down the rule to be followed in this State, and now, for the sake of uniformity and certainty in the administration of the law in this State it should be adhered to. An examination of this Armstrong case, supra, will disclose the fact that the delayed payment there made was to be made within twelve months to extend the lease for another year. It appears therefore so far as the'Sunday law is concerned, that it is immaterial whether the act to be done is to be performed within a given number of days, or a given number of months; if the last day of performance falls on the Sabbath, performance may lawfully be made on the next ensuing day.

There is no good reason to have one rule to be applied in the case of contracts and a different rule to be applied to the same state of facts in the construction of statutes. The true rule, if we are to follow our own cases, is that (in the construction either of a contract or of a statute) if the last day of performance falls on the Sabbath, the act required may be performed on the first clay thereafter.

This appeal was therefore in my opinion, lodged in apt time, and should not be dismissed.


author: Per curiam.

text:
    Crain v. St. Francis Levee District.
    4-3577
    Opinion delivered October 8, 1934.

      Daggett é Daggett and Coleman & Riddick, for appellant.

      Burk Mann, J. T. Coston and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Per curiam.

Appellee moves the court to dismiss the appeal herein for the following reasons: First, a summons was not served on it in apt time; second, J. H. Crain has no right to appeal because he was not a party to the suit in the lower court.

The second contention that J. H. Crain has no right to appeal because he was not a party to the suit in the lower court is predicated upon the. following facts and circumstances. On December 8, 1933, appellant James Baker filed his complaint against appellee seeking injunctive relief. On the. same day answer was filed by Appellee, and on the following day, December 9, the cause was submitted to the chancellor in vacation and a decree was entered dismissing the complaint for want of equity. This suit was instituted by Baker as a taxpayer of the levee district. Baker did not pray an appeal from the adverse judgment, and thereafter J. H. Crain, a taxpayer of the district, filed an intervention in said cause in his own behalf, and in behalf of all other taxpayers in the district praying that the cause be determined upon its merits and, in the event the decree could not be set aside, that he be permitted to appeal to the Supreme Court of this State. This intervention was never passed upon by the chancellor.

The appeal was afterwards perfected by Baker, but he moved its dismissal, and thereupon Crain ásserted the right to prosecute the appeal in the place and stead of Baker.

Under the law, J. H. Crain has the same right to prosecute an appeal from an adverse judgment rendered in a taxpayer’s suit that the original plaintiff had.

Section 1098 of Crawford & Moses’ Digest provides: “Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.”

Following the rule stated above, we held in Howard-Sevier Rd. Imp. Dist. v. Hunt, 166 Ark. 62, 265 S. W. 517, that: ‘ ‘ Since Kennedy and the others who instituted the original action attacking the validity of the assessment of benefits as a whole, which appellants are here seeking to enforce, represented the appellees and all the taxpayers and property owners of the district who were in the same class, it follows, from our statute and the above authorities, that the appellees were parties to that original action the same as if they had been made so by name. ’ ’

From the rule thus stated, it appears that J. H. Crain, being a taxpayer of the district, was a party to the action as effectually as if he had been made so by name.

It is unnecessary for us to determine whether or not the summons has been served in apt time, because appellee, by appearing herein and bringing into question the capacity of Crain to maintain and prosecute this appeal, has entered its appearance generally and for all purposes. Federal Land Bank v. Gladish, 176 Ark. 267, 2 S. W. (2d) 696.

It follows from what we said that the motion to dismiss the appeal must be denied.


author: Humphreys, J. McHaney, J. Johnson, C. J.,

text:
    W. B. Worthen Company v. Delinquent Lands.
    4-3635
    Opinion delivered October 15, 1934.

      Rose, Hemingway, Cantrell & Loughborough, for appellants.

      8. L. White, for appellees.
   Humphreys, J.

This is an appeal from a decree of foreclosure in favor of appellants of certain lands in Improvement District No. 513 of the city of Little Rock, Arkansas, on account of the failure to pay delinquent assessment of benefits to appellants. Appellants are appealing from the decree in their favor because the court refused to incorporate into the decree a penalty of 20 per cent., costs, a reasonable attorney’s fee, and, if payment were not made within ten days, the property should be sold on 20 days’ notice, and that, if the owner did not redeem from the sale within two years by the payment of the purchase price and 10 per cent, interest, the commissioner should deliver to the purchaser a deed, and that, immediately upon the delivery of the certificate of purchase after the sale should be confirmed, the purchasers should have possession pending redemption without accountability for rents. These requested provisions were in accordance with the statutes in force and effect at the time the district was organized in 1930, and at the time the bonds were issued and sold to construct the improvement. These remedial provisions of the statutes were amended or repealed by acts 278, 2'52 and 129 of the Acts of the Legislature of 1933 so as to provide a penalty of 3 per cent., no attorney’s fee, twelve months for payment, six months ’ notice of sale, redemption within four years by payment of the purchase price and 6 per cent, interest, and no right to possession without accountability for rents pending redemption.

In rendering the decree of foreclosure, the court followed the remedial provisions contained in acts 278, 252 and 129 of 1933, so the only question presented upon appeal and insisted upon by appellants for a reversal of the decree, is whether the later acts are in contravention of article 2, § 17, of the Constitution of Arkansas and article 1, § 10, of the Constitution of the United States, which forbid the passage of any law impairing the obligation of contracts, and of the Fourteenth Amendment to the Constitution of the. United States, which forbids any State to deprive any person of his property without due process of law. An inspection of the acts of 1933' called in question will disclose that they are entirely remedial in their nature and do not attempt to take away any of the vested rights of appellants such as their lien and right to foreclose same, but simply reduce the penalty and extend the time required to foreclose in case of default and to redeem from a sale and are, in our judgment, reasonable changes to meet the exigencies of the depression and to give property owners a reasonable time and opportunity to save their homes. The constitutionality of act 278 of 1933 was attacked from every conceivable angle in the case of Sewer Improvement District No. 1 of Wynne v. Delinquent Lands, 188 Ark. 738, 68 S. W. (2d) 80, and this court upheld the act. In deciding that case the authorities were fully reviewed, and it is unnecessary to review them, again. Suffice it to say that the case referred to governs and controls the instant case. There is no difference between the three acts in tenor and effect; so the reasoning as to the validity of act 278 is applicable to acts 252 and 129.

No error appearing, the decree is affirmed.

McHaney, J.

I dissent for the reasons stated in my dissenting opinion in Sewer Imp. Dist. No. 1 of Wynne v. Delinquent Lands, 188 Ark. 738, 68 S. W. (2d) 80, and am authorized to say that Mr. .Justice Smith and Mr. Justice Baker concur therein.

Johnson, C. J.,

(concurring). I concur in all that is said in the court’s opinion and in addition thereto I assign the following reasons supporting or tending to support the opinion: Act 278 of 1933 'was before us for consideration in Sewer Imp. Dist. No. 1 of Wynne v. Delinquent Lands, 188 Ark. 738, 68 S. W. (2d) 180, and we there declared its provisions not in conflict with the State or Federal Constitutions, and I have nothing to add to the opinion in that case. Acts 252 and 129 of 1933 have not been before us prior to the opinion herein, therefore these elucidations.

'Act 252 of 1933 has the effect of allowing property owners in all municipal improvement districts in this State four years from date of judicial sale in which to redeem. Appellant’s contention is that this act increased the period of redemption from two years (which was allowed under the law when their bonds were issued) to four years, thereby impairing the obligations of their contract. This contention is without merit. Section 5644 of Crawford & Moses’ Digest, which is a section of the municipal improvement district act of 1915, by plain terms gives to property owners in all such districts five years in which to redeem from such sales. Appellants contend however, that the time given an owner to redeem, by the section supra, was reduced to a period of two years by act 359 of 1925. Section two of said act of 1925, which is asserted to have effected the change from five years to two years is as follows:

“Hereafter all persons shall have the right to redeem from the sale for taxes of road, drainage, levee of [or] other improvement districts at any time within two years from the date when such lands are sold by the Commissioner making the sale, and not thereafter ; provided, that the provisions of this section shall not apply to property which shall have become delinquent or have been forfeited prior to the passage, of this act.”

In Roberts v. Owen, 183 Ark. 6, 34 S. W. (2d) 752, we expressly declined to determine whether act 359 of 1925 was applicable to municipal improvement districts, and this question has not 3et been decided. If the act of 1925 is not applicable to municipal improvement districts, property owners in such districts had five years to redeem when appellant’s bonds were issued and sold, and act 252 of 1933 of which appellant now complains had the effect of reducing the period of redemption instead of increasing it as urged by appellant.

Section 2 of act 359 of 1925 needs no interpretation. It provides that it is applicable to ‘ ‘ road, drainage, levee of [or] other improvement districts.” Had it been intended to apply to paving, sewerage, water and such municipal districts, the Legislature could and would have so said in plain language. The only conceivable reason asserted as to its applicability to municipal improvement districts is “of [or] other improvement districts,” but this phrase has reference to other improvement districts of the same kind as those specifically enumerated. The rule of ejusdem generis has ever been applied by us under such circumstances. Jones v. State, 104 Ark. 261, 149 S. W. 56; State v. Gallagher, 101 Ark. 593, 143 S. W. 98; Lee v. Huff, 61 Ark. 494, 33 S. W. 846; Eastern Ark. Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886; Matthews v. Kimball, 70 Ark. 451, 66 S. W. 651, 69 S. W. 547; St. L. I. M. & S. R. Co. v. Love, 74 Ark. 528, 86 S. W. 395; State v. C. R. I. & P. Ry. Co., 95 Ark. 114, 128 S. W. 555; 25 R. C. L., § 240, p. 996.

It appears therefore that act 359 of 1925 is not applicable to municipal improvement districts, and for this reason act 252 of 1933 shortened the period of redemption instead of increasing it, and appellant certainly cannot complain of this. Act 129 of 1933 repeals § 5642 of Crawford & Moses’ Digest. This repealed section provides: “In all sales made by commissioners under decrees of chancery courts for foreclosure of delinquent special assessments in drainage, levee, and bridge districts, improvement districts in cities and towns, and in all special assessment districts of every kind, the court may approve the sale subject to the right of redemption, and immediately upon such approval the purchaser shall have the right to possession of the lands and premises so sold and may have process therefor, and such purchaser while so in possession shall not be accountable for rents upon redemption.”

The language of the section: “The court may approve the sale subject to the right of redemption, and immediately upon such approval the purchaser shall have the right to possession, etc.,” clearly vests in the chancery courts of the State a discretionary power in the approval of all sales effected in such courts by municipal improvement districts. It is common knowledge that such sales are not approved in many instances until the time for redemption has expired. Ño one would assert that the chancery courts could be subjected to mandamus under this section of the statute and compelled to approve a report of sale prior to the. expiration of the period of redemption. Such being the law, appellant took no vested right by reason of said section and cannot complain of its repeal.

After further consideration, I am authorized to say that Justices Butler, Mehaeey and Humphreys concur in these views.


author: Mehaffy, J.

text:
    Wasson v. Treece.
    4-3553
    Opinion delivered October 15, 1934.

      W. F. Reeves, for appellant.

      S. W. Woods, for appellees.
   Mehaffy, J.

The appellees, who are the heirs at law of E. B. Treece, deceased, were, the owners of an undivided one-half interest in property- in Marshall, Searcy County, Arkansas, and the Bank of Marshall was the owner of the other undivided one-half interest. The Bank of Marshall, in October, 1929,. filed a suit in partition against the appellees, and against Patti Treece as guardian for said appellees, who were all minors at that time, in the. Searcy Chancery Court, asking for a partition of said property. A decree of partition was ordered by the court, and the property ordered sold, and the same was sold -by a commissioner, and the State Bank of Marshall became the purchaser for the sum of $8,000.

On May 1, 1933, Eugene Treece, Winston Treece and Burnelle Treece, adults, and Barton Treece and Francis Treece, minors, by their next friend, Claude Treece, filed suit in the Searcy Chancery Court against Marion Wasson, State Bank Commissioner, alleging that they were the sole heirs at law of E. B. Treece, deceased, and that the property was owned as above set out, and that, prior to the partition, the Bank of Marshall occupied said premises, and paid the guardian of the appellees $30 a month as rental for their interest in the property. They alleged that, after the bank purchased the interest of appellees in said property, A. A. Hudspeth, as cashier of the bank, applied $2,600 of the money belonging to appellees as payment of certain personal obligations owed by the guardian of appellees, and that the appellees received only $1,400 of the $4,000, and they asked judgment for $2,600, and that it be declared a lien on the undivided one-half interest of the property described.

A demurrer was filed and thereafter a substituted complaint. The appellant filed answer, and the cause was submitted on the following agreed statement of facts:

“It is agreed that the above-named plaintiffs are the heirs at law of E. B. Treece, deceased, who died intestate in Searcy County, Arkansas, before the year 1924, and that he left said children and a widow, Patti Treece, as his sole surviving heirs and widow.
“That in November, 1926, J. E. Treece died intestate, and that E. B. Treece was a son of J. E. Treece, and that among other property which the plaintiffs inherited from their grandfather’s estate was an undivided one-half interest in the lot and bank building standing thereon, in Marshall, Arkansas, described as follows:
“Beginning 45% feet west of the northwest corner of J. W. Coker’s house, known as the restaurant, thence south parallel with said house 140 feet to the W. L. Baker property, thence west 25% feet, thence north parallel with said house to a point due west of the place of beginning, thence east to place of beginning, being a part of block No. 7 in Marshall, Searcy County, Arkansas.
“That the Bank of Marshall, Arkansas, was the owner of the other undivided one-half interest in said lot and improvements, and in October, 1929, filed a suit in partition against the above-named plaintiffs as heirs at law, and against Patti Treece as guardian of said plaintiffs, who were all minors at said time, in the Searcy Chancery Court, asking for a partition of said property.
“That in March, 1930, a decree of partition was ordered by the court, finding that it could not be partitioned in kind, a sale of the property was ordered, and the same was sold by Sam Blair as commissioner to the First State Bank of Marshall, Arkansas, for the sum of $8,000, on June 16, 1930, which sale was approved by the court and the commissioner ordered to pay all costs and divide the. remainder according to the interest of the parties in interest.
“That the costs in said case were as follows:
Allowance to plaintiff’s attorney fee.....*.............................$200.00
Allowance to guardian ad litem for defendants......... 25.00
Commissioner’s fee......................................................................... — - 25.00
Clerk’s fees.............................................,...................................................... 9.25
Sheriff of Searcy County................................................................... 3.20
Sheriff of Pope County.......................................................................95
Printer’s fee.................................................................................................. 11.25
Total................-.........................................................................................$274.65
and the First State Bank of Marshall, Arkansas, paid said fees and allowances, canceled notes, stamping the same as paid, including interest to the total amount of $2,740.37, one of said notes for $50 principal and $1.76 interest, being the note of the plaintiff, Eugene Treece, and notes aggregating $2,688.61, being notes signed by Patti Treece, and held by said bank, and turned over to Patti Treece, as the guardian of the plaintiffs, $1,140, on. June 25, 1930.
“No payments were made by the purchaser, First State Bank, to the commissioner, except payment of court costs, and the settlement of the balance being between the cashier of the bank and Patti Treece, guardian of plaintiffs.
“That all of the $2,740.37 in notes canceled and marked paid by the bank and delivered to Patti Treece, were signed by Patti Treece alone and individually, except the $50 note signed by Eugene Treece as aforesaid.
“That the commissioner’s deed conveying all of said lands to the First State Bank was delivered by the commissioner to said bank and recorded on June 19, 1930, in book 26, page '8.
“Plaintiffs filed this suit asking for judgment against the State Bank Commissioner in charge of the First State Bank of Marshall, Arkansas, on May 1, 1933, asking judgment for $2,600, and that the same be declared a lien upon an undivided one-half interest in the lands aforesaid, with improvements.
“That the First State Bank of Marshall, Arkansas, became insolvent on September 1, 1931, and was taken over by the State Bank Commissioner, and has been in the hands of said State Bank Commissioner in liquidation ever since. The notice was published as required by law of the time within which claims could be filed under the law, and no claim was filed by the plaintiffs for $2,600 or any other sum, with the State Bank Commissioner, before the filing of this suit.
“Defendant in his answer made Patti Treece a party plaintiff, and had summons served on her, asking that judgment be rendered against her for the amount of the notes which the. bank settled with her for, in case judgment was rendered against it, and more than 20 days expired before the regular September term, 1933, of the chancery court, and no answer or other pleadings was filed by her.
“We hereby agree that this cause be submitted to the court for decree in vacation, upon this agreed statement of facts. ”

The chancellor found that the appellees were the sole owners of an undivided one-half interest in the land described, and found that the Bank of Marshall owned the other one-half interest, and that theretofore the bank had brought a suit, and that the property was not susceptible of division in kind, and ordered the same sold by the commissioner. He further found that $4,000 was due the appellees, and that there was a lien retained on the property for the purchase money; that there was at the time of the decree due appellees in principal and interest the sum of $3,231.80, and decreed that the appellees had a lien on one-half interest for the sum found to be due them, and if said sum was not paid within 10 days the property should be. sold for the purpose of paying said sum.

To reverse the decree of the chancery court, this appeal is prosecuted.

It is first contended by the appellant that this is a-collateral attack npon the judgment and proceedings had at a former term of court. It appears from the pleadings, however, that this is not an attack upon the judgment at all, but that the judgment is expressly recognized, and all the proceedings up to and including the sale are válid, and this suit is to enforce the lien of said judgment, to compel the purchaser to pay the price of its bid. The evidence shows that the partition suit was regular; that the court ordered a sale, and that the bank became the purchaser. It also shows, however, that the bank never paid any of its bid to the guardian for the heirs, except $1,140. It appears also that at the time of the sale the bank held the personal note of Patti Treece, and, instead of paying to Patti Treece as guardian of the minor heirs, it paid to Patti Treece individually, or rather it applied $2,600 of the purchase price to the payment of her individual note, leaving a balance due the heirs at that time of $2,600.

It is contended that the sale was conducted in compliance with the law, and that the sale, when approved by the court, and the deed made and approved by the court, passed title to the bank, and that this suit for that reason could not be maintained.

It was the duty of the commissioner when the sale was made, to collect the money. It is not claimed that he did this. In fact, the undisputed evidence shows that he collected but $1,140 from the bank.

This court has said: ‘ ‘ The payment of the purchase money was a prerequisite to the execution and delivery of the deed, which, not having been done, the sale should be set aside, the deed canceled, and declared void.” Phelps v. Jackson, 31 Ark. 272.

This court has also said, speaking of sale by an administratrix: “She executed a deed to Dyer, but received no money in payment, assuming to collect the sum bid in her individual paper. That she could not do.” Ambleton v. Dyer, 53 Ark. 224, 13 S. W. 926.

In the instant case the guardian sold the minors’ land and did not receive the money from the purchaser) but received her individual note which, she owed the bank for $2,600. This she had no right to do. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S. W. 135; Briggs v. Collins, 113 Ark. 190, 167 S. W. 1114.

The bank was represented in all these transactions by its cashier. He had authority to represent the bank, and his actions are binding on the bank. 7 C. J., 549.

The bank knew that the property belonged to the minors; it knew that Patti Treece was their guardian.

“The rule in all these cases, that the purchaser or mortgagee is not bound to look to the application of the purchase money is subject to an obvious exception, that, if the purchaser or mortgagee is knowingly a party to any breach of trust by the sale, or mortgage, it shall afford him no protection. * * * It may be considered as the prevailing doctrine in the American courts that a purchaser from a trustee is not bound to see to the application of the purchase, money, except where the sale is a breach of trust on the part of the trustee, and the purchaser has, either from the face of the transaction, or otherwise, notice or knowledge of the trustee’s violation of duty; but, if he has such knowledge or notice as makes him a party or privy to the trustee’s misconduct, the property will be affected in his hands with the. trusts which previously attached to it.” Grider v. Driver, 46 Ark. 109.

The cashier of the bank here not only knew all the facts, but participated in the transaction, and, instead of paying the money to the commissioner for the minors, delivered to the guardian her individual note for $2,600..

It is contended by the appellant that the appellees failed to file any claim with the Bank Commissioner. They were, not required to file such claim, because they are seeking to enforce their lien against the property which the bank purchased and never paid for. They are not seeking any claim against the bank or the Bank Commissioner as such.

At the time of the partition suit and sale, all the appellees were minors. The oldest is now 22 years of age.

Section 6961 of Crawford & Moses’ Digest provides: “If any person entitled to bring’ any action under any law of this State be, at the time of the accrual of the cause of action, under 21 years of age, or insane or imprisoned beyond the. limits of the State, such person shall be at liberty to bring such action within three years next after full age or such disability may be removed.”

The appellees were not barred from bringing this suit. It is true, they, in the original suit, might have asked the court to order a resale of the property, but that remedy is not exclusive. They had a right to bring this action against the purchaser to compel him to complete the purchase by paying the amount of his bid. 35 C. J., 118.

The deed made, under the circumstances shown in evidence, was void, and the decree of the chancery court is correct, and therefore affirmed.


text:
    Holmes v. Waggoner.
    4-3685
    Opinion delivered October 15, 1934.

      Emmet Vaughan, Geo. W. Craig and W. A. Leach, for petitioner.

      ■Campbell & Smith, for respondent.
   Mehaffy, J.

In the general Democratic primary election held in Prairie County on August 14,1934, J. P. Simms and J. J. Holmes were candidates for the office of county and probate judge, of said county.

On August 17, 1934, the county central committee canvassed the returns of said primary election and certified J. J. Holmes to be the nominee for said office.

On August 21, 1934, J. F. Simms commenced in the. circuit court at DeVall’s Bluff, an action against J. J. Holmes to contest the certificate of nomination issued by the committee. Thereafter J. J. Holmes filed a motion to dismiss the action on the ground that the jurisdiction of actions to contest primary elections was not by law vested in the circuit court for the Southern District of Prairie County. The circuit court overruled the motion, and thereupon J. J. Holmes, the defendant in the election contest case, filed in this court an application for a writ of prohibition against W. J. Waggoner, circuit judge of the Prairie Circuit Court, to prohibit said court from exercising jurisdiction in the suit brought at De-Vall’s Bluff to contest the election.

The only question for our consideration is whether the circuit court at DeVall’s Bluff had jurisdiction to try the election contest case. "

Section 12 of article 7 of the Constitution of the State of Arkansas is as follows:

“The circuit courts shall hold their terms in each county at such times and places as are or may be prescribed by law.”

The Legislature in 1885 passed an act establishing separate courts in Prairie County. The county was by the act divided into two judicial districts, Des Arc being the county seat of the county.

Section 3' of the act provided that the circuit court should hold the same number of sessions in the town of DeVall’s Bluff as by law were held at the county seat of said county, and at such times as might be designated by law. There can be no doubt that, under the provision of the Constitution above quoted, the time and place of holding court was designated by this act, and that De-Vall’s Bluff was designated as the place for holding the circuit court.

Section 24 of article 19 of the Constitution is as follows:

“The General Assembly shall provide by law the mode of contesting elections in cases not specifically provided for in this Constitution.”

'The initiated act provided for contesting’ elections. Crawford & Moses’ Digest, § 3772. It provides: “A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in the circuit court. If for the office of representative or a county or township office, in the circuit court of the county; and if for a circuit or district office., within any county in the circuit or district wherein any of the wrongful acts-occurred; and if for United States Senator or a State office, in the Pulaski Circuit Court. The complaint shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county. The complaint shall be answered within ten days.”

It is contended that the action must be broug’ht at Des Arc, the county seat, and that the circuit court held at DeVall’s Bluff had no jurisdiction.

In the case of Pearce v. Doyle, 145 Ark. 371, 224 S. W. 740, there was an election contest filed in Lawrence County at Powhatan, and summons was served on the defendant in Pulaski County, Arkansas. The defendant in that case challenged the jurisdiction of the court and the validity of the service. It was alleged that all the acts complained of occurred in the Eastern District of Lawrence County, and also that the defendant was a citizen of the Eastern District of Lawrence County, and that the circuit court for the Western District had no jurisdiction. The court said that the appellee set up in his motion the act of 1887 establishing’ two separate judicial districts in Lawrence County. The Lawrence County act and Prairie County act are identical in the sections involved. The circuit court dismissed the cause in the case of Pearce v. Doyle, supra, and an appeal was prosecuted to this court. The court also said: “The court erred in dismissing the appellant’s complaint. Section 4 of act 85 of the Acts of 1887, establishing two separate judicial districts for the county of Lawrence (the eastern and the western), and providing that no citizen or resident of one district should be liable to be sued in the other “in any action whatever,” had reference to ordinary civil actions. In Logan v. Russell, 136 Ark. 217-221, 206 S. W. 131, we held that contest proceedings under the law regulating primary elections, supra,‘‘ do not constitute civil actions within the meaning of our Code of Civil Practice. ’ ’

Under our primary election law, contests for the office of county and probate judge shall be brought in the circuit court of the county wherein any of the wrongful acts complained of occur. In the case of Pearce v. Doyle, supra, it was said:

“The Brundidge Act takes no notice of the division of counties into separate judicial districts for the purpose of election contests provided therein, but, for the office of representative, and for county and township offices, the county is considered as an entirety.”

In the case of Logan v. Russell, supra, the court said: “The contest proceedings provided by this statute do not constitute civil actions Avithin the meaning of our Code of Civil Practice. It has been so decided by this court with reference to election contests authorized under another statute. In the case of Davis v. Moore, 70 Ark. 240, 67 S. W. 311, it was expressly decided that election contests are special proceedings and not civil actions under the Code, and everything must be done therein according to the statute regulating such proceedings Avhere such statute, exists. * * * The provisions of the statute under consideration should receive a liberal interpretation-so as to effectuate the wholesome purposes intended by its framers, but, the proceedings authorized thereunder being special, Ave cannot, without doing violence to Avell settled rules of interpretation, extend those provisions beyond the plain meaning of the language employed.”

The purpose of the primary election law and the provision in that law for contesting elections should receive a liberal interpretation. The law provides that any candidate may contest an election, and that, if for a county office, the action to contest the election must be in the circuit court, and in the county where the election was held. We think, under any reasonable interpretation, the statute means in the circuit court wherever held in the county.. The act creating separate judicial districts provides where cases shall be brought, but this means civil actions and not special proceedings.

In a civil action, as a rule, the parties have, a right to a jury trial, and there appears to be some reason why it should be tried in the district where the defendant resides. No such reason exists with reference to an election contest or any other special proceeding of this kind. The same judge tries the case, no matter in which district it is brought.

We now hold that an action to contest an election for a county office may be brought in the circuit court in either district, if in a county that has more than one judicial district.

The case of Cowger v. Ellison, 175 Ark. 478, 299 S. W. 1031, so far as it conflicts with this opinion, is overruled.

The circuit court at DeVall’s Bluff has jurisdiction to try the case, and the writ is therefore denied.


author: McHaney, J.

text:
    Decker v. State.
    Crim. 3891
    Opinion delivered October 15, 1934.

      G. L. Grant, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   McHaney, J.

Appellant, who is serving a life sentence in the penitentiary, was indicted, convicted and sentenced to ten years imprisonment for permitting a convict to escape, the charging part of the indictment being as follows: “The said defendant, Earl Decker, in the county, district and State aforesaid, on the 5th day of February, 1934, then and there having in custody one B. R. Ballard a convict who had been lawfully convicted for a felony and who had been lawfully sentenced to confinement in the penitentiary, did unlawfully, feloniously, wilfully and corruptly suffer, connive at and permit the escape of the said B. R. Ballard, against the peace and dignity of the State of Arkansas.”

The undisputed facts are that appellant, a trusty convict, was sent by the penitentiary authorities to Fort Smith to bring to the penitentiary four convicted felons in a truck. After arriving in Fort Smith, he visited with some women whose husbands were in the penitentiary and proceeded to become more or less intoxicated. He finally went to the jail, received the prisoners, locked them in the truck, and left with them. He then returned to the place where he had been drinking, secured more liquor, took the prisoners and his lady friend riding with him into the drinking establishment where they all became further intoxicated. After a time they finally left with the prisoners properly locked up in the truck and started for Little Rock. After driving some distance, he decided to return for more refreshments, and on this trip Ballard escaped by crawling through a torn place in the curtain inclosing the truck where the prisoners were kept. At the conclusion of the testimony a directed verdict of not guilty was requested and refused.

Appellant was convicted under the following statute, § 2584, Crawford & Moses’ Digest: “Any person who shall wilfully or corruptly suffer, connive at, or permit the escape of any convict sentenced to confinement in the penitentiary shall be deemed guilty of a felony, and on conviction thereof shall be punished by confinement in the penitentiary for not less than five nor more than ten years.” Several errors are assigned and argued for a reversal of the judgment and sentence, but we find it necessary to discuss only one of them, that is, that the court should have directed a verdict for appellant.

Under the above statute, the appellant must have “wilfully or corruptly” suffered, connived at, or permitted Ballard to escape in order to be guilty of the offense. It is conceded by the 'State that it was not ‘ ‘ wilfully ’ ’ done, but it is insisted that it was ‘ ‘ corruptly ’ ’ done. This is a criminal statute, highly penal, and must be strictly construed. In Atkinson v. State, 133 Ark. 341, 202 S. W. 709, construing an indictment for perjury, this court said: “It is also insisted that the indictment is defective because it does not allege that the testimony was knowingly false. The indictment alleges that it was ‘wilfully and corruptly’ false. This includes ‘knowingly,’ for the testimony could not have been ‘wilfully and corruptly’ false without being ‘knowingly’ false.” In Tallman v. State, 151 Ark. 108, 235 S. W. 389, 236 S. W. 281, the appellant had been convicted on a charge of malicious mischief for the killing of a dog, under the statute providing that: “If any person shall wilfully, maliciously, or wantonly * * * kill * * any animal,” etc., Beversing the judgment on an instruction that provided that, if the killing was unlawful and done with a deadly weapon, the law presumes it was done maliciously, this court said: “A negligent or careless killing of an animal would be unlawful, and, though done with a deadly weapon, no inference or presumption in law could be indulged that the careless or negligent killing was wilful, malicious or wanton.”

In Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann. Cas. 1914B, 302, this court held, under the statute providing* for removal of an officer from office, that the word “corruption,” as used in the statute, was intended to be used in its more comprehensive sense and not merely as relating to official delinquencies; but in Winfrey v. State, 133 Ark. 357, 202 S. W. 23, it was held that an indictment against an officei* for transporting liquor did not authorize a summary judgment of removal, because the act charged could not be said of itself to amount to “gross immorality” or “corruption.” See also McClain v. Sorrels, 152 Ark. 321, 238 S. W. 72, where it was held that a single act of drunkenness did not necessai’ily involve moral turpitude, so as to constitute “gross immorality” within the meaning of the Constitution and statute authorizing the removal of county and township officers for “gross immorality.”

One of the definitions in Bouvier’s Law Dictionary of the word ‘ ‘ corruption, ’ ’ of which the word ‘ corruptly” is the adverb, includes bribery. The word “corruptly” implies knowledge, for a thing could not be done corruptly and ignorantly at the same time. The word “wilfully” means intentionally or by design. Aubrey v. State, 62 Ark. 368, 35 S. W. 792; Tallman v. State, supra. It therefore appears to us that an act may be done wilfully without being corruptly done, but that an act cannot be done corruptly without being wilful. We are also of the opinion that the word “corruptly,” as used in the statute, means by some consideration or promise moving to the person charged. If this be the meaning of these words as used in said statute, then it is perfectly clear that appellant is not guilty. The only misconduct proved against appellant was drunkenness on that occasion. If a single act of intoxication was not sufficient to involve moral turpitude, amounting to “gross immorality,” authorizing removal from office, as held in McClain v. Sorrels, supra, then it is difficult to perceive why a single act of drunkenness on this occasion should involve moral turpitude, amounting to corruption, authorizing a sentence to the penitentiary for five to ten years.

Appellant’s conduct was highly improper and perhaps grossly negligent. But it isn’t shown that this caused the escape of the prisoner or contributed to it. The undisputed proof shows that the prisoners were locked in the truck by appellant, and that he threatened them with his pistol, warning them against any attempt at escape. The fact that one had escaped was discovered a few minutes thereafter, and he immediately began a search. He returned the other prisoners to jail and gave the alarm, and a search was instituted. The prisoner was recaptured a few days later and taken to the penitentiary.

We are therefore of the opinion that the evidence fails to establish the charge within the meaning of the statute. The judgment will be reversed, and the cause remanded for a new trial.

Smith, J., dissents.


text:
    Arkansas Power & Light Company v. Graves.
    4-3555
    Opinion delivered October 15, 1934.

      Rose, Remmgway, Cantrell £ Loughborough, fox-appellant.

      T. E. Abington and Tom W. Campbell, for appellee.
   McHaney, J.

Appellee recovered judgment for $3,000 against appellant for personal injuries slie alleged she sustained while riding as a passenger on appellant’s street car on the 15th Street car line in the city of Little Rock, on May 30, 1931. She is the only witness who testified as to how the alleged injury occurred. The operator of the street car was dead at the time of trial and made no report of an accident on said date. Only one other passenger was on the car, and he was not available as a witness. Appellee testified that she boarded the car at the end of the line at 25th and Summit. As they were traveling east on 16th Street, she noticed the motorman writing in a small book and not keeping a lookout, and, just as the car entered the intersection of 16th and Battery, the latter being a boulevard stop, the motorman noticed that he was about to collide with an automobile traveling on Battery Street, and that he made an emergency stop which was so sudden and violent as to throw her forward against the window frame and seat in front of her, causing the injuries of which she complains.

For a reversal of the judgment against it, appellant assigns as error the giving of appellee’s instructions Nos. 1 and 2. These instructions will be copied by the reporter in a footnote to this opinion. The criticism made of No. 1 is that the only issue made by the pleadings was the failure of the motorman to keep a proper lookout, and that said instruction not only submitted that issue, but went further and submitted “the false issue as to whether or not the motorman was negligent in stopping the ear suddenly in an effort to avoid an imminent collision. ” It is insisted that it was the motorman’s duty to stop as quickly as possible under the circumstances, and that no liability can be predicated on the fact that he made a quick and sudden stop. In other words, “the motorman could not do right and wrong at the same time. ’ ’ A number of cases are cited from other jurisdictions holding to the effect that liability against a street railway company cannot be predicated on an injury caused by a sudden stop in order to avoid a collision in an emergency created by the act of some third person or agency over which the motorman had no control. For instance, in the case of Cleveland City Ry. Co. v. Osbourn, 66 Ohio State 45, 63 N. E. 604, the appellee was a passenger on a street car which was brought to a sudden stop in order to avoid a collision with a bakery wagon which was driven on the track directly in front of the street car. From a judgment based on the sudden stop, the court on appeal held that it was the duty of the motorman to stop in order to avoid a collision with the wagon, — an emergency created by the act of a third person. Recovery was denied, the court saying: “The judgment of the lower court presents the anomaly of requiring of one the strict performance of an act as a legal duty, yet requiring it at his peril. One cannot do right and do wrong at the same time.” Here the facts are entirely different. Am emergency was created or arose, not by any act of a third person, but by the negligence of the motorman himself in failing to keep a proper lookout and in failing to bring his car to a stop in the usual and customary way at a boulevard stop. It was his duty to bring his car to a stop at 16th and Battery, whether an automobile was crossing the street car track at that time or not, and had he kept a proper lookout, he no doubt would have done so in the usual way. Having created the emergency by his own negligence, appellant cannot escape liability thereon. We therefore hold said instructions were proper under the facts of this case.

Error is also assigned for the refusal of the court to give requested instructions 9, 11 and 12. We do not set them out for, in so far as 9 and 11 were correct, they were fully covered by other instructions given. No. 12 would have told the jury that they could not compare the negligence of appellee, if any, with that of appellant, if any, but that, if appellee were negligent and such negligence contributed to her injuries in any slightest degree,, she could not recover. Instructions were given on contributory negligence, and it was not necessary to repeat them.

No error appearing, the judgment must be affirmed.


author: Butler, J.

text:
    Ghent v. State use School Districts.
    4-3559
    Opinion delivered October 15, 1934.

      M. E. Vinson, for appellant.

      J. L. Bittle and Wm. T. Hammock, for appellee.
   Butler, J.

The appellee school districts obtained a judgment in the Cleburne Chancery Court against the treasurer of the county and his bondsmen. An execution was regularly issued on January 5, 1933, and returned by the sheriff indorsed: “Returned unserved as Legislature relieved 'Shemwell and his bondsmen. W. B. Ghent, sheriff.” On April 25, 1933, a second execution was issued and delivered to the sheriff, who, on May 31 following, returned the execution unserved and indorsed: ‘ ‘ This execution which came to my hand on the 26th day of April, 1933, is hereby returned unsatisfied because, (1), the fees for making levy and for advertising have not been paid nor tendered me; and because, (2), I am advised that under act of the 1933 Legislature of the State of Arkansas, the defendants were relieved from liability.” On June 13, 1933, a third execution was issued and tendered to the sheriff on June 17, which was not served. Appellees instituted a proceeding by which they sought to compel the sheriff by mandamus to serve the execution.

At the trial the court found that the executions, which were copied in the complaint, were delivered or tendered to the defendant and the requisite fees for the service thereof were paid or tendered to him. The court made other findings of fact and declarations of law which we deem immaterial at present, and held that the petitioners (appellees) were entitled to the relief prayed, and ordered the writ of mandamus to issue.

A number of assignments of error are contained in the motion for a new trial, but we need notice only the following contentions that mandamus does not lie in this case. These are that to issue the writ was to compel the sheriff to do an act forbidden by law; that the petition was insufficient because it failed to allege that the petitioners had no other adequate remedy; that discretionary powers will not be controlled by mandamus; that the allegations of the response were admitted to be true by the demurrer filed thereto, and that therefore the judgment sought to he enforced by execution was nullified by an act of the Legislature; that, as the execution was not in the hands of the sheriff, the mandamus would require him to do an impossible thing, and that, payment or tender of fees for service being necessary, if not paid or tendered, mandamus would not lie to compel the sheriff to act.

An answer to all of these contentions is that the petitioners had a legal right, were entitled to the specific remedy invoked to enforce it, and the sheriff was under the imperative duty to enforce this specific' remedy but failed to do so. The court specifically found that the executions were issued and delivered to the sheriff and the fees paid, or tendered, and the evidence, although in conflict, was ample to sustain the findings of the court. The sheriff was not clothed with discretion with respect to the levy of the execution. It was regular on its face, issued pursuant to the judgment of a court of competent jurisdiction, and was to enforce a legal right already established. It has often been held, and is no longer a controverted question, that when a public officer is called upon to do a plain and specific public duty which is required by law and which requires no exercise of discretion or official judgment, a writ of mandamus is an appropriate remedy to compel the performance of the duty when it is neglected or refused. It is true, as contended by the appellant, that mandamus will not issue where the petitioner has another and adequate remedy, but the modes by which a petitioner may enforce a judgment suggested by the appellant, i. e., garnishment, an action against the sheriff and his bondsmen, and a transfer of funds by the county court from the funds belonging to the agencies of the county which were beneficiaries of money improperly paid by the treasurer — are not adequate remedies within the meaning of the law. It might be that, by one of the methods pointed out, they might secure the amount of the judgment awarded by the court, but the statute gives to the judgment creditor the specific remedy of execution which he is entitled to have enforced by the sheriff, notwithstanding the fact that he might have other means by which his judgment may be collected.

As stated, the petitioner had a legal right and a specific remedy to enforce the same, and, under the rule announced in Board of Improvement v. McManus, 54 Ark. 446-48, 15 S. W. 897, it was entitled to a writ of mandamus to compel the sheriff to perform his duty. The act commanded by mandamus was not one forbidden by law, but rather one required by it, and the averments in the petition of the judgment, the issuance and deliverance to the sheriff of the writ of execution, and his failure and refusal to levy the same, were sufficient to allege that petitioner had no other adequate remedy. The term, “adequate remedy at law,” has a well-defined legal meaning and is a remedy which is plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy invoked. In this case the particular duty sought to be enforced by mandamus was the levy of the execution. An adequate remedy, as contemplated by the law, must be one which itself enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance. This is the reason why the particular remedies pointed out by the appellant, if effective in the end, would not be adequate remedies so as to.preclude resort to mandamus.

It was not the business of the sheriff to consider the effect of act No. 58 of the Acts of 1933, referred to in his indorsement, but to levy the execution, and then, if the judgment debtor was aggrieved, his remedy was ample to protect his. interests without the aid of the sheriff. The order of the court to the. effect that the sheriff levy the execution “to be issued and delivered to him,” under the peculiar facts in this case, was not a commandment to do an impossible thing as contended by him. That this is true is so obvious nothing more need be said regarding this contention.

Much has been said in the briefs of appellant and appellee relative to the validity or invalidity of act No. 58 of the Acts nf 1933, but the question as to its constitutionality need not now be decided for the reason that, whatever may be the effect of that act it did not relieve the sheriff of his duty to obey the law.

We find no reversible error. The judgment and order of the trial court is therefore affirmed.


text:
    Equitable Life Assurance Society v. Mann.
    4-3663
    Opinion delivered October 1, 1934.

      Rose, Hemingway, ‘ Cantrell & Loughborough, for petitioner.

      Frauenthal & Johnson and Walter L. Pope, for respondent.
   Baker, J.

This is a petition filed by Equitable Life Assurance Society of tbe United States praying that a writ of prohibition issue to prevent Richard M. Mann, judge of the Pulaski Circuit Court, Second Division, from further proceeding in the cause of Robert E. Mattison, non compos mentis, by Paul Belding, his next friend, against the Equitable Life Assurance Society of the United States.

The complaint in the cause in the second division of the circuit court of Pulaski County was filed on April 3, 1934. It alleges that R. E. Mattison, a non compos mentis, by his next friend, Paul Belding, is a citizen and resident in the city of Little Rock, county of Pulaski, Arkansas, and that the defendant is a corporation organized and existing under the laws of the State of New York, duly authorized to transact business of life and disability insurance in the State of Arkansas. Other facts are alleged as tending to show liability of the defendant to the plaintiff.

The complaint states that on January 1, 1921, plaintiff became physically and mentally incapacitated to such an extent that he was wholly unable to engage in any occupation or perform any work for compensation of financial value; that the plaintiff has at all times since that date been wholly, physically and mentally incapacitated to such an extent that he is now suffering total and permanent physical and mental disability.

Motion was filed by the petitioner named herein to quash the summons and service thereof on April 23,1934. It entered its appearance solely for the purposes set out in the motion, alleging that it had obtained permission to do business in the State of Arkansas pursuant to the provisions of § 6063 of Crawford & Moses’ Digest, and that it has stipulated that legal process served upon the Insurance Commissioner of the State of Arkansas shall have the same effect as if personally served upon the defendant within the State. It alleges that the policy upon which the plaintiff had filed suit was delivered to him in the State .of Tennessee, at a time when the plaintiff was a citizen and resident of the State of Tennessee, and that the same is a Tennessee contract. It also alleged that, at the time of the institution of the suit in the circuit court, Mattison was not a citizen or resident of the State of Arkansas, and at the time of the filing of the motion he was not such a citizen or resident.

On May 8 motion was filed in the case pending in the circuit court to substitute Paul Belding as guardian and curator of R. E. Mattison as party plaintiff, said Paul Belding having been appointed by the probate court of Pulaski County on the 7th of May, 1934.

Evidence was heard upon the motion to quash. Paul Belding testified that he met R. E. Mattison about the 15th of October, 1932, entered into a contract with him to file suit against the insurance company; that he made a trip with Mattison through the States of Mississippi and Alabama, and finally to Memphis, gathering affidavits as to his condition and in preparation for the suit. He testified that Mattison had a type of insanity called psychosis ; that he had been under treatment of Dr. Wallace at Western State Hospital in Bolivar, Tennessee, and had been paroled; that the parole had been issued prior to the time of making this trip; that Mattison had been in Little Rock, and endeavored to open a business at 812 Main Street; that on account of the fact that his health seemed to be again breaking, or a relapse seemed to be setting in, Mattison returned to the hospital at Bolivar, Tennessee, on the 7th of March; that he had left Little Rock voluntarily; that he is still in the hospital in Tennessee; that at the time he was attempting to go into business in Little Rock he had taken up his residence in that city as a citizen; that he had formerly lived in Little Rock, and had been in business as a tailor; that he, the witness, was with Mattison a great deal of the time, had conversed with him, and that Mattison had sufficient mental capacity to form an intent to make Little Rock his home; that it was the intention of Mattison to return to Little Rock when he felt sufficiently restored.

Dr. W. W. Wallace, a physician of the Western State Hospital at Bolivar, Tennessee, knew Mattison, and stated that he was first admitted to the institution on May 3, 1929, by reason of a previous adjudication of insanity; that he was paroled on August 15, 1931; that after his parole he returned to the hospital September 19, 1931, and remained there until September 25, 1933, on which date he left; that his condition had improved and five days later, on September 30, he was paroled.

The adjudication of insanity was had in the county court of Shelby County, and no subsequent adjudication was had upon any return to the hospital. His trouble was diagnosed upon entry to the hospital as manic depressive psychosis.

Harry Pfeifer, Sr., testified that Mattison had formerly been in the employ of Pfeifer’s in Little Rock; that he had been away many years; that he had returned to Little Rock sometime in the fall of 1933, and that he had.samples, and was going out soliciting orders; that he, Pfeifer, had a vacant store at 812 Main Street, and that he delivered the keys to Mattison and permitted him to occupy the store without charge for a time; that he kept the store until he made a trip down to Houston, Texas, or Dallas; that he talked with him on occasions, loaned him a few dollars at times, which he paid back; that Mattison was planning to put in a store or tailor shop and other shops in different cities, and that he was “going to make enough money to endow an orphanage.”

There was also offered in evidence the adjudication of insanity made by the county judge of Shelby 'County, Tennessee. Mattison was committed as a poor person, no one being' legally liable under the insanity law for his maintenance, and upon proof and a finding that he had been a resident of Tennessee for twelve months or more before he was adjudicated insane.

This statement, perhaps, does not include all of the facts, nor all of the testimony heard in circuit court, but such a material part thereof as to show the issues on the presentation of defendant’s motion to quash, and upon this hearing the learned circuit judge overruled the motion to quash. The sole point in issue, upon this motion to quash, was the place of residence of Robert E. Mattison, the plaintiff in the suit filed in the circuit court.

It is urged by the petitioner that, as the said Robert E. Mattison was a resident of Tennessee at the time of the filing of the suit in the circuit court for the second division of Pulaski County, Arkansas, that court did not acquire jurisdiction. If that were an undisputed question of fact, petitioner’s conclusions would be correct. "We realize that Western State Hospital, located at Bolivar, Tennessee, is a State institution intended to care for the insane in a particular district in the State of Tennessee, as fixed by law. Like most hospitals of the kind, the law of that State provides that, to be eligible to enter the said hospital, the patient must be a resident of the State, and, in this particular case, of the district in which it is located. It is urged forcefully that, since he was adjudicated to be insane in 1929, the presumption of insanity continues and particularly by reason of the fact that he has returned, and was at the time of the filing of the suit, and is yet, an inmate of that institution. However, he was paroled the last time in September of 1933, and the effect of such parole is such as to raise another presumption of restored sanity.

In a Tennessee case the court held, that the fact of insanity having been judicially ascertained, the law presumes its continuance until his restoration to sanity, or until a lucid interval, is established by evidence. In the same case the court also said: “But the record contains nothing from which we can presume with certainty that he was discharged by officers of the asylum because they judged him restored to his sanity, but we may regard as probable that such was the fact. If there was such evidence, we should hold it, at least, prima facie evidence of -restored sanity.” Haynes v. Swann, 6 Heiskell 560, 587.

The evidence in this cause tends to show that Mattison had sufficient intelligence to choose a place of residence, and that he chose Little Bock, Arkansas, as such place of residence.

But he voluntarily returned to the "Western State Hospital at Bolivar, nearly a month prior to the institution of this suit, and the most that could be said about his return and reentering the hospital in Tennessee is that there may be a presumption that he again changed his mind to return to Tennessee and reenter the hospital under his former commitment as a resident of that State, but that is a question of fact undetermined, except impliedly settled by the order of the circuit court in overruling the motion to quash.

Such is the face of the record presented to us upon the petition for a writ of prohibition. If this court should taire the allegations, as set forth in the complaint, alleging residence in Arkansas, and the motion to quash, as alleging the residence of the same party in Tennessee, and we then assume to try that issue of fact to determine the .jurisdiction of the original cause, our action would be, to that extent, a usurpation of the function of the trial court.

Justice Hughes, as early as 1892, upon application for a writ of prohibition, wherein the petitioner had alleged the fact that it could not be held to answer in a suit for liability in this State, said in regard to the questions therein raised: ‘ ‘ They must be first tried by the circuit court upon the pleadings and the evidence. This corporation says, for instance, that it is not guilty of publishing the libel charged, and, therefore, denies its liability to suit in courts of this State. This may be pleaded in bar, and given in evidence, and, if true, will defeat the plaintiff’s claim. It cannot, therefore, be properly a subject of plea to the jurisdiction. In this controversy we must take the plaintiff’s cause of action to be such as he alleged it to be in his complaint, otherwise we shall be trying the merits of the controversy for the purpose of determining whether we have power to try them. Nat. Condensed Milk Co. v. Brandenburgh, 40 N. J. L. 112. The truth of the allegations of the complaint, as well as the sufficiency of them to constitute a cause of action, are not questions now before this court.” American Casualty Co. v. Lea, 56 Ark. 511, 515, 20 S. W. 416.

This cause of action is transitory. If the facts are as they are alleged in the complaint, the action can be tried in the circuit court, where filed. Scottish Union & Nat. Ins. Co. v. Hutchins, 188 Ark. 533, 66 S. W. (2d) 616. In that case, the petitioner sought to try the question of residence of Bruce, the plaintiff, who filed the suit against the petitioner, and the court distinguished the case, upon the hearing of the petition for prohibition, from’ the case of National Liberty Ins. Co. v. Trattner, 173 Ark. 480, 292 S. W. 677.

In Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 751, 12 S. W. (2d) 421, this court said: “The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction ; but it is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Order of Ry. Conductors of America v. Bandy, 177 Ark. 694, 8 S. W. (2d) 448, and cases cited.”

In the Bandy case, the court said: “Where the court has jurisdiction over the subject-matter, and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error, and prohibition is not the proper remedy.”

Again Justice Wood announces the rule in this way: “If the existence or nonexistence of jurisdiction depends on contested facts which the inferior tribunal is competent to inquire into and determine, a prohibition will not be granted; though the superior court should be of opinion that the questions of fact have been wrongly determined by the court below, and, if rightly determined, would have ousted the jurisdiction. ’ Findley v. Moose, 74 Ark. 217, 220, 85 S. W. 238.

We feel that the foregoing cases announce the rule followed by this court, and that, while other cases in point could be cited, such citations are not necessary.

The writ of prohibition is denied.