author: Humphreys, J.

text:
    Martin v. State.
    Opinion delivered January 28, 1924.
    1. Criminal law — authority to commit accused to penitentiary. —‘Neither circuit judges nor circuit courts ' are vested with authority to order or commit persons accused of crime, before conviction, to the State penitentiary for safe-keeping.
    2. Contempt — disobedience op void order. — One cannot be held in contempt for disregarding a void order or judgment.
    Certiorari from Lee Circuit Court; E. D. Robertson, Judge;
    reversed.

      J. 8. Utley, Attorney General, Darden Moose, John L. Garter and Wm. T. Hammock, Assistants, for petitioner.

      No one can be held in contempt of court for violating a void order. 43 Ark. 62; 91 Ark. 527; 100 Ark. 419. The court in term time cannot punish as for contempt disobedience of an order made by a judge out of court, unless such order is made in an action pending* in the court. Rapalje on Contempts, par. 8; 45 Barbour (N. Y.) 344. The sheriff, and not the circuit judge or circuit court, has custody of county prisoners, except in the instances mentioned in the statutes. Crawford & Moses ’ Digest, chap. 100, §'§ 6206, 6207, 6208, 6217, 6218, 6219, 6220, 6221, 6222. The penitentiary is a State institution for the confinement of persons convicted of felonies, and not for the detention or safe-keeping of county prisoners.
   Humphreys, J.

On June 25, 1923, the circuit judge of the First 'Judicial Circuit of Arkansas ordered the sheriff of Lee County to convey Ed Ware, Alf Banks, John Martin, Joe Fox, Albert Biles and Will Wordlow, then confined in the county jail under indictment for murder in the first degree, to the State Penitentiary for safekeeping. When said prisoners were tendered by the sheriff to the warden of the penitentiary, Hamp Martin, he declined to receive them, and was cited to appear in the circuit court of Lee County for contempt in disregarding 'the order. On the return day of the citation the warden filed a response thereto, justifying his refusal to obey the order, upon the ground'that it was issued without authority.

The question was submitted to the court upon the order, the citation, the response thereto, and the following* agreed statement of facts in addition to the facts heretofore stated:

“ (1). Ed Ware, Alf Banks, John Martin, Joe Fox, Albert Biles and Will Wordlow, the parties who were mentioned in order made on June 25, 1923, by the circuit judge of the First Judicial District of Arkansas, which order respondent is charged with disobeying, are the identical persons as the appellants in the case of Ware et al. v. State, which case was decided by the Supreme Court of the State of Arkansas on June 25, 1923, and which decision is shown in opinion delivered June 25, 1923, by the Supreme Court of the State of Arkansas [159 Ark. 540].
“(2). The decision shown at the last-mentioned citation was rendered prior to the issuance of the order which respondent is charged with disobeying’.
“(3). There was no case pending against said Ware et al. in the Lee Circuit Court at the time of the issuance of the order which respondent is charged with disobeying, unless the above cited case shall be construed by the courts to be pending in the Lee 'Circuit Court to such an extent as to give that court, or the judge thereof in vacation, authority to issue the order which respondent is charged with violating.
“(4) At the time of the service on respondent by the sheriff of Lee County of the order which respondent is charg-ed with disobeying, respondent knew of the above-mentioned decision of the Arkansas Supreme Court. ’ ’

The court found the warden guilty of contempt, and assessed a fina of $500 against him as punishment therefor. The validity of this order is before us for determination.

The statutes of this State do not vest any authority in circuit judges or courts to order or commit persons accused of crime, before conviction, to the State Penitentiary for safekeeping. Circuit courts are empowered by statute to order and adjudge any one convicted of a felony to serve a term in the State Penitentiary for the time and in the manner provided by law. Sections 3204, 3234, 3235, 3241 and 3242 of Crawford & Moses’ Digest. The sheriffs of the respective counties and their appointees are the proper custodians of those charged with crime, and remain so until after conviction, sentence, and transmission of those accused to the State Penitentiary. Sections 6206, 6207, 6208, 6217, 6218, 6219, 6220, 6221 and 6222 of Crawford & Moses’ Digest.

The penitentiary is a State institution, designed for tlie confinement, care and supervision of felons. No provision was made for the reception, -care or safekeeping of prisoners before conviction. Section 9654 of Crawford & Moses’ Digest. If tlie warden were required to receive and care for prisoners charged with crime, before any provision was made in the law to care for them, it would interfere with the orderly administration of the institution. .

The circuit judge having no inherent power or statutory authority to issue, the order in question, it was a void order. This court is committed to the doctrine that one cannot he held in contempt for disregarding a void order or judgment. Williford v. State, 43 Ark. 62; Pitcock v. State, 91 Ark. 527.

The judgment is therefore reversed, and the cause is directed to be dismissed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Williams v. State.
    Opinion delivered February 4, 1924.
    1. Criminal law — change of venue. — credible affiants. — On an , application for change of venue in a criminal case, where supporting affiants, on examination, were shown to have only a limited knowledge of the condition of the popular mind, a finding that they were not credible persons will be sustained.
    2. Criminal law — hypothetical questions. — It was not error to permit hypothetical questions to be addressed to expert witnesses, though they failed to include facts subsequently established.
    3. Criminal law — hypothetical questions — While all of the undisputed facts then in evidence were essential parts of hypothetical questions, the prosecuting attorney had a right to the opinion of expert witnesses upon such disputed issues of fact as he conceived the testimony to sustain.
    4. Homicide — instruction—harmless error. — Where defendant was convicted of murder in the second degree, an objection to an instruction that it failed to incorporate the idea of a specific intent to kill as an element of murder in the first degree was without merit, as a specific intent to kill was not an element of the former offense.

      5. Homicide — evidence as to cause op death. — In a murder trial where, after the injury, deceased contracted pneumonia, evidence as to the extent and nature of the injury held to.sustain a finding that the injury inflicted by defendant was a contributing cause of death.
    6. Homicide — murder in second degree. — Where a blow was inflicted by defendant with malice, and the weapon used was ordinarily calculated to produce death, and. death did result, a verdict for murder in the second degree will be.sustained.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    affirmed.

      James 8. 8teel and Abe Collin's, for appellant.
    1. The change of venue should have been granted. If it is fairly deducible from the affidavits of the sup: porting witnesses, taken in connection with the facts and circumstances detailed by them in their examination before the court, that the defendant could not obtain a fair and impartial trial in the county, it is an abuse of discretion to overrule the motion for change of venue. 98 Ark. 139, 142; 120 Ark. 307; .83 Ark. 86; 68 Ark. 466.
    2. The lilows struck by the defendant had no causal connection.with the death, and did not so aggravate the pneumonia, from which he died, as to hasten his death. 50 Ark. 545; C. & M. Digest, § 5151.
    3. It is error to permit a hypothetical question which does not embrace all the essential undisputed facts bearing upon the issue. 100 Ark. 518; 103 Ark. 196; 87 Ark. 243.

      J. 8. Utley. Attorney General, John L. Carter, Wm. T. Hammock, Darden Moose and J. 8. Abercrombie, Assistants, for appellee.
    1. The supporting witnesses were examined in the lower court, and it made its finding. That finding is conclusive unless an abuse of discretion appears. C. & M. Digest, $ 3087; 120 Ark. 302, 308; 141 Ark. 509 ; 149 Ark. 646; 130 Ark. 457; 146 Ark. 328; 54 Ark. 343; 120 Ark. 390.
    2. The cause of the death of the deceased was a question of fact for the jury, under proper instructions from the court, and the jury’s verdict is conclusive. 133 Ark. 314; 150 Ark. 555; 45 Ark. 165; 49 Ark. 439; 114 Ark. 393; 92 Ark. 421; 109 Ark. 138.
    3. Appellant cannot complain here of the hypothetical questions propounded by the State, first, because they contained all the essential undisputed facts, second, because the State’s attorney offered to include any essential undisputed facts bearing upon the issue, if counsel would suggest any such facts, and counsel refused.
   McCulloch, C. J.

Appellant was tried, under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by striking one Charles Davis with a club and thereby inflicting a wound, as a result of which said Davis died within a year and a day. On the trial of the cause appellant was convicted of murder in the second degree.

It is admitted that appellant struck Davis twice over the head with a heavy hickory club, and that the blows were struck without legal justification.

It is also admitted that Davis died a few months after the blows were struck, but it is contended that his death'resulted from intervening causes, and not from the wounds inflicted by appellant.

The striking of the blows occurred at a mule-barn in the city of Nashville, in Howard County, where appellant’s father was engaged in the business of selling mules and horses, and the stick used by appellant was a heavy piece of hickory, about five and a half feet in length.

Appellant’s father was showing a pair of mules to a prospective customer, and Davis, being present at the time, was asked by the customer to examine the mouths of the mules to ascertain their ages. Appellant was standing near by with the club in his hand. When Davis examined the mules, a question was asked of appellant’s father concerning their age, and he made reply, stating the age. of the mules, and when Davis examined the mouth of each mule he indicated his opinion either by a nod or shake of his head. Appellant and his father both testified that Davis shook his head. The customer in question, Mr. Isgrig, testified that it appeared to him that Davis nodded his head and at the same time gave him a wink. At any rate, appellant’s 'father took umbrage at what he claimed was an interference by Davis with the negotiations with the prospective customer, and, according to the testimony of numerous witnesses, appellant’s father complained bitterly of such interference. He asked Davis, “What are you shaking your head about?” and remarked that he was getting damned tired of people meddling in his business; that Davis replied that he was not meddling, and about that time appellant walked up, and, without saying anything or being spoken to, struck Davis twice over the head, and felled him to the ground.

Davis was carried home in a semi-conscious condition, at times in a frenzy. He received surgical aid there at home, near Nashville, and was later carried to Texarkana and placed under the care of a surgeon there, where he was kept for some days, and thence taken to the State Hospital for Nervous Diseases at Little Rock.

The striking occurred on March 12, 1923, and Davis died at the hospital in Little Rock on April 30, 1923, having been brought to the hospital on April 4. The immediate cause of death was pneumonia, which developed about four days before his death.

. Testimony was adduced by the State tending to show that there was a fracture of Davis’ skull, from which he never fully recovered, and that his weakened condition was one of the causes of his death, together with the pneumonia which was contracted while he was at the hospital. Appellant introduced testimony of the physicians and others at the State Hospital tending to show that Davis was recovering at the time he contracted pneumonia — that he was convalescent at that time' — and that pneumonia intervened, and was the sole cause of his death.

Hypothetical questions were propounded to all of the witnesses who testified in the case, and the respective opinions given were not harmonious.

Appellant filed a motion for a change of venue on the statutory ground, and presented, in support of his petition, the affidavits of six citizens of the county. The prosecuting attorney examined these affiants under oath, in the presence of the court, for the purpose of having the court pass upon their credibility. After hearing the affiants testify orally, the court overruled the motion, and appellant saved his exceptions. We are of the opinion that the examination of the supporting affiants, as it appears in the record, was sufficient to justify the court in the finding that the affiants were not credible persons within the meaning* of the statute. Dewein v. State, 120 Ark. 302. None of the affiants showed in their testimony such knowledge of the condition of the minds of the inhabitants of the county as would justify affiants in making oath that appellant could not get a fair and impartial trial in the county. Each of the affiants showed only a limited knowledge of the condition of the popular mind; none of them pretended to be conversant with the sentiment all over the county, and none of them had ascertained the sentiment at a recent date prior to the trial. The offense was committed on March 12, and the examination of the affiants occurred on September 8, when the cause was called for trial. The knowledge of the affiants seemed to relate entirely to conversations which they heard about the time the offense was committed or immediately thereafter, when there was more or less excitement on account of what appeared to be the unjustified and brutal attack made by appellant, who was a young man, on Davis, who was much his elder. The testimony of neither of these affiants shows that he had such knowledge of the public sentiment, at the time that the case was called for trial, as to justify him in making oath that appellant could not obtain a fair and impartial trial. There was no error, therefore, in the court’s refusing to accept the affiants as credible persons and in denying the petition for change of venue.

It is next contended that the court erred in permitting the prosecuting attorney to propound hypothetical questions to expert witnesses, in tbe form in which the questions were framed, on the ground that undisputed facts were omitted. There were three physicians introduced by the State to whom the hypothetical questions were propounded, and to which objection was made by appellant’s counsel. The questions, propounded to the several physicians were not identical in form, and appeared not to have been prepared in advance, but were orally propounded in language selected at the time by the questioner. In each instance, when the question was propounded, objection was made on the ground that the question did not contain all the undisputed facts, and the prosecuting attorney replied that his desire was to include all undisputed facts, and asked appellant’s counsel to point out any such fact that had been omitted,.but the counsel declined to point it out, stating that he was “not running a law school.” It was not disclosed at any time during the progress of the trial what particular fact was omitted from the hypothetical questions propounded by the prosecuting attorney, but it is now argued that the questions omitted the fact, said to be undisputed, that deceased was constantly improving after his admission to the hospital, and had practically recovered from the effects of the wound when he contracted pneumonia. Each of the hypothetical questions contained a recital that Davis had “good days and bad1 days” after being carried to the State Hospital, and was considered to be improving up to the time he contracted pneumonia. At the time these questions were propounded appellant had not introduced the testimony of the physicians at the State Hospital to show marked improvement in Davis’ condition, and the questions were based upon the testimony adduced by the State tending to show the condition of deceased from the time he was struck by appellant until Ms death. Of course, all of the undisputed facts then in evidence were essential parts of the hypothetical questions, otherwise it was erroneous to propound them; but the prosecuting attorney had the right to take the opinion of the expert witnesses upon such disputed issues of fact as lie conceived the testimony tended to sustain. Taylor v. McClintock, 87 Ark. 243. If other facts were subsequently brought into the case by proper testimony, the issues should have been submitted upon appropriate instructions governing the consideration by the jury of the expert testimony. The questions, as before stated, contained references to the improvement thought to have taken place in the condition of the deceased at the time he contracted pneumonia, but, conceding that this feature did not conform to subsequent testimony introduced concerning the marked improvement, it was not error to permit the questions to be propounded at the time they were submitted. Nor can it be said that the testimony on this subject was undisputed, for it rested merely upon the opinion of expert witnesses, who differed from the conclusions of other experts who testified in the case. It is unnecessary to discuss the effect of that peculiar feature of the case in the examination of witnesses in which counsel for appellant refused to point out the undisputed facts claimed to have been omitted from the hypothetical questions. Our conclusion is that the court did not err on this subject, and that no grounds for reversal are presented in that feature of the case.

There are numerous assignments of error with respect to the court’s charge and in refusing to give some of the instructions requested by appellant’s counsel, but we find no error in either of the rulings upon which these assignments are based. For instance, the objection to one instruction given at the instance of the State was that it was misleading, in that it failed to incorporate the idea of a specific intent to kill as an element of the' crime of murder in the first degree. The answer to that is that the jury did not find appellant guilty of murder in the first degree, and that degree of the offense was eliminated from the case. A specific intent to kill is not an essential element of the crime of murder in the second degree.

Finally, it is insisted that the evidence was not sufficient to sustain the verdict, in that it did not establish the fact that the death of Davis resulted from the blows inflicted by appellant. We are of the opinion that the extent of the injury resulting from the blows inflicted by appellant, as described by the witnesses, some of them attending surgeons, was sufficient to sustain the finding that the death of Davis resulted, in part, from the blows —that the wounds inflicted by the blows constituted a contributing cause of Davis’ death. The expert witnesses testified that the weakened condition of Davis, as the result of the wduncls inflicted, made him more susceptible to germ diseases and made him less able to withstand the effects of such illness. We have recognized this theory as a tenable one and sufficient basis for a finding that the original injury was the indirect cause of death. St. L. I. M. & S. Ry. Co. v. Hook, 83 Ark. 584.

So far as concerns the question of the responsibility of appellant, it is clear, from his own testimony, that the assault upon Davis was unlawful and unjustified, and without sufficient provocation. The jury could readily have found from the evidence that the striking was done with malice, and that the weapon used was such as was ordinarily calculated to produce death. Thus, all the elements of murder in the second degree are found in the testimony, and justify the verdict of the jury convicting him of that crime. Rosemond v. State, 86 Ark. 160.

Our conclusion, upon the whole case, is that the record is free from error, and this calls for affirmance. It is so ordered.


author: Wood, j.

text:
    Culp Bros. Piano Company v. Moore.
    Opinion delivered February 4, 1924.
    1. Good will — sufficiency of evidence. — In an action on notes given as purchase price of plaintiff’s interest in musical instruments business, where the defense was that plaintiff broke his contract not to re-engage in .the .same business in the same territory, evidence held sufficient to sustain a verdict for plaintiff. . ,

      2. Trial — instruction—specific objection. — Objection to an instruction that it contains misleading phraseology should be specific.
    3. Internal revenue. — The Federal tax on the income of a corporation is primarily the debt of the corporation, and there is no legal obligation upon the stockholders, after selling their shares, to pay the accrued taxes of the corporation, in the absence of a special agreement.
    4. Trial — instruction.—Where the defense to notes was a breach of an alleged contract not to re-engage in the musical instrument business, an instruction that defendant must show that such contract was based upon a consideration and was not merely an agreement to stifle competition, held not intended to submit the question whether the contract, if made, was valid and binding.
    5. Contracts — restraint of trade. — Contracts in partial restraint of trade with reference to a certain business, where ancillary to sale thereof with good will, are valid to an extent reasonably necessary for the purchaser’s protection.
    Appeal from Sebastian Circuit Court, Port Smith District; John Brizsolara, Judge;
    affirmed.

      Holland & Holland, for appellant.
    1. The verdict is contrary to the evidence. 114 Ark. 332; 118 Ark. 554.
    2. The contract was definite and certain, and sufficiently so. 148 Ark. 226; 13 Corpus Juris, § 411; 112 Ark. 126.
    3. Instruction 7 requested by the defendant correctly stated the law and should have been given. 148 Ark. 226; 127 Ark. 593.
    4. The good will of a business is a valuable interest which the courts will protect. 20 Cyc. 1276. And agreements to refrain from entering into competition with the purchaser within specified limits and for a specified time are valid and will be upheld. 20 Cyc. 1280-1; 112 Gra. 498; 37 S. E. 758; 17 Corpus Juris, § 122; 13 Id., § 520, and eases cited in note (a) ; 13 Id., p. 557; 112 Ark. 130 ; 95 Ark. 387; 94 Ark. 461; 62 Ark. 101; 91 Ark. 367; 121 Ark. 45.

      A. M. Dobbs, for appellee.
    1. Counsel’s contentions against the verdict are bottomed upon three hypotheses which are purely assumptions, not supported by the record', viz; (1) that the jury returned a verdict for income tax only; (2) that it found the contract alleged was established and breached, and (3) that there was satisfactory proof of substantial damages. It cannot be determined from this record whether the amount returned by the jury and deducted from the undisputed amount was intended by the jury for income taxes paid, or damages for breach, or both. It is discretionary with the jury whether it will return special verdicts or a general verdict, unless required by the court to make special findings. C. & M. Digest, § 1303. None was required in this case.
    2. Instruction 5, objected to by appellant, was correct. It set but the necessary elements to entitle defendant to recover on its alleged contract, and the phrase, “and not merely an agreement to stifle competition” was used to distinguish the difference between an agreement ancillary to the sale of a business, and a bare agreement to refrain from engaging in business. 127 Ark. 590.
    3. Instruction 7, objected to, declares the law as recognized by this court. 157 Ark. 274.
   Wood, j.

On October 1, 1919, Oulp Bros. Piano Co., appellant, was a corporation -of Arkansas engaged in. the business of selling musical instruments, with its principal place of business at Fort Smith, Arkansas,ánd with a capital stock of $12,000, of which appellee owned one-fourth, $3,000, and Culp Bros, owned three-fourths, $9,000. The appellee was president of the company. In January, 1919, the stock of the company was authorized to be increased to the sum of $50,000, the increase representing what was supposed to be the profits of the business at that time. No additional money was paid in by the stockholders, but stock was issued to the appellant and the appellee, in the proportion of their respective interests, to absorb what was believed to b’e the book profits of the company. Several years prior to the first of October, 1919, appellee had been engaged in the business of selling musical instruments at Hartford. Sebastian County, Arkansas, and the surrounding trade territory. The appellant contends that, on the first of October, 1919, the appellee agreed to sell his-stock in the company to appellant, and also, as a part of the consideration for the sale of his stock, that he would not engage further in the music business at Hartford, nor would he engage in that business at Hartshorne, Oklahoma, nor at Port Smith or Russellville, Arkansas; that, in consideration for this sale of stock and good will in the music business of the appellee at Hartford, the appellant executed and delivered to the appellee promissory notes, numbered- respectively from one to twelve, for $1,000 each, dated October 1, 1919, bearing interest at the rate of eight per cent, per annum from date until paid, and with different due dates. Notes numbered 1, 2, 4, 5 and 6 and a part of No. 3 had been paid.

This action was instituted by appellee on August 4, 1922, to recover an alleged balance due on the unpaid notes in the sum of $6,356.35, with interest at eight per cent. The appellant, in its answer, admitted the execution of the notes, and set up that the consideration for which the notes were executed was as set forth above, and that such consideration had failed since January, 1922, because the appellee had not carried out his agreement with the appellant, but, on the contrary, that he was then, and had been for a time unknown to the appellant, engaged in selling and offering to sell musical instruments, in person and by agent, and had thereby hindered and injured the business of the appellant. The appellant also set up that, since appellant’s purchase of appellee’s stock and good will, it had been compelled- to pay an additional income tax for the years 1916, 1917 and 1918, and during the year 1919 up to the time that appellant purchased appellee’s stock and good will at Hartford. That appellee’s proportion of this tax would amount to $1,203.17, and that the damages to appellant by the failure of the appellee to comply with his com tract, together with the amount of the income tax due the appellant from the appellee, would equal the amount claimed by the appellee on the notes. Appellant therefore prayed that it be allowed to recoup by way of abatement in the full sum claimed by the appellee.

The appellee demurred to the answer, which demurrer was overruled. He. then replied, denying specifically the allegations of the answer, and setting* up that he sold his capital stock in appellant to the 'appellant alone for the sum of $12,500, and alleged that the appellant received that value in actual assets and profits, exclusive of any good will in appellant’s business at Hartford. The appellee also filed a supplemental complaint, in which he set up that, since the bringing of his suit, another note had matured in the sum of $1,259.60, and he prayed judgment in the total sum of $7,615.95.

The appellee testified that he owned stock of the value of $12,500 in the company when he sold to the appellant, and he stated that the notes in suit were executed as a part consideration for the purchase of his stock, and he exhibited the notes and testified that the amount due to date, with interest, was $7,117.56. The notes were given for his interest in the appellant. The Hartford Music Company was established at Hartford on November 30, 1920. It was a partnership. Appellee was not a member of the firm, and never had been. He signed1 pay checks in the name of Hartford Music Company by David Moore. Appellee worked for the company a while, and signed pay checks as above. The company paid him a salary, and he had an office in the back of the store. Appellee was manager for a Avhile, beginning between November 10 and December 10. Appellee sold out his music business at Hartford to the company November 30, 1920. Appellee, at the time of the giving of his testimony, was not employed by the company. His employment ended February 10, 1922.

The appellant introduced testimony to the effect that certain parties had purchased pianos from L. I. Beavers, representing the Hartford Music Company at Hartford, Arkansas, and the purchasers had receipts for payments signed, “David Moore Music House, per L. I. Beavers,” and purchase money notes were executed in the name of David Moore Music Store. One of the witnesses for the appellant testified that the Chase-Hackley Piano Company of Muskegon, Michigan, had sold pianos to the David Moore Music House at Hartford, Arkansas, billing the same from the factory to Hartford, Arkansas, to the account of David Moore. Witness’ correspondence was with David Moore. The pianos might have been billed to the Hartford Music Company, but witness’ understanding was that Moore was behind it. At one time Moore wrote witness about billing to Hartford Music Company, as he had sold out his business. Witness refused to do business with the Hartford Music Company. It was witness’ understanding that Moore had sold out, and he was not willing to do business with any one else in the territory on account of Culp Bros, working that territory. Witness exhibited sale bills to David Moore Music House at Hartford, Arkansas, in November, 1921.

J. H. Culp testified that he was a member of Culp Bros. Piano Company in October, 1919; that this corporation purchased the stock of the appellee in the corporation, and also his music business at Hartford, and the good will of that business. His testimony concerning the sale and purchase of appellee’s stock and his business at Hartford was substantially as set up in the answer of the appellant. He testified that appellee promised, when appellant purchased his stock and music business, that he would never again go into the music business in this country if they would purchase his stock and' business at Hartford, which appellant did, executing to him notes for $12,000 and paying him cash in the sum of $500. When they were closing the deal, witness called appellee’s attention to the fact that the company would be owing an income tax, and that he would have to pay his proportion of such tax, and that appellee agreed1 to do so. At the time of the purchase, Culp Bros, had a small store at Bussellville, Arkansas, and also one at Hartshorne, Oklahoma. The witness introduced checks showing that the appellant had paid income taxes for the years 1916, 1917, 1918 and 1919, while the appellee was a stockholder, amounting to nearly $4,000, for which, he says, appellee agreed to pay his proportionate part. The witness knew that Hartford Music Company was operating in the territory of Hartford, before he knew that appellee had anything to do with it. Some of the notes had been paid before they ascertained that- appellee was in business. This witness testified that he wrote a certain letter for the appellant to the appellee of October 3, 1919, in which the notes were transmitted for $11,500, and stating that the appellant supposed that the appellee had advised the different companies regarding the deal, and that he had requested them to send invoices, etc., to appellant, and stating that “any word you can speak for us to any of them or to the public in general will be greatly appreciated. ’ ’ Also, a letter of August 15, 1921, in response to a letter received by the appellant from the appellee, in which tlie appellee was demanding payment of the notes. In this letter appellant refers to the income tax, amounting to $4,099.40, that it had paid, and also mentions that “business and collections had been rotten,” and concluded by saying “we can begin to send you some money and ■will get you up some within the next ten days, and trusting, in view of the above, you may continue your leniency,” etc. Also a letter of February 17, 1922, in response to a letter from appellee demanding check for interest on notes, in which the appellant says: “We have just learned definitely that you are engaged in the music business at Hartford and that trade territory. Therefore, we must refuse payment of any sum whatever until you adjust and settle damages with us resulting from your breach of contract, ’ ’ and concluding by saying that the appellant had been damaged a great deal more than any alleged indebtedness to the appellee, and requesting appellee to call and adjust the damages. Witness stated that he learned about January, 1922, that the appellee had breached his contract.

B. D. Culp testified, corroborating substantially the testimony of his brother as to the sale and purchase of appellee’s stock in the corporation and his business and good will at Hartford, and. to the effect that, after the music company was established at Hartford, advertisements were published bearing the name of David Moore, music dealer, and he saw pianos there with Moore’s name on them, consigned to him by the shippers. This witness also testified as to the amount of business that was done by appellant at Hartford before the Hartford Music Company was established, as to the effect that the establishment of the business of that company had on appellant’s business, which was, substantially, that their profit before was around $3,000 per month, and that, after the Hartford Music Company was established,.it ran down to nothing. This witness also testified to other facts tending to show that David Moore had continued in business with the Hartford Music Company after appellant had purchased his stock and good will, and after he had promised to go out of business at Hartford.

Another witness testified that he lived at Hartshorne, Oklahoma, and was working for Culp Bros, there, and that, after appellant purchased appellee’s stock, the latter, in May or Juné, 1921, asked witness why he didn’t go into the music business for himself, and told witness that he would let witness have as much as $2,000 in September if witness desired to engage in the music business. At that time there was no other competing music house in Hartshorne, Oklahoma.

Another witness, who resided at Mansfield and Hartford, a member of the school board, testified that he went to Hartford Music Company and asked about the price of a piano. He met appellee on the street, and he said that he was out of business, but would see what he could do for witness. Witness didn’t know that he had sold out at the time. Later appellee met witness on the road, and made him a price.

The appellee, in rebuttal, introduced two witnesses who were members of the Hartford Music Company. They both testified to the effect that appellee was never a partner in that business; that he worked for that partnership, and bought some instruments for the company. He might have ordered them in his own name, or in the name of David Moore Music House, and issued receipts for payment in the name of David Moore Music House. The Hartford Music Company used old receipt books formerly belonging to David Moore Music House. After appellee sold out to Culp Bros., appellee ran his jewelry business under the name of David Moore Music House until the Hartford Music Company bought him out. After the Hartford Music Company bought out the David Moore Music House the jewelry business was carried on in that name, and since was carried on under the name of Hartford Music Company, the company using blanks as the David Moore Music House. Appellee instructed the Hartford Music Company to strike out his name, but it didn’t do it every time. It used receipts and notes of the old David Moore Music House. Moore advanced money to the company to buy a carload of Packard pianos. He loaned the company as much as $6,000 at a time, and took the notes of the company, but didn’t take a mortgage on the instruments. The ChaseHackley pianos were billed to the Hartford Music Company.

The appellee himself, in rebuttal, testified that he didn’t know anything about the income tax until the appellant filed its answer in this case. He knew about the claim of the government for income tax against the appellant, but, when the trade was made, there was nothing said about it. He knew that the corporation was required to make an income tax report. After his sale to the appellant he never purchased any new stuff and sold it at Hartford or anywhere else. He had sold instruments on installments, and had some out at the time. These instruments were not included in the trade with appellant. Appellee had not engaged in business at any place.

The issues were submitted to the jury, under instructions which will be referred to hereafter, and the jury returned the following verdict: “We, the jury, find for the plaintiff, David Moore, in the sum of $6,417.43.” Judgment was entered in favor of the appellee for that sum, from which is this appeal.

The court, in instructions given at the request of appellant, told the jury, in effect, that, if they found from a preponderance of the evidence that the appellee sold his interest and good will in the corporation to the appellant, and, as a part of the consideration, agreed with the appellant that he would not engag’e in the business of selling musical instruments at Fort Smith, Hartford, Russellville, Arkansas, and at Hartshorne, Oklahoma, and the trade territory surrounding these places, good faith required that he do nothing which tended directly to deprive the appellant of the benefits of the purchase; that if, at that time, it was agreed that if appellant was required to pay any sum as income tax on the stock purchased from appellee, appellee would reimburse appellant, then the jury should find for the appellant, upon that issue, such amount, if any, as appellant was compelled to pay income tax upon the stock purchased from the appellee; that the appellant set up in its answer that the appellee had breached his contract, by which the appellant was damaged; that the jury should determine this issue as any other fact in the case, and, if they found that appellee had breached his contract as alleged, which breach resulted in damage to the appellant, they should return a verdict in favor of the appellant for such damages as they found appellant had sustained by reason of such breach, and allow appellant an abatement of appellee’s claim to the extent of such damages.

The court further told the jury that, if the appellee entered into the contract with the appellant as set up in the latter’s answer, and the appellee thereafter, in person, by agent, or otherwise, engaged in the sale of musical instruments, this would be a violation of appellee’s contract.

The appellant presented prayer for instruction No. 5, which the court modified and gave, as follows: “You are instructed that, if you find from a preponderance of the evidence that plaintiff contracted and agreed with defendant not to again engage in the music business, at the places mentioned in these instructions, and that after-wards the plaintiff did engage in said business at the places, in violation of his contract with defendant, either in person or by becoming interested in a rival or competitive concern at any of the places mentioned, whereby he was brought into actual competition with the defendant, then you will find for the defendant such sum as, from the evidence, will reasonably compensate it for the damages to its business by said plaintiff or competitive musical business in which plaintiff was interested, in violation of his contract, if any, with defendant. ” The modification made by the court, to which appellant objected, was the addition of the words “if any.”

The appellant also presented prayer for instruction No 7, which the court refused, as follows: “You are instructed that, if plaintiff made such contract with the defendant, then it would be a violation of his contract to become interested in a rival and competitive concern to defendant, selling and offering for sale musical instruments in the towns of Port Smith, Hartford and Russellville, in the State of Arkansas, and Hartshorne, Oklahoma. ’ ’

The appellant contends here that the verdict was contrary to the evidence. It will be observed that the appellant did not ask the court to direct the jury to return a verdict in its favor, but, on the contrary, presented a prayer for instruction, which the court gave, in which it asked that the issue be submitted to the jury to determine whether the appellee sold his interest and good will in the appellant company, and, as a part consideration, agreed with the appellant that he would not thereafter engage in the business of selling musical instruments. The issues as to whether there was a contract between the appellant and the appellee, as set up in the appellant’s answer, and, if so, whether or not appellee breached such contract, and the amount of damages resulting therefrom, if any, were submitted to the jury under instructions asked by the appellant. They were correctly submitted, and we deem it unnecessary to discuss the evidence, the substance of which we have set forth, for it is clear there was substantial testimony to sustain the verdict.

The appellant contends that the court erred in modifying its prayer for instruction No 5 by adding the words “if any” to such prayer, as above set forth. The appellant argues that this instruction, as thus modified and given, when taken in connection with appellee’s prayer for instruction No. 8, was prejudicial to the appellant. Appellee’s prayer for instruction No 8, which the court gave, is as follows: “You are instructed that, if you find for the defendant upon its claim for damages by reason of a breach of contract by the plaintiff, if you find there was a contract and a breach, you will estimate from the evidence the difference between what the trade of the Culp Bros. Piano Company was actually worth in the place where the breach of contract was, if any, and what it would have probably been worth to them if the plaintiff had strictly complied with his agreement, if he made any such agreement, and the difference you will consider as damages.” The appellant objects to the language “probably been worth” as used in this instruction. The word “probably” should not have been used in the instruction, but this word, as well as the words “ if any,” in instruction No 5, were only intended by the court to indicate to the jury that it was an issue for them to determine as to whether or not any damages had resulted to the appellant by a breach of the contract on the part of the appellee, if there was a contract, and if appellee violated the same. To say the least, if appellant conceived that this phraseology was calculated to mislead the jury to appellant’s prejudice, it should have specifically objected to this language.

The appellant further contends that the court erred in giving appellee’s prayer for instruction No 7, which is- as follows: “You are instructed that, as to the defendant’s claim for a recoupment by reason of having paid additional income taxes for the years mentioned in the cross-complaint, you must find by a preponderance of the evidence that plaintiff made an express-agreement to pay a certain portion thereof, and that such agreement, if sjxj, was a part of tlie contract to sell his stock in the company, and supported by a valuable consideration. In this connection you are instructed that the fact that the plaintiff was a member of the firm of the Culp Bros. Piano Company, and owned stock therein, would not impose any legal obligation upon the plaintiff to pay any additional income tax after he sold his stock, without an express contract to so do, as between the plaintiff and defendant in this case.”

This instruction, taken in connection with the instruction given on the same subject at the instance of the appellant, correctly declared the law applicable to the facts adduced on this issue. See Quinn v. McClendon, 152 Ark. 271. The Federal income tax on the income of the corporation was primarily the debt of the corporation, and there is no legal obligation upon the stockholders, after they have sold their shares of stock in the corporation, to pay the income taxes that had accrued and had not been paid prior to the sale of such stock, and, in the absence of an express agreement on the part of the stockholder at the time of the sale of his stock to pay his proportionate share of such taxes, he would not be liable to the purchasers of his stock for such taxes. The taxes are not laid upon the stock, but on the corporate income.

The. appellant contends that the court erred in giving appellee’s prayer for instruction No 5 as follows: “You are instructed that,.to enable the defendant to recover upon its claim for damages by reason of a breach of contract alleged1 to have been made by the plaintiff to not engage or be interested in the music business in certain localities, the defendant must show, by a preponderance of the evidence, that such a contract was made, and it was made with reference to and in connection with the sale of a business or profession or interest therein, and the good will thereof, for a valuable consideration, and that such a sale and agreement was such as would give the defendant the legitimate use of something acquired by the purchase, and not merely an agreement to stifle competition, and that the plaintiff violated the terms of such an agreement.” The appellant objects to the use of the words, “and not merely an agreement to stifle competition,” its contention being that there was no issue as to whether or not the contract, if made, was to stifle competition, the only issue 'being as to whether such agreement was made. ¡We concur with appellant’s counsel that there was nothing in the pleadings and nothing in the proof to warrant a submission to the jury of an issue as to whether or not the alleg*ed! contract to purchase the good will of appellee at Hartford was in total restraint of trade, or to stifle competition. But the instruction, when considered as a whole, is not susceptible of the interpretation which learned counsel for appellant place upon it. It occurs to us that the design of this instruction was not to submit to the jury the issue as to whether or not the alleged contract was made by the appellant and the appellee to suppress the business of the appellee and to stifle competition against the appellant. On the contrary, the manifest purpose of the court in giving the instruction was to submit the issue as to whether or not there was a contract between the appellant and the appellee by which the appellant purchased appellee’s good will in the music business at Hartford, and acquired thereby the right to have the appellee desist from that business at Hartford and in the towns mentioned as the particular trade territory of that business.

This court has often held that “contracts in partial restraint of trade with reference to a business or profession, where ancillary to the sale of the business or profession and the good will thereof, are valid and enforceable to the extent reasonably necessary for the protection of the purchaser.” Shapard v. Lesser, 127 Ark. 590, and cases there cited. See aso Patterson v. Rogers, 128 Ark. 222; Wahenight v. Spear & Rogers, 147 Ark. 342; Kimbro v. Wells, 112 Ark. 126. We are convinced that the court did not intend by its instruction No. 5, given at the instance of the appellee, to submit or suggest to the jury that there was a question as to whether or not the contract, if made, was a valid one, and binding upon the parties. The instruction, properly construed, is in harmony with the doctrine of the above cases, and is not abstract. Certainly, learned counsel for the appellant, if they conceived that the use of the words “and not merely to stifle competition,” had the effect which they now contend these words had, should have urged this specific objection in the court below.

Instruction No 1, given at the instance of the appellant, and also instruction No 5, as modified and given, show clearly that the court did not intend that its instruction No 5, given at the instance of the appellee, should have the meaning which counsel for appellant contend it had. Such interpretation would make the instructions conflict, but, when the instructions are considered together, there is no real conflict between them. The real issue was whether or not the appellee contracted with the appellant to go out of the music business at Hartford and the surrounding trade territory, and turn over the good will of such business to appellant, and whether or not he violated such contract, and, if so, the amount of damages, if any, growing out of such breach. These were all issues of fact. They were submitted to the jury, under instructions free from prejudicial error to the appellant, and the verdict of the jury on these issues is conclusive here.

The record, on the whole, presents no reversible error, and the judgment is therefore affirmed.


author: Wood, J.

text:
    Fowler v. Hammett.
    Opinion delivered February 4, 1924.
    1. Appeal and error — conclusiveness of verdict. — On appeal evidence must be viewed in the light most favorable to the verdict.
    2. Appeal and error — conclusiveness of verdict. — -Where a motion for new trial on the ground of insufficiency of the evidence to sustain the verdict,has been overruled, the Supreme Court will not disturb the verdict if supported by substantial evidence.
    3. Appeal and error — weight of evidence — credibility of witnesses. — The Supreme Court will not pass on the weight of evidence or the credibility of witnesses.
    4. Trial — duty of court to direct verdict. — Where the testimony is undisputed, and all reasonable minds must draw the same conclusion of fact from it, it is the duty of the court to declare as a matter of law the only conclusion to be reached, and to direct the jury to return a verdict accordingly.
    5. Death — evidence.—In an action for the death of H., plaintiff’s intestate, on the theory that F., defendant’s intestate, induced H. to accompany him when he made a murderous assault on the mayor of the town, and that the constable, for the purpose of preventing the assault on the mayor, fired three shots at F., one of which killed H., without fault on H.’s part, evidence held to show that H was a voluntary participant, and had committed an assault on the mayor, and that the killing of H. was intentional.
    6. Action — illegal act as foundation. — No court will lend its aid to one who founds his cause of action on an immoral or illegal act.
    7. Death — illegal act. — Where one makes an unprovoked, wilful and deliberate assault upon another and is killed because thereof, no action for such killing will lie.
    Appeal from Crittenden Circuit Court; W. W. Bandy, Judge;
    reversed.

      Gray, Burroio & McDonnell and Hughes & Hughes, for appellant.
    1. Tbe voluntary illegal conduct of Hammett himself was a concurring cause of his death, and bars recovery. 1 Cowper, 343; 107 Mass. 253; 1 Cooley on Torts, 3d ed., 223, 263; 38 Oyc. 529.
    2. Under the uncontradicted facts, the question of proximate cause was one of law for the court, and should not have been submitted to the jury. 86 Ark. 289; 87 Ark. 576; 91 Ark. 260.

      Rudolph Isom and L. G. Going, for appellee.
    1. The doctrine upon which this case is bottomed is clearly stated as follows: “If an injurious act is wanton, the doer of it is liable for all consequences, however remote, because the act is criminal, or quasi-criminal in character, and the law conclusively presumes that all consequences were foreseen and intended.” 22 R. C. L. 123, § 10; 16 Am. & Eng. Ene. of L., 434; 70 Vt. 588; 41 Atl. 585; 135 N. C. 204; 102 A. S. R. 528; 1Ó6 Mass. 458; 118 S. W. 337; 133 Ky. 383; 59 S. E. 1044; 146 N. C. 385; 154 8. W. 1046; 127 Tenn. 312.
    2. On the question of what constitutes proximate cause, see 24 Law. ed. (U. S.) 398, 399; Id. 259. The proximate cause in this case of the injury and death of Hammett was the felonious assault made by Fowler on Dickson. 129 Ark. 520; 197 S. W. 288; 130 Ark. 455, 197 S. W. 858; 99 Ark. 322, 139 S. W. 292.
   Wood, J.

This is an action by the appellee, administratrix of the estate of J. H. Hammett, deceased, against the appellant, administrator of the estate of Gr. D. Fowler, deceased. The material allegations of the complaint are to the effect that R. A. Fowler, on the night of December 22, 1921, induced J. H. Hammett to accompany hi-m into the presence of certain officers of Crittenden County, and that Fowler wilfully and deliberately made a murderous assault with an open knife on J. A. Dickson, the mayor of the town of Earle; that Jim Donnalioo, constable of that township, for the purpose of preventing- the assault, and while Fowler had his knife raised to strike Dickson, fired three shots from his revolver at Fowler, one of which struck and killed Hammett; that Hammett was killed through no fault or carelessness on his part, but through the wilful and deliberate act of Fowler in making- the murderous assault on Dickson. Damages compensatory were alleged in the sum of $50,000', and punitive damag-es in the sum of $25,000, by reason of the death of Hammett. There was a prayer for judgment in these sums.

The appellant answered, denying all the material allegations of the complaint, and alleged that Hammett and Fowler were close friends, and acted jointly and by agreement in what they did; that the shot that killed Hammett was fired by Donnahoo at Hammett himself at the moment when Hammett was trying to take Dickson’s pistol from.him, and that Donnahoo fired at Hammett for the deliberate purpose of killing or disabling him.

H. V. Dickson testified substantially as follows: He was mayor of the town of Earle, in 'Crittenden County, Arkansas; knew Jim Hammett and Bob Fowler. They were killed on the night of the 22d of December, 1921, in the town of Earle. He had seen Fowler, about an hour before the. killing, about one hundred yards above the place where the killing occurred. Witness had started to town about seven o’clock, and passed Fowler and John Hudson. They were in the middle of the street, and witness was on the sidewalk. Witness watched them, and saw them go into Mr. Sproul’s house and come out with a jug of whiskey. Witness followed them. When Fowler saw witness coming, he hid the whiskey under his coat. Witness reached and got the gallon fruit-jar of whiskey from under Fowler’s coat, and asked him where he got it. He replied, “It is none of your business.” Witness said, “You are drinking, Bob; go on home, and if I need, you I will send for you.” Witness sent the marshal to get a search warrant for Sproul’s house, and witness remained where he was, to watch. Before the marshal got back with the warrant, Sproul gave the officers permission to search his house. They went in and searched it, and found a lot of whiskey. While they were standing talking, Fowler and Hammett came up. When witness took the liquor from Fowler he was mad, and very drunk. When witness took the whiskey it was about seven o’clock. Fowler went away, and returned once before Sproul’s house was searched/ Witness made him go back to town, and witness didn’t see him any more until he returned with Hammett. They came back, and Hammett walked up in front of witness and said, “Hello, boys,” and witness said, “Hi, Jim,” and Hammett said, “I understand some of you fellows are accusing- Bob Fowler of selling- whiskey,” and witness replied, “No, we are not,” and. he grabbed witness’ gun, and witness grabbed his arm, and about that time the shots fired— one, two, three, as fast as they could possibly shoot. Fowler grabbed witness with his left hand, and, at the time the shots were fired, he had his right hand drawn back (indicating position) with a little knife in it. After Fowler was killed, a little open knife was found where he was lying. When Fowler and Hammett came back they were going east on the street, which runs east and west. They were on the north side of the street. Fowler • was south of Hammett. When they returned Fowler was still in a bad humor, and drunk. He opened his knife, after witness took the whiskey from him. Witness was not afraid of him at all — considered him a good friend. When Fowler and Hammett came back to where witness and the others were, that is the first time Hammett had been there. Before Hammett grabbed witness’ gun, he said, “Any man that said Bob Fowler sold whiskey was a Gt- d- son of a b-. ” Witness replied that nobody accused Fowler of selling whiskey. Witness’ pistol was in the waistband of his pants. • Witness had on no vest, and Hammett grabbed witness’ pistol. Witness stated he didn’t know which one grabbed — Hammett or Fowler. Witness was not apprehensive that Fowler would take his pistol away from him unless witness was cut. Witness had his pistol by the cylinder, with his finger in the guard, and about that time Donnahoo began to shoot. Donnahoo was about ten feet down the sidewalk. To the best of witness’ knowledge, he shot Fowler first. Fowler jumped about two feet off the ground, and fell. Witness didn’t know whom the next two shots struck. Hammett went down easy. He didn’t fall. Didn’t turn witness loose until he was on the ground. Witness supposed that it was the shock of the gun that caused him to turn witness loose. The shots were all fired so quickly they sounded like they were together. Hammett was sinking down when Fowler was falling. They both went down together. Witness had hold of Hammett, and Hammett had hold of witness, and witness didn’t break him loose until he went down. Witness picked him up again. Witness and Hammett had never had any trouble — were on friendly terms. There was no personal difficulty between Donnahoo and Hammett at that time. Witness didn’t know that Donnahoo was going- to shoot until the shots were fired. Hammett was not armed in any way that witness knew. Witness didn’t see the knife in Fowler’s hand at the time he had witness by the arm. Hammett was in a pretty bad humor, and said that we were’G-- d- liars, and grabbed at witness’ pistol. Witness was surprised when he exhibited so much malice or anger towards witness. Hammett was not drunk. He might have been drinking a little. Hammett was a well-made -man, and would weigh about 175 pounds, and Fowler was a slender man, and would weigh about 160 or 165 pounds.

Witness McConnell testified that he was marshal of the town of Earle at the time of the killing*, and was present when the shooting occurred. He described the positions of those present on the sidewalk, running north and south, When Hammett and Fowler approached, pointing out on a plat, as follows: Dickson was to the south, witness with his back to the west, a little north of Dickson; Donnahoo a little north of witness, and Sproul north of Donnahoo. As Fowler and Hammett approached them, Fowler was to the south and Hammett to the north of Fowler, both facing east, and facing all the officers except witness. Witness corroborated the testimony of the mayor as to the intoxicated condition of Fowler, and testified that he was using- profane language ag-ainst the mayor for taking his whiskey, when witness met him on the street some time before the fatal rencounter. Witness testified as to the killing as follows: When Fowler and Hammett walked up,. Hammett or somebody said, “Howdy,” and Dickson said, “Hi, Jim,” and Hammett said “Dickson, I understand you have accused Bob Fowler of selling whiskey,” and Dickson said, “I have not accused Mr. Fowler of selling whiskey. He had been transporting* whiskey.” Hammett said, "Bob Fowler is my friend, and any one that says he has been bootlegging whiskey is a Gr-d-lying son of a ' b-,” and about that time Mr. Hammett grabbed Mr. Dickson, and he (Fowler) said, “You are a Gr-d-lying son of a b-.” I started in between them, and somebody pushed me back, and as I staggered back I saw Mr. Fowler with his right hand up this way (indicating), and his left hand on the mayor. At the moment the hand was up in the air there were three shots in rapid succession (indicating). Witness stated that he had had a good deal of practice in the use of fire-arms and, taking into consideration the, rapidity with which those shots were fired, witness could not have changed his position and range and sight between the shots, and witness didn’t think Donnahoo could, because it was too fast. Fowler and Hammett did not fall about the same time. Fowler whirled quickly and started off five or six feet, and fell, and Hammett sank down against the telephone pole.

On cross-examination this witness testified that Hammett grabbed Dickson’s left hand with his right hand. They were struggling* over the pistol, close together. They pushed witness back, and it happened so quickly witness could hardly tell what happened. Hammett was the man who pushed witness back. Witness was light, and ran up to stop the racket as they started together, and they pushed witness back. Hammett was the nearest to Donnahoo when the shots were fired. After Hammett had been shot down, witness told Donnahoo not to shoot any more, that he was down (meaning Hammett).

Donnahoo testified that he was deputy sheriff of Crittenden County, and constable of Toronto Township, in which Earle is located. He was acauainted with Fowler and Hammett. He had known Hammett since he was a little boy, and Fowler for several years. He hadn’t seen Fowler that day until that night, when he was called, about thirty minutes before the shooting. He saw Tiinm then, west of the shooting about twenty yards. He seemed intoxiaated, and when witness arrived he was talking to Dickson, and was mad, and didn’t want to go with Dickson, who was holding him there until witness and McConnell came. Witness never noticed any knife at that time. Witness stated that he had been sent by the mayor to find one Mr. Hudson and ask him to come down and show them where the whiskey was. Witness stated that he then saw Hammett and Fowler standing where they first left them, and that Fowler at that time came and grabbed witness by the coat. Then witness saw his knife, which looked.to be a small knife. He had it in his hand at that time, and spoke to witness in such a rough way witness thought he was mad at him. He called witness “Jim,” and said, “A d- dirty lying son of a b-took my whiskey,” and further said, “I told him .he was a G-• d-son of a b — —,” and witness said, “Look here, Fowler, I don’t blame you for getting a little whiskey, but if you get caught you will have to pay a fine.” Witness told him that he ought not to do that, and witness then detailed what he did with reference to the search for the whiskey, and stated that, after they searched Sproul’s house and came out, they met Dickson where the shooting commenced. About that time McConnell came up, and, as the officers were ready to leave, Hammett and Fowler came up. The backs of the officers were to the east, and Hammett and Fowler came up from the west. Witness then described the positions of the respective parties. Witness and Dickson were about five or six feet apart. When Hammett came up he was facing Dickson, and Fowler was to the south of Hammett. Just before the shooting FoAvler g*ave it the damn be. or G-- rlpmn be. and grabbed Dickson bv his left arm with his left arm, and raised to strike with the knife. Then witness shot. Witness indicated how the pistol was fired, and stated he would not have used his pistol if Fowler had not raised his arm ready to strike.

On cross-examination witness was asked what he shot Hammett for, and replied, “Hammett was right there, a-hold of Mr. Dickson.” He further stated that Hammett had hold of a gun by the handle, and it looked to witness as though he had the barrel pointed in Mr. Dickson’s stomach. Witness was -asked, if he didn’t shoot Hammett because he thought Hammett was going to shoot Dickson, and if that wasn’t what he swore at his jneliminary trial, and answered that at the time he made the shots, when he first shot he shot at Fowler. He was then asked if the next two shuts were at Hammett, and answered, “The pistol — they were scuffling there some little bit; that is, they all had their legs together about the same time. Fowler gave it the damn lie, and they both grabbed Mr. Dickson, and Mr. Fowler raised his hand, and I went to shooting. Q. And you shot Mr. Fowler, and then shot Mr. Hammett because he was about to -shoot Mr. Dickson, and didn’t you swear-that in your preliminary trial? A. Well, I shot. Q.' Didn’t' you testifjr, Mr. Donnahoo — you were tried here on a preliminary trial for the murder of Mr. Hammett and Mr. Fowler both, weren’t you? A. I suppose so; yes sir. * * * Q. And -didn’t you testify in that case that the first shot fired was at Bob Fowler? A. I testified that Bob Fowler was the man I was afraid was going -to hurt somebody. Bob Fowler was the man I was watching. Q. Didn’t you testify that the first -shot you fired of the three, you fired at Bob- Fowler, because you thought he was going to cut Mr. Dickson with his knife; isn’t that what you said? A. Well, I still swear that when I commenced to shoot— Q. (Interrupting*) Didn’t you swear before— A. (Interrupting-) I don’t remember what that is, but I remember this. Bob Fowler is the man I was dreading. I was raised with Jim Hammett, and knew all about him, and never feared him at all. He never carried a gun. He was a fair-fisted fighter. Q. Didn’t you testify in your preliminary trial that the first of the three shots fired was fired at Bob Fowler; and you shot him because you thought he was going to cut Mr. Dickson? A. Yes sir. Q. And didn’t you testify the next two shots you fired at Hammett because you thought Hammett was going to shoot Mr. Dickson with Mr. Dickson’s pistol? A. Yes sir; the second shot I fired, I saw he had hold of Mr. Dickson’s pistol. About the second or third shot is when I saw this gun, and it looked as though — I thought it was Jim’s own gun at that time. Q. And you thought he was going to shoot Mr. Dickson, didn’t you? When you shot Hammett didn’t you think he was going to shoot Mr. Dickson; is that rigid? A. Yes sir.”

The witness, after further questions along’ the same line, stated that he commenced shooting at Fowler, and wound up on Hammett. The questions and answers of witness on his preliminary trial were read to witness, in which, among other things, he stated that, when Fowler grabbed hold and raised his knife to strike, and witness saw the flash of the knife, he began to shoot. He shot Fowler first, and it seemed to witness there was a little intermission between the first and second shots, and after he shot at Fowler he fired at Jim Hammett. He was asked if he didn’t make those answers at the preliminary hearing, and stated that he did, and that they were correct; that he shot Jim a second shot. Among the last questions asked this witness was the following: “Now, when yon. shot Mr. Hammett yon weren’t shooting at Mr. Fowler, were you, but you were shooting at Mr. Hammett?” "Witness answered, “Yes sir.”

The court, on its own motion, gave instruction No. 2 as follows: “You are instructed that, if you find from a preponderance of the evidence, that is, the greater weight of testimony, that, 'at the time this killing of Hammett occurred, the deceased, Fowler, induced him to go with him into the presence of Dickson and the other men who were present at the time of the shooting, and that there was no agreement or understanding between Hammett and Fowler, prior to the time they reached the nresence of the people mentioned, under which they'were to commit an unlawful act towards and about the mayor and his friends, but that Hammett simply accompanied him for the purpose of showing* for Mm a friendly act, that is, for Fowler, and that there was no understanding or agreement between them at that time that an unlawful act should be committed upon Dickson or others, and after they reached Dickson and the company of men that were with him, that Fowler, the deceased, without the consent of Hammett, and without any arrangements with him that what hé did do should be done, assaulted Dickson with an open knife, and had it open and acting* with it in a manner as if he intended to inflict upon Dickson great bodily harm, and Hammett was engaged in what he did only for the purpose of keeping down the difficulty, or doing what he could to prevent it, and while Fowler was standing, if you find he was so standing, with an open knife, in an attitude as if he intended to strike Dickson with that knife and inflict upon him a great bodily injury, Donnahoo observed the situation, and, honestly believing, under the circumstances and facts and conditions as he saw them, that, in order to protect the life of Dickson, or protect him from receiving great bodily harm, he pulled out his pistol and commenced shooting, and in that shooting accidentally struck and killed Hammett, and that the conduct of Fowler in drawing- his knife was the direct and proximate cause of the death of Hammett, then your verdict should be for the plaintiff.”

The other instructions present the converse of the proposition contained in instruction No. 2. Appellant only objected and excepted to the ruling of the court in giving instruction No. 2.

Appellant presented two prayers for instructions, as follows: “The jury are instructed to return a verdict for the defendant.” And, “If you find that, at the time., Hammett was killed, he was endeavoring to pull a pistol from Dickson’s clothes at the time Fowler was attacking Dickson with a knife, you will find for the defendant.” The court refused these prayers, and the appellant duly obiected and excepted to the ruling of the court in so doing. ! : — n~-n

The jury returned a verdict in favor of the appellee in the sum of $15,000. Judgment was entered in that sum in favor of the appellee, from which is this appeal.

1. In testing whether the evidence be sufficient to sustain the verdict, this court must view the evidence in the light most favorable to the verdict. Bennett v. Snyder, 147 Ark. 206. Where a motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict has been overruled by the circuit court, this court will not disturb the verdict if there be any substantial evidence to support it. K. C. S. Ry. Co. v. Sparks, 144 Ark. 227. This court will not pass on the weight of the evidence, or the credibility of witnesses, for this is peculiarly the province of the jury in the first place, and of the trial court, on motion for new trial, in the second place. When a cause reaches this court and the verdict is challenged, the only inquiry is whether there is any substantial evidence to sustain the verdict. Twist v. Mullinix, 126 Ark. 427; Moore v. Thomas, 132 Ark. 97. Where the testimony is undisputed, and all reasonable minds must draw the same conclusion of facts from it, then it is the duty of the trial court to declare, as a matter of law, the only conclusion or finding of fact to be reached from a consideration of such testimony, and to direct the jury to return a verdict accordingly. Fraternal Aid Union v. High, 132 Ark. 588.

2. Now, keeping- these familiar rules to the fore, after carefully scrutinizing the testimony, we are convinced that the essential facts which it proves are undisputed. The only conclusions of fact which any reasonable mind can reach are, first, that Hammett was a voluntary participant in the rencounter which ended in his death; and, second, that the killing of Hammett was not accidental.

(a) The undisputed evidence shows that Hammett really precipitated the fight that was the immediate cause of the shooting. Learned counsel for appellee contend that Fowler induced Hammett to go with him into the presence of Dickson as a peacemaker. While there is no proof to the contrary until they came face to face with the officers, yet the undisputed testimony shows that, when they reached the officers, instead of soft words to turn away the wrath of Fowler from Dickson, Hammett immediately began to use vile oaths and epithets. Thus, instead of pouring oil on the troubled waters, he lashed them into greater fury. “He rubbed the sore instead of bringing the plaster.” His bitter denunciations and seizing of Dickson unquestionably caused the rencounter with Dickson, in which Fowler simultaneously joined, and which caused Donnahoo to fire when Fowler was in the attitude of striking Dickson with his open knife. It is unnecessary to argue these facts. The testimony is fully set forth, and the facts, trumpet tongued, argue themselves. They show conclusively that Hammett not only used the most offensive of epithets, which in themselves were well calculated to provoke an assault by Dickson, but he himself was guilty of the first act of violence in seizing Dickson’s arm and in attempting to wrest his pistol from him.

The law applicable to these undisputed facts is all one way. Lord Mansfield, in the case of Holman v. Johnson, 1 Cowper 341-343, says: “The principle of public policy is ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or a transgression of the positive law of the country j the court says he has no right to be assisted. It is upon that ground that the courts go, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.”

Our statute forbids an assault, or assault and battery, upon the person of another. Section 2330 et seq., Crawford & Moses’ Digest. When Hammett seized Dickson and grabbed at his pistol, he was guilty of an assault and battery upon him. The undisputed evidence shows that Dickson was entirely blameless throughout the whole occurrence, and was only discharging his duty as an officer. The assault upon him by Hammett and Fowler was not only unprovoked but was wilful and deliberate on their part.- “The general principle,” says Judge Gray, “is undoubted that courts .of justice will not assist a person, who has participated in a transaction forbidden by statute, to assert rights growing out of it or to relieve himself of the consequences of his own illegal act. Whether the form of the action is in contract or in tort, the test in each case is whether, when all the facts are disclosed, the action appears to be founded in a violation of law in which the plaintiff has taken part.” Hall v. Corcoran, 107 Mass. 253.

Our own court, in Rogers v. Willard, 144 Ark. 587-591, said: “It will be observed that, in the case of a wilful tort, the wrongdoer is responsible for the direct and proximate consequences of his act, without regard to his intention to produce the particular injury.” See 1 Cooley on Torts (3rd ed.) p. 223, 263; 38 Cyc. 529, and cases cited in note; 22 R. C. L. 134, §§ 19 and 20, and cases cited in note.

(b) The killing was not accidental. While there is testimony to the effect that the shots were in as rapid succession as they could be fired, and while one witness testified that the shots were so fast that he didn’t believe a man could change his position, range, and sight, between them, and that he could not have done so, nevertheless such testimony is not in substantial conflict with, and .does not overcome, the testimony of Donnahoo himself, who fired the shots, to the effect that he first shot Fowler and then shot Hammett. To 'be sure, the testimony of Donnahoo manifested a reluctance to testify against the interest of the appellee, and was wobbling and halting in its delivery, yet he does positively assert that he fired at Hammett as well as at Fowler.' The undisputed testimony therefore shows that the killing of Hammett was not accidental. Upon the whole record, it seems to us a very plain case of a failure upon the part of the appellee to prove his alleged cause of action. Therefore the judgment must be reversed, and, as the evidence seems to have been fully developed, the cause will be dismissed.


author: Smith, J.

text:
    Clardy v. Winn.
    Opinion delivered February 4, 1924.
    1. Schools and school districts — overlapping districts. — Two separate districts could not embrace the same territory at the same time.
    2. Schools and school districts — validity op rural special district. — Under Kirby’s Dig., § 7668, as amended by Acts 1909, p. 931, relative to urban special districts, and Gen. Acts 1919, p. 6, repealing Acts 1909, p. 947, and requiring rural special districts to take all of a common school district when any part is annexed, the creation by a county board of education of a new rural special school district, embracing all that remained of a common school district after an urban district had taken a part thereof, was legal.
    Appeal from Howard Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      J. G. Sain and A. F. Auer, for appellant.
    The complaint stated a cause of action. The board of education acted without authority of law in creating Rural Special School District No. 26, and the appellees, directors, are without authority to act as directors thereof. 146 Ark. 32.

      W. P. Feasel, for appellees.
    1. Chancery will not act where there is a full and adequate remedy at law. In this case there was a full and adequate remedy by certiorari. 153 Ark. 50.
    2. The directors, and not the taxpayers, were proper parties to sue. C. & M. Digest, § 8923; 128 Ark. 384.
    3. The complaint does not state a cause of action. Act No. 15, approved March 11, 1919, has no application in this case, and as to the allegation with reference to board of education acting without authority in organizing Rural Special School District No. 26, etc., tlie complaint states a mere conclusion. 105 Ark. 87; 139 Ark. 489;
   Smith, J.

Appellants were the plaintiffs below, and for their cause of action filed tlie following complaint:

“Come the plaintiffs herein, and for their cause of action against the defendants herein state:
“That they are citizens, qualified electors and taxpayers within the.territory embraced in Nashville Special School District, and are also taxpayers and patrons of Common School District No. 7, which is within Nashville Special School District.
‘ ‘ That the board of education of Howard County, on the 24th day of June, 1922, ordered and approved an organization of Rural Special School District No. 26 of Howard County, Arkansas, and the defendants, Q. W. Winn, Joe Green, C. P. Kelley, W. E. Kelley, J. L. Bear-field, Dave Graham, were named as directors of said school district, at an. election ordered by the said board of education of Howard County, Arkansas.
“That the territory designated to the Rural Special District No. 26 of Howard County, Arkansas, is within the territory of Nashville Special School District, and was a part of Common School District No. 7 of Howard County, Arkansas.
“That, after the order approving the organization of said Rural Special School District No. 26, the directors of said school district attempted to qualify and elect teachers to teach in said district, and to collect taxes for said district, and have expended out of the funds of Common School District No. 7 the sum of--dollars.
“That the board of education of Howard County, Arkansas, acted without authority in approving the organization of the said Rural Special School District No. 26 of Howard County, Arkansas, and that the attempt in forming said district by the said board of education of Howard County, Arkansas, is in violation of law, and void.
“That the said defendant directors, if not enjoined, will proceed to spend money belonging to School District No. 7 in violation of law.
“That a temporary injunction should be issued, enjoining them from acting as school directors of Rural Special School District No. 26, and enjoining the said board of directors from expending- any sum, or sums, of money until this cause can be heard. ’ ’

The prayer of the complaint was -that a temporary restraining order be issued enjoining the directors of Rural Special School District No. 26 from acting as directors of that district, and from expending any funds belonging to Common School District No. 7 in the hands of the treasurer of the county, and that the injunction be made perpetual on final hearing.

A demurrer was filed and sustained, and, as plaintiffs elected to stand on the complaint, it was dismissed as being without equity.

The complaint is somewhat ambiguous, but we interpret its allegations to be that plaintiffs were residents of Common School District No. 7 and patrons of the schools therein, and that a portion of the territory of that district was attached to Nashville Special School District, and the part remaining was absorbed by Rural Special School District No. 26 of Howard County. We do not know how otherwise to reconcile the allegations that plaintiffs are residents of -Common School District No. 7 and are also residents of the Nashville Special School District. Two separate districts could not embrace the same territory at the same time. Plaintiffs might reside in one or the other, but they could not at the same time reside in both. We do not understand the complaint to allege that territory was taken from the Nashville Special School District to form the Rural Special School District No. 26; but we do understand the complaint to allege that the two special school districts are existent, and that each lias taken territory from Common School District No. 7, and it is sought by -this proceeding to restrain the directors of Rural Special School District No. 26 from using funds which would belong to Common School District No. 7, if that district is in existence.

On May 31, 1909, the General Assembly passed Act No. 312, found at page 931 of the Acts of 1909, which amended § 7668, Kirby’s Digest. The section of the statutes amended allowed the incorporated cities and towns of the State, including territory annexed therefor for school purposes, to be organized into single school districts. The amendatory act provided that such school districts shall include all the territory of the city or town, and that, when the limits of the city or town are extended so as to include territory not before within the school district, all of said new territory should become a part of the special school district of said city or town.

On the same date on which this amendatory statute was passed, an original statute was passed, which became act 321 of the Acts of 1909, and is found at page 947 of the Acts of 1909. This act was entitled “An act to create special or single school districts in any county in the State of Arkansas, with same powers as are now granted to incorporated cities and towns for such purposes, and empowering the county judge to call said election.”

Section 2 of act 321 provided that § 7669, Kirby’s Digest, which prescribes the procedure for enlarging special school districts in cities and towns, should be followed in organizing rural special school districts provided for by act 321.

The case of Special School District No. 2 v. Special School District of Texarkana, 111 Ark. 379, was a controversy between a rural and an urban special district, in which the urban district'had annexed certain territory previously lying in the rural special district. It was insisted that, as these two acts were passed contemporaneously, their proper construction was that there was no legislative intent to authorize the urban special district to '•') mbe- the rural special district, once it had been formed. We held, however, that urban special districts might annex the territory of rural special districts, as well as the -territory embraced in a common school district.

This court had previously held that act 312 authorized rural special school districts to annex the territory of common school districts by taking such portions of that territory as was included in the petitions therefor, but, in upholding this right, it was pointed out that injustice was frequently done to the residents of the unannexed portions of such common school districts by leaving them with inadequate territory to properly support their schools. Common School District No. 13 v. Oak Grove Special School District, 102 Ark. 411; Bonner v. Snipes, 103 Ark. 298; Bunch v. Chaffin, 106 Ark. 306; Eubanks v. Futrell, 112 Ark. 437; Crow v. Special School Dist. No. 2, 102 Ark. 401.

The -General Assembly, by act 15 of the Acts of 1919 (Acts 1919, page 6), repealed act 321 of the Acts of 1909. We so held in the case of Common School District No. 52 v. Rural Special School District No. 11, 146 Ark. 32. By this act of 1919 it was provided that all of a common school district must be taken when any part thereof was annexed or organized into a rural special school district, and such districts cannot now be formed by taking any part of a common school district less than the whole thereof.

It appears therefore that an urban special or single school district may take a portion less than the -whole of á common school district, but that a rural special school district cannot do so. We understand the complaint to allege that this is what was done here. The Nashville Special School District took a part of Common School District No. 7, and the Rural Special School District No. 26 took all of the remainder. As we have seen, the law permits this to be done, and the complaint does not therefore state a cause of action.

If we have not correctly interpreted the allegations of the complaint, then they are contradictory and meaningless, and allege an impossible condition, for, as we have said, a special school district and a common school district conld not embrace the same territory at the same time.

If the board of education did, in fact, take a- part of Common School District No. 7 less than the whole thereof, as it then existed, and attach it to Rural Special School District No. 26, it did a thing which was not authorized by law, and relief against that order might have been obtained by a proceeding instituted within a reasonable time to have the order quashed by the circuit court on certiorari. Mitchell v. Wright Hill Special School Dist., ante p. 277; Mitchell v. Directors of School District No. 13, 153 Ark. 50.

It might also be true that citizens and taxpayers of a common school district which has been unlawfully dismembered might, by injunction, prevent the improper use of the funds of such district; but we decide only the question presented by the allegations of the complaint, and, as we do not understand the allegations of the complaint to allege that the order of the board of education, in establishing Rural Special, School District No. 26, exceeded the powers of the board under the law, the demurrer was properly sustained and the complaint was properly dismissed. The decree is therefore affirmed.


text:
    Dent v. Farmers’ & Merchants’ Bank.
    Opinion delivered February 4, 1924.
    1. Attachment — forthcoming bond — notice to sureties. — Sureties on a forthcoming bond in attachment proceedings, conditioned for the return of the property or payment of its value, on their failure to return the property within the time specified in the bond, were not entitled to notice before judgment was rendered against them on the bond.
    2. Judgment — remedy for irregularities. — Sureties on a forthcoming bond in an attachment suit became parties to the suit by signing such bond, and their remedy, for any error in the judgment against them was by appeal, and not by motion to set aside the judgment.
    3. Appeal and error — time for appealing. — Parties to a judgment, by filing a motion to set aside a judgment for irregularity, instead of appealing therefrom as they should have done, did not extend the time in which to appeal.
    Appeal from Poinsett Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      Gautney & Dudley, for appellants.
    The bondsmen ought not to be penalized when the property is delivered, sold, and the proceeds applied on the judgment. The bond is not conditioned to pay the judgment in favor of the plaintiff, but only in the event of a failure to deliver, to pay the value of the property. C. & M. Digest, § 543; 37 Ark. 206.

      G. T. Carpenter, for appellee.
    1. The decree of February 1, 1922, is valid, having been rendered on a regular adjourned day of the chancery court.
    2. The motion, from the overruling of which comes this appeal, was to vacate the judgment of May 8, 1922. Since this was not the final decree, no appeal could be taken from it. ■ The decree of February 1,1922, awarded the plaintiff full relief, and that of May 8 contained nothing new, granted no relief. Ashmore v. Hays, 159 Ark. 234; 130 Ark. 308.
    3. Appellants lost their right of appeal. Appeals must be taken in six months, and not thereafter. 134 Ark. 386. Filing of motion to vacate or modify a decree does not extend the time for appeal.
   Humphreys, J.

This is an appeal from an order of the chancery court of Poinsett County, overruling* a motion of appellants to set -aside a judgment rendered against them as sureties on a forthcoming bond on February 1, 1922, a regular adjourned day of the December, 1921, term of said court, and the report of sale and confirmation thereof, made pursuant to said judgment, on the 8th day of May, 1922, which was also a regular adjourned day of said court.

The judgment and proceedings thereunder, sought to be set aside, were entered in a foreclosure and specific attachment proceeding by appellee against A. W. Judkins, who had defaulted in the payment of an indebtedness secured by a chattel mortgage. After the property described in the mortgage had been attached, and before the trial, appellants gave a forthcoming bond in order that Judkins might retain the property for the purpose of cultivating his crop. The bond was conditioned1 for the return of the property on November 1, 1921, or the payment of the value thereof, as agreed upon and fixed in the bond. Default was made on the bond, and on February 1, 1922, the cause was heard, which resulted in a final judgment in favor of- appellee against W. A. Judkins of $700 and costs, and against appellants on the bond for $431.25 and costs. In the decree it was ordered that the attached property, cr so much thereof as could be recovered, be sold, and, after paying the costs incident to the sale, to apply the proceeds on the decree against appellants. On May 8, 1922, the sale of a portion of the attached property, which was recovered, was reported to the court, and confirmed. The net proceeds were credited on the decree against appellants, leaving an unpaid balance of $329.75. On July 31, 1922-, appellants filed their motion to set aside the original judgment and proceedings thereunder upon two grounds, as follows:

First, that the judgment of May 8, 1922, was rendered against them without notice.

Second, that the property for which the bond was given had been returned to appellee. This motion was heard in vacation, and the decree overruling same was entered April 13, 1923. An appeal was prayed and granted, and appellants were allowed’ sixty days in which to prepare and file a bill of exceptions. Within the time allowed the bill of exceptions was filed. The oral evidence contained in the bill of exceptions was to the effect that the original decree and orders made pursuant thereto were entered without notice to appellants, or either of them, and that the property described in the forthcoming bond was delivered to the officer after the rendition of the original decree and sold to satisfy the judgment.

Appellants’ first contention for a reversal of the decree overruling their motion is that the original decree and subsequent proceedings thereunder were rendered without notice to them, and consequently void. There is no merit in their contention, for it was unnecessary to give them notice before rendering the original decree. They were sureties on a forthcoming bond in an attachment,proceeding, and failed to return the property within the time specified in the bond, and were in default at the time the case was tried. This court said, in the case of Fletcher v Menken, 37 Ark. 206, that “by executing the bond the sureties became parties to the suit, and the statute provides for no process or notice to them before judgment.” It was proper to render a summary judgment against them upon the bond.

Appellants’ next and last contention for a reversal of the decree is that, after the rendition thereof, the attached property was returned to the officer and sold to satisfy the judgment. The sale of that part of the property returned was insufficient to satisfy the judgment. If any error was committed in rendering the judgment, the remedy to correct it was by appeal, and not by collateral attack. They were parties to the suit by virtue of having signed the bond, and could have appealed from the original decree and subsequent proceedings thereunder. They lost their right to appeal therefrom by delay. The first decree was rendered on February 1, 1922, and the subsequent proceedings thereunder were had on March 8, 1922, and no appeal was prosecuted therefrom. The motion filed to set the decree and subsequent proceedings aside did not have the effect of extending the time in which to appeql. Oxford Tele phone Mfg. Co. v. Arkansas National Bank, 134 Ark. 386; Ashmore v Hays, 159 Ark. 234.

The decree overruling the motion is therefore affirmed, and the appeal is dismissed.