text:
    Taylor v. Cox.
    Opinion delivered June 29, 1931.

      Sam Rorex and Nat R. Hughes, for appellant.

      Owens ETvrman, for appellee.
   Smith, J.

The facts out of which this litigation arose are simple and without substantial dispute. However, it may be said that the following facts are established by the great weight of the testimony.

Paul D. Cox, who is the son of Mrs. Junie M. Cox, borrowed about $32,000 from the Exchange Trust Company, of Little Rock, Arkansas, with which he purchased stock in a radio corporation, and he deposited the stock as collateral for the loan. The Exchange Trust Company was absorbed by the American Trust Company, and the consolidated bank continued in business under the corporate name of the American Exchange Trust Company. The consolidated bank acquired title to the Cox note, and, when it matured, the bank declined to renew the note or to carry the indebtedness further except upon the condition that Mrs. Cox should join with her son in the execution of a new note for the sum then due. A new note was executed and signed by both Cox and his mother as .joint makers, and we find this note to be both in form and in fact the joint obligation of the makers. This note was due ninety-one days after date, and recited that “we, or either of us,” promise to pay the amount thereof to the bank. Presentment for payment and notice of dishonor or protest were waived by all parties makers of the note.

The note recited that to secure its payment the makers thereof had deposited as collateral the original stock then in the hands of the bank and a large amount of additional corporate stock, which was the sole property of Mrs. Cox, and which was. particularly described, and the makers severally agreed that, upon failure to pay the note, the holder thereof might sell the collateral, or any substitute therefor or addition thereto, without notice to either maker, at public or private sale, and without advertisement or demand, with the right to apply the proceeds of any or all the collateral to the payment of the costs and expenses of collection, sale and delivery of the stock, and the holder of the note was given the right to purchase at such public or private sale. The net proceeds of the sale were to be applied upon the note.

The holder of the note was given the right to demand additional security from the makers, which they were obligated to furnish after twenty-four hours’ notice given either personally or by United States mail, in default of which the right of sale was given, and the makers of the note obligated themselves to pay anjr deficit remaining to the bank, or to the holder of the note.

It was further provided in the note that: “As part of the consideration and collateral for the payment of this note, and any other liability or liabilities which the American Exchange Trust Company may hold against a maker of this note, said bank shall have the right to apply, and, in the event of garnishment, receivership, bankruptcy or suit of any kind begun as to any of the makers hereof, the total amount of any deposit or collection which such makers may at the time have in, or in transit to, said bank, without notice, towards the payment of any indebtedness which the said maker may then owe said bank, whether said indebtedness be due according to its terms or not. ’ ’

The bank was insolvent on November 15, 1930, and its affairs were taken over by the State Bank Commissioner and are now being administered under the direction of that department. Mrs. Cox filed an intervention in the court where the proceedings were pending, in which she prayed the right to have an individual deposit in the bank credited upon this note, with the privilege of paying the balance due and withdrawing the collateral deposited with the bank when the note was executed. The court accorded Mrs. Cox this right, and the Bank Commissioner has appealed from that order.

The right of Mrs. Cox to this set-off is denied for three reasons: (1) the note is fully secured, and no set-off can be allowed; (2) Mrs. Cox is an accommodation maker and the principal is solvent; (3) if sued by the bank on the note, Mrs. Cox could require the bank to look to the collateral of Paul D. Cox before taking her deposit.

In support of these contentions, an interesting and able argument is presented, and many authorities cited; but we find it unnecessary to review these cases in view of the facts as we find them to be.

It may be said, however, that the testimony does not show whether the present value of the collateral fully secures the note, and the statement is made by counsel for appellee that this is not true, owing to the decline in the market value of the stocks held as collateral; but we do not regard that question as of controlling importance, even though it had been shown that the debt was fully secured. This contention, as well as the second and third, are disposed of when we say that we find from the testimony that Mrs. Cox was not a mere accommodation maker of the note but was a joint maker thereof.

Certainly, under the recitals of the note, Mrs. Cox is a joint maker thereof and primarily liable as such, and the entire testimony in the case confirms that view.

The undisputed testimony shows that the bank was unwilling to renew the original note of Paul D. Cox, and that note was taken up and paid from the proceeds of the second note, and this.first note thus passes out of the case.

The bank not only required Mrs. Cox to execute the note here involved as a joint maker, but it imposed additional requirements which clearly manifest the intention to impose the obligations arising out of that relation. She was required to deposit as additional collateral other corporate stock having a large face value which she owned individually, and she was also required to carry a personal account which was at no time to be less than $13,000. At the time she made this agreement, she had a savings account of $15,000, on which interest was paid at é per cent., and she had a checking account of over $1,500. She was allowed to withdraw $2,000 of the savings account, but she at all times thereafter maintained a savings account of as much as $13,000, and it is this deposit, as well as the amount of her cheeking account, which she seeks to have applied to the note. The ledger page of the bank showing the savings account contained a notation that no cheek should be charged against it except with the approval of the cashier of the bank.

This officer testified that the deposit was held, not as collateral to the loan, but that it was held as a compensating balance, and, while he testified that a check against this account would have been paid, he admitted that, had such check been drawn, the loan would have been called or declared due or additional collateral would have been required.

Mrs. Cox and her son both testified, and there is no reason to question the truth of their testimony, that, before she agreed to execute the new note, she exacted of her son an agreement that she should share equally with him in the profits or losses from that time on in his stock which, the bank then held as collateral. But this is not all. Mrs. Cox went to California on a visit, but before going she left the key to her safety deposit box with the direction and authority to her son to extract from the box additional stock which she owned individually and to deposit the same as collateral if this requirement was imposed.

In addition to all this, members of the discount board of the bank testified that when the new loan was presented to and approved by them, they relied upon Mrs. Cox’s collateral and her ability to pay, reenforced by her agreement with reference to her stock in her safety deposit box.

In view of these facts, we are clearly of the opinion that Mrs. Cox was a joint maker of the note, and had the right to offset the full amount of her deposits against her liability on the note.

It has frequently been held by this court that, when a bank becomes insolvent, a depositor, who is indebted to the bank, may set-off the amount of his deposit in an action by the receiver or assignee to recover on the indebtedness due to the bank, and in the ease of Hughes v. Garrett, 150 Ark. 404, 234 S. W. 265, one of the cases so holding, it was also held that, when a depositor was indebted to an insolvent bank on more than one account, he might direct the application of the deposit to a particular account, in the absence of a prior application of the deposit by the bank on another account.

In the case of Stroud v. American National Bank of Rogers, 158 Ark. 505, 250 S. W. 525, it was held that the maker and an indorser of a note are initially liable for its payment, regardless of the fact that the note is secured by collateral, and that in a suit upon a note against an accommodation indorser it was no defense that the holder of the note had colluded with the maker to require the indorser to pay where the holder holds collateral out of which it might make its money.

However, while we have said the testimony does not show whether Paul Cox is solvent or insolvent, and is silent as to the value of the collateral, these questions are unimportant here, for the reason that Mrs. Cox is not an indorser, nor an accommodation maker, but is a joint maker, and is liable as such, and she therefore has the right — frequently recognized and enforced by this court — of offsetting the amount of her deposits in the bank against the demands due by her to the bank. Steelman v. Atchley, 98 Ark. 294, 135 S. W. 902; Funk v. Young, 138 Ark. 38, 210 S. W. 143; Hughes v. Garrett, 150 Ark. 404, 234 S. W. 265; Desha Bank & Trust Co. v. Quilling, 118 Ark. 118, 176 S. W. 132; United States F. & G. Co. v. Maxwell, 152 Ark. 73, 237 S. W. 708; Prudential Realty Co. v. Allen, 25 A. L. R. 938, note II.

The order of the court below conformed to the view here expressed, and it is therefore affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Tolliver v. State.
    Opinion delivered June 29, 1931.

      Seth C. Reynolds and J. O. Livesay, for appellant.

      Hal L. Norwood, Attorney General and Robert F. Smith, Assistant, for appellee.
   Smith, J.

Appellant was convicted of murder in the first degree, and given a life sentence iii the penitentiary, under an indictment charging him with having shot and killed one Aimer Crossly. He admitted firing the shot which caused Crossly’s death, but interposed the defense that the killing was accidental. The testimony may be briefly summarized as follows: The killing occurred in a room which appellant occupied. A number of other colored men were in his room shooting dice. Appellant was not engaged in the game, but was fixing an inner tube near the stove in the room, which was several feet from the bed where the dice game was in progress. Crossly and some other colored men entered the room and walked over to the bed. At about that time appellant quit work on the inner tube, walked over to the bed and took a pistol from under the pillow. A clicking sound was heard as if a pistol had been cocked, and a shot was fired immediately thereafter. The pistol was one which could not be fired until it had first been cocked. It could not be fired by merely pulling the trigger, as could a double-action or self-cocking pistol. This shot killed Crossly almost instantly after grazing the arm of another man as he reached across the bed for his winnings. No quarrel of any kind had occurred in the room, and appellant made no remark indicating any intention to shoot.

Three witnesses were permitted to testify, over the objection of appellant, concerning threats made by the latter on the night before the killing. These witnesses testified that appellant said some one had insulted him at his house the night before, and that he said, “I would have killed a man that night if I had had my gun; and that ain’t all.” Appellant did not say who the man was, and the witnesses did not know to whom he referred, but one of the parties present asked where the man lived, and appellant “motioned towards the compress.” Deceased was present at appellant’s house the night before the killing and worked with appellant at the compress.

Testimony was offered by appellant to the effect that he and deceased were friends of long-standing; that they had never had a quarrel, and that there was no bad feeling between them. Appellant also denied having made any threats against deceased, or any other person, and denied having had the conversation attributed to him by the witnesses who testified concerning the threats. Appellant testified that he happened to remember that he had a half dollar under the pillow lying on the bed where the men were shooting dice, and he thought his money would be safer in his own pocket, and he went to the bed to get the money. In regard to the pistol he testified as follows: ‘ ‘ They was playing on the bed. I got up to get my money and got my pistol out and was standing with it in my hand and Son Smith knocked my hand and the gun went off. Son was standing at the head of the bed, and I had to walk around to the wall between him and the wall.” After describing the position of various participants in the game he proceeded to say: “When I pulled the gun up, and reached and got the gun, I said I believe that boy will bar the five. Smith said Gfulley ain’t got nothing, and he knocked my gun, and the gun went off.” Smith testified that he hit appellant’s arm, and the gun went off, and other persons in the room corroborated the testimony of both appellant and Smith.

Upon the issues thus joined, the court gave the usual instructions in homicide cases, but exceptions were saved to all the instructions which submitted the question whether appellant was guilty of a higher degree of homicide than that of involuntary manslaughter, for the reason that the undisputed testimony shows that he was not guilty of any higher degree of homicide than that of involuntary manslaughter. It is also insisted, for the reversal of the.judgment of the court below, that error was committed in the admission of the testimony concerning the threats alleged to have been made by appellant, for the reason that the testimony did not identify the deceased as the person against whom the threats were made.

We are of the opinion that no error was committed in the admission of this testimony, nor in charging the jury upon the higher degrees of homicide.

The defense interposed was that the killing was accidental, and that appellant had no intention of killing any one; bnt the threats had been bnt recently made, and were of a character to indicate that appellant was harboring a murderous intent towards some one, and it cannot be said that the testimony did not warrant the inference that deceased was the person referred to. Deceased had been at appellant’s home the night before, this being the time and place when and where appellant was insulted. Appellant did not call deceased’s name when asked the name of the person to whom he referred, but he did point in the direction of deceased’s home and place of employment; but far more significant than this circumstance is the fact that appellant ceased the work upon which he was engaged when deceased came into his room, got his pistol, which could not be fired until it had been cocked, and shot the deceased with such accuracy of aim that a single shot killed him instantly. The truth of appellant’s statement, and that of Smith, that Smith had struck appellant’s arm, and had thereby caused the pistol to fire, was, of course, a question of fact for the jury, as was also the reasonableness of appellant’s statement concerning the removal of the pistol from under the pillow. In fact, he made no reasonable explanation of the removal of the pistol, except to say that he had no intention of firing it.

At page 732 of Underhill’s Criminal Evidence (3d ed.) it is said: “Under certain circumstances the vague and uncertain threats of the accused may be shown to prove the condition of his mind at the time of the crime. The rule is applied to his declarations that he is going to kill somebody, without mentioning any names, or that he is going .to make trouble, or that he is going to shoot some one, or similar indefinite threats which indicates that he is in an ugly frame of mind and disposed to commit some crime, though not the particular crime for which he is on trial.” The numerous cases cited in the note to the text quoted fully sustain the law as stated, among these being an Arkansas case, which does not appear as having been published in our official reports.

The testimony covering the threats was therefore competent upon the question of the condition of appellant's mind at the time of the killing, and if it was found by the jury, as it might have been, that deceased was the unnamed person to whom appellant referred, the testimony was competent and sufficient to show the malice and premeditation essential to constitute the crime of murder in the first degree, of which crime appellant was convicted.

Appellant requested an instruction numbered 3, reading as follows: “3. If you believe from the evidence in this case that the defendant, by accident or misadventure and not intentionally, shot and killed Crossly, against whom he had no evil design, he would not be guilty of unlawful homicide, and you will acquit him. ’ ’ The court modified this instruction by adding thereto the following clause: “unless he killed the deceased in a careless and reckless manner,” and an exception was saved to this modification.

No error was committed in this respect. It is provided by statute (§ 2356, Crawford & Moses’ Digest) that “if the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.” Certainly, in this case the jury might have found that, even though brandishing the pistol was a lawful act, it had been done -without due caution and circumspection, and it was therefore not improper to submit this question to the jury, as was done by the modification of instruction numbered 3.

Another instruction numbered 4, also requested by appellant on the same subject, -was modified to conform to instruction numbered 3, which was given as modified, and these instructions, as given, fully and correctly declared the law applicable to involuntary manslaughter.

Upon a consideration of the whole case, we find no error in the record; and, as we are also of the opinion that the testimony is legally sufficient to support the conviction of murder in the first degree, the judgment must he affirmed, and it is so ordered.

Kirby and Butler, JJ., dissent.


author: Mehaffy, J.

text:
    Robinson v. Knowlton.
    Opinion delivered June 29, 1931.

      H. T. Harrison, R. E. Wiley and Roy D. Campbell, for appellant.

      George W. Emerson, Price Shofner, Fred A. Isgrig, John L. Krumm, J. H. Carmichael and June P. Wooten, for appellee.
   Mehaffy, J.

A primary election was held in the city of Little Rock on the 10th day of November, 1930, in which there were three candidates for the office of mayor; Horace A. Knowlton, the appellee, Pa.t L. Robinson, the appellant, and Boh Brown.

The Democratic City Central Committee convened on November 12, 1930, and certified the vote as follows: Horace A. Knowlton, 4,537; Pat L. Robinson, 4,554; Bob Brown, 61.

The appellee, after the election, filed a petition with the Central Committee, asking that the clerk be directed to take the poll registers of the various precincts from the ballot boxes to the end that copies might be made of same. The appellee also requested the Central Committee for a recount of the ballots, and that illegal votes be cast out. This request was denied by the Central Committee.

On the 15th day of November the appellee filed his complaint in the Pulaski Circuit Court, contesting the nomination of the appellant for the office of mayor. In this complaint it was alleged that many illegal ballots had been cast and counted for appellant, and that certain votes which had been east for the appellee had not been counted, and that in one precinct 10 unsigned ballots which had been cast for appellee had not been counted by the judges. It was also alleged that 10 persons living outside of the city of Little Rock had voted for appellant; that 150 persons voted in precincts in which they did not live, and had voted for appellant; that one of the polling precincts had been changed without authority of law; and that certain absentee ballots had been made out on Sunday preceding the election.

It was further alleged that the appellant had received more illegal votes than the appellee, and that many persons had voted whose names were not on the printed list of electors, and whose right to vote was not proved, as required by law; that there were 300 of these, and 200 of them voted for appellant; that many persons voting for the first time had failed to make the affidavit required by law, but were permitted to vote for appellant. The appellee prayed that the ballot boxes be purged of illegal votes. This, complaint was signed by a sufficient number of supporting affidavits.

The appellant, within 10 days, filed an answer and motion to make the complaint more specific. It was alleged in the motion that the complaint was too general, indefinite, and uncertain in certain particulars set out in the motion. The appellant’s answer to the original complaint admitted the allegations as to the election and as to the casting up of the returns, but denied that there were any illegal ballots cast or counted for him. He denied there were any unsigned ballots cast for appellee but not counted. In fact, he denied all allegations as to irregularities or illegal votes.

On the 22nd day of November, the last day on which a contest could be filed under the law, the appellee filed an amendment to his complaint in which he stated that, in addition to the allegations of his complaint, he further alleged that the votes tabulated by the Democratic City Central Committee upon the race for mayor, showed Robinson received 4,454 votes, Knowlton, 4,537 and Brown, 63. He alleged that 1,432 persons whose names did not appear on the certified list, or those who paid their poll taxes within the time prescribed by law, were permitted to cast their votes in the election. It was also stated in the amendment that the persons named did not file with the judges of the election poll tax receipts or written affidavits of the attainment of the majority, where such voters had attained their majority since the time for assessing taxes. It was further alleged that the total vote for appellee exceeded the total vote for the appellant. The amendment named several persons who it alleged it voted illegally.

Upon the filing of this amendment, the appellant filed an answer to it denying the allegations made by appellee. A response was filed by appellee to the answer and motion to make the complaint more specific.

There was a great deal of testimony taken, the transcript containing more than 1,800 pages. There were more than 9,000 votes cast in the election on the 10th of November, and, as shown by the face of the returns, appellant received 17 votes more than appellee.

After a thorough and painstaking investigation and trial, the circuit court found that appellee had received 10 votes more than the appellant.

There is no evidence that either of the parties knew of any irregular or illegal votes being cast for him in the election.

When the circuit court decided the case, holding that appellee was entitled to the nomination, his name was placed on the ticket as nominee for the mayor of the city of Little Rock, and he was elected at the election in April.

Appellant prosecutes this appeal to reverse the judgment of the circuit court.

Appellee contends that the appeal should be dismissed. He calls attention to §§ 3772, 3773 and 3774, which provide among other things that, if the contest is not determined until after the election, and the defendant in such proceeding is elected to the office as the nominee of the party, and it is determined that he was not entitled to the nomination, then such judgment shall operate as an ouster from office and the vacancy in it shall be filled as provided by law for filling vacancies in such office, in case of death or resignation. It is contended that this section has reference to the contestee alone, and. does not mean that the contestant may be ousted if the decision is finally against him.

Ill the case of Ferguson v. Montgomery, this question was before the court. It was there contended that the ouster provision applied to the contestee only and not to the contestant, and the court in that case said: “We think that the word ‘defendant’ as used in the section was not intended to be used in its strictly technical sense, but that it should be given a broader interpretation so as to carry out the act instead of destroying or crippling its usefulness. This court has already declared that the act should receive a liberal interpretation so as to effectuate the wholesome purposes intended by its framers.” Ferguson v. Montgomery, 148 Ark. 83, 229 S. W. 30.

It is manifestly the intention of the act that, if either party should be placed on the ticket as the nominee and elected to the office, and it was afterwards determined that he was not entitled to the nomination, the judgment of the court should operate as an ouster from office. It was not the intention of the act that the judgment should operate as an ouster if the contestee was successful in the election, and not operate as an ouster if the contestant was elected to the office.

As this court has said, these statutes should be liberally construed so as to effectuate the purposes intended by the framers. The evident purpose in providing that the judgment should operate as an ouster was to prevent a party from continuing to hold office when it was finally decided he was not entitled to it, and it makes no difference whether he is the contestant or contestee.

Whether the contestant or contestee is elected to office, the judgment of ouster would deprive the one elected of the office, but it would not put the other party in office. The statute itself provides that when the judgment operates as an ouster, there will be a vacancy which must be filled according to law.

Appellee also calls attention to and relies on Cain v. CarlLee, 169 Ark. 887, 277 S. W. 551, but the court in that case said, quoting from Ferguson v. Montgomery, supra: “The object was to prevent one illegally nominated, and thereby securing an election at the general election, from holding the office during the term provided by law, or a material portion thereof, and thereby rendering abortive the contest proceeding. It would render the contest proceeding as abortive to permit the contestant to continue in office after the judgment finding against him as it would if he were the contestee. Whoever is placed on the ticket by the election commissioners in obedience to the certificate of nomination or in obedience to an order of the court is the nominee of the party, and, if it is finally determined that he was not entitled to the nomination, the judgment of the court operates as an ouster.

The appellant contends that the pleadings filed by the contestant were not sufficient upon which to base a contest of an election.

The case of Hill v. Williams, 165 Ark. 421, 264 S. W. 964, is cited in support of appellant’s contention. The court however, in that ease, said: “Suffice it to say that it (complaint) contained many allegations of irregularities and fraud in general terms, partaking of the nature of conclusions.”

A demurrer was interposed to this complaint and sustained by the circuit court, and this court said: “It was incumbent upon the appellant to allege facts and not conclusions which would disclose, if true, that he received a plurality of all the votes cast for sheriff and collector in said county. The allegation that certain votes were cast for and accredited to one of the three opponents, would not of itself show that he received the highest number of votes in the election for said office. There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to appellee, that appellant would then have more votes than either one of Ms opponents.” Hill v. Williams, 165 Ark. 421, 264 S. W. 964.

The allegation that the court said the appellant should have made in the Hill case was made in the instant case.

This court has said that the statute providing for contesting elections should be liberally construed. The purpose of the contest is to determine what candidate received the greatest number of votes.

The pleading's, in an election contest case, should be sufficiently specific to give reasonable information as to the grounds of contest. The statute provides that the contest shall be begun in a certain number of days, and this court has held that, after the time for filing a contest has expired, the contestant cannot so amend his complaint or petition as to set forth any new cause of action. He can, however, even after the time has expired, amend his complaint by making it more definite and certain as to any charge in his original complaint, and if a motion to make it more specific is filed, it would be his duty to make the amendment.

He cannot, however, amend after the time expires by alleging a cause for contest not mentioned in his original complaint.

“Since such contest is generally held not to be a civil action subject to the rules of pleading in actions at law, but to be a special statutory proceeding, varying in its nature as well as in the sufficiency of the pleadings, according to the statutes of the different States, the same strict technical accuracy in pleading’ is not usually required as in civil action inter partes. 20 C. J. 225.

“But it is not essential that the contestant set forth the gTounds of his contest with the precision required of a pleading in a civil action, certainty to a common intent being aU that is generally renuired, and technical objections will be disregarded. The petition or complaint must apprise the eontestee of the particular facts relied upon as invalidating his election and general charges of fraud, mistake, intimidation, etc., will he disregarded unless the alleged acts relied on are set out in detail.” 20 C. J. 227-8.

“It is impossible to state with precision the rule with regard to amendments of the pleadings. Much must be left to the discretion of the court, or the very object of the statute will be defeated. On the other hand, the contestant should not be allowed to make amendments which would necessarily unduly delay the trial of the contest, and on the other hand he should be allowed to make amendments in all cases where no such delay would result and where the amendment was made for the purpose of presenting the issues with due diligence. # * * The rule must not be so strict as to afford protection to fraud by which the will of the people is set at naught, nor so loose as to permit the acts of sworn officers chosen by the people to be inquired into without an adequate and well-defined cause.” Bland v. Benton, 171 Ark. 805, 288 S. W. 976; Gower v. Johnson, 173 Ark. 120, 292 S. W. 382.

The former decisions of this court are practically unanimous in holding that the original pleading must state a prima facie case and must be filed within the time allowed by law, and that no amendment will be allowed which states a new and different cause of action, • but that amendments will be allowed at any time that simply make more specific the statement of the cause of action in the original complaint.

It is next contended by the appellant that the court, having found from the testimony that the printed list of electors furnished to the judges and clerks holding the election had not been compiled and printed in compliance with the statute, the contest should have been dismissed, and they cite and rely on Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314.

In that case the court said, speaking of the contestant: “He is contesting appellee’s right to the nomination, and claims that he received a majority of the legal votes, but he bases his contest almost entirely on the printed list, and since, as we have already shown, the printed list was invalid, not having been compiled in substantial compliance with the provisions of the statute, his contest must necessarily fail, and the circuit court was correct in dismissing his complaint.”

The contest in the case at bar is not based either entirely or almost entirely on the printed list. Appellee stated in his complaint that many illegal ballots were cast and counted for appellant, and that certain votes cast for appellee were not counted; that in precinct C of the 8th Ward 10 ballots which were unsigned by the voters and not counted by the judges were cast for appellee; that 10 persons living outside of the city limits voted in precinct C of the 8th Ward for the appellant.

There is a number of other allegations in plaintiff’s complaint besides the allegations based on the printed list. It is alleged, however, that these allegations are not definite, and the testimony was objected to by appellant on that ground, and the court held that the only testimony that could be admitted would be that to substantiate the specific charges made in the complaint and sustained appellant’s objection.

The court also held that he could not treat the complaint as amended to conform to the proof because the amendment would have to have been filed within 10 days. That, of course, is true as to any new cause of contest.

The next contention of the appellant is that the court erred in permitting testimony on the part of the appellee after the appellant had rested his case. The manner of the introduction of testimony is very largely in the discretion of the trial court, and, as we have already said, the purpose of the statute authorizing contest is to determine which candidate received the greatest number of votes, and the statute should be liberally construed so as to accomplish its purpose. Of course, no injustice should be done to the contestee, and he should be given an opportunity to fully develop his ease, and the procedure should be such as to enable the court to determine who had received the greatest number of votes, and this should be brought about without injustice being done either party.

If the evidence offered ivas competent and did not result in any prejudice or injustice to the appellant, it was not error for the court to permit it, and it was proper to permit the appellee to show that persons voted illegally whether their names were on the certified list or not.

This court has said in speaking of the ruling of the trial court as to the introduction of evidence: “There was no error in this ruling-, as trial courts are vested with a very large discretion in determining the orderly course of the trial, and this court will not reverse therefor except for manifest abuse of such discretion.” Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74.

The court also said: “Furthermore this court seems to have recognized the correctness of this procedure in the case of Bland v. Benton, 171 Ark. 805, 285 S. W. 380.”

Appellant next urges a reversal because the court held that certain votes for appellee were legal and counted same for him. It is argued that they should not have been counted at all for appellee,- because he had alleged that these votes were illegal, but that allegation was made when it was thought that the list was compiled according to law, and the names of these voters did not appear on the printed list, and it is insisted that the pleadings make these 13 votes in controversy illegal. These votes were legal, and no error was committed in counting them.

The appellant says that the court erred in refusing to count as legal ballots for contestee certain ballots which disappeared from certain boxes, with attached maiden affidavits which had been placed in the boxes accompanying the ballots.

The appellant argues that the proof is conclusive and uncontradicted, that the affidavits disappeared and were not with the ballots, and that all these ballots, with the exception of Mrs. Hum, were cast for the contestee. The appellant, however, does not call'our attention to the evidence on this question, but the evidence in the transcript shows that the attorney for the appellant stated he was not going to consent to appointment of a committee and that he did not think the ballots ought to be inquired into; that the returns of the election are prima fame valid.

The committee appointed by the court reported and the list of maiden votes was introduced, accompanied by the affidavits, the list showing for whom the party voted.

It would'make the opinion entirely too long, and it .would serve no useful purpose to call attention to each ballot or each voter and comment on the separate rulings of the court. We have examined very carefully the entire abstract of the evidence and the rulings of the court, and have reached the conclusion that the court correctly declared the law under which it held votes legal or illegal, and, even if there is any doubt about the ruling of the court on the legality or illegality of any votes, the ruling applied io the contestant as well as the con-, testee. The record clearly shows that the ruling of the trial court on all these questions was fair and impartial, manifesting a desire and intention to ascertain which candidate received the most legal votes in the primary election.

While we have not discussed each particular ballot and objections made to each one, we have very carefully considered the entire evidence and all the objections raised and have reached the conclusion that both parties had a fair and impartial trial, and that no reversible error was committed by the trial court.

The judgment of the circuit court is affirmed.


author: McHaney, J.

text:
    State ex rel. Poinsett County v. Landers.
    Opinion delivered June 29, 1931.

      Hughes & Davis and M. P. Y/alhins, for appellant.

      N. F. Lamifb, for appellee.

      J. G. Washom, amicus curiae.

   McHaney, J.

The State of Arkansas, for the use and benefit of Poinsett County, and Cecil "Williams, a taxpayer, brought this action against A. IT. Landers, as sheriff and ex officio collector of Poinsett County, Arkansas, and the bondsmen on Ms official bonds, to recover the alleged excess fees, salary and perquisites in excess of $5,000 net per annum in par funds that had been received by the sheriff and collector during his last three terms of office, 1925 to 1930, inclusive. It is alleged that the appellee, Landers, had fraudulently received and unlawfully appropriated and converted to his own use sums of money as fees, salary, emoluments and perquisites of office largely in excess of $5,000 per anniim, which lie had failed and refused to pay into the treasury of the county as he was required to do by law; that he had failed to make an annual report as required by law, under oath, at the end of each year and a final report at the expiration of each term of office to the judge of the circuit court of the county detailing the amount of money received by such office during the preceding year, whether from salary, fees, emoluments or perquisites cf such office. It is alleged further that appellee Landers, during the last six years, as sheriff and ex officio collector, has transacted a very large volume of business, and that the amount and description of the different items of fees are derived from numerous and different sources which renders the account so difficult and intricate that appellants are unable to state the amount due the treasury of the county, but that it is believed that the sum received approximates $60,000, and that the account is so voluminous and complicated that it is necessary for a master to be appointed to state the account, and that they have no adequate remedy at law. Other allegations are made in the complaint which we deem it unnecessary to detail. A number of interrogatories were. attached to the complaint, and an order of court was prayed requiring appellee Landers to answer same. The interrogatories related very largely to commissions received by the collector in the collection of improvement district taxes, several drainage districts and other improvement districts being located in that county whose assessments are collected through the collector’s office.

To this complaint a demurrer was interposed on several grounds, which the court treated as a motion to dismiss, and sustained.

This appeal, according to appellants, raises two questions on the demurrer: (1) “In reckoning the income of the officer is income derived from fees and commissions on collection of improvement district taxes to be included?” (2) “Is the action barred?”

The basis of this action is art. 19, § 23, Constitution of Arkansas, and the enabling statute enacted pursuant thereto, §§ 4633-4644, Crawford & Moses’ Digest, being the act of 1875, Acts 1875, p. 124. This act was so recognized as the enabling act of art. 19, § 23, of the Constitution in Griffi v. Rhoton, 85 Ark. 89, 107 S. W. 380. The above section of the Constitution reads as follows: “No officer of this State nor of any county, city or town shall receive directly or indirectly for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation.”

The learned trial court based its action in sustaining the motion to dismiss very largely on the fact that appellee Landers holds two offices, and that he is therefore two officers, and entitled to receive $5,000 net as sheriff and $5,000 net as collector. Also that the commissions received as collector from the improvement districts was not to be taken into- consideration in determining whether his net income from office exceeded $5,000-.

While it is true that the sheriff, under the Constitution (art. 7, § 46) holds two separate and distinct offices (Ex parte McCabe, 33 Ark. 396; Falconer v. Shores, 37 Ark. 393), and must give a separate bond for each office, it does not follow that he becomes two officers. We think that he is necessarily only one officer, but holding two separate and distinct offices, until such time as the Legislature sees fit to separate them. Art. 7, § 46, of the Constitution provides: ‘£ The qualified electors of each county shall elect one sheriff, who shall be ex officio collector of taxes, unless otherwise provided by law; * * * with such duties as are now or may be prescribed by law. ” Section 9147, Crawford & Moses’ Digest, provides: “The qualified electors of each county shall elect one sheriff, who shall be ex officio collector of taxes, unless otherwise provided by law? for the term of two years, with such duties as are now or may be prescribed by law.” The sheriff by virtue of being sheriff holds the .office of collector. Until the Legislature sees proper to separate the offices of sheriff and collector and require them to be filled and the duties performed by separate persons, we think the plain provisions of both the Constitution and the statute are that the two offices shall be filled by one officer, and that he is entitled to receive for performing the duties of both offices only the net compensation fixed by the Constitution for one officer. Art. 19, § 23. While to our minds it is i lear that the person holding the office of sheriff and collector is not entitled under the Constitution, and laws to retain for his own use net compensation of $5,000 for each office, still, if it were doubtful, under the rule announced in Swaim v. Lonoke County, 167 Ark. 225, 268 S. W. 366, and reaffirmed in Prairie County v. Radican 174 Ark. 622, 296 S. W. 80, that where the provisions of law fixing the compensation of an officer is in doubt, or not clear, the doubt should be resolved in favor of the Government, or, in other words, the law should be given that construction most favorable to the Government, we would be compelled to hold against the contention of appellee.

As to the contention that appellee is not required to account for that part of the income the collector derived from commissions on collection of improvement district assessments, we are of the opinion that such contention cannot be sustained. The collector of Poinsett County, appellee Landers, collects a large amount of improvement district assessments. These collections are not only authorized by law, but it is a duty imposed upon the collector either in the general law or in the special acts creating such districts. For instance, under the general drainage district law, § 3618, Crawford & Moses’ Digest, the provision is: “The amount of the taxes herein provided for shall be annually extended upon the tax books of the county, and collected by the collector of the county along with the other taxes, and for his services in making such collection the collector shall receive a commission of one per cent.; and the same shall by the collector be paid over to the” county treasurer at the same time that he pays over the county funds.” The provision under the special acts is similar. This is an additional duty imposed upon the collector by law and the plain provision of both the Constitution and the statute is that he shall perform “such duties as are now or may be prescribed by law.” The collection of such taxes being a duty imposed by law, it is difficult to perceive on what theory he would be entitled to retain the compensation therefor in excess of $5,000 net compensation for these and all other duties performed. Tn Durden v. Sebastian County, 73 Ark. 305, 83 S. W. 1048, we held that the fees received by the clerk as ex officio recorder must be included in determining’ his total compensation under a salary act fixing’ his compensation at $3,500. In Keeling v. Searcy County, 88 Ark. 386, 114 S. W. 925, the act fixed the clerk’s salary at $1,500 as “full compensation for all work and services of said clerk that he is now or may be hereafter required by law to perform and for all other official work.” This court held that the fees received by the clerk for taking’ affidavits and depositions of homesteaders in making claims to Government land should be included. In State v. Swaim, 167 Ark. 225, 268 S. W. 366, we held that under the salary act of Lonoke County fixing the salary of the clerk at $4,000, the fees of the clerk as commissioner in chancery should- be accounted for. While there is a distinction between the offices of sheriff and collector and that of clerk and ex officio recorder, in that the clerk under the Constitution must always be ex officio recorder and is one office, whereas the sheriff is ex officio collector of taxes until otherwise provided by law, and therefore holds two offices (Durden v. Sebastian County, supra), we are of the opinion that the above cases are persuasive that the commissions received by the collector in the collection of improvement district taxes must be accounted for in determining the total net compensation of the officer holding the office of sheriff and collector. It is argued that the collector is not required to account for his commissions on collections in improvement districts for the reason that under the law he is required to pay the excess over $5,000 net into the State, county, city or town treasury, and that, improvement district funds not belonging to either treasury, there is no provision of law as to where the excess of such funds should be paid. We do not decide where the excess funds should be paid arising from such collections because we do not deem it material to the decision in this case. But we have decided that the excess does not belong to the sheriff and collector, and that he must account for it and pay it over to the proper officials.

The applicable statute of limitations is § 6957, Crawford & Moses’ Digest. “Actions on the official bonds of sheriffs, coroners, and constables shall be commenced within four years after the cause of action shall accrue, and not afterwards.” This being an action against the sheriff and against his official bondsmen, this section would seem to be the applicable statute.

Other questions are argued in the briefs which we do not think it necessary to discuss. The complaint states a cause of action in equity, and no objection was made to the jurisdiction of the trial court.

The decree will be reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings according to law and the principles of equity, and not inconsistent with this opinion.


text:
    Stahl v. Sibeck.
    Opinion delivered June 29, 1931.

      Carl E. Bailey, for appellant.

      Neil Bohlinger, Owens ■& Ehrman and Donhmn «£ Fulk, for appellee.

      Carmichael & Hendricks and B. H. Charles and Carl Trau-ernicht, amici curiae.

   McHaney, J.

Proceeding under what is generally known as Amendment No. 11, correctly designated as No. 8 in Applegate’s Constitution of Arkansas, and under the enabling act, 210 of 1925, the then county judge of Pulaski County took the necessary steps to issue bonds to- refund the county’s indebtedness existing on October 7, 1924, the supposed date of the adoption of said amendment. Subsequently this court held the amendment was adopted and became effective on December 7, 1924. Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22. Thereafter, in July, 1925, the county court ascertained and adjudicated the county’s indebtedness to be $350,000 as of October 7, and entered a judgment or order to this effect. The court failed to include such indebtedness, if any, accruing and existing between October 7 and December 7, 1924, which amount is said to be $30,840.89 and expressly excepted certain (contingent at that time) indebtedness consisting of four claims filed against the county road fund which was found to be $95,376.50, and certain county road district warrants found to amount to $14,953. Bonds were thereafter issued in the sum of $350,000 for the purpose of paying the county’s debts and was used for this purpose’, which, together with annual current revenue since, has retired all debts existing at December 7, 1924, and indebtedness accruing thereafter.

In February, 1931, proceedings were initiated by appellee, the present county judge, to have a supple-menial bond issue for said county, on the theory that the former county judge had erroneously and incorrectly determined the indebtedness to be $350,000 as of October 7, 1924, whereas the correct indebtedness as. of December 7, 1924, was $646,012.65, which left a balance of debts as of that date in the sum of $296,012.65. In April following, $296,000 in bonds were issued pursuant to the order of the county court. They were sold at par for 6 per cent, bonds to be converted into 4% per cent, bonds at the election of the huye)', and $325,000 in bonds were actually issued at 4% per cent., for which the county received $296,000, and which is now on deposit with the county treasurer, appellant. The above sum included an old bond issue of $66,000 and accrued interest of $1,287, which is conceded to be erroneous, and which was eliminated by the circuit court.

This controversy arises over the proper distribution of the proceeds in the treasurer’s hands, and other parties, citizens and taxpayers, have intervened and attack the whole proceedings for the supplemental bond issue. The circuit court held the bond issue valid in part, and from such judgment this appeal is prosecuted.

Counsel for appellee seek to sustain the procedure on the authority of Hagler v. Arkansas County, 176 Ark. 115, 2 S. W. (2d) 5, but there is a wide dissimilarity in the two cases. There we were dealing Avith the surplus fund in the bond account resulting from an acceptance of warrants outstanding on October 7, 1924, in payment of county taxes, and the cancellation thereof prior to receipt of the bond money covering said warrants. In other words, the county court had made an order adjudging the amount of indebtedness of Arkansas County as of October 7, 1924, which included outstanding warrants that were accepted in payment of county taxes by the collector which had been turned in by the collector to the treasurer on settlement approved by the county court, canceled and the treasurer given credit therefor. This created a surplus in the bond account which the county court desired transferred to the county general fund. We held properly that this could be done under act 30, Acts 1927, p. 86. We also held, under act 165 of 1927, p. 591, that a county which had issued bonds to cover debts to October 7,1924, was authorized to pay any debts to December 7, 1924, from the surplus bond account, or might have a supplemental bond issue to cover the debts incurred between October 7 and December 7, if the surplus bond account was insufficient to cover the difference. That is a vastly different proposition from what is sought to be done in this case. Here the county court is attempting to set aside its previous order solemnly adjudicating the total debts of Pulaski County as of October 7, 1924, on the ground that the court made a mistake in the amount of the indebtedness, in the very teeth of the provisions of § 1 of the enabling act, No. 210 of 1925, p. 608. This section of the act provides that: “The county court shall, by order entered upon its records, declare the total amount of such indebtedness.” It is thénprovided that such order shall be published, etc.; “and any property owner who is dissatisfied may, by suit in the chancery court of the county brought within thirty days after the publication of such order, * * * have a review of the correctness of the finding made in such order, * * *; but if no such suit is brought within thirty days, such finding shall be conclusive of the total amount of such indebtedness, and not open to further attack * * *. If any officer of such county, * * * shall wilfully make any false statement as to the amount of its indebtedness, he shall forfeit his office and be ineligible to hold any other office of profit or trust in this State.”

The order of the county court in 1925 found that the county was indebted in the sum of $350,000. No person brought any suit to review the finding within the time limited, and it thereupon became “conclusive of the total amount of such indebtedness, and not open to further' attack,” and is res judicata. The order of 1925, having become conclusive and not open to further attack after 30 days from its publication, exhausted all the power of the county court thereafter to issue bonds under amendment No. 8 and under act 120 of 1925, adopted pursuant thereto. Otherwise, the county courts could continue to issue bonds as often as they were able to find auditors who could discover additional indebtedness existing* at the time of the adoption of the amendment. Only one bond issue was intended, and the supplemental bond issue mentioned in the Hagler case referred to the possibility of correcting a mistake of law, as to when the amendment was adopted, and not one of fact, as to the amount of indebtedness.

It is contended on behalf of appellee that the question of the validity of this bond issue is not properly before this court, and that such attack is purely collateral. But the question is here — -the question of the jurisdiction of the court and therefore the validity of the judgment. As we have already shown, the county court exhausted its jurisdiction, its power and authority by the order of 1925. The county court therefore had no jurisdiction to make the order in question, and it is void. A void judgment is always open to attack, either direct or collateral.

As to the rights of bondholders, we hold that they are not necessary parties to this controversy. It appears that the total purchase price of the bonds is held in the county treasury, and they may therefore receive back their money on surrender and cancellation of said bonds illegally issued.

We do not deem it necessary to discuss all the questions raised in the briefs of counsel, as we have reached the conclusion, on the grounds stated, that the proceedings for the issuance of $296,000 in supplemental bonds are ooram non judice and void, and that the judgment of the circuit court be reversed, and the cause remanded ■with directions to enter a judgment in accordance with this opinion, and that same be certified to the county court to be there entered upon its records.

It is so ordered.


author: Butler, J.

text:
    Boyd v. Simpson.
    Opinion delivered June 29, 1931.

      O. E. Williams, for appellant.

      Joe P. Melton and Charles A. Walls, for appellee.
   Butler, J.

The appellants, sole heirs of W. M. Daniel, deceased, claimed by inheritance the title to a lot in the town of Lonoke, which was the homestead of Daniel in his lifetime, and brought this suit against Joe Simpson who claimed under the widow of W. M. Daniel by virtue of a devise to her of the said property in the last will and testament of the said W. M. Daniel. In the complaint the court was asked to construe the will and declare the plaintiffs the owners of the homestead, and that the deeds executed by the widow and others based on their claim of title under the will be canceled.

Paragraph 1 of the will provided for the appointment of an executor with certain directions. Parag-raph 2 under which the appellees claimed is as follows: “ After the payment of m.y debts and funeral expenses, I give to my beloved wife, Georgia Daniel, part of the east half of block 24, Wright’s survey to the town of Lonoke, Arkansas, and described as follows: (Here follows description).

Paragraph 3: I give the sum of $100 to each of my beloved daughters, Mrs. Etta Boyd and Mrs. Fannie Bell Thompson.

Paragraph 4: I give the income from residue of estate, both personal and real, to my beloved wife, Georgia Daniel, during her lifetime.

Paragraph 5: After the death of my wife, Georgia Daniel, I give the residue o£m.y estate, both real and personal, in fee to my beloved daughters, Mrs. Etta Boyd and Mrs. Fannie Bell Thompson, or to their surviving heirs.

Paragraph 6 authorized the executor to sell any of the real or personal property except the homestead for the purpose of paying debts, funeral expenses and legacies, and for the balance of any money arising from the sale to be placed at interest,' and it and as much of the principal as necessary to be used for the support of Mrs. Daniel during her lifetime. This paragraph concluded with the following language: “It being my intention to provide a comfortable living for my beloved wife, Georgia Daniel, out of my estate in addition to the home set aside for her, and any balance after her death shall go to my daughters, Mrs. Etta Boyd and Mrs. Fanny Bell Thompson, or their heirs as hereinbefore provided for.”

The court found that by the will William Daniel, deceased, devised and bequeathed the following real estate to his wife, Mrs. Georgia Daniel, in fee simple, to-wit: (Here follows the description of the property mentioned in paragraph 2 of the will.) The court further held that the plaintiffs take nothing by their complaint, and that the same be dismissed for want of equity. From that decree is this appeal.

We think the chancellor correctly construed the will. By paragraph 2 there was an unconditional devise of the homestead to the widow without any words qualifying or limiting it. This, as we have frequently held, would manifest a clear intention on the part of the testator to vest in her a fee simple estate. That intention in this case becomes more apparent upon a consideration of the entire will, for, after having devised the homestead to the widow, she is given the entire income from the residue of the estate during her lifetime with remainder over to the heirs as provided in paragraph 5. By this will the entire estate was disposed of in a manner prescribed by the testator in clear and unambiguous terms. The rules for the construction of wills are so well settled that we deem an extended citation of authorities unnecessary, but refer to the following’ cases which support and sustain the finding of the chancellor. Hysmith v. Patton, 72 Ark. 296, 80 S. W. 151; Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682; Boos v. Vinson, 104 Ark. 439, 149 S. W. 524; Kelly v. Kelly, 176 Ark. 548, 3 S. W. (2d) 305; Witten v. Wegman, 182 Ark. 62, 30 S. W. (2d) 834; Letzkus v. Nothwang, 170 Ark. 403, 279 S. W. 1006.

The decree of the trial court is in all things correct, and it is therefore affirmed.


author: Hart, C. J.,

text:
    State ex rel. Attorney General v. Williams-Echols Dry Goods Company.
    Opinion on rehearing delivered March 19, 1928.

      H. W. Applegate, Attorney General, R. E. L. Johnson and John M. Rose, for appellant.

      Cravens *8 Cravens, for appellee.
   Hart, C. J.,

(on rehearing). According to a statement in the brief of appellant, plaintiff below, the complaint alleges that the defendant has not for any of the years 1915 to 1925, inclusive, filed an intangible property return with the assessor as provided by § 9965 of Crawford & Moses’ Digest. Sections 9964 and 9965 were passed by the Legislature of 1917, and the construction of that statute was determinative of the issue raised by the complaint. The whole controversy arose as to the effect and constitutionality of the act. Having held the statute of 1917 to be unconstitutional, it is in legal contemplation as inoperative as though it had never been passed. Norton v. Shelby County, 118 U. S. 425, 6 S. Ct. 1121. It is well settled that when a statute is adjudged to be unconstitutional, it is as if it had never been. Cochran v. Cobb, State Land Commr., 43 Ark. 180, and Cooley’s Constitutional Limitations, (8th ed.) vol. 1, p. 382. Having held the act of 1917 in question to be unconstitutional, this leaves our former statutes on the subject of taxation of domestic corporations, and our decisions interpreting them, in force and unimpaired. We adhere to the views expressed in our original opinion, and the motion for rehearing will be denied.


text:
    Compton v. State.
    Opinion delivered June 15, 1931.

      Isaac MoClellan, for appellant.

      Eal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Smith, J.

This appeal is from a judgment sentencing appellant to a term of one year in the penitentiary upon a charge of stealing two hogs, the property of Nevia Schultz. For the reversal of this judgment, it is insisted (1) that the testimony was insufficient to sustain the conviction, and (2) that incompetent testimony was admitted over the appellant’s objection.

As to the sufficiency of the testimony, it may be said that evidence was offered to the following effect. Miss Schultz, the owner of the stolen hogs, testified that about daylight on December 23, 1930, she was awakened by hearing her hogs squealing. She and her nephew, who lived with her, went to where her hogs, five in number, bedded, and found all were gone. There was fresh blood in the hogs’ bed, which had been covered over with loose earth to conceal it. There was a wagon track, which they followed until it left the public road and went out a private road which led to appellant’s house. Miss Schultz then sent her nephew to Sheridan, the county seat, to obtain a warrant for the search of appellant’s home and that of appellant’s brother and brother-in-law, who lived nearby. Search was made by the officers that afternoon of appellant’s home, and a freshly killed hog was found salted down in a tub. Fresh sausage was found in a pan, -and in another pan two cooked hogs’ heads were found. The noses had been cut off just below the eyes and had been cleaned in the usual way. The hogs ’ heads had been cooked to pieces but it looked as if the ears had been cut off both heads. Miss Schultz testified that she had marked the ears of her hogs.

Appellant was absent from his home when the officers arrived there, and they found his wife and another woman cooking the hogs’ heads. An officer asked one woman where the ears were, and she said they were in the pan. The officer took a fork and stirred around in the pan until convinced the ears were not in it. The other officer asked the other woman about the ears, and she said they had eaten them. These statements were made by the women in the absence of the appellant, and the admission of this testimony was objected to on that account.

Miss Schultz and her nephew did not claim at the time that they had identified the hogs as the property of Miss Schultz, although she testified that she did recognize and identify them by certain marks on their noses, which she knew well, as she had fed the hogs every day. The officers went from the appellant’s home to that of Nathan Wooley, his brother-in-law, where they found a fresh hog cut up and salted down except its head. There was no one at Wooley’s house, and the officers then went and searched the home of Ed Compton, a brother of appellant, who was also absent, but no fresh meat was found. The officers did find at Ed Compton’s home a wagon which Ed owned, in the bed of which fresh blood spots were found.

On behalf of appellant, much testimony was offered to the effect that at about daylight on the morning of the 23d, which was about the time Miss Schultz was awakened by the squealing of her hogs, appellant was at a timber camp about four and one-half or five miles away.

As to this testimony, we can only say that it presents a question of fact for the jury. The court’s charge upon the alibi defense is conceded to have been correct and in conformity to the law, and, if this defense was found by the jury not to have been established, it follows that the other testimony is legally sufficient to stístain the conviction.

The testimony on the part of appellant was to the effect that he and other members of his family owned a number of hogs, and that appellant’s brother Joe killed a hog for appellant Monday afternoon, and that he killed another for his sister on the same day, this being the day preceding the killing of Miss Schultz’s hogs.

It was the province of the jury to pass upon these questions of fact, and the testimony is legally sufficient to support the finding that appellant was found in possession of hogs belonging to Miss Schultz which had been recently stolen, and the reasonableness and sufficiency of his explanation of their possession was a question of fact for the .jury. Dennis v. State, 169 Ark. 505, 275 S. W. 739; McDonald v. State, 165 Ark. 411, 264 S. W. 961.

We think no error was committed in admitting the ' testimony as to what the women said at appellant’s home concerning the ears of the hogs in the absence of appellant. It is, of course, ordinarily true that the statements of third parties made in the absence of the accused are inadmissible against him; but this testimony related to a relevant fact in the case, that of the whereabouts of the hogs ’ ears and the failure to find them at the place where they would likely be. The women were cooking the heads, and they were asked where the ears were. It was competent to' show, even though appellant was absent when the hogs were found, that the ears could not also be found. One of the women answered that the ears were in the pan, and the other that they had been eaten. The absence of the ears, which contained the marks, made the identification of the hogs less certain, and we perceive no reason why the circumstances that the ears were missing might not be shown, even though appellant -was absent when the hogs were found.

As no errors appears, the judgment must be affirmed, and it is so ordered.


author: Kirby, J.,

text:
    Southern Cities Distributing Company v. Carter.
    Opinion delivered June 15, 1931.

      Willis B. Smith and Arnold £ Arnold, for appellants.

      J. M. Garter and B. E. Garter, for appellee.
   Kirby, J.,

(after stating the facts). The referendum petitions were filed at a proper time. The initiative and referendum amendment to the Constitution provides: “Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. General laws shall be enacted providing for the exercise of the initiative and referendum as to counties. * * * In municipalities and counties, the time for filing an initiative petition shall not be fixed at less than sixty (60) nor more than ninetj^ (90) days before the election at which it is to be voted upon; for a referendum petition at not less than thirty (30) nor more than ninety (90) days after the passage of such measure by a municipal council; nor less than ninety (90) days when filed against a local or special measure passed by the General Assembly.” The amendment provides the time for filing a referendum petition at “not less than thirty (30) days nor more than ninety (90) days after the passage of such measure by a municipal council.” This does not mean, of course, that the petition for a referendum cannot be filed less than 30 days after the passage of the measure sought to be referred, but only that the city must allow at least 30 days after the passage of the measure for the filing of a referendum petition thereon, and cannot allow more than 90 days. The evidence does not show that the city of Texarkana had attempted to provide in any manner for the exercise of the referendum on its local measures. It is true the referendum petitions were filed against the resolution of the city council, adopted on May 30, 1930, approving the increased rates, on June 27, 1930, less than 30 days after the adoption of such measure but they remained on file and were on file after 30 days after the passage of the gas rate resolution, and were passed upon and certified by the city clerk on the 31st day after the passage of the resolution, as containing sufficient signatures of qualified electors to authorize the referendum petitioned for. The referendum petitions, although they could not have been required to be filed in less than 30 days after the passage of the measure sought to be referred, were in no wise invalidated by having been sooner filed. Although filed before the expiration of the 30 days allowed, they remained on file with the proper officer, who duly certified the sufficiency thereof after examination made on the 31st day from the passage of the resolution, and were therefore in all respects as valid and effective as though they had been filed on the 30th day thereafter. It may be that, after the signing of the petition, and before the expiration of the 30' days allowed for the filing thereof, any person who chose to do so could have insisted upon his signature being withdrawn therefrom; but where such petition was filed on time, and after its sufficiency was duly certified by the proper officer, any such signature could not be withdrawn as a matter of personal preference, nor without a sufficient showing that such signature had been fraudulently obtained. It then became a matter of public concern and part of the procedure necessary to invoke the referendum in determining the justness and reasonableness of the rates allowed to be charged under the resolution by the appellant company by approval or rejection of the resolution fixing rates for the supply and distribution of gas to the people within the city granting the franchise therefor. It is not questioned that the petitions for the referendum were sufficient, containing the number of qualified voters required under the Constitution before the names were wrongfully withdrawn and allowed to be stricken off by the city council on July 8, 1930, after the expiration of the time for filing thereof. The council then, of course, had no right to refuse to grant the petition and deny the referendum on any such grounds.

It is also true that no objection was made to the decision of the city clerk, or proceedings taken in the chancery court which only can review it, to challenge the correctness of the city clerk’s decision and determination of the sufficiency of the petition for any reason— because not signed by the required number of qualified electors, or of not having a correct copy of the ordinance, the measure sought to be referred, attached to it — and such objection cannot now be made in this suit, or in any other than the chancery court.

The amendment provides that, if the sufficiency of any petition is challenged, “such cause shall be a preference cause and shall be tried at once,” but the failure to decide it “shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people.” Amendment No. 5, Applegate’s Constitution of Arkansas, 209.

It is next insisted that the resolution granting the increase in gas rates is not subject to the referendum, but this contention is without merit. The appellant company succeeded to all the rights of the old Southwestern Gas & Electric Company for supplying and distributing gas in the city of Texarkana, the transfer to it being recognized by the ordinances of the city and by the statute, act 248 of 19'29, p. 1196.

The constitutional amendment provides: “Every extension, enlargement, grant, or conveyance of a franchise * * * whether the same be by statute, ordinance, resolution or otherwise, shall be subject to referendum and shall not be subject to emergency legislation.”

In Terral v. Arkansas Light & Power Co., 137 Ark. 523, 210 S. W. 139, a case involving the construction of act 135 of 1913, relative to the fixing of rates by a public utility in the city of Arkadelphia, a petition having been filed for referendum upon the ordinance granting an increase thereof, the court held that the fixing of such rates was not an exercise of the police power within the meaning of the statute, but the granting or extension of a franchise that was subject to the referendum. This constitutional amendment expressly provides: “Every extension, enlargement, grant, or conveyance of a franchise * * * whether the same be by statute, ordinance, resolution or otherwise, shall be subject to referendum and shall not be subject to emergency legislation.” Such language necessarily includes a resolution of the city council granting an increase of rates to the public utility for supplying and distributing gas to the people of the city under its contractual rights to do so, being but an extension or enlargement of its franchise. Moreover, such resolution is dearly included in the word “measure” as defined in the constitutional amendment, which states: “ * * * includes any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character. ’ ’ Amendment also provides: “The initiative and referendum powers of the people are hereby reserved to the legal voters of each municipality and county as to all local, special and municipal legislation of every character.”

The making or fixing of rates is an act legislative and not judicial in Mnd within the meaning of this constitutional amendment. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 S. Ct. 67, 53 L. Ed. 150; Bacon v. Rutland Railroad, 232 U. S. 134, 34 S. Ct. 283, 58 L. Ed. 538; Keller v. Potomac Electric Company, 261 U. S. 428, 43 S. Ct. 145, 67 L. Ed. 731; Van Buren Water Co. v. Van Buren, 152 Ark. 83, 237 S. W. 693; Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Co., 148 Ark. 260, 230 S. W. 897; Goal District Power Co. v. Booneville, 161 Ark. 638, 256 S. W. 871.

Although a right of appeal was provided by the law for any person aggrieved by any rate fixed by a municipal council or" city commission, or by any order or ordinance made in pursuance of such law, for a review of the action of the Municipal council or city commission, as to its legality, validity, fairness or reasonableness, it is not an exclusive remedy and did not prevent the proper application of the referendum to the resolution fixing the rates, nor did it amount to an enactment by the council of local legislation contrary to any general law of the State, within the meaning of such amendment. The purpose and effect of the referendum is only to allow the approval or rejection of the resolution and rates fixed therein by the council by vote of the people, who are not expected, of course, to establish a reasonable rate or rates in such referendum, but only to lend their approval to such rates as are fixed or proposed, or reject them by their votes.

. The Texas oases relied upon by appellant, apparently holding contrary to our own decisions, are entitled to little weight in consideration and construction of the provisions of our dissimilar constitutional amendment, which is broad enough to and does grant the power of a referendum of the resolution or ordinance, which is but an extension or enlargement of appellant company’s franchise.

The granting of a referendum on the resolution increasing the rates allowed to be charged by appellant company was not in effect a passage of a law or ordinance impairing any obligations of the contract or franchise of appellant company. Neither would the referendum of such ordinance, unfavorably acted upon by the electors, have an effect to deprive said company of any of its property or rights without due process of law. There, is no evidence of any act or conduct of the city indicating the surrender or release of its right to regulate the rates charged by public utilities to its citizens for furnishing gas. Milwaukee Electric Rd. Co. v. Railroad Commission, 238 U. S. 174, 35 S. Ct. 820, 59 L. Ed. 1254.

The General; Assembly had power, even under the Constitution permitting the revocation and annulment of charters found to be injurious to the citizens of the State, to permit the change and amendment of any franchise granted by any city attempting to bind itself irrevocably to any agreed schedule of charges or rates, regardless of the necessity that might exist for the regulation thereof. Sec. 6, art. 12, Const. of 1874; Ry. Company v. Gill, 54 Ark. 101, 15 S. W. 18, 11 L. R. A. 452; Id. 156 U. S. 649; Spring Valley Water Works v. Schottler, 110 U. S. 347, 4 S. Ct. 48, 28 L. Ed. 173; Covington & Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578, 17 S. Ct. 198, 41 L. Ed. 560.

It follows from what has been said that the judgment of the circuit court in issuing the mandamus to compel the granting of the referendum upon the resolution or ordinance of the city increasing the rates allowed to be charged the consumers in the distribution of gas was correct, and the judgment must be affirmed. It is so ordered.


text:
    Kemp v. Hunter Transfer Company.
    Opinion delivered June 22, 1931.

      Will Steel and T. B. Vance, for appellant.

      W. H. Arnold, W. H. Arnold, Jr., and David C. Arnold, for appellee.
   Kirby, J.,

(after stating the facts). In Wheeler v. Ellis, 183 Ark. 133, 35 S. W. (2d) 64, Where the negligence of the miaster was alleged to consist in the failure to exercise ordinary -care to supply the servant with safe tools- or appliances with which to do his work, the court said: “The action is founded on the alleged negligence of the master in failing to exercise ordinary care to furnish the servant with a safe tool or machine with which to- do the work, the presumption being that the master has done his duty in the furnishing of such appliance, but, when this presumption is overcome by prouf that the appliances were defective, there is a further presumption that the master was without notice or not negligently ignorant of it, and the showing' that the injury resulted from.' a deflect in the machine,' without evidence that the injury occurred because the master did not .exercise proper care in furnishing the machine or having the repairs made thereon after notice, is not sufficient to establish a prima facie case or to support a recovery.”

In Railway v. Brown, 67 Ark. 304, 54 S. W. 865, the court, quoting with approval an- extract of the opinion in Railway v. Gaines, 46 Ark. 455, said: “Now notice • of the alleged defect, or, what amounts to the same thing, the ¡means of knowledge which the company failed to use, was a material fact which was necessarily involved in the verdict. Consequently, ás no testimony was given from which the jury could infer that the company knew, or might by reasonable diligence have discovered, the defect in time to remedy, it.and prevent the casualty, the verdict is not supported.by. sufficient evidence.”

In Wheeler v. Ellis, supra, a suit for damages for alleged negligence in respect to furnishing safe tools and appliances to the servant with which to do his work, and where the verdict was directed against the plaintiff, the court said: “It is true that the servant has a right to assume that the master has performed his duty, but it is also true that, unless the evidence shows to the contrary, the master is presumed to have performed his duty, and, as this court has repeatedly said, ‘no presumption of negligence arises from the mere happening of the' accident which caused the injury.’ Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S. W. 740. * * * ‘It is not sufficient to show that the plaintiff was injured, and that the injury resulted from a defect in the machinery, but he must go further and establish, the fact that the injury happened because the master did not exercise proper care in the premises.’ St. L., I. M. & S. R. Co. v. Gaines, 46 Ark. 555; Graysonia-Nashville Lumber Co. v. Whitesell, 100 Ark. 422, 140 S. W. 592; K. C. Sou. Ry. Co. v. Cook, 100 Ark. 467, 140 S. W. 579.” See also Central Coal & Coke Co. v. Lockhart, 161 Ark. 97, 256 S. W. 37.

In Missouri North Ark. Rd. Co. v. Vanzant, 100 Ark. 465, 140 S. W. 587, the court said: “Where a servant knows the methods that are adopted by the master, the place furnished in which to work and the appliances with which it is done, and continues in the employment without complaint, he assumes the risks which may result from such knoAvn methods and appliances.” Railway Co. v. Kelton, 55 Ark. 483, 18 S. W. 933; Patterson Coal Co. v. Poe, 81 Ark. 343, 90 S. W. 538; St. L., I. M. & S. R. Co. v. Goins, 90 Ark. 387, 119 S. W. 277; and Graham v. Thrall, 95 Ark. 560, 129 S. W. 532.

There is no evidence of negligence of the master in failing to exercise ordinary care to furnish the servant with a safe appliance with which to do his work, except as the inference may arise from the fact of the injury ,to plaintiff from a defect in the rim and the explosion of the tire, which does not overcome the presumption that the master performed his duty in exercising ordinary care in the furnishing of such appliance and in having the repairs made thereon. The undisputed testimony shows that the rim, upon which the new casing was mounted, had been used on the wheel of the truck the day before on its run to Alexandria. That the casing thereon ‘ ‘ blew out,” and the necessity for repairs was caused thereby. The old casing was still on the rim when it was returned and reported for repairs, and the lock ring still in place on the rim. Appellee company, having no means for making repairs of its trucks and tires, sent it to Dixon & Horney, Inc., independent contractors with whom it had a contract for doing such work, as was their custom, for repairs, and, being advised by them that a new casing was needed, directed that one be put on. Dixon & Horney were experienced and skilled mechanics, reputed to be “the best repairmen in the city,” accustomed to making such repairs. They mounted the new casing on the rim and returned it in the afternoon to appellee’s place of business in apparently first class condition, putting it on tbe platform in front for use next day on tbe truck.

There was no testimony indicating or tending to show that the repairs were not properly made, while there is much testimony showing they were carefully and well done, with proper inspections before and after completion thereof.

Thomas, of appellee company, and also Mr. Hunter, saw the mounted rim after its return from the shop, and it appeared to be all right; could discover nothing wrong with it. Appellant also said he examined it, and it appeared to be all right, and that he could discover nothing wrong with it. There was no method of-making an inspection of the tire after it was returned repaired that would have discovered whether the lock ring was not properly seated, if such was the fact, in the groove therefor, as the foreman at the repair shop testified was the case when the tire was assembled, without tearing it down again; and, as already said, the manager of appellee company, Mr. Hunter, and the appellant himself, all observed it, found it to be apparently all right and “could find nothing wrong with it. ’ ’

The master’s duty to exercise ordinary care in repairing and making safe the appliance for appellant’s use in the performance of his service was fully discharged by his sending the appliance to Dixon & Horney, Inc., independent contractors, experts in that line, fur making the repairs, and the showing by them of how the repairs were made and the inspections thereof by the repairers in the making and completion of the repairs and the return of the tire to appellee company in apparently first class condition, with the new casing mounted on the rim. O’Donnell v. Bourn, 38 Mo. App. 245; Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397, 13 A. L. R. 1403; Devlin v. Snell, 89 N. Y. 470, 42 Am. Rep. 311; McClaren v. Weber Bros. Shoe Co., 166 Fed. 714.

There was no testimony showing any failure to exercise ordinary care in having the repairs made or negligence on the part of appellee in furnishing appellant with the appliance as repaired for use in the performance of ¡his service. The testimony being undisputed, the court did not err in instructing the verdict.

The judgment is affirmed.


text:
    Collins v. State.
    Opinion delivered June 22, 1931.

      Gminess ■& George and B. P. Madole, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   McHaney, J.

Appellant was convicted on a charge of grand larceny, for the theft of one brown Jersey heifer, of the value of $13.76, the property of Everett Matthews, and sentenced to one year in the penitentiary. He assigns and relies upon four errors of the trial court to reverse the judgment against him.

It is first said that the evidence is not sufficient to support the verdict. The facts are, as shown by the State’s witnesses, that said Matthews was the owner of one brown Jersey heifer which disappeared from the pasture neár appellant’s home in Ola. Shortly after its disappearance, Matthews, senior, discovered its hide hanging in front of George King’s hide house in Ola, and King advised Mr. Matthews that he had purchased the heifer from appellant, and they butchered it in the pasture near the Carl Collins’ home. He so testified in-court. Appellant admitted that he sold a heifer to King, but denied that it was the property of Everett Matthews, and insisted that it belonged to him, his father and brother; that his father had bought a cow and her calf in 1929, and that the heifer sold to King was that calf. D. W. Matthews, Everett Matthews and his wife positively identified the hide. This made a question for the-jury as to the identity of the heifer. But appellant says this evidence is insufficient to show that he had stolen it, and that this is all the evidence on the subject; that the fact that he, with King, butchered this heifer which he had sold to King, even though it were Matthews’ property, is not sufficient to convict of larceny. We cannot agree with appellant. Section 2490, Crawford & Moses’ Digest provides: “Every person who shall mark, steal or kill, or wound, with intent to steal, any kind of c attle, pigs, hogs, sheep or goats, shall be guilty of a felony, and upon conviction thereof, be imprisoned at hard labor in the penitentiary for any time not less than one year nor more than five years.” Appellant and another killed the heifer, the property of Matthews, sold it io King, and the “intent to steal” could be inferred by the jury from such facts.

It is next said the court erred in refusing to give instruction No. 1, requested by him on circumstantial evidence. The evidence here was not-circumstantial, but was positive and direct. No error was therefore committed, and we have held “that it is not improper to refuse to give such an instruction, even in cases where the conviction was asked wholly.upon circumstantial evidence, where the jury ivas properly instructed as to the burden of proof resting on the State to establish the guilt of the accused beyond a reasonable doubt and where reasonable doubt was properly defined.” Payne v. State, 177 Ark. 413, 6 S. W. (2d) 832.

Tbe court fully and correctly instructed on the credibility of the witnesses, the weight -of the evidence, presumption of innocence, and reasonable doubt.

It is next said the court erred in refusing requested instruction No. 2 as follows: “Even though the evidence raises your suspicion of the theft of the yearling by the defendant, Bob Collins, yet, unless the theft is proved beyond a reasonable doubt, you will find the defendant not guilty.”

This instruction was fully covered by others given - by the court and would have been a repetition. The court is not required to multiply instructions on the same subject to the same effect.

It is finally said the court erred in refusing requested instruction No. 3 as follows: “If you find that the defendant, Bob Collins, took the yearling in question, in good faith, under the honest belief that he was the owner thereof, and even though, upon learning after-wards that said yearling was not his own property, converted it to his own use, you will find the defendant not guilty.”

Conceding the correctness of such instruction, [see Wilson v. State, 96 Ark. 148, 131 S. W. 336, 41 L. R. A. (N. S.) 549, Am. Cas. 1912B, 339] it was abstract as there was no theory advanced by appellant on which to base it. He and his relatives testified it was their heifer — not that he had taken Matthews’ property under the honest but mistaken belief that it was his.

Affirmed.


text:
    Metropolitan Life Insurance Company v. Fry.
    Opinion delivered June 29, 1931.

      Moore, Gray •& Burroiv, for appellant.

      Robert Bailey, for appellee.
   Hart, C. J.,

(after stating the facts). The common-law rule was that, after the lapse of seven years without intelligence concerning a person, the presumption of life ceased, and the -burden of proof devolved upon the other party to show that he was alive. Greenleaf on Evidence (15th ed.), § 41; and case note to L. R. A. 1915B, p. 729. In this connection it may be stated that the presumption relates to the fact of death -and not to the time of death. Davie v. Briggs, 97 U. S. 628.

Our statute on the subject is contained in § 4111 of Crawford & Moses ’ Digest, which is as follows:

“Any person absenting himself beyond the limits of this State for five years successively shall be presumed to be dead, in any case in which his death may come in question, unless proof be made that he was alive within that time.”

In Wilks v. Mutual Aid Union, 135 Ark. 112, 204 S. W. 599, this section of our statute was construed to mean that any person, a resident of this State, and who absents himself from his home or residence beyond the limits of the State for five successive years and who has not been heard from by near relatives, friends, or neighbors, who would naturally make inquiry concerning his whereabouts and who would most likely receive communication from him and be in a position to know whether or not he was living, will be .presumed to be dead unless there is proof to the contrary.

The same construction was recognized in Burnett v. Modern Woodmen of America, 183 Ark. 729, 38 S. W. (2d) 24; but recovery was denied in that case because it was not shown that the insured had a residence in this State; and the statute therefore did not apply.

On the part of the appellant insurance company, it is insisted that the judgment must be reversed in this case because there is no showing made by appellees that the insured ever left the State of Arkansas. It will be observed that the case was tried by the court sitting as a jury, and that the court found the issues in favor of the plaintiffs. The evidence shows that the insured left his home at Russellville, Arkansas, to go to Morrilton, Arkansas, for the purpose of collecting and soliciting insurance. He expected to return home within a day or two and has remained away since that time, which was during the latter part of June, 1923. No intelligence has been received from .him; and, although diligent search and inquiry were made by his father, his whereabouts have never been ascertained. His father' inquired from friends and relatives in other portions of the State where they had lived and was informed that nothing had been heard from or of him. The district manager of the insurance company for which he worked, visited forty or •fifty towns in the usual course of business and in each of them made inquiry about the whereabouts of John N. Fry. So far as can be ascertained from the record, there was no occasion for him to leave his wife to whom he had been recently married. He was not in debt, and no cause of his disappearance was shown. In finding that he had gone beyond the limits of the State and disappeared for the period of five .successive years, the court might properly take into oonsideration all the facts just recited as well as facts of which the court might take judicial notice such as the size and population of the State of Arkansas, the number and population of the various • towns, and other matters which might make it more or less • difficult to conceal one’s identity in the State. The proof of absence from the State, like the fact of death, may rest upon circumstantial evidence. Neither death nor the fact of absence beyond the limits of the State can be inferred from the mere fact of disappearance; but when all the facts and circumstances connected therewith as recited above are considered, we think the court was warranted in finding that the insured had absented himself beyond the limits of the State for five successive years, and that this brought a presumption of death under the statute. Kennedy v. Modern Woodmen of America, 243 Ill. 560, 90 N. E. 1084, 28 L. R. A. (N. S.) 181; and Fidelity Mutual Life Assn. v. Mettler, 185 U. S. 308, 22 S. Ct. 662. See also Bacon on Life & Accident Insurance, page 1594, § 648, and Cooley’s Briefs on Insurance, (2d ed.) vol. 6, pp. 5167-5168.

It is next contended that the court erred in allowing the plaintiffs to join in one action the suit on the two different policies. It is pointed out that, while Charles L. Fry and John N. Fry are named as the beneficiaries in the $1,000 policy and may be entitled to recover on that policy, the $125 policy is payable to the estate of the insured, John N. Fry, and that they have no right to recover on it. Under our statute relating to the law of administration, where a person dies leaving only adult heirs and no creditors, they may take possession of the decedent’s estate without administration. Crawford & Moses’ Digest, § 1. Our statute also favors the bringing of suits by parties in interest. The undisputed proof shows that John N. Fry’s wife secured a divorce from him after he had disappeared for something over a year, and that she has no interest whatever in his estate. His parents, Charles L. Fry and Jennie B. Fry, were entitled to his estate, and, there being- no creditors, were entitled to maintain this action. Metropolitan Life Ins. Co. v. Fitzgerald, 137 Ark. 366, 209 S. W. 77.

The court was also warranted in finding that the plaintiff, Charles L. Fry, overpaid the premiums on said policies in the amount of $50, and that plaintiffs .were entitled to recover that sum.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.