author: McCulloch, C. J.

text:
    Connelly v. Earl Frazier Special School District.
    Opinion delivered January 18, 1926.
    1. Appeal and error—conclusiveness of chancellor’s finding.— A finding by a chancellor will not be disturbed on appeal unless it is against the preponderance of the testimony.
    2. Schools and school districts—power to issue bonds.—Under Special Acts 1923, p. 698, authorizing the directors of a certain special school district to issue bonds, the directors were empowered to dispose of the bonds without advertisement.
    3. Appeal and error—question not raised below.—A question not raised in the court below will not be considered on appeal.
    4. School and school districts—disposition of funds.—Although funds derived by a school district from a bond issue should be placed in the county treasury, yet, where the validity of the bond issue was involved in a suit, it was not improper for the directors to deposit such funds in a bank during the pendency of the litigation.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      J. G. Marshall, for appellant.

      Emerson & Donham and Owens $ Ehrman, for appellee.
   McCulloch, C. J.

This is an action instituted by appellant to restrain the directors of Earl Frazier Special School District from issuing bonds for the purpose of constructing a school building.

The district in question was created by- special acts of the General Assembly' of 1923 (Special Acts 1923, p. 698), and § 4 of the statute confers express authority on the directors to issue bonds. The language of the statute relating to 'this subject is as follows: “A majority of said board of 'directors is hereby authorized to execute a promissory note or notes, or bonds, in the name of, and for such sum of money as may be required, which shall be similar in form as are like instruments of like kind, and shall have the same force and effect as though it had been the act of an individual; and said directors may mortgage any of the property of said district and pledge the revenues thereof as a security for payment of said notes and bonds, and against such instruments said district shall be allowed no defense by virtue of its capacity as a school district in law or equity not accorded to individuals.”

It appears from testimony adduced by appellees that at a meeting of the directors, held on July 1,1924, a resolution was adopted authorizing the sale of bonds in the sum of $35,000, and that at another meeting, held on July 17, 1924, a contract was entered into with a certain bond dealer in the city of Little Eock for the sale of the bonds at a stipulated price, but before this contract could be consummated by the actual issuance and delivery of the bonds, appellant commenced this action and prosecuted an appeal to this court from a decree sustaining a demurrer to his complaint and dismissing the action. This court reversed the decree of the chancery court (167 Ark. 49) on the ground that there was a statement of a cause of action in the complaint as to waste and mismanagement of the funds, and in reversing the decree there was a direction to permit appellant to amend his complaint for the purpose o.f making it more definite and certain. On the remand of the cause and the dissolution of the temporary injunction granted by this court, the directors attempted to consummate the sale of the bonds by delivery to the individual to whom they had been contracted, and, according to the testimony, there was an actual delivery of the bonds and payment of the fund, which was placed in one of the banking institutions in Little Eock to the credit of appellee district. Appellant amended his complaint so as to show these facts, and asked that relief be granted against the consummation of the sale, and the purchaser of the bonds was made a party to the action.

It is contended in the first attack on the validity of the bonds that all of the directors were npt present at either of the meetings on July 1, or July 17, 1924, and that the absent members were not notified of the meetings. There are six members of the board o,f directors, and it appears from the testimony that at each of the meetings in question four directors attended and two were absent. There is a sharp conflict in the testimony as. to whether or not notice was given to the two absent members. Each of them denied 'that they received the written notices claimed to have been sent, but one of the absentees testified that he received information of the meeting—was told of it verbally by one of the directors—and that he started to attend, the meeting but that his car broke down before he got there. The testimony adduced by appellees was to the effect that written notice was given to the absent members. We do not think that the finding of the chancery court on this issue is against the preponderance of the evidence. It was purely an issue of fact, and, under settled rules of practice here, we are not permitted to disturb the finding of 'the chancery court unless against the preponderance of the testimony. No useful purpose would be served by setting out the testimony in detail, and it is sufficient to say that it has been carefully considered by this court and found sufficient to support the finding of the chancellor.

It is next contended that the sale of the bonds was void because not advertised. There is some conflict in the testimony as to whether or not any sort of notice was published, but it is unnecessary to discuss the effect of the testimony, for we are of the opinion that the statute under which this district is operating does not require notice as a prerequisite to the exercise of the power to issue bonds. Counsel for appellant rely upon the 'general statutes of the State authorizing school districts to issue bonds. Crawford & Moses’ Digest, 8837, 8840, 8884. Those statutes do not apply for the reason that they antedate the statute under which this district is operating, and apply only to districts organized under those statutes. In the special statute now under consideration, express power is granted to issue bonds without restriction, and the languáge of the statute does not evince any intention to annex to that power any of 'the restrictions found in prior general statutes. On the contrary, the language clearly implies unrestricted power to issue bonds. Counsel for appellant rely upon the case of Rural Special School District v. Pine Bluff, 142 Ark. 279, as sustaining their contention that the prior general statutes control, but we are of the opinion that there was a different question involved in that case, and that the principles announced do not apply here.

The charge of waste and mismanagement is nb longer involved in the case on this appeal. There is, however, a contention here that the statute was violated by the payment of a bonus or commission which was in effect a sale of the bonds at less than par. The facts that a bonus or commission was paid came out incidentally in the testimony, and is not raised in the pleadings. It does not appear from the record that this question was involved in the hearing below, and it is too late now to raise dt here for the first time.

It is also contended that the sale of the bonds should be restrained on account of payment into the bank instead of the county treasury. Of course, the fund should go into the county treasury, and any efforts oii the part of the directors to divert the fund would be restrained upon the application of any taxpayer of the district, but it does not appear that the deposit in the bank was anything more than a temporary disposition of the funds during the pendency of this litigation. The fact that the directors have made an improper deposit of the funds received does not involve the validity of the bond issue.

"We are of the opinion therefore that the effort to restrain the issuance of bonds is without legal foundation, and that the chancery court was correct in refusing relief, No abuse of power on the part of the directors is shown, and it appears to he merely a controversy between taxpayers as to whether or not they want to construct the building and issue bonds to pay for it. That is a matter over which the court has no control unless there is an abuse of power. The statute vests all authority in the directors, and the courts are not justified in assuming to take that authority from them.

. Finding no error in the decree, the same is affirmed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Williams v. New England Securities Company.
    Opinion delivered January 18, 1926.
    1. Liens—effect of statute.—When the Legislature enlarges a. common-law lien or changes a statutory lien, its definition of a lien in the later statute supersedes the definition in the former statute and the construction of the court upon it, and thereafter the exercise of the powers of the court with respect to the lien must be consistent with the language used in the later statute.
    2. Attorney and client—enforcement of attorney’s lien.—Under Crawford & Moses’ Dig., §§ 628, 629, an attorney who took no steps to enforce his lien in a suit in which he recovered judgment for his client is in no condition to enforce it as against one who subsequently acquired an interest in the property recovered in the former suit.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    This is an intervening petition for the establishment of a lien for attorney’s fees filed by leave of the court by B. J.. Williams in the case of New England Securities Company against Paul Y. Gibson and Nina H. Gibson in the chancery court of St.. Francis County, Arkansas.
    The original suit in which the petition was filed is a suit in equity against Paul Y. Gibson to foreclose a mortgage on a certain tract of land in St. Francis County, Ark. The petition is based upon the" fact that on the 21st day of December, 1921, the defendant, Paul Y. Gibson, employed the intervener as an attorney to foreclose a lien on the real estate in question in this suit to secure the payment of an indebtedness owed him by T. H. Tucker for the purchase price of said land. It was agreed between said Gibson and - Williams that the intervener should be paid the sum of $437.50 for his services as an attorney in foreclosing said vendor’s lien. The intervener procured a decree ordering said land to- be sold in payment of the purchase money found to be due said Gibson, and the latter became the purchaser at the sale under said decree. Paul Y. Gibson paid the intervener $200 on account of his attorney’s fees, and there is now due and unpaid the sum of $237.50 as a balance of said attorney’s fees, for which the intervener claims that he is entitled to a lien upon said land.
    Subsequently Paul Y. Gibson became indebted to the New England Securities Company, and executed a mortgage in its favor on said land to secure the payment of said indebtedness. The New England Securities Company brought suit in the St. Francis Chancery Court against Paul Y. Gibson on the 7th day of June, 1924, to foreclose the mortgage. The intervening petition was filed by R. J. Williams on the 24th day of July, 1924, and it does not appear from the record that said R. J. Williams took any steps to establish his attorney’s lien in the case in which it was claimed the fee was earned.
    The chancellor sustained a demurrer to the intervening petition, and the intervening petition of said R. J. Williams was dismissed for want of equity.
    To reverse this decree, this appeal has been duly prosecuted.

      C. W. Norton, for appellant.

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

(after stating the facts). The decision of the chancellor was right. We dó not regard the cases cited by counsel for appellant as having any controlling effect under our present attorney’s lien statute. When the Legislature enlarges a common-law lien or changes a statutory lien, its definition of*a lien in the later statute supersedes the definition of the former one and the construction of the court upon it; and thereafter the exercise of the powers of the court with respect to the lien must be consistent with the language used in the later statute.

The Legislature of 1909 passed an act to provide for an attorney’s lien and its enforcement, and the first two sections of the act constitute §§ 628 and 629 of Crawford & Moses’ Digest.

Section 628 reads as follows: “The compensation of an attorney or counsellor at law for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim, or counterclaim which attaches to a verdict, report, decu sion, judgment or final order in his client’s favor and the proceeds thereof in whosesoever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment or final order.”

Section 629 is as follows: ‘ ‘ The court before which said action was instituted, or in which said action 'may be pending at the time of settlement, compromise, or verdict, upon the petition of the client or attorney,0shall determine and enforce the lien created by this act.”

' Under a statute like ours, it has been held that the lien of an attorney rests on the theory that he is regarded as an assignee of the judgment to the extent of his fee from the date he has complied with the statute in establishing it. This court has held that the act creates a lien upon the cause of action in favor of the attorney and requires the defendant and other persons claiming under him to take notice of the lien in the same court in which the original action was instituted, or in which said action may be pending at the time of the settlement, compromise, or verdict. St. L. I. M. & S. R. Co. v. Hays & Ward, 128 Ark. 471.

. It does not appear from the record that the intervener complied with the statute at all. The fee for which the intervener has a lien as attorney was earned in a suit filed by Paul Y. Gibson against ,T. H. Tucker to foreclose a vendor’s lien on the land in question in this suit.' A decree of foreclosure was obtained in the chancery court on the 26th day of January, 1922, and under the sale pursuant to the decree, Paul Y. Gibson became the purchaser of the land. The intervener made no attempt whatever to assert his lien in that suit, and, not having attempted to enforce it in the manner provided by the statute, he cannot assert it against a third party who subsequently acquired an interest in the land. Gibson subsequently mortgaged the land, as he had a right to do, to the New England Securities Company to.secure an indebtedness which he owed it, and that company was not required to make inquiries to see if Gibson owed the intervener anything for foreclosing his vendor’s lien upon the land against T. H. Tucker in the chancery court. It was only required to examine the record in that case to see if the intervener had attempted .to enforce his lien as required by the statute. The record in that case did not show that the intervener had filed an attorney’s lien or in any way attempted to enforce such lien.

Therefore, the appellee had a right to take a mortgage on the land from Gibson free of any attorney’s lien of the intervener, and, by the execution of. the mortgage to it from. Gibson, appellee secured rights superior to those of the intervener in. the matter of enforcing his attorney’s lien.

It follows that the decree will be affirmed.


author: Humphreys, J.

text:
    Tucker v. State.
    Opinion delivered January 18, 1926.
    Criminal law—dismissal of charge for delay in prosecution.— One accused of murder is entitled to a dismissal of the charge where more than three terms of the court have passed without a trial, and the court had time to try the case at each term, and the defendant, being present, did not apply for or consent to the delay.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    reversed.

      Sheffield & Coates, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Humphreys, J.

This is an appeal from the final judgment of the circuit court of Phillips County denying the motion of appellant to dismiss the charge of murder in the first degree pending against him in the said court for the reason that more thlan three terms of court had passed without giving him a trial. The prosecuting attorney admitted the truth of the facts set out in the motion and, based upon this admission, the trial court made the following finding of facts:

“The court finds that the indictment was returned and filed on the 1st day of November, 1923, lat the regular term of the 1923 Phillips County Circuit Court, and that the defendant was arrested on that date and admitted to bail in the sum of ten thousand dollars ($10,000). The court further finds that at that term the defendant filed a motion for a trial at that term of the court, and that the motion was overruled by the court.
“The court further finds that the court had time to try the defendant at the fall term of court,. 1923, at the spring term of court, 1924, at the fall term of court, 1924, and at the spring term of court, 1925; that the court was duly and regularly held at each of the said terms in the city of Helena, Arkansas, Phillips County; that the defendant was present at each of the said terms, but that the State failed and declined to set the case down for trial; that the delay of the trial did not happen on the application or by the consent of the defendant. ’ ’

The Attorney G-enerlal has confessed reversible error on the part of the trial court in refusing to discharge appellant. The case is ruled by Ware v. State, 159 Ark. 540.

The judgment of the trial court overruling appellant’s application for discharge is therefore reversed, and an order will be entered here dismissing the case and discharging appellant.


text:
    Owosso Manufacturing Company v. Cox.
    Opinion delivered January 18, 1926.
    Sales—breach op contract—notice.—In an action toy a touyer to recover damages on account of the seller’s refusal to deliver 29 cars of lumber, where the defense was that the touyer had first breached the contract by incorrectly grading the lumber previously shipped so as to reduce the price below the cost of production, it was error to refuse an instruction that, if the buyer made an honest mistake in lowering the grades and did not lower them for the purpose of getting the lumber at a reduced price, the seller was not justified in abandoning the contract without calling attention of the seller to the erroneous grading, and thereby affording the seller an opportunity to correct the mistake.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    reversed.

      Brouse & McDaniel, for appellant.

      D. D. Glover and D. E. Waddell, for appellee.
   Humphreys, J.

Appellant instituted suit on the 27th day of March, 1922, in the circuit court of Hot Spring County, against Gr. A. Chamberlain to recover damages in the sum of $1,599.72 for an alleged breach of contract in the form of ia written offer and acceptance, dated August 6,1918, for the sale of thirty-two oars of lumber, more or less, which cars were to contain specified quantities of certain grades at stipulated prices. It was alleged in the complaint that Chamberlain failed land refused to deliver twenty-six of the cars, and that, because of the breach, appellant was forced to go into the open market and purchase the lumber, which Chamberlain failed to ship it, at an advanced price, to its damage in the sum aforesaid.

Gr. A. Chamberlain filed an answer denying that he agreed to sell appellant thirty-two cars of lumber, but, on the contrary, agreed ito sell it only one or two cars at fixed prices for certain quantities and grades. By wlay of further evidence, he alleged that he sold his mill to T. W. Worrells, who would have shipped appellant all the lumber it claimed to have bought from him, had it not breached the alleged contract by incorrectly grading the lumber so as to reduce the price below the cost of production.

Diuring the pendency of -the suit, sometime in March, 1924, Gr. A. Chamberlain died, whereupon G-eorge B. Cox, the appellee herein, was appointed administrator of his estate. This case was then revived in the name of land proceeded to trial against said administrator upon the pleadings, the testimony adduced by the respective parties, and the instructions of the court, which resulted in a verdict and consequent judgment of dismissal against appellant, from which is this appeal.

The testimony introduced by the appellant showed that a written contract was entered into between it and G. A. Chamberlain whereby Chamberlain was to ship it about 400,000 feet of lumber of certain dimensions and grades at stipulated prices per thousand; that he shipped it three cars and then sold his mill to W. T. Worrells, who was to cut and deliver the lumber to Chamberlain at the prices agreed upon between Chamberlain and appellant, less $2 per thousand; that Worrells cut and delivered three cars to Chamberlain, who, in turn, shipped it to appellant; that the last three cars of lumber did not come up to the requirements of the contract in grade, which necessarily caused a reduction in price; that Chamberlain and Worrells refused to ship any more lumber, whereupon appellant was compelled to go' into the open market and buy the lumber which Chamberlain refused to ship it, at a total increased price of $1,599.72.

The testimony introduced by appellee tended to show that the last three cars of lumber cut by Worrells and shipped by Chamberlain to appellant met the requirements of the contract in grade; that Worrells refused to turn any more lumber over to Chamberlain for shipment to appellant because appellant reduced the price below the cost of the production thereof on the last three cars shipped to it.

The cause was sent to the jury, over the objection of appellant, upon the sole issue of whether or not appellant first breached the contract by lowering the grades and thereby reducing the contract price. If appellant made an honest mistake in. lowering the grades and did not lower them for the purpose of getting the lumber at a reduced price, then Chamberlain would not have been justified in abandoning the contract without calling the attention of appellant to the erroneous grading, thereby affording it an opportunity to correct its mistake. Appellant asked instructions covering this theory of the case, which the court refused to give, over its objection and exceptions. The court erred in not presenting this theory of the case to the jury for determination.

The judgment is therefore reversed, and the cause is remanded for a new trial.


text:
    Morrison v. Berry.
    Opinion delivered January 18, 1926.
    Replevin—property in hands- of officer.—If property seized by an officer belongs to a defendant in the execution or attachment, it is in custodia legis, and not the subject of replevin; but if it belongs to a stranger to the process when seized, it is not then in custodia legis, and may be replevied by the owner.
    Appeal from 'Searcy Circuit Court; J. M. Shinn, Judge;
    affirmed.

      W. F. Reeves, for appellant.
   Humphreys, J.

The question presented by this appeal is whether replevin was the proper remedy in the case. The undisputed facts are that Lloyd Massey obtained a judgment in a magistrate’s court against Mrs. Lydia Berry for $13 upon which an execution was duly issued, directed to the constable of the township, who is the appellant herein. Appellant, in an official capacity, levied the execution on fifty-two bushels of corn in the barn on the farm of Mirs. Berry. The corn was the property of appellees, Ellison and Oscar Berry, and, when it it was levied upon, they sued out a writ of replevin, which was served by delivering a copy thereof to said constable. The constable thereafter proceeded to sell the corn under the execution, and made return thereon to the court out of which the execution issued. Upon the trial of the replevin suit, appellees recovered the value of the corn from appellant, both before the justice o.f the peace and on appeal to the circuit court.

It is sought to reverse the judgment of the circuit court upon the ground that the property was in custodia legis, 'and not the subject of replevin, when seized by the constable under the execution.. In support of this position 'learned counsel for appellant has cited Goodrich v. Fritz, 4 Ark. 525; Hagan v. Duell and Vaughan, 24 Ark. 216; Crowell v. Barham, 57 Ark. 195; Emerson v. Hopper, 94 Ark. 384; and Cherry v. Dillard, 131 Ark. 245. These cases sustained the principle that property in custodia legis cannot be replevied from the officer seizing it while in Ms possession, but they do not establish the principle that property belonging to a stranger to the process under whch the property was seized may be regarded as in custodia legis. If property seized by an officer belongs to a defendant in the execution of attachment, it is in custodia legis and not the subject of replevin ; but if it belongs to a stranger to the process when seized, it is not in custodia legis and may be replevied by the owner. Willis v. Reinhardt, 52 Ark. 128; Crawford & Moses’ Digest, § 8646.

In the instant case appellees were strangers to the execution against Mrs. Berry under which their corn was seized, and they had a right to replevy it from the officer seizing it.

No error appearing, the judgment is laffirmed.


text:
    Sherman v. State.
    Opinion delivered January 18, 1926.
    1. Rape—sufficiency of evidence.—Evidence held to sustain a conviction of assault with intent to rape.
    2. Criminal law—harmless error—withdrawal of instruction.— The giving of an erroneous instruction was not prejudicial where it was withdrawn during the progress of the court’s charge and a correct instruction substituted.
    3. Witnesses—privilege—confessions to pastor.—A letter from accused to the pastor of his church, offered as in the nature of a confession, was not privileged, in the absence of proof that it was made to such pastor in his professional character, in the course of discipline enjoined by the rules or practice of such church.
    Appeal from Cross Circuit Court; W. W. Bandy, Judge;
    affirmed.

      8. A. Gooch, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted for the crime of rape, alleged to have been committed upon his own daughter, and he was, by the verdict of the jury, convicted of assault with intent to rape.

The verdict of the jury is supported by the direct evidence of the injured girl, who testified that her father had been having sexual intercourse with her for several years, and that on a certain occasion, while they were working together in a field, he forced her to submit to sexual intercourse with him—used threats and actual force to compel her to submit. . On her first examination in the trial of the case, the prosecuting attorney, after she had testified in substance that her father had drawn a knife on her and that she had tried to fight him away from her, asked the question, “Did he accomplish his purpose?” The answer of the witness was, “Yes, sir; partly.” Afterwards, the witness was recalled and the prosecuting attorney examined her further as follows: “Q. Did he succeed in penétrating your body with his private parts? A. Yes, sir.” The evidence was sufficient to sustain a verdict for the crime of rape.

The crime of assault with intent to rape was embraced in the indictment (Paxton v. State, 108 Ark. 316), and there was evidence' to sustain a finding that the act of intercourse was not consummated. The girl testified in one place that the act was only partly accomplished, and in another place that there was complete penetration, and it was a question for the jury to determine which of the statements of the witness was true.

One of the assignments of error is the giving of an instruction submitting the question of assault with intent to rape. It is contended that there is no evidence to base that instruction upon, but, as before stated, we think there was evidence sufficient to warrant a submission of that crime to the jury. However, appellant cannot complain, for the jury found him guilty, and the reduction of the degree of the crime was for his own benefit. Rogers v. State, 136 Ark. 161.

There was proof adduced tending to establish the fact that there were voluntary acts of sexual intercourse between appellant and Ms daughter prior to the commission of the offense charged in the indictment, and the court gave an instruction telling, the jury that this evidence might be considered “to corroborate the testimony of the prosecuting witness,” and “to consider what weight you will attach to the evidence of the prosecuting witness.” Later, during the progress of the court’s charge, the foregoing instruction was withdrawn, and the court told the jury that, “if you find from-the proof in the case that the defendant, prior to the time that it is claimed that the crime of rape was committed, carnally knew the prosecuting witness, Lenora Sherman, that that is a circumstance that you may consider for what it is worth in reaching a conclusion as to whether or not the defendant is guilty of the crime of rape.” We are of the opinion that there was no prejudicial error in the action of the court, for the first instruction was entirely withdrawn, and a correct one was substituted.

The State was permitted to introduce in evidence a letter written by appellant to a preacher named Lindsey, in which a request was made for prayer, and which contained certain statements which had some tendency towards an indirect confession of the charge brought against appellant of mistreating his daughter. The first objection made to the introduction of the letter was that it was not fully identified, but there was other testimony introduced sufficient to identify the letter as one written and sent by appellant. Afterwards, near the conclusion of the trial, appellant was recalled as a witness and stated, in response to questions by his attorney, that Lindsey was pastor of his church, that the letter was addressed to him as such pastor, and that it was the duty of the pastor “to look after Ms church, and when they got in trouble of any kind or grieved in any way, it was his place to advise them and pray for them,” and that he sent the letter to his pastor to obtain the prayers of the pastor and “all of the saints.” Appellant’s attorney then moved to exclude the letter from consideration on the ground that it was a privileged communication. The statute on this subject reads as follows:

“Section 4148. No minister of the Gospel or priest of any denomination shall be compelled to testify in relation to any confession made to him in his'professional character, in the course of discipline enjoined by the rules or practice of such denomination. ’ ’ Crawford & Moses’ Digest.

This statute and similar ones have been construed to exclude only confessions made to a minister which are enjoined by the rules or practices of the denomination. This is what the statute says in so many words, and we have held, in accordance with the general rule, that the statute does not apply unless the alleged confession is made “in the course of discipline enjoined by the rules of practice of such denomination.” Alford v. Johnson, 103 Ark. 236. The mere fact that the confession is made to a minister of the Gospel or a priest, and made to him as such, and even made to him to obtain his help or assistance, is not sufficient to exclude the confession, but it must be pursuant to a duty enjoined by the rules of practice of that particular church. There is no evidence in this case that there is any discipline or rule or practice of the church to which appellant and his pastor belonged which enjoins .upon its members the duty to make a confession of sins. The evidence does not disclose the particular denomination to which appellant and his pastor belonged. It merely shows that the preacher, Lindsey, was the pastor of appellant’s church, and that it was the duty of the pastor to pray for penitents and get all the other “saints” to do so. The testimony does not bring the case within the operation of the statute, hence the court was not in error in admitting the letter in evidence.

We fail to find any error in the proceedings, hence an affirmance of the judgment must result on this appeal. It is so ordered.


author: McCulloch, C. J. Humphreys, J.,

text:
    Miller v. Tatum.
    Opinion delivered January 18, 1926.
    1. Mandamus—power to order writ in vacation.—Acts 1925, p. 375, amending § 7020, Crawford & Moses’ Dig., § 7020, authorizing the circuit court and the judges thereof in vacation to issue writs of mandamus, meant to authorize the circuit judges to hold court in vacation, but that the court should hear and determine the proceedings and award the writ.
    2. Courts—time for holding.—It is within the power of the Legislature to prescribe the time and place for holding court, and to authorize the court to be in session at all times for certain purposes.
    3. Courts—vacation order—record.—-Where a cause is heard before a court in vacation, it is the duty of the court to have its final judgment placed on the permanent records of the court.
    4. Certiorari—remedy by appeal.—A judgment that is not void cannot be quashed on certiorari, but, if erroneous, it may be reversed on appeal.
    5. Appeal and error—application for certiorari treated as appeal.—An application for certiorari to quash a judgment that is not void will be treated as an appeal where the time for appealing has not expired.
    6. Appeal and error—-matters review able.—Where there was no motion for new trial in an action for mandamus, the consideration on appeal will be limited to errors on the face of the record.
    7. Mandamus—discretionary matters.—Mandamus will not lie to 'control the discretion of an officer in the performance of.his duty where such discretion is vested by law, but will only lie to compel an officer to exercise his discretion where he has refused to act at all.
    8. Mandamus—discretionary powers of city commission.—The discretionary powers of a city commission to call an election for the recall of m'embers of such commission can not be controlled by mandamus.
    9. Equity—control over acts of city commission.—The chancery court has no power, by injunctive process or otherwise, to interfere in -a matter involving the recall of city commissioners.
    Prohibition to -Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      W. L. Curtis and Webb Covington, for appellant.

      Joseph R. Brown, G. L. Grant and James B. McDonough, for appellee.
   McCulloch, C. J.

Fort Smith is a city of the first class and has adopted what is known as the commission form of government, authorized by a statute enacted by the General Assembly of 1913. Acts 1913, p. 48. The statute provides for three commissioners, composed of the mayor and two other commissioners elected by the people. M. J. Miller and Thomas H. Ward are the two commissioners elected as such, and J. H. Parker is mayor. The statute provides for the recall of any of the elective officers of the city, an election for that purpose being required to be held on the petition of electors, “at least thirty-five per centum of the entire vote cast for all candidates for that office at the last preceding general municipal election.” Section 17 of the statute regulating the recall reads, in part, as follows:

“The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving street and number, if any. One of the. signers of each of such papers shall make oath before an officer competent to administer oaths that the statements therein made are true as he believes, and that each signature to the paper appended is a genuine signature of the person whose name it purports to be. Within ten days of the date of filing such petition, the city clerk shall ascertain and determine whether or not said petition is signed by the requisite number of qualified electors, and, if -necessary, the board shall allow said city clerk extra help for that purpose; and he shall attach to said, petition his certificate showing the result of said examination. * * * If the petition shall be deemed sufficient, the clerk shall submit the same to the board without, delay. If the board shall find the petition thus submitted to it contains the requisite number of electors signed thereto, and is otherwise found to be sufficient, it shall order and fix a date for holding said election not less than thirty days nor more than forty days from the date of the clerk’s certificate to the board that a sufficient petition is filed. * *

Section 29 of the statute reads as follows:

“Petitions provided for in this act shall be signed by none but legal voters of the city. Each petition shall contain, in addition to the names of the petitioners, the street and house number in which the petitioner resides, his age and length of residence in the city. It shall also be accompanied by the affidavit of one or more legal voters of the city, stating that signers thereof were, at the time of signing, legal voters of said city, and the number of signatures at the time the affidavit was made.”

Petitions for the recall of Commissioners Miller and Ward were circulated, and the same were filed with the city clerk in accordance with the provisions of the statute quoted ¡above, and the clerk, upon examination, determined that the petitions were signed by the requisite number of qualified electors and were sufficient in all respects, and he submitted the same to the board of commissioners for their action. Before the commission acted upon the petitions, a suit was filed in the chancery court by O. E. Jackson and Thomas J. Williams, citizens of Fort Smith, against the commissioners to restrain them from calling an election. The pleadings in that case are not properly before us, but it sufficiently appears that the chancery court, or the chancellor in vacation, granted a 'temporary injunction in accordance with the prayer of the complaint restraining the commissioners from ordering the. recall. Thereupon, the commissioners met in session and voted unanimously that the petitions were insufficient and that the election be not called. Mayor Parker cast his vote to that effect under protest. It is shown that the members of the 'board of commissioners were advised by the city attorney that they would be in contempt of the chancery court unless they voted against calling the election. A few days later the action instituted by Jackson and Williams in the chancery court was dismissed, and immediately thereafter at a meeting of the board of commissioners Mayor Parker introduced a resolution to call an election pursuant to the petitions, but the other two commissioners voted to indefinitely postpone the resolution, and thus the matter ended there. An fiction was then instituted in the circuit court by J. D. Southard and four other citizens and taxpayers of Fort Smith against the mayor and the other two commissioners to compel them, by mandamus, to call an election pursuant to the petitions. It was alleged in the complaint that the petitions were sufficient, but that Commissioners Miller and Ward had entered into a conspiracy with certain others to defeat the petitions, that they had instigated the chancery suit brought by Jackson and Williams and had been guilty of other fraudulent practices which afforded just grounds for their recall, and that the chancery court was without jurisdiction to restrain the commissioners in taking action upon the petitions. There was an allegation in the complaint that “the said M. J. Miller and Thomas H. Ward have done and are now doing everything in their power to prevent a recall election being had.” The prayer of the complaint was that “the said J. H. Parker, mayor; M. J. Miller, commissioner No. 1, and Thomas H. Ward, commissioner No. 2, composing the board of commissioners of the city of Fort Smith, be required to hold said petitions sufficient and to call an election as required by law, to the end that la vote on the recall of said commissioners may be had.” Summons was served on each of the commissioners, and the cause was heard by the circuit judge at chambers during vacation of the court, and findings of fact and declarations of law were announced and spread at large upon the records by the trial .judge in his judgment. The judgment rendered was that “the city commissioners, M. J. Miller and Thomas EL Ward, are ordered and directed and commanded to call the recall election in compliance with the petition, and the order of the circuit judge, to be held on the 12th day of January, 1926. The said commissioners are ordered, directed and commanded to issue the call for said election on or before the 12th day of December, 1925. In voting for the recall election, Mayor J. H. Parker and. Commissioner M. J. Miller are ordered to vote for .the recall of Thomas H. Ward, and J. H. Parker and Commissioner Thomas H. Ward are ordered and directed to vote for the recall of M. J. Miller.”,

Miller and Ward presented their joint petition to this court for a writ of certiorari to bring up the record and quash the judgment rendered below on the ground that it is void on its face. This court ordered the issuance of the writ and made an order staying the proceedings below'during the pendency of the cause here. The record of the proceedings before the circuit judge has been brought up under the writ, and the cause has been regularly submitted.

The first contention of counsel for petitioners, Miller and Ward, is that the judgment rendered below is void for’ the reason that the circuit- judge has no power to render a final judgment granting a mandamus in vacation. It is, on the other hand, contended by counsel for appellees that the proceedings were had and the judgment rendered, not by the trial judge, acting as such, but by the circuit court, which is authorized by statute to hear such proceedings in vacation.. A recent statute (Acts 1925, p. 375) amends § 7020, Crawford & Moses’ Digest, so as to-read as--follows: “The circuit court, aud the judges thereof, in vacation, shall have power to issue writs of mandamus 'to the courts of probate, county courts, justices of the peace and all other inferior officers in their, respective circuits.” It must be confessed that a literal reading of the statute carries the meaning of an attempt to confer jurisdiction upon circuit judges, as such, to hear and determine a cause and to issue the writ of mandamus in vacation, and, if that be the construction placed upon the statute, it is void for the reason that a mandamus, unless issued merely in aid of the court’s exercise of acquired jurisdiction, is a final determination of the rights of the parties—is a judicial award —and must emanate from a court and not merely from the judge. The Constitution vests in the circuit courts, not in the judges thereof, superintending control over inferior courts, and the judges are only authorized in vacation to issue writs in aid of that jurisdiction. Constitution, § 14, art. 7; Reese v. Steel, 73 Ark. 66. It is our duty, however, to so interpret the language as to give it some effect and carry out the legislative will without thwarting it, if the language is reasonably susceptible of such interpretation. [We have concluded, therefore, that under a fair and proper interpretation of the language it was meant to authorize the circuit judge to hold court during vacation, and that the authority to hear and determine the proceedings and to award the writ of mandamus is conferred, not upon the judge, but upon the court. It is undoubtedly within the power of the Legislature to prescribe the time and place for holding courts, and it is not beyond its power to authorize the court to be in session at all times for certain purposes. We have had frequent instances of that kind of legislation in matters of public improvements where delay may be disastrous, and the Legislature has considered it necessary to provide for holding terms of court in vacation; that is, between regular sessions. Wilmot Road Imp. Dist. v. DeYampert, 159 Ark. 298; Kirten v. Chicot County Drainage Dist. 161 Ark. 334. It may be argued that this interpretation is not proper because there is no provision for preserving the record of proceedings before the judge in vacation, but the answer to this is, we think, that it is within the power, and will follow as the duty, of the circuit judge where he renders a final judgment, to cause it to be placed on the permanent records of the court. The actions of the clerk of the court are within his control, and it is his duty when he has heard a cause of this kind in vacation to make a permanent memorial of his actions upon the records of the court, and the clerk is the proper official to perform the duty of preserving the record. We conclude, therefore, that the contention of counsel on this point cannot be sustained.

The judgment of the court awarding a mandamus was final, and an appeal therefrom lies to this court. Since the court had jurisdiction to hear and determine the cause, the judgment was not void and cannot he quashed on certiorari, but, if erroneous, may be reversed on appeal. The time for appeal has not yet expired, and it is proper for us to disregard the method by which the cause was brought here and treat the proceedings here as an appeal from the judgment of the lower court. "We will so treat the proceedings, and in doing so it becomes necessary for us to determine whether or not the judgment is erroneous. There was no motion for a new trial below, and our further consideration must be confined to an examination of the face of the judgment entry to determine whether or not the .judgment was correct or erroneous, and if we find that error appears upon the face of the record, a motion for a new trial or a bill of exceptions is not essential as a prerequisite to a review by this court for error. Burns v. Harrington, 162 Ark. 162.

The court set forth in its judgment the following findings of facts and declarations of law:

FINDING OF FACTS.
“1. In the case of M. J. Miller, commissioner No. 1, the entire voté at the last preceding election for commissioner No. 1 was 5,130.
“2. The number of qualified electors that signed the petition for the recall of the said M. J. Miller was 1,844. The number of electors signing the petitions who were not qualified electors, 358.
“3. That the 1,844 qualified electors signing said petitions were more than 35 per cent of the 5,130 electors voting at the last preceding election, April 7, 1925.
“1. In the case of Thomas H. Ward, commissioner No. 2, the entire vote at the last preceding election held April 3, 1923, was 4,273.
“2. That the number of qualified electors signing the petitions for recall of the said Thomas H. Ward was 1,669; that 369 signing said petitions were not qualified electors.
“3. That the 1,669 qualified electors signing said recall petitions were more than 3'5 per cent of the qualified electors voting for commissioner No. 2 at the last preceding election.
“4. That none of the petitioners gave their age and length of residence.
“5. That the above facts and findings were made by the city clerk and his helpers, J. S. Northum and R. Y. Hudson, and were duly certified to the city commission as required by law.
“6. That a vote was taken by the commission on said recall petitions, an injunction was issued by the chancery court, and the city attorney gave an opinion to the commissioners that they would be in contempt of court unless they voted against the recall. That Mayor J. H. Parker then, under protest, cast his vote against the recall.
‘ ‘ 7. That afterwards the plaintiffs in the injunction suit withdrew their suit and freed the city commission from any interference from it.
“8.. That Mayor J. H. Parker then introduced a resolution to call the election for the recall of commissioner No. 1, M. J. Miller, and commissioner No. 2, Thomas H. Ward. That M. J. Miller and Thomas H. Ward voted to indefinitely postpone said resolution for recall election, thereby refusing to<call the recall election.
“9. That Thomas H. Ward and M. J. Miller in voting against the recall election acted from a personal and selfish motive.
“10. That M. J. Miller acted selfishly and fraudulently in casting said vote.”
DECLARATION'S OE LAW.
“1. It was the duty of the city commission upon the petitions and the certificates of the city clerk to have called an election for the recall of Commissioners M. J. Miller and Thomas H. Ward.
“2. That it is against the elementary and organic law of every civilized country and common justice and decency for a man to sit as judge or arbitrator on his own case.
“3. That it was the duty of M. J. Miller and J. H. Parker to vote on the recall of Thomas H. Ward, and it was the duty of J. H. Parker and Thomas H. Ward to vote on the recall of M. J. Miller.
“4. That the election should be called for January 12, 1926.
“5. That it was not necessary for the petitioners to give their ages and time of residence in the city in signing said recall petitions for the recall of officers.”

' The statutory definition of “mandamus” is, “an order of a court of competent and original jurisdiction commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law.” Crawford & Moses’ Digest, § 7021. It is a settled rule of law, recognized by this court in numerous decisions, that mandamus will not lie to control an officer in the performance of a discretionary act nor to control the discretion of an officer in the performance of his duty where such discretion is vested by law, but will only lie to compel an officer to exercise his discretion where he has refused to act at all. Collins v. Hawkins, 77 Ark. 101; Nixon v. Grace, 98 Ark. 505; Jobe v. Urquhart, 102 Ark. 470; Ouachita Power Co. v. Donaghey, 106 Ark. 48.

Now, it is clear that the trial court exceeded its power in attempting to control the discretion of the commissioners in passing on the petitions for the purpose of determining whether or not an election should be called. The statute, in express words, authorizes the commissioners to examine each petition to determine whether or not it contains the requisite number of electors and is otherwise found to be sufficient, and they are only required to call the election when they find those facts to exist. The commissioners are clothed with authority to exercise their judgment in making these findings of fact >as to the number on the petitions, and it is not within the power of the court to take away that discretion by entering upon an inquiry as to the number of electors who have signed, and then by making a peremptory order on the commissioners to call the election. To so hold would be to vest la power in the court which the lawmakers have seen fit to vest in the board of commissioners. This is an error which appears 'affirmatively upon the face of the record, regardless of any findings which the court made with respect to the status of the petitions. The statutes only authorize the court to award a mandamus in vacation, and then only for the purpose of compelling an officer to perform a ministerial act.

But it is contended further that, according to the findings of the court, to which only we can look in determining the correctness of the judgment, the commissioners have not acted upon the petition at all, and that it was proper for the court to compel action either by calling the election or refusing to do so. The court found that when the commissioners voted on the recall petition they were under the restraining influence of the chancery court, being so advised by the city attorney, and that their action was not binding on them after the dissolution of the injunction, and that the vote of indefinite postponement of the mayor’s resolution to call an election was tantamount to a refusal to consider the petition. The argument is that the commissioners should at least be compelled by mandamus to reoonsider the petitions since the chancellor’s injunction has been dissolved. We think this contention is wholly unsound. We must accept as correct the finding of the trial court that there was in fact an injunction in force and that the city attorney advised the commissioners that they would be in contempt of the chancery court unless they voted against the recall, but it is plain that the chancery court had no jurisdiction of the subject-matter of that litigation. It was merely a political matter not involving any property rights or any matters of public taxation, and the chancery court had no power to interfere either by injunctive process or otherwise. Hester v. Bourland, 80 Ark. 145; Walls v. Brundidge, 109 Ark. 250. Hence the commissioners, notwithstanding the advice of the city attorney, having submitted to the void injunction as one of the reasons for voting against the recall, must be treated as having acted voluntarily. Moreover, the vote of the commissioners, in postponing the resolution to call an election was merely a parliamentary method of refusing or denying the recall and was tantamount to an affirmative vote to that effect. In other words, the cortLmissioners had already voted against the recall, and the vote for indefinite postponement was merely an adherence to that conclusion. Even if there had been compulsion in the original vote, there was none at the time the last vote was taken. The trial court in its finding treated this action of the commissioners as a refusal to call an election. Such was the attitude of the commissioners before the trial court, and that is their attitude now before this court. They state that they have refused, and their effort, 'both below and here, is to justify that refusal. Nothingoould be accomplished therefore by making an order compelling the commissioners to reconsider their former action.

In this view of the case it is unnecessary to discuss other questions presented, for we hold that the order of the court awarding mandamus was erroneous. The judgment will therefore be reversed, and judgment will be entered here dismissing the complaint.

Wood and Humphreys, JJ., dissent.

Humphreys, J.,

(dissenting). It is immaterial whether the Chancery court had jurisdiction to order the commissioners to vote for or against the recall. The effect of the order was the same. The commissioners were advised by the learned city attorney that, unless they carried out the order of the chancery court, they would subject themselves to proceedings in contempt. The commissioners then complied with the order, which cannot be regarded as a voluntary act on their part. When the appeal to this court and the proceedings before the chancery court were dismissed, the restraint upon the commissioners was removed, and not until then. Their former action under duress was wiped out by the dismissal of the case in the chancery court. The commissioners were then free to examine the petitions for recall and to act upon them in the fair, impartial manner contemplated by the law, and should have proceeded to do so. Instead, they indefinitely postponed the action upon the petition, without investigation and consideration. The refusal, therefore, of Miller and Ward to investigate the sufficiency and legality of the petitions,' after all restraints were removed, upon motion of Parker, was arbitrary, and subject to correction: by proceedings in mandamus. For these reasons I dissent from the conclusion reached by my associates.


text:
    Wooldridge v. Gilman.
    Opinion delivered January 18, 1926.
    1. Wills—construction.—The primary rule of construction of a will is to ascertain the intention of the testator, according to the meaning of the words he has used, deduced from a consideration of the whole will and a comparison of its various- clauses in the light of the situation and circumstances which surrounded the testator when the instrument was executed.
    2. Wills—precatory words.—Whether precatory words in a will impose an imperative obligation on legatees, or are but the expression of -a hope or recommendation, the carrying out of which is left to such legatees, must be determined by the language actually used, the context, and the consideration of the will as a whole.
    S. Wills—construction of precatory words.—Where a will bequeathed all of the testator’s bank stock to a legatee with “request” that she never dispose of it but keep it to educate her two children, naming them, without indicating whether the legatee should consume the principal or merely the income, and without defining the extent and character of their education, the word “request” was a mere expression of hope or confidence on the part of the testatrix, and did not create a trust.
    Appeal from Jefferson Chancery Court; John M. EUiott, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Elizabeth Gilman brought this suit in equity against Charles Gilman and William Gilman and the Simmons. National Bank to obtain the construction of a will executed by A. E. Sherrill Lindsay, and prays that she be declared the absolute owner of certain shares of stock in the Simmons National Bank. The body of the will reads as follows:
    “I, Annie El Lindsay of Sherrill, Jefferson County, Arkansas, now being of sound mind and in good physical health, but recognizing the uncertain duration of life, and desiring to make a proper disposition of my wordly effects and estate, do make, publish and declare this instrument as for and to be my last will and testament, hereby revoking all other wills and testaments by me heretofore made.
    “Item 1. I commit my body to the dust and commend my immortal spirit to God who gave it, with firm faith and reliance upon His infinite wisdom, g-oodness and mercy.
    “Item 2. I desire that all my just debts be paid at once, out of my estate, or as soon as possible after my death, avoiding all unnecessary expense, delay or litigation.
    “Item 3. I desire my name to be engraved on the monument of Dr. A. R. Sherrill at Bellwood Cemetery, this to be paid with other expenses before my estate is divided, all expenses to be shared equally by those mentioned as legatees.
    “Item 4. I leave my stock in Consumers’ Ice & Coal Company in connection with war saving stamps owned by me to go to keeping in order my lots in Bell-wood 'Cemetery, and want all to see that flowers are taken there often, and hope that Elizabeth Gilman will do the kindness to see that my wishes are carried out in this respect.
    “Item 6. To Elizabeth Gilman I bequeath my entire stock in the Simmons National Bank, and request that she never dispose of it, but keep to educate her children, Chas, and "William Gilman.
    “Item 7. I also leave to Elizabeth Gilman $1,000, one thousand dollars, of my life insurance in Massachusetts Mutual Insurance Company, to use till she can get dividend from other property left to her, and I request the said Elizabeth Gilman to give her attention to keeping my lots and graves at Bellwood Cemetery in good condition and keep flowers on same.
    “Item 8. To Elizabeth Gilman I leave my property, ‘house and lot’ 611 W. 4th Ave., Pine Bluff, Arkansas, for a home for herself and children, and to always keep it, but, if at any time she desires to dispose of it, to let my sister and family be offered it before trying elsewhere to sell.
    “Item 9. Lots 2, 3, block 5, Sherrill, Ark., were bequeathed to Elizabeth Gilman by my husband, A. R. Sherrill, at his death, subject to my signature, which I now bequeath to her,-to be hers at my death, with all improvements thereon. Deed signed will be found in my safe, at Sherrill, Arkansas.
    “Item 10. To my sister, Sallie Alexander, I give and bequeath my half interest, about 340 acres, in the Sherrill real estate, after it is divided between myself and the heirs of A. R. Sherrill’s brother, Llewellan Sherrill, of McNairy County, State of Tennessee. There be- • ing five children in all in Tennessee and Mississippi.
    “Item 11. Also to my sister, Sallie Alexander, I bequeath $1,000, one thousand dollars, of life insurance after the money borrowed on it has been paid to the Massachusetts Mutual Company. The amount she can use until she gets some returns from farm. land, should there he a. crop to he settled up. I desire all of my debts paid before the real estate is given to Sallie Alexander, and all expenses settled before any of my bequests are carried out.
    “Item 12. To my sister’s seven childreii I bequeath my stock in Gillespie & Bros. $25,000 twenty-five thousand dollars, Veo B., Olivia, John L., James, Albert, Elizabeth and Edwin Alexander, and to them also $8,000 eight thousand dollars, of my life insurance in Massachusetts Mutual, to be divided equally, after my debts are paid, to the above-named children.
    “Item 13. To my nephew, John L. Alexander, I do leave my Porto B-ico property, about 120 acres, to do as he thinks best with. To Albert Alexander I bequeath my Liberty Loan stock at the Simmons National Bank. To Elizabeth Alexander my lots in Forest Park Addition (lots 1, 2, block 3) to dispose of to suit herself, also my diamond earrings I give to Elizabeth Alexander. All my other jewelry I bequeath to Elizabeth Gilman to do as she thinks best with.
    “I appoint my nephew, Veo. B., and brother-in-law, V. O. Alexander, as executors of this will, and request that they carry out my wishes herein stated to the best of their ability.
    “I neglected to state that I bequeath to little Nell Alexander $250 out of life insurance to buy a set of furniture to suit herself. . I request that all will assist in keeping my lots in Bellwood in good repair, and give attention often to fresh flowers on graves.
    “Now this document is'written in a very irregular way and with poor ink and pen, and I hope to copy it, but, should I fail to do so, I know that my sister and all will see that my last wishes are carried out as I have requested herein. Mr. Jo. Nichol, Dr. Orto and many others can swear to my signature.”
    The testatrix died in Jefferson County, Ark., on November 26, 1920, and the will was duly admitted to probate.

      According to the testimony of Elizabeth Gilman, she is forty-three years of age, and has known the testatrix for thirty-nine years. The witness was left an orphan at the age of four years, and was raised by the testatrix. The witness married in 1914, and had two children named Charles and William Gilman. At the time of her marriage the witness lived with the testatrix. Upon her marriage she went to the State of Washington, which was the home of her husband, and lived there until he died. At his death, at the request of the testatrix, the witness returned to Arkansas with her two children and resided with the testatrix until her death. The testatrix was very fond of the witness, and the latter had the care and custody of the home of the former for about three months before she died. On various occasions, the testatrix told the witness that she was going to leave her her stock in the Simmons National Bank. The witness at all times helped the testatrix with her household work while she lived with her.
    The chancellor found that, under item six of the will, Elizabeth Gilman was the absolute owner of the seventy shares of stock in the Simmons National Bank, which the testatrix owned at the time of her death. It was therefore decreed that Elizabeth Gilman was the absolute owner of seventy shares of stock in the Simmons National Bank under the terms of said will, free of any charge or trust whatever.
    To reverse that decree, the defendants have duly prosecuted an appeal to this court,

      Harry T. Wooldridge, for appellant.

      Coleman é Gantt, for appellee.
   Hart, J.,

(after stating the facts). The primary rule of construction in the interpretation of a will is to ascertain the intention of the testator, according to the meaning of the words he has used, deduced from a. consideration of the' whole will and a comparison of its various clauses in the light of the situation and circumstances which surrounded the testator when the instrument was executed. Bloom v. Strauss, 73 Ark. 56; and Colton v. Colton, 127 U. S. 300.

No hard and fast rule can be laid down to determine when precatory words will be construed to create a trust; but the intention is to be gathered in each case from the general purpose and scope of the instrument. Whether precatory words impose an imperative obligation on legatees, or are but the expression of a hope or recommendation, the carrying out of which is left to the discretion of such legatees, must now, according to the weight of authority, be determined by the language actually used, the context, and the consideration of the will as a whole. O'Brien v. M’Carthy (Court of Appls. Dist. of Columbia), 285 Fed. 917; In Re Marti’s Estate (Sup. Ct. of Cal.), 61 Pac. 924; Webb v. Webb, 111 Ark. 54; and Cook v. Worthington, 116 Ark. 328.

Item six of Mrs Lindsay’s will is the one under consideration, and is as follows; “To Elizabeth Gilman I bequeath my entire stock in the 'Simmons National Bank, and request that she never disposes of it, but keep to educate her children, Chas, and William Gilman.”

It is the contention of counsel for the appellants that, under this clause of the will, the stock owned by the testatrix in the Simmons National Bank at the time of her death vested in Elizabeth Gilman charged with a trust enforceable in equity in favor of her minor children, Chas, and William Gilman. In support of his contention, counsel points out that in other clauses of the will both real and personal property are left absolutely to Elizabeth Gilman, and that this shews clearly that the precatory language was intended to be imperative, and to create a trust in favor of the minor children of Elizabeth Gilman. Hence it is contended that the acceptance of the property by Elizabeth Gilman under the will is upon the condition that she will comply with the request of the testatrix with regard to the education of her children, and that she should be held as a trustee for that purpose.

On the other hand, it is contended that when the language of item six is taken in its ordinary and grammatical sense, it carries with it merely an expression of hope or confidence, and does not import a command.

We are of the opinion that the latter construction, when considered in the light of the context of the will and the circumstances surrounding the testatrix, will best carry out her intention. The testatrix had raised Elizabeth Gilman, and was greatly interested in her welfare. After the death of the husband of Elizabeth Gil-man, at the request of the testatrix, she returned with her two children to live with her, and during the last few months of the life of the testatrix she took charge of her household. The testatrix always exhibited affection and interest in Elizabeth Gilman. She made an absolute bequest to Elizabeth Gilman of her entire stock in the Simmons National Bank. It is true that the bequest is coupled with a request that she never dispose of it, but keep it to educate her children, Chas, and William Gilman. Under authorities laid down above, in order that the recommendation or request be held to be imperative and thereby create a trust', it is necessary that the subject and objects should be definite and certain. The clause of the will under consideration does not state with certainty whether or not the legatee should consume the principal or merely the income of the bequest in educating her children. It does not even indicate the character and extent of their education. Hence it will be seen that it is too ambiguous and uncertain as to the objects to be enforced as a trust, and we are of the opinion that there is no obligatory meaning to the word “request.”

In the case at bar the word “request” is employed as a mere expression of hope or confidence on the part of the testatrix that the legatee will use the bank stock in the education of her children, but the extent and character of their education is left wholly to the judgment of the legatee. Therefore, we do not think the language used justifies the conclusion that the testatrix intended to create a trust in favor of Charles and William Gilman.

The result of our views is that the decree of the chancellor was correct, and it will therefore he affirmed.


author: Smith, J.

text:
    Nelson v. Walker.
    Opinion delivered January 18, 1926.
    Counties—limit or allowances.—:Under Amendment 11, prohibiting the county court from making or authorizing any allowance for any purpose whatever in excess of the revenue from all sources for the fiscal year in which the allowance is made, the county court is prohibited from making any allowance for a sum in excess of the year’s revenue, regardless of the character of a demand ‘against the county.
    Appeal from St. Francis Chancery Court; John E. Martineau, Chancellor on exchange;
    reversed in part.

      Norfleet é Norfleet, for appellant.

      G. W. Norton, for appellee. •
   Smith, J.

The question for decision in this case arises out of the following’ facts: The revenues of St. Francis County for the fiscal year 1925 'amounted to $44,500, and the county court allowed claims against the county in that year aggregating $44,475, thus leaving a margin of only $25 of revenue in excess of claims allowed. Other claims totaling about a thousand dollars had been filed for allowance, and the county court was about to make orders allowing these claims in that fiscal year. These claims included such items as $200 for the salary of the county judge for the month of October, certain fees due the sheriff and county clerk, and freight on a car of coal to heat the courthouse. Without enumerating the other items it may be said that the claims were for services for which a salary or fees were allowed by law, or were for items for which the county court had authority to make allowances, but for the fact that to do so would make the total amount of allowances exceed the county’s total revenue.

At the suit of appellee,.a- citizen and taxpayer of that county, the chancery court enjoined the county judge from making any allowances during the fiscal year 1925 in payment of those items, hut declined to enjoin any action the county- judge saw proper to take in regard to the claims, after the end of the -fiscal year 1925. From this decree the county judge has appealed, land the taxpayer has prayed a cross-appeal.

The case of Kirk v. High, 169 Ark. 152, is decisive of the power of the county judge in regard to the allowance of these claims.

That case involved the construction of the portion of Amendment No. 11 which is relevant and controlling here. The amendment was there referred to as Amendment No. 11, because that was the number under which it had been voted on.

The language of the amendment is plain and peremptory. It requires that the fiscal affairs of the counties, cities and incorporated towns shall be conducted on a sound financial basis, and provides that “no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip, warrant or make any allowance in excess of the revenue from all sources for the current fiscal year.”

To enforce this inhibition the amendment provides that the officer who violates its provisions shall be guilty of a misdemeanor and subject to a fine of not less than five hundred dollars nor more than ten thousand dollars, and shall be removed from office.

As was pointed out in the opinion in the case of Kirk v. High, supra, other provisions of the amendment authorized counties to refund their outstanding indebtedness by issuing interest-bearing bonds, and, in this connection, we said: “We think the amendment means just this: That, if a county,.city or town avails itself of the provision authorizing the taking up of its outstanding indebtedness, it shall not thereafter draw warrants upon the treasurer for an amount in excess of its 'annual revenues. It must stay out of debt. It means further, that, if a city, county or town has any outstanding unpaid warrants which it does not take up by issuing bonds as authorized by the amendment, it must not add to its existing indebtedness by issuing more warrants than can be paid out of the revenues of the current year.”

In other words, the amendment leaves nothing to the discretion of the county judge in increasing the county’s outstanding indebtedness. He has no power to do so. It must be conceded that this interpretation of the amendment makes it far-reaching and drastic, but it is so written in the amendment, and we cannot hesitate to declare the effect of its plain and unambiguous language.

It appears, from the facts we have stated, that some of the allowances which the county court was about to make, and would make unless restrained, are for services which officers of the county were required to render, and for which the statute prescribes either a salary or fixed fees. But the amendment contains no exception which would permit allowances to be made to cover them. The character of a demand against a county is unimportant, for the 'amendment provides that the sum total of all demands which a county must pay, without regard to their character, shall not exceed the total revenues of the county. So also with the cities and towns of the State.

If we should hold otherwise, the obvious purpose of the amendment would be defeated. It would only be necessary to first make the allowances for the expenses covering those things with which a county might dispense to the extent of 'all the revenue, or so much thereof as was necessary to pay them, and then make allowances to cover the claims where the compensation is definitely fixed by law. It must be quite obvious that, if a county court can make allowances to cover claims which may be paid for by a county, but which are not essential to the operation of the county’s affairs, and, after doing so, may then make other allowances on the theory that indispensable services have not been paid for, the provision of the amendment that the county’s indebtedness shall not be increased would have no binding effect on the county judge who wished to evade it.

It requires no gift of prophecy to see that, if the plain and mandatory provisions of the amendment are given effect, injustice may. be done persons who are entitled to compensation from the counties of the State, such as officers of the county, witnesses and jurors, etc. But it is the duty of the county .judge to minimize the possibility of this injustice. He must take all these considerations into account before incurring obligations which a county may and should pay, and, in view of the drastic provisions of the amendment, he should allow a margin of safety. He must measure the county’s possible or contingent expenses by the county’s ability to pay, and in doing this prudence would suggest the necessity of being able to take care of possible emergencies, such, for instance, as an unusually expensive criminal trial If he fails to do this, persons who would otherwise be entitled to 'have claims against a county allowed may be deprived of their just compensation.

What we said in the case of Kirk v. High, supra, is no exception to the prohibitions of the amendment.

We there said that the county was not to be deprived of the right to build a courthouse or a jail because it could not pay the entire cost thereof in a single year. We used the following illustration: “For instance, if Lonoke 'County has revenues not exceeding $60,000, and proposes to expend $10,000 a year on a courthouse, then all other expenditures must not exceed $50,000 per year. The sum to be paid in a particular year is ‘the contract or allowance’ for that year, and must be shown in the annual report, which, the amendment requires the counties, cities and towns to make, and this contract or allowance must not, with all other contracts or allowances payable thiat year, be ‘in excess of the revenues from' all sources for the fiscal year in which said contract or allowance is made.” But, subject to this limitation as to payment, we do not think the amendment requires counties having no courthouses or jails to attempt to function without them, and the counties may therefore contract for their construction, provided no obligation is incurred to pay a sum of money exceeding—in addition to other expenditures—the total revenues of the year in which a particular payment is to be made. ’ ’

If a county, in building an edifice like a courthouse, incurs obligations the payment of which is extended over la period of years, the obligation payable each year must be taken into account in estimating the expenditures of the year in which it is payable. The obligation of such contracts cannot be impaired, and the obligation thereof can be enforced only by payment in the order of priority, and the holders of such obligations may require that this be done.

If it be suggested that this interpretation of the power of the county court renders it possible for one administration to make contracts which might deprive a subsequent administration of the power to function in the discharge of the county’s affairs, it may be answered that the county court does not have an unlimited power to contract. And if a county court should attempt to make a contract calling for a payment so large in the discharge thereof as to hamper the future administration of the county’s affairs, that showing, at the proper suit of any taxpayer, would be sufficient to enjoin the making of the contract. It is not to be assumed that any county judge would attempt to do this, but, if so, it is not likely that the entire citizenship of the county would be so indifferent to its plight as to permit this to be done when the showing that such a contract was about to 'be made would suffice to prevent the court from making it.

We are required to interpret the amendment as it is written and to construe the amendment, as was said in Kirk v. High, supra, as a part now of a composite whole, and, when we have done so, we must hold that the county court of St. Francis County is without authority to make allowances for claims of any character incurred in the fiscal year 1925 in excess of the revenues of that year.

The chancery court therefore correctly enjoined the issuance of scrip during the year 1925 to cover these demands against the county, and the restraining order should also have prevented that action being taken after the expiration of that fiscal year to cover expenses of the administration of the county’s affairs during that year.

The decree of the chancery court will therefore be affirmed on the appeal of the county judge, and will be reversed on the cross-appeal of the taxpayer, and remanded with directions to the chancery court to enter a decree in accordance with this opinion.


text:
    Snetzer v. State.
    Opinion delivered January 18, 1926.
    1. Continuance—absence of witness—diligence.—One accused of an assault with intent to rape was not entitled to a continuance for the absence of a witness who was likewise under indictment for participation in the same offense, which was set for trial on the same day, but who had not been subpoenaed as a witness on behalf of accused.
    2. Rape—sufficiency of evidence.—'Evidence held to sustain a conviction of an assault with intent to rape.
    3. Rape—evidence.—In a prosecution for assault with intent to rape, the fact that the prosecutrix immediately after the alleged assault made complaint was admissible, but not the details of the complaint.

      4. Rape—evidence.—In a prosecution for assault with intent to rape, evidence that the prosecutrix had a scratch on her face the day after the alleged assault, and that her side was so badly hurt that she consulted a doctor three or four days later, was competent.
    5. Criminal law—repetition of instructions.—Refusal of a correct instruction was not error where its substance was fully covered by instructions given.
    6. Criminal law—newly discovered evidence.—It was not error to deny a new trial for newly-discovered evidence which tended only to impeach the credibility of a witness.
    Appeal from Jackson 'Circuit Court; Dene PL. Coleman, Judge;
    affirmed.

      Fred M. Pickens, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant and one Wayne Simmons were each indicted for an assault with, intent to rape one Gale Ashley, a female, and at appellant’s trial he was convicted, and has appealed.

The case against appellant and that against Simmons were set for trial on the same day, and that against appellant was first called for trial. Simmons was not present in the court, and appellant filed a motion for continuance on account of the absence of Simmons. In support uf this motion the attorney representing Simmons was called, and he testified that he was present for the purpose of defending Simmons, and did not know why Simmons wias absent, that 'Simmons had advised him that he would be present, and that he had no explanation of his absence. The motion recited what Simmons would testify, and this testimony was material, and would have been corroborative of that of appellant.

It appears that Simmons had not been subpoenaed as a witness. Appellant explains his failure to do this by saying that, inasmuch as Simmons was under indictment for the same offense, he assumed that Simmons would be present when hi's case was called for trial.

The fiacts stated are similar to those recited in the case of Franklin v. State, 149 Ark. 546, in which case we held that the refusal to grant a continuance did not call for the reversal of the judgment. It may be said of the absent witness here, as was said of the absent witness there, that he was not required to attend court except in his own case, and that, having failed to subpoena this witness, the defendant was in no position to complain of his absence. Simmons was called in his own case, and a forfeiture of his appearance bond was taken, and, as no explanation of his absence was offered, the trial judge stated, in overruling the motion for a continuance, that there was no assurance that the presence of Simmons could 'be had at that term or at the next term of court. It was therefore no abuse of discretion to overrule the motion.

It is assigned as error that the testimony is insufficient to support the verdict. Disposing of this assignment of error, it may be said that Gale Ashley, the female alleged to have been assaulted, testified that, at the end of a day’s work at a cafe where she was employed, she had gone to her room in the home of a Mrs. Dague, with whom she boarded, and that about 8 p. m. ¡Mrs. Dague came to her room and stated that there were two boys downstairs who wished to meet her and to take her for a ride in their automobile. Mrs. Dague assured her she had known the boys from childhood, and that they were “nice boys.” The boys referred to were appellant and Simmons, and Miss Ashley went with them for a drive. She testified that, as soon as they drove away, the boys began to take liberties with her, against which she protested, and that she demanded that she be carried home, but this request was refused. Appellant kissed her, and then told her that was not all she was going to do. The oar was driven into some woods, and Simmons seized hold of witness and began to press her shoulders back, and in the scuffle the door of the car was forced open. In unbuttoning his trousers appellant released his hold on witness, and she sprang from the ear. Appellant grabbed at her as she jumped from the car and caught her foot, causing her to fall heavily to the ground, but, after falling, she sprang up and ran down the road, calling all the while for assistance. We think this testimony abundantly sufficient to sustain the charge.

MEss Ashley testified that she ran towards a house where she saw a light. This house was the home of Virgil Hutchinson, who testified that he heard a woman scream, and that when he opened the door Miss Ashley ran in and threw her arms around the shoulders of witness ’ wife and began crying. This witness testified that Miss Ashley was excited and unnerved, and could not talk for some minutes. The witness then stated that “when she (Miss Ashley) got to where she could talk I asked her her troubles, and she beglan to tell us who she was, and what had happened. She said some boys got her out and tried to-.” The witness was here interrupted by the objection of counsel for appellant. The objection was sustained, and in sustaining it the court directed the jury “not to consider what she told the witness.” No error was committed in the admission of the testimony which was admitted. Skaggs v. State, 88 Ark. 62; Jackson v. State, 92 Ark. 71; Pleasant v. State, 15 Ark. 624; Bridger v. State, 122 Ark. 391.

Over the objection of appellant, a witness Avas permitted to testify that she saw Miss Ashley on the day after the alleged assault, and that there was a scratch on Miss Ashley’s face. Miss Ashley was .also permitted to testify that her ¡side was so badly hurt when she was assaulted that she consulted a physician three or four days later. No error was committed in admitting this testimony. McDonald v. State, 160 Ark. 185.

• The refusal of the court to give an instruction numbered 4, requested by appellant, is assigned as error. It reads as follows: “You are instructed that, unless you find from the evidence beyond a reasonable doubt that the defendant committed some act which was the begin-m'np’ of the attempt to have sexual intercourse forcibly with and against the will of the prosecuting witness, then you cannot find the defendant guilty of assault with intent to commit rape.”

This instruction is a correct declaration of the law as was declared by this court in the case of Anderson v. State, 77 Ark. 37. But the refusal of the, court to give it was not prejudicial in this case, for two reasons. First, in an instruction which was given, the court charged the jury that it was essential to find that appellant had assaulted ¡Miss Ashley with the intent to have carnal 'knowledge of her forcibly and against her will; and in another instruction that this intent must have existed “till the end of the assault”; and in another instruction that, when the assault was made, defendant “intended to use whatever force was necessary to overcome the prosecuting witness and have sexual intercourse with her”; and, in another instruction, that it must be found beyond a reasonable doubt that appellant assaulted Miss Ashley, and “that he did so with the intention of ravishing her, and that he intended to use so much force as would be necessary to accomplish that purpose and overcome her .resistance ; ’ ’ and in still another instruction the jury was told that they must find not only that appellant assaulted Miss Ashley, but that he did so with the felonious intent of ravishing her forcibly and against her will. There were altogether six instructions which told the jury that there must have been an assault, and that the assault must have been made with the purpose of overcoming any resistance offered. Now, an assault is not a mere act of preparation, but is the beginning of the attempt. Lockett v. State, 136 Ark. 473; Tyra v. State, 120 Ark. 179; Douglass v. State, 105 Ark. 218; Paul v. State, 99 Ark. 558; Williams v. State, 88 Ark. 91.

These instructions required the jury to find that there' was an assault, and that the assault was made with the intent to have carnal knowledge of Miss Ashley forcibly and against her will, so that the jury was in fact told that there must have been some la-ct “which was the beginning of the-attempt” to have sexual intercourse forcibly and against the will of the prosecuting witness.

No error was committed in refusing to give instruction numbered 4 for the reason, second, (that appellant admitted thiat he had placed his arm around Mjiss Ashley and “was loving her up ’ ’, and that he kissed her and that she kissed him, but appellant testified that this was done with her consent. This, of -course, was a question for the jury, and that fact was submitted under instructions correctly declaring the law, and to which no objections were offered.

It is finally insisted that error was committed in refusing to grant -a new trial on account of newly-discovered evidence. This evidence was to the effect that Miss Ashley had stated that she would get money from appellant before the trial. As this testimony tended only to impeach the credibility of the witness, the court committed no error in refusing to grant a new trial on that account. Morris v. State, 145 Ark. 241.

No error appearing, the judgment is affirmed.