text:
    Burlingham v. Hutchins.
    Opinion delivered November 23, 1931.

      Golden Bloimvt, for appellant.
   Humphreys, J.

This is an appeal from that part of a decree of the chancery court of Faulkner County refusing to foreclose the interest of two minor heirs of Winnie Gr. Hutchins in certain real estate she separately owned and mortgaged on the 9th day of February, 1918, to secure an indebtedness evidenced by a note or bond she owed H. G-. Clialkley, which was due on the 19th day of February, 1923. Louis E. Hutchins, the husband of Winnie Gr. Hutchins, joined in the execution of the note and mortgage. H. Gr. Chalkley duly assigned the note and mortgage to appellant herein, who brought suit on the note and for foreclosure of the mortgage against Louis E. Hutchins and Winnie Gr. Hutchins on the 21st day of April, 1927, within five years after the due date of the note. Louis E. Hutchins entered his. appearance, but Winnie G. Hutchins could not be found, and upon inquiry it was discovered that she died intestate in the month of October, 1918, less than a year after she executed the instruments, leaving two minor children, Bobert Hutch-ins and Avey Hutchins, surviving her. There has never been an administration of her estate. The appellant, on learning* the condition, filed an amendment to his complaint on the 13th day of October, 1928, more than five years after the due date of the note, making the two minors parties defendant, and obtained service upon them by warning order.

Upon the trial of the cause, the court rendered personal judgment against Louis E. Hutchins for the amount of the debt and interest, and decreed a foreclosure and order of sale of his interest in said real estate to apply on the judgment, but ruled that the debt and right to foreclose the minors’ interest in said real estate was barred by the five years’ statute of limitations before this suit was instituted against them.

Appellant contends for a reversal of that part of the decree adverse do him upon two alleged grounds: first, that the amendment to the complaint related back and became a part of the original complaint; second, that the statute of nonclaims applied, under which the debt would not be barred until one year after the appointment of an administrator for the estate of Winnie G. Hutchins, the mother of the minors.

(1) The amendment making the minors parties was clearly a new suit against them, and not a continuation of the original suit. Their mother, from whom they inherited the land, died many year's before the original suit was filed and could not have been made a party thereto; and, she not being a party, the so-called original suit against her could not be revived against her heirs under the guise of an amendment to the original complaint or otherwise. The heirs were not interested in their father’s estate in the property, so could not be made parties on account of his estate therein. There was no connection between the two estates in the property, the father’s being an estate by curtesy and theirs a fee estate in remainder. The estates being independent of each other, the suits attempting to foreclose the separate interests were in the nature of separate and independent suits, although joined, and each was commenced when the complaint against each was filed and summons issued against each. Under the view that the amendment including the minors as parties was tantamount to a new suit against them, it was not brought within five years from the due date of the note, and was barred.

(2) The contention of appellant that the statute of nonclaim, instead of the general statute of limitations, applied is not tenable since the passage of act 260 of the Acts of the General Assembly of 1911 (Crawford & Moses’ Digest § 7408). The statute of nonclaim and rule announced by this court in the case of Mueller v. Light, 92 Ark. 522, 123 S. W. 646, 31 L. R. A. (N S.) 1013, to the effect that the statute of nonclaims was applicable in mortgage foreclosures where the mortgagor died before the debt was barred, was superseded by said act. England v. Spiller, 128 Ark. 31, 103 S. W. 186.

No error appearing, the decree is affirmed.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Hayward v. Rowland.
    Opinion delivered November 23, 1931.

      Duval L. 'Purhins and Shields M. Goodwin, for appellant.

      D. A. Bradham, for appellee.
   Kirby, J.,

(after stating the facts). Section 5 of article 16 of the Constitution provides: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be -taxed higher than another species of property of equal value.”

In Bank of Jonesboro v. Hampton, 92 Ark. 496, 123 S. W. 753, the court, in interpreting this provision, said: “It is true the Constitution provides that all property subject to taxation shall be taxed according to its value, but this is done when the valuation is equalized with other property of the same kind in the county.”

In Doniphan Lbr. Co. v. Cleburne County, 138 Ark. 449, 212 S. W. 308, the court said, in deciding a case of like kind: “Unless the undisputed facts in the case establish that the findings and judgment of the circuit court are erroneous, this court cannot reverse on appeal. The ease falls within the general rule that the findings of the trial court will not be disturbed by this court on appeal where the findings are sustained by sufficient legal evidence. * * * Under the rule thus announced, it is only necessary in the instant case for us to examine the record sufficiently to ascertain whether the findings and judgment of the trial court are sustained by sufficient legal evidence. It goes without saying’ that it was incumbent upon appellant, in attacking the assessments of the several boards, to show by proof that the valuations placed by them upon the several tracts of land were unfair and inequitable when compared with the valuations placed upon other lands of the same kind and character similarly situated. ’ ’

It was incumbent upon the appellant in attacking the assessment to show that the valuations placed upon the several tracts of land were unfair and inequitable when compared with the valuations of other lands of the same kind and character similarly situated; and he failed to do this. Certainly it cannot be said that the circuit court’s finding and judgment in favor of the fairness and reasonableness of the assessment and denial of rélief to appellant was contrary to the undisputed testimony in the ease; and, conceding that it is contrary to the preponderance of the testimony, which we by no means' decide, still it is only necessary that its judgment be supported by substantial testimony, and the record discloses that it is amply sustained by sufficient legal evidence.

The testimony introduced showing the income realized from ownership of the lands and the amount for which the lands were purchased was not intended to establish a different rule for assessment than that prescribed by the Constitution and laws according to its market value, but only as it might tend to show the correct market value at the time. In other words, that the purchase price paid by appellant was not conclusive of the market value of the lands.

We find no preiudieial error in the record, and the judgment must be affirmed. It is so ordered.


author: Mehaffy, J.

text:
    Kansas City Life Insurance Company v. Taylor.
    Opinion delivered November 23, 1931.

      Carmichael Hendricks, for appellant.

      Gillison <$ Gillison, for appellee.
   Mehaffy, J.

D. S. Clark was receiver in the case of Kansas City Life Insurance Company v. Jewel Realty Company, and was also president of the Chicot Trust Company. He was appointed receiver to rent out the land of the Sunnyside plantation, and rented it to Sam Epstein for $5,000, taking Epstein’s note dne December 1, 1930, for the rent of that year, and the note was paid on November 15, before it was due, to Clark, receiver, by a check drawn.on the Chicot Trust Company, and deposited by Clark, as receiver, in said bank. The bank did not open on the 17th of November. It was open on the day the deposit was made and was never open for business thereafter.

The property was rented by Clark before the sale under the foreclosure suit of Kansas City Life Insurance Company v. Jewel Realty Company, and the Kansas City Life Insurance Company became the purchaser.

D. S. Clark, receiver, and the appellant, filed an intervention, claiming that they were entitled to be paid the $5,000 in full; that the appellant is now the owner of the Sunnyside plantation in Chicot County, and that it had been rented in the year 1930 for $5,0Q0. It was alleged that on November 15,1930, Epstein paid the note, and Clark deposited the $5,000 as receiver, and that almost immediately thereafter the Chicot Trust Company closed its doors; that under act 107 of the Acts of 1927 the owner of said check and proceeds is entitled to preference; that the Kansas City Life Insurance Company was the beneficiary of an express trust, and the collection was made for its benefit by the receiver, but the receiver failed to remit the proceeds of said collection; that said funds had a distinctive identity, and that said check given by said Epstein added to the funds and property of the bank to the full extent of said check, and interveners prayed for preference.

An answer to said interveners was filed, denying all the material allegations of the intervention.

The following stipulation was introduced in evidence: “It is agreed and stipulated that this controversy may be tried upon the intervention, the answer thereto and upon the following statements of facts:

“In the fall of 1929 D. S. Clark was appointed receiver in the case of the Kansas City Life Insurance Company v. Jewel Realty Company in connection with a foreclosure of a mortgage of the Kansas City Life Insurance Company given by the Jewel Realty Company, and among the receiver’s duties was the renting of the plantation known as Sunnyside. Said Clark, with the approval of the court, rented the property to Sam Epstein and took Epstein’s note for five thousand and no/100 ($5,000) dollars, due on or before December 1, 1930. That on November 15, 1930, the note being in the bands of D. S. Clark, receiver, Sam Epstein, the maker of the note, at twelve o’clock on said day, gave Ms check to D. S. Clark, as receiver, drawn on the Chicot Trust Company, in the sum of five thousand and no/100 ($5,000) dollars [who] deposited the five thousand and no/100 ($5,000) dollars in said Chicot Trust Company to his account as receiver.
‘ ‘ That the Chicot Trust Company did no business as a banking institution after that day; that it suspended on the 17th day of November for five days, and finally closed on November 24, 1930. That the note belonged to the Kansas City Life Insurance Company, who had become the owner of the plantation by purchase at the commissioner’s sale in April, 1930, but the receiver had never turned the note over to the life insurance company.
“That there Avas never a check issued by the receiver against his account, and he had no chance to apply to court for order of distribution before bank failed. That the Kansas City Life Insurance Company never received anything from receiver on the account of said payment by Epstein to the receiver. That Epstein was on the receiver’s bond, which bond was fixed at the sum of one thousand dollars.
' “The interveners claim a preference and priority on said five thousand dollars ($5,000) under the pleadings and this stipulation, but the baiik commissioner and liquidation agent deny that the Kansas City Life or1 D. S. Clark have any prior claim, and that the claim ought to be allowed only as a common claim in favor of the Kansas City Life Insurance Company.”

There was no other evidence introduced.

A decree was entered denying the claim as a preferred claim, and allowing the $5,000 as a common claim to be paid pro rata out of the assets of the trust company.

The court held that Clark, as receiver, had no interest, and that the diAÚdends should be paid to the appellant. ;

This appeal is prosecuted to reverse said decree,

The only question involved in this case is whether the appellant has a prior claim and should therefore be paid in full. The appellant argues that the priority, if any, is fixed by two principles of law: first, that funds in the hands of a receiver are trust funds, and second, that, by the provisions of act 107 of the Acts of 1927, it is entitled to a preference.

It was alleged that the Kansas City Life Insurance Company was the beneficiary of an express trust. In order to constitute an express trust, there must be somé act on the part of the trustee expressive of an intent to create a trust and to make a designated party trustee. Express trusts are created by the direct and positive acts of the parties manifested by some instrument in writing. Arnold v. Stephens, 173 Ark. 205, 296 S. W. 24; McCoy v. McCoy, 30 Okla. 379, 121 Pac. 176, Ann. Cas. 1913C, 146; Jones v. Byrne, 149 Fed. 457; Perry on Trusts, vol. 1, § 24.

There was no trust created here in any way. The receiver, Clark, deposited the check in the bank, and it was immediately paid in the ordinary way and in the regular course of business. There was nothing done by the parties to create a trust.

Appellant is not entitled to a preference under act 107 of the Acts of 1927. That act provides that all creditors are classified either as secured creditors, prior creditors, or general creditors. There is no claim that appellant was a secured creditor, but it claims to be a prior creditor.

A prior creditor, under act 107 of the Acts of 1927, may be such in several instances. The owner of a special deposit expressly made as such in said bank, evidenced in writing, signed by said bank at the time thereof, and which it was not permitted to use in the course .of its regular business, would be a prior creditor. This was not a special deposit in any sense, and was not evidenced by any writing signed by the bank.

We have already shown that it is not the beneficiary of an express trust. It may be a prior creditor where it is the owner of the proceeds of a collection made by the bank and not remitted by it. No collection was made by the bank.

What is meant in the Acts of 1927 by ‘ ‘ owner of the proceeds of collection” is a collection made by the bank from some other person, where the bank receives drafts, checks, notes, or other obligations for collection and makes the collection and does not remit it to the owner.

A bank receiving a draft for collection merely is the agent of the remitter, drawer, or forwarding bank and takes no title to the paper or proceeds when collected, but holds same in trust for remitting bank. Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557.

There is no evidence in this case that a trust was created. The burden of proving the existence of a trust rests on the person asserting it. Quattlebaum v. Hendrick, 179 Ark. 494, 16 S. W. (2d) 591.

This court said: “The deposit of the funds of the improvement districts, taxes collected on the benefits assessed, although they were trust funds so far as the official collecting and depositing them is concerned, and known by the bank to be such, did not become special deposits in the absence of the written agreement by the bank making them such at the time of their deposit, and the deposit was a general one under the law, the owner or creditor standing upon the same footing as other general creditors entitled to no preference or priority of payment.” Taylor v. Street Imp. Dist. No. 343, 183 Ark. 524, 37 S. W. (2d) 84.

A deposit of public funds in a bank constitutes a general deposit as well as the relationship of a debtor and creditor between the bank and the beneficial depositor. Taylor v. Whaley, 183 Ark. 598, 37 S. W. (2d) 702.

The deposit made by Clark, the receiver, was a general deposit. No trust was created, and the appellant was not entitled to any preference.

The decree is affirmed.


author: Mehaery, J.

text:
    Howell v. Thew Shovel Company.
    Opinion delivered November 23, 1931.

      A. F. Barham, James G. Goston and J. T. Goston, for appellant.

      Sam Goston and G. B. Segraves, for appellee.
   Mehaery, J.

This action was begun by the Thew Shovel Company against J. M. Howell to recover certain machinery purchased by Howell from the Thew Shovel Company. The purchase price was $11,855. Howell had defaulted in payments, and there was, at the time suit was begun, a balance due of $5,177. The contract under which the machinery was purchased contained the following :

“It is agreed that title to said property shall not vest in purchaser or in any other person, firm or corporation until paid in full. If cash payment is not made as agreed, or if there be default at any time in any payment or other condition of this agreement, the full amount unpaid hereunder, including any notes given, shall become due and payable forthwith. In default of payment or other condition herein expressed, said property may be removed by the manufacturer or its agents without legal process.”'

There was a judgment for appellee for the possession of the machinery sued for, and the court found that there was still due the appellee on the purchase price of said machinery the principal sum of $5,177, with accrued interest, making a total of $5,911.47.

The judgment provided that there should be deducted from this amount $1,162 damages allowed Howell on account of appellee having wrongfully used the machinery while in its possession, the damages being the difference between $7,680, the value of the machine when delivered to appellee, less the depreciated value of $6,518.

There was no conflict in the evidence about the sales contract. The undisputed facts are that the appellant purchased this machinery from the appellee for the price above named; that he had not paid all the purchase price, and that the balance of the purchase price was due. It would therefore serve no useful purpose to set out the testimony as to the contract, the only conflict in the evidence being on the question as to a tender of payment. Attention will be called to this evidence when we consider the question of offer of payment.

It is first contended by appellant that the instrument signed by Howell is in law a chattel mortgage.

In a case recently decided by this court, it was said:

“The bill of sale executed by the lumber company to appellant is on its face an absolute conveyance, but tbe evidence tended to show that it was really intended as security for the money advanced by appellant for the payment of the price of the logs. This fact is mentioned for the reason that counsel for appellee treated it as of primary importance in sustaining the judgment of the court. Their argument in support of the judgment is that the bill of sale was nothing more nor less than a chattel mortgage and that it was void against third parties because not filed or recorded. The answer tp this contention is that the instrument was not in form of a mortgage, even though so intended by the parties, and is not controlled by registration laws governing mortgages.” Cate-LaNieve Co. v. Plant, 172 Ark. 82, 287 S. W. 750.

In the case at bar the contract was not in the form of a mortgage, but was an ordinary sales contract in which title to the property sold was retained by the seller. This court has repeatedly held that the purchaser of property under a conditional sales contract has such an interest in the property that he- may sell or mortgage it, but it is also well settled by the decisions of this court that the seller may retake the property, not only from the original purchaser, but from any person to whom the original purchaser may have sold it or mortgaged it.

Appellant calls attention to Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027. In that case, however, the court was not considering the question that we have here, but the question there was whether a deed absolute on its face was intended as a mortgage. There is no such question involved in the case at bar.

Many decisions of this court might be cited holding that, under a conditional sales contract, where the seller retained title to the property sold, if there was a default in payment, the seller had the right to retake the property.

It has been repeatedly held that he had two remedies : that he might treat the sale as absolute and sue for the balance of the purchase price, or bring suit for the possession of the property. Where property is purchased with the agreement that the title remains in the seller until the purchase price is paid, a subsequent purchaser, though without notice of such reservation, acquires no title as against the original vendor, and such reservation may rest wholly in parol. Home Fire Ins. Co. v. Wray, 177 Ark. 455, 6 S. W. (2d) 546; Meyer v. Equitable Credit Co., 174 Ark. 575, 297 S. W. 846; McGraw v. Calhoun, 179 Ark. 328, 15 S. W. (2d) 409; Laird v. Byrd, 177 Ark. 1114, 9 S. W. (2d) 571; S. E. Lux, Jr., Mercantile Co. v. Jones, 177 Ark. 342, 6 S. W. (2d) 302.

Appellant’s next contention is that, after the machine was taken from Howell and delivered to the appellee, the legal status of the appellee was that of a mortgagee in possession. What we have already said answers this contention.

The instrument involved in this case is not a mortgage, and it becomes unnecessary to refer to or discuss the authorities cited under this contention. This also is true of the next contention of appellant, that a mortgage in possession is liable for the usable value of the property. In the instant case the title was at all times in the ap-' pellee, and, after default in payment, it had a right to retake the property, and, while it had it in its possession rightfully, being the owner, it is not liable for the usable value while the property was so held.

The next contention of appellant is that the allowance of the court and finding of the jury totaled an amount against appellant of $12,800. We do not agree with appellant in this contention. The court found in favor of the appellee for the possession of the property; found that appellee was the owner, and, prior to the statute, this would have been the end of the controversy.

Appellee could have kept the property and would not have had to surrender it, even though the appellant had offered to pay the entire amount due.

Section 8654a of Crawford & Moses’ Digest, however, provides, among other things, that the judgment shall be rendered for the property or the balance due thereon, and the defendant may pay the judgment for the balance due and costs within ten days and satisfy the judgment and retain the property.

Under this section, the appellant could, at any time, have paid the balance due on the property, and he would have been entitled to the possession, but he does not claim that he ever offered to pay the balance due within ten days after the judgment.

His contention is that some person for him offered to pay the balance due after the property had been taken in the replevin suit before the trial.

This contention is based on the evidence of E. H. Polk, who testified that he had an agreement with Howell to pay what he owed on the shovel; that Howell said it was a little less than $5,500, and that he, Polk, agreed to pay it for him. He testified that he went to Memphis prepared to pay what Howell owed, and that he offered it to Mr. Moore, and he refused it. He said he was going to pay the appellee and hold title to the machine until he got his money, and that he offered to pay whatever Howell owed, and that they never did tell him what it was.

This evidence is the only evidence relied on by appellant to show any offer of payment, and it was made, not to the appellee, but to Mr. Moore of Memphis. Conceding that Mr. Moore had a right to accept the pay after the replevin suit had been brought, still Polk’s testimony was contradicted, and this was a question of fact decided by the trial court.

Polk, however, does not claim to have offered any specific amount. Evidently he intended to offer what Howell told him was due, if in fact he, made any offer

at all, which, as we have already said, was denied by the witnesses for appellee.

The court properly found the amount due appellee at the time of the judgment was the principal sum with interest. This could have been paid by appellant at any time under the judgment of the-court, and he would have been entitled to the posession of the property, but he never offered to pay it. If he did not intend to pay the balance due and take the machinery, then it was immaterial whether he was charged with interest or not, because the taking and keeping of the property by appellee canceled the debt, but the amount must not be greater than the balance due because the purchaser has the right to pay the balance due and costs within ten days and keep the property. As we have already said, the seller, where he retains title to the property sold, may elect to malee the sale absolute and sue for the balance of the purchase price, or he may bring' suit for the possession of the property.

For a discussion of the law as to conditional sales and rights of the parties, see Beene Motor Co. v. Dison, 180 Ark. 1064, 23 S. W. (2d) 971; Hardin v. Marshall, 176 Ark. 977, 5 S. W. (2d) 325; Wright Motor Co. v. Shaw, 171 Ark. 935, 287 S. W. 177; Natl. Bank of Ark. v. Interstate Packing Co., 175 Ark. 341, 299 S. W. 34; Meyer v. Equitable Credit Co., 174 Ark. 575, 297 S. W. 846; Clark v. Hagan, 183 Ark. 226, 35 S. W. 585; Trice v. People’s Loan & Investment Co., 173 Ark. 1160, 293 S. W. 1037; Passwater Chevrolet Co. v. Whitten, 178 Ark. 136, 9 S. W. (2d) 1057; Commercial Investment Trust v. Foreman, 178 Ark. 695, 10 S. W. (2d) 897; Brunswick-Balke-Collender Co. v. Culbertson, 178 Ark. 957, 12 S. W. (2d) 903.

We find no error, and the judgment is affirmed.


author: McHaney, J.

text:
    First National Bank of Paris v. Holzman.
    Opinion delivered November 23, 1931.

      Evans $ Evans, for appellant.
   McHaney, J.

On December 7, 1929, appellee Holzman, as principal, with the other appellees as sureties, executed and delivered their negotiable promissory note for the sum of $400 to the American Bank & Trust Company of Paris, Arkansas, hereinafter called the trust company, due and payable October 7, 1930, with interest from maturity at 10 per cent, per annum. On March 24, 1930, prior to maturity, appellant, who had $18,000 of county funds on deposit with the trust company, purchased said note and others of the value of $18,000 from the trust company, thereby canceling the amount of its deposit on the books of the trust company. At the same time appellant loaned the trust company $10,000, taking its note secured by bills receivable of the trust company. On April 19,1930, the trust company was found to be insolvent, and was placed in the hands of the bank commissioner for liquidation. On April 28, 1930, appellee Holzman was notified by appellant that it held his note as owner thereof. When the note became due payment was demanded and refused, and this suit followed. Holzman admitted execution of the note, but defended on the ground that at the time of its purchase by appellant, the trust company was insolvent, known to be so by appellant, and that he was a depositor in the trust company with the right of offset against said note to the extent of his deposit; that he did not owe the trust company any other note. A trial to a jury resulted in a verdict and judgment in appellant’s favor for the amount of the note with interest less a deposit of $249.52, which Holzman had in the bank at the time it was placed in the hands of the Bank Commissioner. From this judgment allowing the deposit of Holzman as' an offset against the note this appeal is prosecuted.

We think the trial court erred in refusing to direct a verdict in appellant’s favor for the full amount of the note and interest, as requested by it at the conclusion of the testimony. While it is true that the trust company was probably insolvent at that time, there is no substantial proof that appellant knew that it was insolvent. On the contrary, the undisputed proof shows that appellant investigated the affairs of the trust company and had practically agreed to take it over or purchase it, which proposition was submitted to the comptroller of the currency, who advised against it, and the deal did not go through. It is also true, as above stated, that at the time the note in question was acquired with others covering its deposit of county funds with the trust company, it loaned the trust company $10,000 additional, on collateral to bring up its cash reserve. Whether the trust company was insolvent at that time or not, it was not shown to be so to the knowledge of appellant, its officers and agents, within the meaning of § 717, Crawrford & Moses’ Digest, prescribing when a bank shall be deemed to be insolvent. This section provides five different grounds, the existence of any one of which determines its insolvency, and there is no proof in this case that any one of these grounds existed on that date, March 24, 1930, or that appellant knew" that it was insolvent within the meaning of said section. On the contrary, it appears that the officers of appellant believed it to he solvent, and that it would he able to continue its business. Appellant was therefore a holder in due course of the note sued on. Under the Negotiable Instruments Law, § 7818, Crawford & Moses’ Digest, a holder in due course of business is defined as follows: “ A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue and without notice that it had previously been dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

The note sued upon is complete and regular upon its face. Appellant purchased it before maturity, in good faith and for value, and without notice of any infirmity in the instrument or defect in the title of the- trust company. In fact, said note had not been previously dishonored. It was taken in good faith and for value, and there was no infirmity in the instrument or defect in the title of the trust company. Appellant did not know that Holzman was a depositor in the bank at the time it acquired his note, and it would make no difference under the circumstances in this case if it had known such to be the fact. The learned trial court instructed the jury that if the trust company was insolvent at the time it sold the note to appellant and was known so to be by appellant and Holzman had a deposit with the trust company to the knowledge of appellant, they should find for appellant for the difference between the amount of the note and the deposit. Conceding, but not deciding that such is a correct declaration, as we have already shown, there is no evidence to support it.

Moreover, as shown by the testimony taken on the supplemental motion for a new trial, it appears to be the undisputed fact that Holzman had on deposit in the trust company on March 24, 1930, only the sum of $6.42 instead of $249.52, and that the trust company held his additional note on which he appeared as joint maker with two others in the sum of $2,907.36, which had been credited by the liquidating agent with the amount of his deposit appearing on the books of the bank when it closed its doors in the sum of $249.52. Holzman admitted that he signed this latter note, but stated that he did not owe it. He stated only-a conclusion in this regard, without testifying to any facts which would tend to show that he did not owe it.

It follows that the request for a directed verdict in appellant’s favor should have been given, and, as the case appears to have been fully developed, the cause will be reversed and judgment will be entered here for the full amount of the note and interest against the appellees.


text:
    Republic Mining & Manufacturing Company v. May.
    Opinion delivered November 23, 1931.

      J. 8. Utley and Wm. T. Hammock, for appellant.

      R. D. Lee, Barber $ Henry and Troy W. Lewis, for appellee.
   McHaney, J.

Appellee brought this action against J. M. McNeill, Dr. E. A. Buckley, and appellant, to recover his fees for professional services rendered said MeNeill from the 25th day of November, 1925, to July 26, 1929, at the request of Dr. Buckley, win is the chief surgeon of appellant’s hospital at Bauxite, Arkansas. McNeill was an employee of appellant and had received a severe injury to his right leg in the course of the performance of his duties as such employee and had been unsuccessfully treated at appellant’s hospital by Dr. Buckley. Appellee alleged that Dr. Buckley, acting as agent for appellant, brought McNeill to his office, employed him to treat McNeill for said injury, and agreed that appellant would pay him a reasonable sum. for his services; that he accepted such employment, began treating McNeill and that his fees for such services were of the reasonable value of $3 per treatment for a total of 340 treatments or $1,020, for which amount he prayed judgment.

McNeill did not answer, and judgment was taken against him by default. Dr. Buckley and appellant answered separately, denying all the allegations of the complaint. A trial to a jury resulted in a verdict and judgment against appellant alone for the sum sued for, $1,020.

For a reversal of the case it is first urged that the verdict is contrary to the evidence. In determining this question, we must view the. evidence in the light most favorable to appellee, and, if there is any substantial evidence to support the verdict, this court will not set it aside on this account. Considering the evidence in this way, the following facts are established: In 1919 Mc-Neill received an injury to his leg which tore oft the skin and flesh from the anide to the knee, exposing both bones. He was taken to appellant’s hospital in Bauxite where his injuries were treated with indifferent success to November 25,1925. He was not confined in the hospital after December, 1919, but continued to work for appellant, and made frequent trips to the hospital for treatments. In 1922 he made a settlement with appellant for $1,250, but stated that a part of the consideration was that appellant would continue to treat his leg, which it thereafter did, in accordance with the superintendent’s oral agreement at the time he signed the release. Treatments were continued at the hospital until November 25, 1925, when Dr. Buckley brought him to Dr. Carruthers in Little Bock, who examined the leg, advised that Dr. May be consulted, and that they all went to see Dr. May, who advised them he could cure the leg with violet ray treatments, but it would take a long time. Dr. Buckley agreed that appellant would pay any reasonable charges, and that appellee should send appellant his bill when a cure was effected. Treatments began at once and continued to September, 1929', during which time 340 treatments were given. During all this time McNeill was in appellant’s employ, asked for and received permission from appellant to come to Little Bock to Dr. May for all these treatments without loss of time or salary deduction. For a time such trips were made daily and later twice a week. The officers of appellant knew he was taking the treatments and told him to go ahead and take them. No other treatments were given by Dr. Buckley at the hospital after he took him to Dr. May. Appellant paid Dr. Carruthers for the examination he made without question. We think these facts are sufficient to establish the fact that appellee was emplojmd by Dr. Buckley with the knowledge and consent of the executive officers of appellant, and that, if he did not have the express authority as an agent of appellant, his act in doing so was ratified by it.

It is true that appellant’s witnesses denied that they had authorized the employment of appellee, hut they admitted that they knew that McNeill was taking these treatments, and they testified that they authorized Dr. Buckley to take him to' Little Bock to consult a specialist. In addition to this, McNeill said that he talked to the superintendent the next day after his first treatment, and that the superintendent asked him if he thought Dr. May could cure him, and that he told the superintendent he thought he could, and that the superintendent told him it would be all right and to go ahead. There are other facts and circumstances that might be stated, but this, we think, is sufficient to take the case to the jury.

It is next said that appellee should be limited in Ms recovery to the sum of $500, because that is the amount for wMch he sent bill to appellant after effecting* a cure on McNeill. But the proof shows that appellee sent that bill in that amount to effect an immediate settlement; that he informed it in a separate letter that his bill was really about $1,100, but that for immediate payment he would accept $500. Appellee stated that his usual charge for treatments of this kind was $5 each, but that, because it took so long and so many of them, he reduced the charge to $3- per treatment. Although appellee is contradicted to some extent by his bill and by letters, we think it was a question for the jury to determine, and, having determined it in appellee’s favor, this court will not disturb it for lack of sufficient evidence to support it.

It is finally insisted that the court erred in giving instruction No. 2 at appellee’s request over its objection. This instruction told the jury that, if they should find that Dr. Buckley was not authorized to employ appellee, but that he did so without authority from appellant, still, if they found by a preponderance of the evidence that Dr. Buckley did employ appellee and that appellant later ratified the employment, the verdict should be for appellee. No specific objection was made to this instruction, but it is now argued that the court should have instructed the jury as to what constitutes ratification. The instruction was not inherently wrong, but was a correct declaration; and, if appellant desired the court to instruct on what constituted ratification, it should have requested an instruction in that regard, or at least made a specific objection embodying the argument now made. We find no error, and the judgment is accordingly affirmed.


author: Butler, J.

text:
    Missouri Pacific Railroad Company v. Trotter.
    Opinion delivered November 23, 1931.

      Thos. B. Pryor and II. L. Ponder, for appellant.

      John E. Miller and G. E. Tingling, for appellee.
   Butler, J.

Zack Trotter, the appellee, was injured between six and seven o’clock on the 17th day of December, 1930, at the Kennison crossing about one-half mile north of the depot of the appellant company in the town of Judsonia, by the operation of one of appellant’s trains.

He brought suit to recover for his injuries and alleged that these were the result of the negligence of defendant’s servants, in failing to give the statutory signals of the train’s approach, and in failing to keep an efficient lookout, which, if kept, would have disclosed Ms peril in time to avoid injuring him.

At the close of the testimony adduced at the trial, appellant moved the court for a directed verdict on the theory that the undisputed evidence failed to establist any negligence on its part in the operation of its-train and .that it did establish negligence on the part of the appellee. This motion was overruled and the action of the court in failing to direct a- verdict in favor of the appellant is the principal assignment of error urged on this appeal. The other errors assigned will be disposed of in our discussion of the principal assignments.

Statutory signals. The engineer and fireman testified that the whistle was blown for each crossing and the bell continuously rung for more than 80 rods before the Kennison crossing was reached. Their testimony is corroborated by that of a section hand who lived in Judsonia near the crossing and who testified that at 6:45 p. m., the time when the passenger train was due, he was eating supper, and heard the whistle blown for the crossings south of the depot and also the blast usually given for the depot; that he heard the whistle sounded again north of the depot before it reached the Kennison crossing and heard the bell continuously ringing from about the point of the depot on north to the crossing. The section foreman testified in effect that he met the appellee just before he was injured; and about then that he heard the whistle blown and the bell rung- as the train approached Judsonia, but that he paid no further attention as to whether or not these signals were given for the Kennison crossing.

All of this testimony is opposed by that only of the appellee, whu stated that the whistle was not blown or the bell rung, and he gave as a reason for making this statement that, if the signals were made, he did not hear them. But he did not see the light from the locomotive as he approached the crossing or when he stepped upon it, although the track and right-of-way were in the full glare of a brilliant light. He did not see the light, but it was there. Therefore, his statement that he did not hear the whistle or' the bell is entitled to no weight, for it is quite obvious that he was oblivious to his situation, both as to sight and hearing. In no case that has been brought to our attention has evidence so slight and unsubstantial been held to be of-probative value sufficient to contradict the direct testimony of the operatives, corroborated by the testimony of- other witnesses. We are therefore of the opinion that the court erred in giving instructions 2, 3 and 6 by which that issue was submitted to the jury.

Negligence of appellee. The appellant requested the following declaration of law: “The jury are instructed that, if you find from the evidence that the plaintiff failed to look and listen before going upon the crossing of the defendant company, or to take due regard for his own safety, and that his own negligence and carelessness contributed to his injury, then he would not be entitled to recovery, and your verdict should be for the defendant. ’ ’

It must be conceded that the undisputed facts and the appellee’s own testimony convict him of negligence. The injury occurred after nightfall, and as appellant’s train approached Judsonia- its headlight was burning. This cast a brilliant light down the track for a long distance ahead, its brightest point being about 700 feet ahead of the locomotive and at that plac e illuminated the track and entire right-of-way with a broad beam of light approximately 100 feet wide. Kennison crossing is 900 feet north of the depot and the track from at least 300 feet south of the depot to the crossing was straight and it and the right-of-way free from obstructions. Therefore the plaintiff had an unobstructed view of the oncoming train at any time after he had gotten on the right-of-way until it reached the crossing, had he looked, and there was nothing to distract his attention or excuse his failure to look. He admitted he walked upon the track without looking- or listening for the approach of the train, with his vision obscured by a sack which he was carrying upon his shoulder, and that he failed to observe the lig-ht of the approaching train until it was so near that he could not spring aside and save himself from injury. But, since the passage of act No. 156 of the Acts of 1919, (§ 8575 of Crawford & Moses’ Digest), contributory negligence will not bar a recovery unless such negligence is equal or greater than that of the employees of the railway company. St. L. S. F. R. Co. v. Horn, 168 Ark. 191, 269 S. W. 576; Gregory v. Mo. Pac. Ry. Co., 168 Ark. 469, 270 S. W. 621; Adler v. St. L. S. W. Ry. Co., 171 Ark. 419, 294 S. W. 729. The court was therefore correct in its refusal to give the instruction requested.

Failure to keep an efficient lookout. The engineer and fireman testified that they were keeping a constant lookout at the time of the accident, and there is no direct testimony to dispute this. The appellant insists that because of this the court erred in submitting to the jury, by instruction No. 7, the question of whether or not such lookout was kept.

It is true that this was all the direct testimony on that question, and it should not be arbitrarily disregarded by the court or jury, but it was not all of the evidence in the case. As before stated, the appellee was negligent in not seeing the approaching train. The reason that he did not see it was because he did not look. The fireman and engineer testified that they did not see the appellee as he approached the railroad track, while he was upon it, or at any other time as the train approached and passed Kennison crossing, and they did not know of the injury until the following morning.

As a general rule, where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted and there are no circumstances shown from which an inference against the fact testified by the witness can be drawn, that testimony may not be arbitrarily rejected, and the fact will be taken as established. But there are exceptions to this rule: Where the witness is interested in the result of the suit, or where facts are shown which might bias his testimony, or from which an inference may be drawn unfavorable to- his testimony or against the fact testified to by him, then such fact can not be said to be undisputed and a case arises for determination. by a jury. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764; Mutual Life Ins. Co. v. Raymond, 176 Ark. 879, 4 S. W. (2d) 536; Casteel v. Yantis-Harper, 183 Ark. 475, 36 S. W. (2d) 406.

The same circumstances however which convict the appellee of negligence, dispute the testimony of the trainmen and raise and support an inference against it, which made an issue of fact for the jury.

Negligence of appellee compared with that of appellant. As we have seen, the undisputed proof in the case establishes the negligence of the appellee, and the jury found that there was negligence on the part of the appellant in the operation of its train, and by its verdict has said that such negligence was greater in degree than . that of the appellee. In the case of St. L. S. F. R. Co. v. McClinton, 178 Ark. 73, 9 S. W. (2d) 1060, the court held as a matter of law that in any reasonable view of the testimony the negligence of the appellee contributing to his injury was equal in degree to that of the railway company. In that case there was evidence tending to show that the railway company failed to keep an efficient lookout. The appellee was not at the place of his employment when injured, but he was hurt while climbing between two cars. The court said: “No practical lookout which a train crew could maintain would suffice to prevent one from climbing between cars, and the undisputed testimony shows that no member of the train crew saw appellee as he went between the cars, nor is there any testimony or inference therefrom which would support the finding that the railroad company could have done anything which would have averted appellee’s injury.” Appellee was hurt by the movement of cars while between two which were being switched on the side tracks. The court further said: “Appellee, had he looked, must have known that all the platforms were up, which fact was a warning that switching might be done, and he must necessarily have known there was peril in climbing' between cars which might be moved. There is a presumption of negligence arising out of the fact that appellee was injured by the operation of trains, but the undisputed testimony is such that it must necessarily appear that appellee’s negligence was greater than that of the operatives of the train, and this being true, a recovery is not authorized by § 8575 of Crawford & Moses’ Digest.”

In Jemell v. St. L. S. W. Ry. Co., 178 Ark. 578, 11 S. W. (2d) 449, the court held that the contributory negligence of the plaintiff was greater than that of the crew operating* the train which injured him. There the undisputed facts were that the fireman saw the plaintiff approach the crossing and then back down the grade before the accident occurred, and the court held that under the circumstances the fireman was justified in believing that the plaintiff would not attempt to go upon the public crossing until after the train had passed, and therefore there was no negligence shown on the part o'f the defendant in failing to stop or check the approaching train. It was admitted by the plaintiff that he did not look for the approach of the train, that he could have seen it if he had looked; and, as the facts showed that he could have stopped in time to avoid the accident he was guilty of negligence. Since there was no negligence shown on the part of the defendant, the negligence of the plaintiff was greater than that of the defendant.

In the instant case, however, a different state of facts is presented. The approach on the right-of-way at the crossing was fifty feet on either side of the center of the track; the train was approaching at the rate of 60 miles an hour or 88 feet per second, and the appellee was on the track when he was injured. Therefore, it is reasonable to presume that he was on the right-of-way and approaching the track as the locomotive was passing the depot, and that he could have been seen by the operatives of the train. The train was traveling through a village at a high rate of speed, which made it all the more important for the engineer and fireman to be vigilant in order to avoid injuring any one who might go upon the tracks, and the jury might have believed that, with the track and right-of-way brilliantly lighted, had they been exercising an efficient lookout, they would have seen and appreciated the danger of appellee in time to prevent his injury. As it was, he almost escaped, and the engineer by slackening the speed of the train but very slightly might have avoided the injury.

In Davis v. Scott, 151 Ark. 34, 235 S. W. 407, the plaintiff’s intestate was killed by the operation of a train, the alleged negligence on the part of the operatives of the train being that it was operated at an unusual rate ■of speed, that the signals were not given as required by law, that no lookout was kept and no ordinary care taken to prevent the injury after the discovery of the perilous situation. It was shown and the court found as a matter of law that the lookout was kept, and no other negligence was- proved except it was held to be a question for the jury as to whether or not the rate of speed at which the train was traveling was negligence which was the proximate cause of the killing. It was proved by the undisputed testimony that the deceased was entirely deaf, but had not entirely lost his powers of speech. lie was thirty-five years of age, strong, alert and quick-minded; that he saw the train approaching and attempted to cross the track at a crossing in front of the train and was killed by the locomotive. The court held that the deceased was negligent as a matter of law which negligence directly contributed to his injury. The testimony as to the rate •of speed at which the train was traveling was conflicting, the engineer testifying that it was running at the rate of about 25 miles an hour, and the testimony adduced on the part of the plaintiff tending to show that it was traveling at a much higher rate of speed — about thirty-five miles an hour. In discussing this testimony and the relative conduct of the engineer and the deceased, the court said: “If he (deceased) had had only a moment more, he would have crossed in safety, and this extra time might have been afforded by an attempt on the part of the engineer to stop the train at a lower rate of speed than that which was being maintained at the time. * * *

“While the fact was undisputed that deceased was guilty of contributory negligence, the jury might under the circumstances of the case have found that this negligence was of a lesser degree than that of those operating the train.”

In the instant case the negligence of the appellee was no' more flagrant than that of the deceased in the case of Davis v. Scott, supra. We think the facts are sufficient to justify the inference that the negligence of the appellant was equally as great here as it was in that case, and we are not warranted in holding as a matter of law that the degree of negligence of appellee equaled that of appellant, hut are of the opinion that this was a question for the jury which was properly submitted in the instruction given by the court. Huff v. Mo. Pac. Ry. Co., supra; Mo. Pac. Ry. Co. v. Rogers, ante p. 725.

As we have seen, the court erred in submitting to the jury the question of appellant’s negligence in failing to give the statutory signals. By submitting that issue the court indicated to the jury that there was evidence tending to establish negligence on the part of the appellant in that particular. What effect this had upon the jury in comparing the negligence of the appellee with that of the appellant, we are unable to say. The jury might have found that the negligence of the appellant in failing to discover the peril of the appellee was greater than that of the appellee in going heedlessly upon the track, and again it might have found that this negligence was not equal to that of appellee, but that appellant’s negligence in that regard, coupled with the failure to blow the whistle and sound the bell, made its negligence greater than that of the appellee and warranted a recovery. The.error indicated was prejudicial to the appellant, and for this error the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


author: Mehaeey, J. Hart, C. J.,

text:
    Moss v. Moose.
    Opinion delivered November 9, 1931.

      Busbee, Pugh, & Harrison, for appellant.

      W. P. Strait, for appellee.
   Mehaeey, J.

Mabel Kissire, 12 years of age, was struck by an automobile driven by Eugene Coxsey on December 3, 1928, in Morrilton, Arkansas. On December 14, Mrs. N. A. Kissire, mother of the child, was appointed guardian and curator of the person and estate of Mabel Kissire. On the same day a petition was filed by the guardian in the probate court for authority to settle the claim of the minor for the injuries received as a result of being struck by the automobile.

The court, without hearing any evidence, but taking the statements of the attorney for the insurance company and the g'uardian, made an order authorizing the guardian, to settle the claim for damages for the sum of $200.

The claim was thereupon settled by the guardian, and she executed a release as guardian and in her own right as mother. Mabel Kissire, a minor, was at the time when the petition was filed and the order made, in the hospital, seriously injured.

’ The petition of the guardian for authority to settle the claim and the order of the court were prepared in Little Rock by attorneys for the insurance company. The father and mother of Mabel Kissire were not living together at the time, were divorced, and the mother had custody of the child. The father objected to the settlement and refused to approve it.

The attorney for the insurance company and Mrs. Kissire went to W. P. Strait’s office, an attorney at Morrilton, and he advised against the settlement at that time. Notwithstanding the advice of Mr. Strait and the objection of the father, the guardian and Mr. Wright, attorney for the insurance company, went to the probate court and represented to the court that the girl was not injured much and would soon be well. Mr. Wright presented the matter of settlement to the probate judge.

No proof was taken and the probate judge knew nothing of the child’s condition, and it was represented to him 'by the insurance company’s attorney that the injuries were not serious. The probate judge said he did not think he read the petition, and made the order without hearing any evidence, but relying' on the statement of the attorney that the child’s injuries were not serious.

After this Eugene Coxsey died, and A. J. Moss was appointed administrator of his estate.

J. S. Moose was appointed curator of the estate of Mabel Kissire, and on November 2, 1929, filed a petition in the probate court asking that the order of settlement previously entered be set aside. The petition alleged that Mabel Kissire was seriously and permanently injured on December 3,1928, by the negligence of Eugene Coxsey in running his automobile upon, over and against her, and that, as a result of this, she, for a long period bf time, experienced intense physical pain and mental anguish; that one of her limbs were severely crushed and broken, that she was otherwise injured and wounded, and that she is permanently crippled; that said Coxsey carried casualty insurance in the sum of $5,000.

The petition alleged that 11 days after her injuries, when she was still in the hospital and when large expenses were being incurred, agents and representatives of the insurance company, with said Eugene Coxsey, procured the appointment of Mrs. N. A. Kissire, mother of said child, as guardian, and that on said date, by fraud and intimidation and without the knowledge of Mrs. Kissire as to the nature of said transactions, they procured her signature to the petition to the probate court of Conway County asking for authority to settle all the rights of said minor for her injuries and damages for the sum of $200, representing to the court that her injuries were of minor importance and not serious, and thereby procuring an order authorizing said settlement.

It was alleged that the representations were false and constituted a fraud upon the court, and that Mrs. N. A. Kissire, in fact, made no such petition to the court. The petition prayed that the cause be reopened, and said order set aside and annulled.

The court took testimony and made an order stating in said order that it appeared that Coxsey carried casualty insurance in the sum of $5,000, and that the agent of said insurance company and Eugene S. Coxsey, by deceit and misrepresentations perpetrated on Mrs. Kissire, guardian, procured her signature to the petition, and that the insurance company and Coxsey procured the appointment of Mrs. Kissire as guardian, and it further appeared by the testimony of J. II. Keynolds, judge of the probate court at the time the original order was made, that a fraud was perpetrated upon him and the facts misrepresented, and that no proof was taken, and that it was further shown by proof that the child was seriously injured and permanently crippled, and that Mrs. Kissire understood that she was simply settling expenses.

The court found in favor of the petitioner, set aside the order of the court authorizing' settlement for $200, and from said judgment of the probate court the administrator of the estate of Coxsey appealed to the circuit court. The case was tried in the circuit court by the court sitting as a .jury, and judgment was entered sustaining the order of the probate court in setting aside the order for settlement. The case is here on appeal.

Much evidence was taken on the question of whether the order of the probate court authorizing a settlement of the damages for $200 was a fraud practiced on the court by the successful party. We deem it unnecessary to set out the testimony, for the reason that the probate court had no jurisdiction to settle the matter, and its judgment was therefore void, whether any fraud was practiced or not.

Probate courts have no common-law jurisdiction. The nature, extent, and exercise of the jurisdiction of probate courts depend on the terms of the constitutional and statutory provision, and they cannot exercise any powers other than those which have been expressly conferred upon them, or which are necessarily implied from those conferred.

The constitution provides: “The judge of the county court shall be the judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates as is now vested in the circuit court, or may be hereafter prescribed by law. The regular terms of the court of probate shall be held at the times that may hereafter be presBribed by law.”

Section 34, article 7 of the Constitution.

The statute provides: “The court of probate shall have original jurisdiction in the following cases:

“ ‘First. In all matters relating to the probate of wills and testaments, the estate of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates.
“ ‘Second. In the settlement and allowance of accounts of executors, administrators and guardians.
“ ‘Third. To hear and determine all controversies respecting last wills and testaments, rights of executor-ship, administration or guardianship.
“ ‘Fourth. To issue process and to cause to come before such court all persons whom they may deem it necessary to examine, whether parties, or witnesses, or who as executors, administrators, or guardians, or otherwise shall be interested or in any wise accountable for any lands, tenements, goods, chattels, moneys or effects belonging to any minor, orphan, or person of unsound mind, or to the estate of any deceased person’.” Section 2256, Crawford & Moses’ Digest.

In speaking of the powers granted probate courts, this court said: “The most important interests,' the guardianship of widows, children and estates, are committed to their superintending care. Some possibly are dishonest, many are not wise or discriminating. Taking into account the magnitude of the property interests which they have in charge, these courts should be required to proceed in exact conformity to law, instead of being panoplied by the presumptions which attend the exercise of superior jurisdictions by other courts.” Apel v. Kelsey, 52 Ark. 341, 12 S. W. 703, 20 Am. St. Rep. 183.

It has been repeatedly held that it was not the purpose of- the constitutional and statutory provisions to invest the probate court with jurisdiction of contested rights and matters of litigation as to the title of property between the executor or administrator and others. Fancher v. Kenner, 110 Ark. 117, 161 S. W. 166; Moss v. Sandefur, 15 Ark. 381; Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39.

“It is well to remember that these tribunals have only such specific and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto.” Lewis v. Rutherford, 71 Ark. 218, 72 S. W. 373; Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1; Paget v. Brogan, 67 Ark. 522, 55 S. W. 938; Shane v. Dickson, 111 Ark. 353, 163 S. W. 1140.

The original judgment of the probate court was void because the court had no jurisdiction, and it is unnecessary to determine whether fraud was practiced on the court in procuring the judgment.

The judgment of the circuit court is affirmed.

Hart, C. J.,

(on rehearing). Counsel for appellant have filed a very earnest and exhaustive brief on rehearing; and, in the opinion of the majority of the court, they have to some extent misconceived the issues raised by the appeal in this case, and the effect of the opinion of the court. For this reason, we have deemed it best to write an additional opinion.

The record shows that a guardian was appointed for a minor who had been injured in an automobile accident. The guardian filed a petition in the probate court, stating that he had been offered $200 in settlement of said injury, which he considered reasonable. He asked the court to grant him authority to settle for that amount and to execute a full release. The court granted the prayer, and the release was duly executed under it. It is the effect of this order which is raised by the appeal in this case. The order was not set aside at a term at which it was rendered.

It was insisted by counsel for appellant, both in their original brief and in their reply brief, that the order of the probate court could not be set aside at a subsequent term except for fraud in its procurement. Thus, it will be seen that counsel for appellant’claim for it all the binding effect as res judicata which attaches to other judgments of courts of record. This would, under the order of the probate court, make the order conclusive except for fraud in procuring it upon the settlement of the accounts of the guardian. The practical effect of such a holding would be to give probate courts jurisdiction of suits for unliquidated damages.

At the outset, it may be said that a guardian, unless restricted by statute, is authorized by virtue of his office to compromise claims for or against his ward. He stands in the same position as any other trustee who may compound a claim for or against his cestui que trust, who acts in good faith and with a sound discretion.

Under our Constitution, the judge of the probate court has such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons o'f unsound mind and their estates, as may be hereafter prescribed by law. Article 7, § 34, of the Constitution of 1874. In order to carry into effect this provision of the Constitution, probate courts are vested by statute with jurisdiction of accountings and settlements by guardians. Section 5064 of Crawford & Moses’ Digest provides that guardians shall make annual settlements of their accounts with the court of probate in which their proceedings shall be, and that guardians neglecting or refusing to make such settlements shall be liable to be attached and imprisoned until they do so. If, by previous orders, the probate court could settle the items of the account, great confusion would result, and the door would be open for fraud to be practiced upon a class of persons, who, by reason of immaturity, it is the design of our Constitution and statutes to protect; for, as claimed by counsel for appellant, if the previous order had the binding force and effect of a judgment of a court of record, it could only be set aside at a subsequent term of the court for fraud in its procurement.

In recognition of this principle, in Burke v. Coolidge, 35 Ark. 180, it was held that, if an executor claim credit in his settlement with the probate court for an illegal expenditure, the court should reject it, although it may have previously approved the expenditure and authorized the executor to take credit for it.

As pointed out in Sumrall v. Sumrall, 24 Miss. 258, without such a construction of the statute, the grossest wrongs and injuries might he perpetrated by executors, administrators, and guardians under its provisions. Continuing, the court said: “Nothing, in fact, would be easier for them than the establishment o’f unjust claims to any extent upon ex parte applications to the probate court, and the rights of creditors and distributees be thus seriously compromised, and they left without redress, unless the privilege of contesting the claim is accorded to them when the account of the administrator is presented for allowance and settlement after notice to them, according to law. ’ ’

The doctrine of Burke v. Coolidge, supra, was reaffirmed in the subsequent case of Boyd v. Duncan, 178 Ark. 772, 12 S. W. (2d) 395; and Souter v. Fly, 182 Ark. 791, 33 S. W. (2d) 408.

Counsel for appellant, however, earnestly insist that such holding is opposed to certain cases of this court cited by them in their brief on rehearing, but, after a careful consideration of the matter, a majority of the court has concluded that the principles herein announced are in harmony with these cases.

In Waldrip v. Tulley, 48 Ark. 297, 3 S. W. 192, it was held that a guardian is the authorized agent appointed by law to take care of the ward’s estate and manage his affairs. The guardian, acting in entire good faith, spent a sum of money in repairing a gin upon the land of his' ward; and in his account current the guardian asked credit for the sum so expended. The mother of the infant as next friend filed exceptions. Upon appeal to the Supreme Court, the judgment of the circuit court was reversed, and the cause was remanded with directions to overrule the exceptions to the guardian’s account.

In Wilks v. Slaughter, 49 Ark. 235, 4 S. W. 766, the court held that at common law the administrator had authority to compromise a claim or compound a debt of his intestate.

Again, in Nashville Lumber Company v. Barefield, 93 Ark. 353, 124 S. W. 758, 20 Ann. Cas. 968, it was held that both at common law and under the statute, a guardian is authorized to compromise a claim for personal property, provided the compromise was made in good faith and not in fraud of the minor’s rights. That was an action in replevin to recover possession of a lot of logs and lumber or their value by the next friend of a minor. The suit was defended on the ground that there had been compromise of the matter with the statutory guardian of the minor. The court refused to permit the introduction of testimony to this effect; and, under the instructions given, the jury returned a verdict in the circuit court in favor of the minor for his proportionate part of the lumber and logs. The judgment was reversed because- the court refused to permit the introduction of the testimony of the guardian showing the alleged compromise. In that case, the court said that a guardian may compromise a claim of his ward, when acting in good faith and in sound discretion. The reason is that the guardian stands in the same position as any other trustee who may in good faith compound a claim for or against his cestui qu,e trust. The court approved the rule, however, that, if the compromise or release was made without sufficient .justification or fraudulently or upon a grossly inadequate consideration, the guardian will be answerable for it in his account. The court further said such compromise can be impeached upon the trial of the action in which it is presented as a defense by showing that it was not made in good faith, but in fraud of his rights.

Thus, it will be seen that this case recognizes that no previous order of the probate court can be made which will prevent the guardian from being answerable upon the settlement in his account unless acting in good faith and with sound discretion. If the judgment of the probate court ordering the settlement in advance was a valid and binding judgment, the guardian could not be held accountable for it in his settlement unless, as we have already seen, the order authorizing- the settlement was obtained by fraud.

In the case of Treadway v. St. Louis, Iron Mountain & Southern Railway Company, 127 Ark. 211, 191 S. W. 930, it was held that an administrator may compromise and accept a settlement of an unliquidated claim for damag-es without special authority from the probate court. It was further held that, where the personal representative acts in good faith, those who would impeach his conduct must show fraud or mistake or such gross negligence as would amount to fraud. This showing would have to be made in the court where the compromise judgment was rendered in an action to set it aside.

Finally, it is insisted that the holding of the court in the present case is in direct conflict with that in Pace v. Richardson, 133 Ark. 422, 202 S. W. 852. We do not think so. In that case, the controversy arose between certain heirs and devisees among whom was an infant represented by her husband as guardian. A large estate was involved, and the will of the deceased was being contested. Under our Constitution and statutes, jurisdiction over the probate and contest of wills is vested in the probate court. Hence the suit originated there. Protracted and costly litigation confronted the interested parties, and a compromise agreement was adopted as the best mode of securing the estate to those entitled to it. The probate court, having jurisdiction of the main suit, had jurisdiction to render judgment upon the issues involved upon competent proof. This power to render final judgment upon the merits included the power to render judgment upon a compromise agreement. Upon the proof offered, the compromise agreement was upheld because there was no showing of bad faith in the matter.

If the case had originated in the chancery court in a proper case upon the construction of the will, as it sometimes does, that court, as an incident to its jurisdiction in the main case, would have had the right to render .judgment upon a compromise agreement entered into in good faith.

To sum up, in the present case, if the guardian had brought suit for damages in behalf of the minor in the circuit court, that court having jurisdiction of the subject-matter, would have had' the power to render judgment upon a compromise agreement. Hence, its judgment would have been binding upon the probate court in like manner as other judgments upon the settlement of the account of the guardian. The order of the probate court in advance of the settlement of the guardian’s account gave him no additional authority in the matter, and did not constitute res judicata. The reason being that the probate court, having no jurisdiction of the subject-matter of the action, could not render upon the ex parte application of the guardian a judgment which would be res judicata of the issue. The probate court upon the. settlement of the account of the guardian could inquire into his good or bad faith in the premises.

The result of our views is that the .judgment on the former opinion was correct, and the motion for rehearing will be overruled.


text:
    Bramlett v. State.
    Opinion delivered November 23, 1931.

      Jachson Blachford, for appellant.

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

An indictment was returned against Jeff Bramlett by the grand jury of Randolph County charging him with the .crime of manslaughter, committed as follows: “The said Jeff Bramlett in the county and State aforesaid, on or about the 9th day of August, A. D., 1930, unlawfully, wilfully and feloniously did kill one Cecil Mitchell by striking and beating him, the said Cecil Mitchell, and from the effects of said striking and beating him, the said Cecil Mitchell did die on the 9th day of August, 1930,” etc. To this indictment the defendant interposed a general and special demurrer, which was overruled. The defendant was duly arraigned, tried and convicted of the crime of involuntary manslaughter, and sentenced to six months’ imprisonment in the State penitentiary. From that judgment is this appeal.

The demurrer to the indictment challenged its sufficiency because it did not state the manner in which the deceased was killed or the instrument or thing with which he might have been struck of beaten from the effects of which’he later died. The case of Ray v. State, 102 Ark. 594, 145 S. W. 881, and the cases therein cited are relied on by the appellant to sustain the objection urged to the indictment in the instant case. In the Ray case the rule is laid down that an indictment must eontain such a description of the facts and circumstances as to constitute the offense charged so that the person accused may be informed of the specific charge which he is called upon to answer, and the court and jury the issue they are to try. The indictment before the court in that case charged that the killing was done with a certain gun “loaded with powder and leaden bullets and shot.” Applying the rule to this language, the court held that it was defective because it did not allege the manner of the killing, whether he was shot with the loaded gun or killed by its use in some other manner.

We have held that where the indictment alleges that the deceased came to his death at the hands of defendant in some manner and by the use .of weapons to the jury unknown, this allegation is regarded as sufficient. If information contained in allegations of that nature is sufficient, it is difficult to perceive how the indictment in. the instant case is defective. Formerly great particularity was required in setting forth the manner of the death of the deceased and the means by which death was inflicted, but it is the modern tendency of courts to relax the rigidity of requirements in indictments, and the particular circumstances of the offense, under the modern practice and our statutes need not be charged unless they are necessary to constitute a complete offense (§ 3012, Crawford & Moses’ Digest); and where the act charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment of conviction, the indictment is sufficient. Section 3013 Crawford & Moses’ Digest.

As suggested by the Assistant Attorney -General, the indictments in the Ray case, supra, and in the cases there cited, which were held to be defective, did not indicate the manner of the killing. In those indictments the instruments used were named, but the fault lay in failing to indicate in what manner such instruments were used as they might have produced death in being used in more than one way. This seems to be the reason for the support of those decisions. In the instant case, however, no Instrument is named, but the manner in which death was inflicted is alleged with sufficient certainty, i. e., “by striking and beating him the said Cecil Mitchell from the effects of such striking and beating him the said Cecil Mitchell did die.” No case of our own court has been cited directly in point, but in sustaining our view that the indictment was sufficient we refer with approval to Joyce on Indictments, (2d ed., § 360, p. 395); Marquez v. Territory, 13 Ariz. 135, 108 Pac. 258; State v. Nielson, 38 Mont. 451, 100 Pac. 229; People v. Hyndman, 99 Cal. 3, 33 Pac. 782, cited by appellee.

A witness, Otis Spencer, testified as to a conversation he had with the deceased which was admitted over the objection of the appellant as a dying declaration. It is urged that because the witness who testified to the declaration would not testify that the deceased was conscious of his language at the time the declaration was made, the testimony was incompetent, and because, after stating who gave him the beating from which he stated he was dying, he used the expression, “To Hell with you, ’ ’ which, it is argued, clearly indicated that the deceased was not conscious of impending death. Whether or not he was conscious and the language used during the making of his declaration was for the jury to consider in testing the weight of the testimony. He was in fact in a dying condition for death occurred shortly after the conversation detailed by the witness. It is evident that he knew of his condition because he said so, and expressed the desire to see his wife and baby once more. In the late case of Goynes v. State, ante p. 303, we said: “It was not the duty of the State to show that the deceased was rational, but the evidence in this case does not tend to show that he was not rational, and whether the deceased was of sound mind when he made the statement was a question of the credibility, rather than the admissibility, of the declaration.” See Sanderlin v. State, 176 Ark. 217, 2 S. W. (2d) 11; Adcock v. State, 179 Ark. 1055, 20 S. W. (2d) 120.

It is lastly insisted that the court erred in instructing the jury on the law of self-defense on its own motion because that plea was not made by tbe defendant. Defendant entered his general plea of not guilty, and, as tbe evidence tended to show that tbe deceased was the aggressor in tbe fight resulting in tbe death of tbe deceased, it was not improper to instruct tbe jury upon tbe law of self-defense. Certainly, tbe defendant could not have been prejudiced by such instruction. Defendant argues that be himself requested an instruction on tbe law of self-defense, whereas tbe instructions given'by tbe court were abstract and misleading. We deem it unnecessary to set out these instructions, for it is clear to us that the instructions given by tbe court correctly stated tbe law, and, assuming that the instruction asked by tbe defendant was a correct declaration, tbe court was not obliged to give it, having already covered that phase of tbe case by tbe instructions given.

Tbe testimony, which is uncontradicted, is to tbe effect that tbe defendant and the deceased were drunk, and while in this condition engaged in a fight. Thereafter tbe deceased was found in a bruised and bloody condition, and died within a short time following. An examination of tbe body resulted in tbe discovery that deceased’s skull was fractured above tbe ear, several teeth knocked out and bis jaw broken. We deem it unnecessary to set out tbe testimony in detail, as we are of tbe opinion that, considering it in the light most favorable to tbe appellant, it abundantly justified tbe verdict of tbe jury.

Affirmed.


author: Hart, C. J.,

text:
    First National Bank of Huttig v. Rhode Island Insurance Company.
    Opinion delivered November 30, 1931.

      Gaughan, Sifford, Godwin & Gaughan, for appellant.

      Verne McMillen, for Rhode Island Ins. Co., and Marsh, McKay <& Marlin, for J. V. Spencer, appellees.
   Hart, C. J.,

(after stating the facts). The court erred in holding that the First National Bank of Huttig was not entitled to the proceeds of the insurance draft for two reasons:

In the first place, under our Negotiable Instruments Act, § 7896 of Crawford & Moses’ Digest, where, in a bill of exchange, the drawer and the drawee are the samé person, the holder may treat the instrument at his election either as a ¡bill of exchange or as a promissory note. This was the law prior to the passage of the act in question. A bill of exchange drawn by the maker upon himself is in legal effect a promissory note and cannot be countermanded. Where a bill of exchange is drawn by a corporation upon itself, the instrument may be treated as an accepted bill or as a promissory, note, at the election of the holder. 8 C. J., ¶ 23, pp. 42-43; 3 R. C. L., ¶ 62, p. 878; 1 Daniel on Negotiable Instruments (6th ed.), §§ 128 and 426; Hasey v. White Pigeon Beet Sugar Co., 1 Doug. (Mich.) 193; Cunningham v. Wardwell, 3 Fair. (Me.) 466; Marion and Mississnewa Rd. Co. v. Hodge, 9 Ind. Rep. 163; Drinkall v. Movius State Bank, 11 N. Dak. 10, 88 N. W. 724; Pavenstert v. New York Life Ins. Co., 203 N. Y. 91, 96 N. E. 104, Ann. Cas. 1913A, page 805; and Bailey v. Triplett Bros., (Tex. Civ. App.) 286 S. W. 914.

In the present case, the instrument which is the basis of the suit was in form a bill of exchange. It was drawn by the corporation, Rhode Island Insurance Company, under the signature of its president upon itself. In other words, it was a bill of exchange drawn by the corporation through its proper officer upon itself, and was not therefore subject to countermand.

It is claimed, however, that it was conditional because of the words “upon acceptance” in it. Under our statute, and under the principles of law above announced, these words had no legal effect on the instrument. They were in the instrument when it was signed by the president of the corporation, and the very act of drawing ■ the bill is deemed an acceptance of it, and the holder may treat it as an accepted bill of exchange or as a promissory note.

It is also suggested by counsel for the insurance company that this case is ruled by the principles of law announced in Berenson v. London & Lancashire Fire Ins. Co., 201 Mass. 172, 87 N. E. 687. We do not think so, but, on the other hand, think the conclusion we have reached is supported by the reasoning in that case. In that case the draft was drawn upon the Hartford agency of an English insurance company, and the signature to it was by one who described himself as “special agent.” Reading this language in connection with the words “upon acceptance” makes it plain that the transaction was limited to the extent of requiring approval or ratification by the Hartford agency of the insurance company. This was because an agent of limited authority drew the bill, and the Hartford agency was required to give life to it by its approval of the adjustment of the loss. Hence the court held that, since the draft had not been accepted 'by the Hartford agency of the insurance company, it never became a complete contract and was not a negotiable instrument.

Here the draft was signed by the president of the company, who had authority to sign it; and the contract became binding and complete when he did sign it, because he had authority to make the contract, and no approval or ratification of his act was necessary.

In the next place, there was no legal garnishment against the insurance company at the time it turned over the draft to its agent to be delivered to A. L. Barber, which was done on the 28th day of August, 1930'. The record shows that J. Y. Spencer filed the complaint in this action on the 25th day of August, 1930, and that the writ of garnishment was issued on that day, and that the writ was served on the insurance company on the 27th day of August, 1930.' No summons was issued upon the complaint until the 30th day of August, 1930, which was after the date of the issuance of the garnishment. Garnishment is a proceeding whereby the plaintiff seeks to subject to his claim property in the hands of a third person or money owed by such person to the defendant. Davis v. Choctaw, Oklahoma & Gulf Rd. Co., 73 Ark. 120, 83 S. W. 318, 3 Ann. Cas. 658. The stage of proceedings at which garnishment may issue is purely statutory, and judicial garnishment at law is a creature of the statute which authorizes it. This principle is elemental, and no citation of authorities is necessary to support it.

Under § 4906 of Crawford & Moses’ Digest, it is provided that, in all cases where any plaintiff may begin an action in any court of record and such plaintiff shall have reason to believe that any other person is indebted to the defendant, he may have a writ of garnishment issued by complying with the statutory procedure in .doing so. Thus it will be seen that the plaintiff had no right to have a writ of garnishment issued until after the commencement of the action.

In this State an action is commenced when the complaint is filed in the office of the clerk of the court, and a summons is issued thereon. Crawford & Moses’ Digest, § 1049; Barker v. Cunningham, 104 Ark. 627. Under our garnishment statute, it is essential to the writ of garnishment that, at the time the writ is issued, the plaintiff has begun his action. Under our statute, and -the decision of this court construing it, above cited, the action was not commenced until the complaint was filed and the summons was issued. It is true that the plaintiff, J. Y. Spencer, testified that he did not know why the clerk did not issue summons until after the writ of garnishment had been issued, but it is not shown that he asked that a summons be issued at the time he filed his complaint, and that the clerk neglected or refused to do so. Our garnishment statute plainly means that the writ may be issued where the plaintiff has begun his action, or at any time thereafter; but, as we have just seen, the action was not commenced until the complaint was filed and the summons issued upon it. Hence, at the time the instrument, which is the basis of this lawsuit, was turned over by the agent of the insurance company to A. L. Barber, as the agent of-the payees in the instrument, no legal garnishment had been issued against the insurance company. Therefore, J. Y. Spencer was not entitled to the proceeds of the insurance. On the other hand, A. L. Barber and D. R. Spencer, two of the payees in the draft, had indorsed it to the bank, which was also a payee, and as such became entitled to the proceeds of it, Therefore the court erred in rendering judgment in favor of J. Y. Spencer against the Rhode Island Insurance Company, and in holding that the First National Bank of Huttig was not entitled to the proceeds of the instrument which is the basis of this action.

Both the bank and the insurance company have appealed to this court. The bank has appealed from the judgment against it, and the insurance company has appealed from the judgment against it in favor of J. Y. Spencer. Therefore the judgment will be reversed, and the cause will be remanded with directions to render judgment in favor of the bank for $439.03 against the insurance company and to dismiss the garnishment proceeding of Spencer against said insurance company, and for such further proceedings, according to law, as may be necessary and which are not inconsistent with this opinion. It is so ordered.