author: Per Curiam.

text:
    Hays v. Harris.
    4-3382
    Opinion delivered December 4, 1933.

      June P. Wooten and A. G. Frankel, for appellant.

      W. G. Riddick and R. D. Campbell, for appellee.
   Per Curiam.

This proceeding is a continuation of the litigation reflected in the following opinions of this court: Terry v. Harris, ante p. 60, and Terry v. Harris, ante, p. 174, in which there was an opinion per curiam.

It appears that, upon the rendition of the opinion per curiam, supra, the contestant, Hays, filed a second or substitute complaint to which there was attached jurisdictional affidavits complying with the requirements of § 3772, Crawford & Moses’ Digest. A motion was sustained in the court below to dismiss this second complaint upon the ground that it had not been filed within the time allowed by law, and, upon that motion being sustained, the circuit court made an order dismissing the suit for that reason.

The contestant has applied to us for a writ of mandamus to compel the circuit judge to proceed with the trial of the cause. Upon oral argument before us, it was agreed by the parties hereto that this proceeding be treated as an appeal from this order of the- circuit court, and wé are asked by both parties to decide the case upon its merits. We have for decision therefore the question, whether this second complaint was filed within the time allowed by law.

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

It will be remembered that the original complaint has been dismissed, and this second or substituted complaint was filed much later than twenty days after the certification of the vote as made by the respective county committees, but within less than twenty days after the chairman and secretary of the State Central Committee had cast up such returns based on said certification and had certified the congressional nominee to the State Election Board, as required by the opinion delivered October 30, 1933.

Section 3772, Crawford & Moses’ Digest, copied above, applies alike to contests for county, district and State offices. The- only difference, in respect to the time within which such contests must be instituted, is that in eases of contests of “the certification complained of” for nomination for county offices, the suits must be instituted within ten days, whereas such suits in reg’ard to the “certification in more than one county” shall be begun within, twenty days after such certification. Obviously, the right of action conferred by the statute to contest the certification of nomination or the certification of the vote means the same thing in contests for nominations for county offices as in cases of contests for district or State offices. The only distinction made by the statute is in the difference of time within which such contests must be instituted.

This court had occasion in the case of Wilson v. Land, 166 Ark. 182, 265 S. W. 661, to construe the provisions of the statute authorizing contests for nominations, and to determine whether the provisions in regard to contesting certificates of nomination operated to extend the time within which a contest must be brought to contest the certification of the vote by the county committee, and it was - expressly held that the limitation of the time within which a contest of the certification of the votes must be instituted was not extended by the provi sion of the statute that there might be a contest of the certification of the nomination.

The facts in the case of Wilson v. Land, supra, were: The county central committee of Jefferson -County met on August 15, 1924, and canvassed the returns of the election held in that county and filed with that committee, as required by law. This committee ordered that the nominees be certified to the county convention, ivhich was to meet on August 18, 1924, it being intended thereby to have the county convention certify the nomination pursuant to the tabulation of the county committee previously made. The county convention was held on August 18, and a certificate of nomination for the office of county treasurer was awarded to the candidate whose nomination was later contested. This contest was filed on August 26, 1924, in proper form, accompanied by the jurisdictional affidavits. It is obvious that this was within ten days of the date upon which the nomination had been certified, but was one day more than ten days after the certification of the vote. Upon these facts it was contended that the contest had been instituted within the time limited by law, the contention being there made, as it is here, that a contest might be instituted within ten days of either the certification of the vote or the certification of the nomination.

'But, in overruling that contention, it was there said.: “As we have already seen, the right to contest a primary election is purely statutory, and the Legislature may confer it upon such terms as it sees fit. Thus it will be seen that a right of action is given any candidate to contest the certification of vote as made by the county central committee. The statute is unambiguous in this respect, and it was evidently the intention of the Legislature to provide for a speedy hearing and determination of a contest. In our opinion, it was not necessary, under the statute, that contest proceedings should be delayed until a certificate of nomination had been actually issued by either the county convention or by the county central committee. We think that, when the county central committee has canvassed and tabulated the votes, and it is ascertained by this canvass and tabulation which candidate has received the greatest number of votes, the opposing candidate may at once, and must, within ten days thereafter, begin his contest proceedings although no certificate of nomination has been issued.”

It was there held that, inasmuch as the contest must be instituted within the time limited by law (which, in the case of county offices, is ten days and in the case of State and district offices it is twenty days), there was no additional extension of time, because the statute conferred the right to contest the certification of the nomination. In other words, any contest, which challenges the canvass and tabulation by the county committee or committees, must be instituted within the timé limited after that action had been taken, and was not extended by the right which was conferred to contest the certification of the nomination as well.

If effect is given to this decision, it follows that any suit which challenges the action of the county committees must be brought within ten days after such action in the case of county offices, and within twenty days in the case of district and State offices.

Now, it is easily conceivable that a county convention, in the case of a county office, might take such action in regard to the vote as canvassed and tabulated by the county committee as to change the result ascertained and declared by the county committee, in which event that action of the convention might be contested, and a suit for that purpose could be brought within twenty days after that action was taken. So, here, it appears, from the opinion in the case of Terry v. Harris, involving this identical election, the State convention, in ordering the election here contested, has provided that “the returns of the election shall be made and certified to the secretary of the State 'Central Committee within the time after said special primary election is held as is now provided by law for such returns, and certification made following general primary elections. The chairman and secretary of the State Central Committee will cast up such returns based on said certificates and certify the nominee to the State Election Board.”

Now, we do not understand it to be alleged that the executive officers of the State committee have taken any action or have done anything, except to perform the ministerial duty of casting up the returns based on the certificates delivered to them., as required by the resolution of the State committee pursuant to and under the authority of which the election was held. Had it been alleged that these executive officers of the State committee had fraudulently or erroneously performed this ministerial duty, that action would be the subject of contest, and such contest could be instituted within twenty days after the action had been -taken.

But it is alleged only, as we understand the record before us, that these executive officers have only discharged this ministerial duty, and there is no allegation that they have done any act which itself affords ground for contest.

On the contrary, it is obvious that the contestant now seeks, as he sought in his original suit, to question the votes cast in the various counties of the Congressional District. as compiled and tabulated by the respective county committees. *

This can not be done under the interpretation given § 3772 in the case of Wilson v. Land, supra, for, as was said in that case, it was not necessary under this statute that the contest proceeding should be delayed until certification of nomination had actually been issued by the agency clothed with that authority.

The circuit court was correct, therefore, in holding that this second suit was not filed within the time allowed by law, and it was properly dismissed for that reason.


source: Caselaw Access Project

author: Johnson, C. J.,

license: Public Domain

text:
    Middleton v. McCoy.
    4-3242
    Opinion delivered December 11, 1933.

      Hays & Turner and Alonzo D. Camp, for appellant.

      Robert J. Brown, Jr., for appellee.
   Johnson, C. J.,

(after stating the facts). If the chancellor’s finding to the effect that the deed from T. CL McCoy to appellee was for a valuable consideration, and was not executed with the intent to cheat, hinder or defraud creditors, is not clearly against the. preponderance of the testimoity, this case must be affirmed. Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. 668; Compagionette v. McArmick, 91 Ark. 69, 120 S. W. 400; Sullivan v. Winters, 91 Ark. 149, 120 S. W. 843; Lyons v. First National Bank, 101 Ark. 368, 142 S. W. 856; Kissire v. Plunkett-Jarrell Grocer Co., 103 Ark. 473, 145 S. W. 567.

It is stipulated by counsel that lot 14, block 2, Pinehurst Addition, was the homestead of T. G. McCoy at the time of the conveyance. Therefore, under the law, he could sell or give same away if he liked, and his creditors would have no right to complain. When the homestead is subtracted from the deed of T. Gr. McCoy, it leaves only lot 1, Bragg’s Second Addition, which was sold for a consideration of $550. This is a valuable consideration. It is true the testimony tends to show that this lot was worth approximately $1,500, if sold on “reasonable terms,” but it can not be’certainly said that a conveyance was voluntary which carried an expressed consideration of this sum of money.

Since this conveyance was not a voluntary one, no presumption of fraudulent intent attends its execution either in the grantors or grantee. Section 108, 12 R. C. L., Fraudulent Conveyances, pag’e 594.

We conclude that the chancellor’s finding is not clearly against the preponderance of the testimony, and its judgment should therefore be affirmed.


author: Johnson, C. J., Butler, J.,

text:
    Postal Telegraph-Cable Company v. White.
    4-3234
    Opinion delivered December 11, 1933.

      Samuel C. Bowman, Mann & Mann and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Fred A. Isgrig, S. S. Hargraves and Winstead Johnson, for appellee.
   Johnson, C. J.,

(after stating the facts). This case must be reversed because of the error of the trial court in giving to the jury instructions Nos. 1, 2 and 3 on behalf of appellee. It will be noted that instruction No. 1, given on behalf of appellee, ignores all the defenses offered by appellant, that is to say, the defenses of assumption of risk, contributory negligence and the release of liability. Each of these instructions directed the jury to return a verdict in favor of appellee on the hypothesis therein stated, wholly ignoring the defenses of assumption of risk, contributory negligence and a valid release. It is insisted, on behalf of appellee, that this error was cured because the court specifically told the jury in an instruction that they should consider all the instructions given as a whole. This exact question was before this court in the ease of Natural Gas & Fuel Co. v. Lyles, 174 Ark. 146, 294 S. W. 395, in which the fifth headnote reads: “In a suit by an employee for personal injuries, an instruction that the jury should render a verdict for the employee, if they found the employer guilty of negligent acts detailed in instruction, held erroneous, as excluding the defenses of contributory negligence and assumed risk.”

The defenses of assumed risk, contributory negligence and a valid release all were outstanding in favor of appellant at all stages of this proceeding, and, before the jury should have been instructed to find for appellee, it should have been conditioned upon each of these defenses. In other words, if appellee had executed a valid release, this should have impelled a verdict for appellant; or if appellee had assumed the risk of this collision, the verdict'of the jury should have been for appellant; or if appellee’s contributory negligence, if any, was greater than the negligence of Clyde White, if any,.a verdict should have been returned in favor of appellant. Instructions Nos. 1, 2 and 3 wholly ignored these defenses.

This court held in the Lyles cases, cited supra, on this exact question: “Appellee contends that the omission in the two instructions to take into account appellant’s defenses of contributory negligence and the assumption of the risk by appellee was cured by instructions numbers 2 and 4 requested by appellant and given by the court. Number 2 related to contributory negligence, and number 4 to the assumption of the risk, and would have cured the defect, had the court not told the jury in both cases to render a verdict in favor of appellee in case they found that appellant was guilty of negligence as alleged. This declaration on the part of the court created a conflict between the two instructions given at the request of appellee and instructions 2 and 4 given at the request of appellant. Southern Anthracite Co. v. Bowen, 93 Ark. 140, 151-152, 124 S. W. 1048.”

It will thus be seen that instructions numbered 1, 2 and 3, given on behalf of appellee, were in conflict with the correct instructions given on behalf of appellant, and were therefore prejudicial.

Since this case must be reversed and remanded for a new trial, we deem it proper to discuss some other questions in the case which will probably recur. It is insisted here, and will probably be insisted on a new trial, that the trial court should have directed a verdict in favor of appellant because, as it is said, the testimony of appellee. was false and not worthy of belief wherein he testified that his brother, Clyde White, grabbed the steering wheel and turned the truck into the path of the touring car driven by Holland. This contention is bottomed upon the theory that appellee had testified in two previous trials, in neither of wdiich he had testified to the same state of facts and circumstances. On this question, it suffices to say that, under our system of government, the trial jury is the sole and unfettered judges of the credibility of witnesses and the weight that should be given to their testimony.

Section 22, article 7, of the Constitution of 1874 provides in part: “Judges shall not charge juries with regard to matters of fact, but shall declare the law,” etc.

In the early case of Wilcox v. Boothe, 19 Ark. 684, this court held: “It is the province of the jury, and not of the appellate court, to weigh the evidence and determine whether the testimony of a witness is to be believed. ’ ’ In the more recent cases of Shearer v. Farmers’ & Merchants’ Bank, 121 Ark. 529, 182 S. W. 262, this court said: “The jury, being the judges of the credibility of the witnesses, their verdict will not be disturbed on appeal.”

Again it was said by this court in the case of Kimbro v. Wells, 121 Ark. 45, 180 S. W. 342, that: “The weight of evidence and credibility of witnesses is solely for the jury, and they are authorized to accept such part of the testimony as they believe to be true, and reject that which they believe to be false.”

It may be that appellee had testified in previous trials to statement of facts contradictory to his testimony here given, but this would go only to his credibility as a witness and the weight that should be given to his testimony by the jury. The trial court was therefore correct in refusing to direct a verdict in favor of appellant on this theory.

The next insistence is that appellee cannot maintain this suit because of the execution of a release in favor of appellant. The circumstances surrounding this release are to the effect that, when a person is employed by appellant, he is furnished with what is denominated a “blue book,” wherein it is delineated that the employees of appellant upon receiving disability while in the employ of appellant, shall receive certain benefits therein explained and described. After receipt of the injuries herein complained of, appellant sent to appellee, -at Forrest City, certain papers to be executed by him, in reference to the acceptance or rejection of this plan. Appellee testified, in effect, that he did not read the details of these instructions, but assumed that they were for the purposes purported in the letter, that is to say, to enable him to draw his wages while suffering from his injuries. He further testified, in effect, that he did not know, and had no intention of releasing his cause of action when he signed the papers. Many other circumstances were testified to in reference to the advancement of this plan and the procuring of the release which we deem unimportant to here set out.

The trial court submitted the validity or invalidity of this release under instructions Nos. 5, 6 and 7 on behalf of appellee, and certain requested instructions on behalf of appellant. We think the trial court was correct in submitting this question to the jury, and that the instructions given in this behalf were correct declarations of law. We are unwilling to say, under all the facts and circumstances in this case, that the paper signed by appellee was a voluntary release as a matter of law. Section 7147, Crawford & Moses’ Digest, provides: “Any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any such corporation to exempt itself from any liability created by this act, shall to that extent be void. Provided, that in any action broug'ht against any such corporation under or by virtue of any of the provisions of this act, such corporations may set off therein any sum it has contributed or paid to any insurance relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.”

We think the testimony was sufficient to submit the question to the jury.

Other alleged errors will probably not occur on retrial of the case, and we therefore refrain from discussing them.

The case is reversed for a new trial.

McHaney, J. Mr. Justice Smith, Mr. Justice Butler and I concur. We hold that the release was executed voluntarily and without any fraud or misrepresentation, and is valid and binding on appellee. We are therefore of the opinion that the judgment should be reversed and the cause dismissed.

Butler, J.,

(dissenting). I concur in the decision reversing the case because of the giving of certain erroneous instructions which are pointed out in the majority opinion, but I respectfully dissent from that' part of the opinion which holds that it was a question for the jury to say from the evidence adduced whether the release executed by the appellee was valid and binding, and from that part of the opinion which indorses the action of the trial court in applying § 7147 of Crawford & Moses’ Digest to the “Pension and Benefit Plan” of the appellant company upon which the release pleaded was grounded.

I shall discuss that plan first and whether or not it comes within the inhibition of § 7147, supra, which is a part of an act providing that all corporations, except those engaged in interstate commerce, shall be liable to employees for personal injuries received, and that contributory negligence on the part of an employee, shall not bar a recovery. Section 7147 provides that any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any such corporation to exempt itself from any liability created by this act, shall to that extent be void.” To determine whether or not that section applies, the nature and provisions of the Pension and Benefit Plan must be discussed.

Paragraph 1 of the Pension and Benefit Plan provides for its establishment.

Paragraph 2 deals with definitions of words and phrases used.

Paragraph 3 provides for retirement pensions— that is, that its employees upon reaching a certain age may retire at the employee’s request — and when male employees reach the age of 70 and female employees reach the age of 65 years they must be retired on pension. It also provides how the retirement pension shall be paid and the amount thereof.

Paragraph 4 provides for disability benefits, and is to the effect that any employee who, becomes disabled by reason of an accident arising out of, or in the course of, his employment by the company shall be entitled to benefits in the amount and manner prescribed therein.

Paragraph 5 provides for death benefits and pensions to dependents. The sole limitation as to the payment of tlie benefits is that the accident resulting in disability or death must have arisen out of and in the course of employment by the company, and the plan takes no cognizance of how the accident occurred, and the benefits are payable whether the accident is unavoidable or occasioned by the employee’s own negligence or not.

Paragraph 6 contains general provisions. Section 6 thereof provides: “In case of accident resulting in injury to or death of an employee, he or his dependents must elect whether to claim 'benefits under this plan, or to prosecute such claim at law for damages as he or they may have against the company. If election is made to claim the benefits under this plan, such election shall be in Avriting and shall release the company from all claims and demands, other than under the plan which the employee or his beneficiaries may have against it on account of such accident. Should claim be made other than under this plan, nothing shall be payable hereunder. ’ ’

It will be seen that this plan is quite different from the contract considered by the court in the case of Standard Pipe Line Company v. Burnett, post p. 491. The principal point of distinction is the right of election remaining in the employee under § 6 of paragraph 6, supra. Under the election provided by that section, it is clear that the plan, considered in its entirety, is beneficien! in its piirpose and free from any intent to enable the company to exempt itself from liability under the law. In the event of an accident, the employee has an opportunity to fully advise himself in order to determine what course he will pursue. If he should think that the accident was unavoidable, for which no one was to blame, or if it was occasioned by one of those'risks ordinarily incident to the employment Avhich he had assumed, or if it was his own carelessness, and that only, which occasioned the accident, he might take advantage of the plan and recover the benefits.thereunder, although there was no legal liability of'the employer to respond in damages; whereas, if he should determine or be of the opinion that the accident Avas the result of some negligent act of the agents or employees of the company for which it was legally responsible, he might bring his action at law, and, if liability was established, recover such damages as would fully and fairly compensate him for the injury received.

This plan seems to me to be just and fair. If any one has the advantage, it is the employee, and he may exercise his own free choice in the determination of whether he shall accept benefits under the plan or prosecute his claim for damages in court. How this plan can be construed as a device to exempt the company from liability, I am unable to see. Indeed, this court in the case of Western Union Tel. Co. v. Robinson, 146 Ark. 406, 225 S. W. 649, had this identical plan before it, and the release executed by the employee as provided in § 6 of paragraph 6, supra, and expressly held that: “The ‘Plan for Employees’ Pensions, Disability Benefits and Insurance,’ inaugurated by the appellant and accepted by the appellee,, constituted a written contract between the appellant and the appellee, which was free from fraud, based upon a valid consideration, and binding upon the appellant and the appellee.” I am of the opinion that the trial court erroneously instructed the jury by giving to it for its consideration § 7147, supra.

In dealing with the question whether the release was procured by fraud and leaving that to be determined by the jury, the only ground upon which the majority bases its conclusion is stated in the opinion as follows: “Appellee testified, in effect, that he did not read the details of these instructions, but assumed that they were for the purposes purported in the letter, that is to say, to enable him to draw his wages while suffering from his injuries. He further testified, in effect, that he did not know and had no intention of releasing his cause of action when he signed .the papers.” The undisputed facts are that the company waited a month and four days after the accident before it offered to the appellee his choice of accepting the company’s plan of settlement or of bringing suit, and at that time appellee had practically recovered from his injuries, for he returned to the full performance of his duties within less than three weeks thereafter. At the time the release was sent to him he was in the full possession of his faculties and had recovered from the shock of the accident. No agent of the company presented the release to him; it was sent through the mail, accompanied by a letter informing him that the company was ready to pay his regular salary for the time, he had been off, provided he would sign the “Election to the Benefit Plan” which was inclosed. When appellee was first employed by the company, he received a book fully explaining the plan and which he had in his possession and from which he might fully inform himself as to his right thereunder. The language of § 6, quoted above, is not obscure, but plain and direct, so that one having only ordinary intelligence and the ability to read could understand it. . The material part of the release sent to appellee is as follows:

“In consideration of one dollar and of the first installment of such benefits, to me in hand paid, the receipt of which is hereby acknowledged, and of said company’s promise and agreement, through the committee, to pay to me all such benefits as provided in and by said plan, do hereby release and forever discharge said company, its allied and associated companies, its and their respective successors and assigns, of and from all manner of action, cause or causes of action suits, damages, claims and demands whatsoever — except the claim hereunder for said benefits under this plan — which against said company because of and/or growing out of the accident above described and the resulting injuries and/or death, and the medical and other expenses paid or to be paid or incurred in connection therewith which I now have or which my heirs, executors, administrators, or successors, may or might have.”

There is nothing misleading in this release. Appellee had his book containing and explaining the plan; he had the release, with no one to interfere or to offer any inducement; he mig'ht read and study at his leisure and then sign or not at his own free will.

The only ground upon which the court bases its opinion is, that appellee testified that he did not read the details of the instructions (we presume the court meant the release) -but assumed that they were for the purposes set out in the letter — that is, to enable him to draw his wages while suffeirng from his injuries — and that he had no intention of releasing his cause of action when he signed the paper. In the first place, the letter accompanying the release purported to enclose “the Election to the Benefit Plan” and to say that because appellee did not read the release and had no intention of releasing his cause of action was a fraud perpetrated on him by the company, requires more authority and better reasoning than the court has given. He could read; there is nothing to show that he was mentally deficient, and the law imposed upon him' the duty to read the release, and because he did not is now no excuse, or justification for receding from the terms of the instrument which he signed, and it may be noted that it was witnessed by his own friends and neighbors with no representative of the company present.

In Kansas City Sou. Ry. Co. v. Armstrong, 115 Ark. 123, 171 S. W. 123, it is said: “When plaintiff executed a release in full to the defendant of an unliquidated claim for a certain consideration, while she was in the full possession of her faculties, and without any fraud or undue influence on the part of the defendant or its agents, she will be held bound thereby, and parol testimony to show that the release was only partial will be inadmissible.”

In Crockett v. Mo. Pac. Ry. Co., 179 Ark. 527, 16 S. W. (2d) 980, it was held; “An employee’s release of the railroad, his employer, for a consideration paid, from all damages resulting from an accident when the motor car on which he was riding collided with another motor car, was binding, where no fraud in its procurement and no mental incapacity was shown, and no claim that the employee executed the release in reliance upon a statement of a railroad physician.”

The court talks about' other circumstances which were testified to with reference to the “advancement of its plan and the procuring of the release, which we deem unimportant to here set out. ’ ’ I have examined the record with care, and I can find no pertinent circumstance bearing upon the question of the release in any particular, and I agree with the court that such circumstances as were in evidence are “unimportant.”

Appellee returned to work after Ms injury on April 8, 1930, and continued to work in the same line of employment, performing practically the same duties as before, until November 9, 1931 — more than a year — without making any complaint of his physical condition or questioning the validity of the release. On the last-mentioned date, while lifting a heavy weight, he suffered a rupture, necessitating an operation which kept him from work for a month or longer. On December 30, 1931, he executed a release precisely like the one he had executed on March 20, 1930, which he now claims was fraudulently procured. After his recovery from the rupture he was again employed by the company, and was given light work to do, but finally, several months thereafter, he was discharged. About four months thereafter he brought this suit — a total period of two years and seven months having elapsed after the date on which he alleges the injury occurred from'which his present disability results.

In the case of Kilgo v. Continental Cas. Co., 140 Ark. 336, 215 S. W. 689, this court held that, where a plaintiff delayed over two years before bringing suit, he was barred by his laches from complaint of any fraud in the procurement of the release on the ground that one defrauded must within a reasonable time after the fraud is discovered, elect to rescind, if such be his purpose.

In the recent case of St. Louis, I. M. & S. Ry. Co. v. Hall, 182 Ark. 477, 32 S. W. (2d) 440, it was held: “Where plaintiff took advantage of a settlement paid for release from liability after knowledge of alleged misrepresentations, he will be held to have ratified the settlement. One who seeks to disaffirm a release for misrepresentation should do so quickly as reasonable diligence would allow.”

Under the doctrine of those cases it seems to me that, having waited for two years and seven months to disaffirm the. release executed, the appellee cannot now disaffirm the same, for certainly no reasonable diligence has been shown, and he had abundant opportunity to have thought over the matter of the release, and if he decided that he had been imposed upon he had ample time to make his complaint. Instead of that, he took advantage of a similar release over a year after he had signed the first. It is my opinion that the plan adopted by the company is fair and not in violation of any law; that there is not a scintilla of evidence to show that any unfair advantage was taken of the appellee in the procurement of the release, or any fraud practiced upon him. On the contrary, he knew, or should have known, just what he was doing, and his acts are binding upon him. Furthermore, if there was any evidence to show an unfair advantage taken of appellee in the procurement of the release by his acceptance of its benefits and his delay for a period of two years and seven months to take any steps to disaffirm his contract, it is now binding upon him, and this case should be reversed and dismissed.

I am authorized to say that Smith and McHaney, JJ., concur in this opinion.


author: Smith, J.

text:
    Watson v. Gattis.
    4-3236
    Opinion delivered December 11, 1933.

      Cochran, Arnett & Woolsey, for appellant.

      G. C. Carter, for appellee.
   Smith, J.

An annual school election was held in School District No. 39 of Franklin County for the purpose of voting the school tax and of electing three school directors for the terms of one, two and three years, respectively. The election returns, including the poll books, tally sheets and ballots, were returned by the election officers to the county court, to canvass the returns and declare the result as required by act 247 of the Acts of 1933, page 778.

The tally sheets showed the. following candidates for directors had received the number of votes set opposite their names: Jess Reaves, 24; C. A. Kuykendall, 26; J. R. Gattis, 28; Henry Soller, 22'; Loyd Matthews, 24; Earnest Carpenter, 23. The tally sheets did not show the length of the terms for which the candidates had been voted, but on the back of the tally sheets was this notation: “Henry Soller, one year; Loyd Matthews, two years; Earnest Carpenter, three years.”

The county judge made an examination of the tally sheets and of the ballots, and found that only 17 of the voters had designated on their ballots the length of the terms for which the various candidates were voted, and of these 15 had voted for Henry Soller, for one. year, Loyd Matthews, for two years, and Earnest Carpenter, for three .years. The county court thereupon issued certificates of election to these persons for one, two and three years, respectively, and they qualified as directors.

Thereafter Reaves, Kuykendall and Gattis filed in the circuit court a petition for a writ of mandamus against the. county judge requiring him to issue certificates of election to Gattis for three years; to Kuykendall for two years, and to Reaves for one year. It was alleged that, although Reaves and Matthews had received the same, number of votes, the latter was not eligible.

The circuit court made a finding, which the testimony supports, to the effect that when the balloting began it was agreed by the electors then present that the candidate receiving the highest number of votes should be regarded as having been elected for the three-year term; the one receiving the next largest number of votes should be regarded as having been elected to the two-year term, and the candidate receiving, the third largest number of votes should be regarded as having been elected to the one-year term. This agreement, was announced to electors'who came in later, but in the afternoon a judge of the election wrote upon the blackboard in the school room where the election was being held the names of three candidates and opposite their names he-wrote the terms for which they were candidates, one, two and three, years, respectively, and 17 votes appear to have been cast in accordance with that notation.

It was the opinion of the circuit judge that the agreement set out above should be enforced, and that the ballots should be interpreted with reference to it, and upon that finding the county court was directed to issue certificates of election to Gattis and Kuykendall for terms of three and two years, respectively, and this appeal is from that order.

The judgment appealed from must be- reversed for several reasons. In the first place, it may be said that the agreement whereby the length of the terms was made dependent upon the vote received by a successful candidate was nothing more than a “gentlemen’s agreement,” which the courts will not enforce, because it was in contravention of the law. • Certainly, it could not bind those persons who were not parties to it and who voted as the law contemplated all the electors should do.

The law does not require that the ballots used in a school election be printed, but it does require that they be either printed or written. There is no such thing as voting orally or conditionally. Section 3 of article 3 of the Constitution requires that: “All elections by the people shall be by ballot,” and the ballot itself must express the elector’s will. The elector himself would not be permitted to testify that, having failed to vote specifically for any candidate for any particular term, he nevertheless intended that his ballot should express his assent that when his ballot had been counted it should be treated as having been cast for the highest candidate for the longest term, and for the next 'highest candidate for the next longest term.

It appears that 17 electors ignored this agreement and cast their ballots conforming to the law by designating the term for which they had voted for each candidate.

At § 77 of the chapter on Elections in 9 R. C. L., page 1062, it is said that: “It is plain, moreover, that where there are more offices than one to be voted for, ballots making no designation of the office will be insufficient for uncertainty; and where there are two officers to be elected for different terms, ballots which do not designate the terms should be rejected.”

The action of the county court conformed to this view of the law, as the county court counted only those ballots which had been cast for a particular candidate for one of the definite terms of office.

The judgment must be reversed for another reason, and that is, that mandamus did not lie to control the decision of the county court, nor can it be used to correct an erroneous decision already made. The county court did not refuse to perform the duty imposed upon it by § 2 of act 247, supra. In fact, it had acted before the writ was prayed for or had been awarded, and, whether erroneous or not, the county court could not be compelled by mandamus to reverse its ruling. Graves v. McConnell, 162 Ark. 167, 257 S. W. 104. Section 30 of act 169 of the Acts of 1931, page 495, as amended by act 247 of the Acts of 1933, provided an adequate and definite remedy for the review of the alleged error of the county court. Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S. W. 557.

The judgment of the circuit court must therefore be reversed, and the cause dismissed.


text:
    Bradford v. Burrow.
    4-3244
    Opinion delivered December 11, 1933.

      Lamb & Adams, for appellant.

      Maddox & Greer and J. Brinkerhoff, for appellee.
   Smith, J.

The only question involved on this appeal is whether, in the redemption of lands sold to the State for taxes, the county warrants of the county in which the land is located must be received by the county treasurer for the amount of taxes owing to the county. The circuit court held, under a petition for mandamus to require the acceptance of the tender of such warrants, that they must be accepted for that purpose, and the county treasurer has appealed from that judgment.

Section 10,100, Crawford & Moses’ Digest, provides the “mode of redemption” of land sold to an individual for the nonpayment of taxes, and reads as follows: “Any owner, or his agent, or. any other person for the owner desiring’ to redeem any land, town or city lot or part thereof sold for taxes, under or by virtue of any law of this State, may, within the time limited by law for such redemption, deposit with the county treasurer, upon the certificate of the clerk of the county court describing such land, town or city lot, an amount of money equal to t-lie taxes for which such land, or town or city lot was sold, together with penalty and cost and the taxes subsequently paid thereon by such person, or those claiming under him, with interest at the rate of 10 per cent, per annum on the whole amount so paid, and the county treasurer shall, upon the payment of said sum, within ten days thereafter notify the purchaser that said sum is in the treasury and subject to his order.”

This section is a re-enactment of § 5775, Mansfield’s Digest, with the added requirement that the county treasurer shall, within ten days after receiving the redemption money, notify the tax purchaser that said sum is in the treasury subject to his order.

This court, in the case of Murphy v. Smith, 49 Ark. 37, 3 S. W. 891, construed § 5775, Mansfield’s Digest, as requiring that the entire amount necessary to effect a redemption from a tax sale to an individual must be paid in the coin or treasury notes of the United States made legal tender by acts of Congress, that is, the. whole amount must be paid in money, and no part thereof may be paid in county warrants.

Section 10,101, Crawford & Moses’ Digest, defines the duty of the county treasurer, and § 10,102, Crawford & Moses’ Digest, defines the duty of the county clerk, in perfecting the redemption.

Section 10,104, Crawford & Moses’ Digest, has reference to the redemption of land sold to the State, and reads as follows: “Lands sold to the State may be redeemed within two years after sale, subject to the same restrictions, conditions and regulations as hereinbefore described in relation to the redemption of lands sold for taxes, by the application to the clerk of the county court, and payment of the same amount and penalty herein-before mentioned, and the taxes which would have accrued thereon if such land or lot had been continued on the tax books and the taxes extended to the county treasurer, and the amount due the State shall be paid by the county treasurer to the county' collector, who shall give duplicate receipts therefor, stating in said receipts the amount belonging to each fund, separately, one of which shall be immediately forwarded by the treasurer to the auditor, and the other to the clerk of the county court, who shall make quarterly reports to the Auditor of the amounts due the State on account of such redemption of any land sold to the State as herein provided. It shall be the duty of the clerk of the county court to make a note thereof on the record book of such sale provided for in this act.”

The insistence, for the reversal of the judgment of the court below, is that the statute providing for the redemption of lands sold to individuals having been construed as requiring payment in money, the statute providing for the redemption of lands sold to the State should receive the same construction, and the same requirement be imposed, and that redemptions are authorized in the latter case only upon the payment in money of the whole amount required to redeem, including the portion to which the county is entitled.

We do not so construe § 10,104, Crawford & Moses' Digest. We think its purpose is to prescribe a similar procedure to be followed by the landowner in either case. Section 10,104 does not expressly require payment in money, as does § 10,100 in case of sales to individuals. If the statute were so construed, grave doubt would arise as to its constitutionality, for § 10 of article 16 of the Constitution provides that: ‘ ‘ The taxes of counties, towns and cities shall only be payable in lawful currency of the United States, or the orders or warrants of said counties, towns and cities, respectively.” That statutes should be so construed as to render them constitutional if they are reasonably susceptible of such construction is a settled rule of interpretation. Stillwell v. Jackson, 77 Ark. 250, 93 S. W. 71; Dobbs v. Holland, 140 Ark. 398, 215 S. W. 742; Booe v. Sims, 139 Ark. 595, 215 S. W. 649; Commissioners, etc., v. Quapaw Club, 145 Ark. 283, 225 S. W. 886; Logan v. State, 150 Ark. 486, 234 S. W. 493; Board of Commissioners v. Furlow, 165 Ark. 63, 262 S. W. 991; Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154, 40 S. W. (2d) 998.

Section 10,104, Crawford & Moses’ Digest, will be better understood if it is read in connection with other statutes on the subject of payment of county taxes. Among these are the following:

Section 1988, Crawford & Moses’ Digest, provides that: “The county taxes of any county of this State, levied in pursuance of law, shall only be payable in the lawful currency of the United States or scrip or warrants of the county by whose authority the same were issued, drawn in pursuance of law and not inconsistent with this act. * * *”

Section 1993, Crawford & Moses’ Digest, provides that: “All county warrants and county scrip shall be receivable for any taxes for county purposes, except for interest on the public debt and for sinking fund, and for all debts due the county by whose authority the same were issued; * * * without regard to the time or date of issuance of such warrant, scrip, acceptance or money, or the purpose for which they were issued; and it is hereby made the duty of, and authority is hereby conferred upon, the county court of the respective, counties, or the judge thereof in vacation, to make all lawful orders compelling collectors, both county and municipal, to comply with the provisions and intent of this act. Provided, that nothing in this act shall authorize the collector to receive scrip issued since the adoption of the Constitution in payment of the tax levied to pay the indebtedness existing before the adoption of the Constitution.”

Section 2008, Crawford & Moses’ Digest, provides that: “All warrants drawn on the treasury shall be received, irrespective of their number and date, in payment of all taxes, duties, fines, penalties and forfeitures accruing to the county.”

Section 10,045, Crawford & Moses’ Digest, provides that: “The collector shall receive county warrants in payment of county taxes; * * *. Provided, this section shall not be so construed as to compel the acceptance of any order or warrant that by the laws of this State was required to be funded.” This section of the Digest has been amended by § 9 of act 275 of the Acts of 1933, page 843, but in a respect here unimportant to be considered.

These sections of the statutes, or similar statutes which they have amended, have been construed in the following cases: Daniel v. Askew, 36 Ark. 487; Whitthorne v. Jett, 39 Ark. 139; Worthen v. Roots, 34 Ark. 356; Murphy v. Smith, 49 Ark. 37, 3 S. W. 891; Richie v. Frazer, 50 Ark. 393, 8 S. W. 143; Crudup v. Ramsey, 54 Ark. 168, 15 S. W. 458; Hill v. Logan County, 57 Ark. 400, 21 S. W. 1063; St. Louis Nat. Bank v. Marion County, 72 Ark. 27, 79 S. W. 791; Bartlett v. Willis, 147 Ark. 374, 227 S. W. 596; Stanfield v. Kincannon, 185 Ark. 125, 46 S. W. (2d) 22; Stanfield v. Friddle, 185 Ark. 879, 50 S. W. (2d) 237. There are other cases to the same effect.

The purport of all the^e decisions is that a county may not refuse to receive its warrants in payment of any demand due it.

The subject was very thoroughly considered in the case of Stillwell v. Jackson, 77 Ark. 250, 93 S. W. 71. The facts in that case were that the county court of Ashley County made an order for the construction of a new courthouse, in which it was provided that “a special levy of two mills tax on the dollar be and the same is hereby levied on all the taxable property of Ashley County to build a new courthouse, and that said tax be receivable only in currency or proper warrants drawn by proper order on the courthouse fund.” The question was raised whether the courthouse tax could be paid in warrants drawn upon funds appropriated for ordinary county purposes.

There was a review of various sections of the Constitution in regard to the assessment and payment of taxes, and also of statutes upon that subject. After this review the court declared the law to be that ‘ ‘ all county warrants shall be receivable for all county taxes, except those levied to pay indebtedness existing at the time of the adoption of the Constitution and interest thereon.” The court there quoted from the case of Worthen v. Roots, 34 Ark. 366, as follows: “A review of all this legislation anterior and subsequent to the Constitution of 1874, together with that Constitution itself, reveals a settled policy, almost in terms enjoined by the Constitution itself, * * * of supporting the credit of the counties, and encouraains’ the citizens to render their services with alacrity, by making claims .-against the county a set-off for taxes."

In the case of Gould v. Davis, 133 Ark. 90, 202 S. W. 37, there was construed a special act providing for the funding of the indebtedness of Garland County, § 4 of this act provides that: “No county warrants hereafter issued by said county shall be receivable for taxes, nor in payment of any fines, penalty or forfeiture, but shall be payable only in the current money of the United States.” It was held that this section of the act was violative of § 10, article 16, of the Constitution, herein-above quoted from, and that the act was void on that account.

The effect of the numerous cases which have construed the various statutes relating to county revenues appear to clearly declare the policy and effect of the warrants in satisfaction of any claim due it.

The case of Murphy v. Smith, 49 Ark. 37, 3 S. W. 891, supra, is not contrary to this view. There the land had been sold to an individual, and the county’s demand for the taxes had been paid by the sale. Thereafter the landowner owed the county nothing on account of the taxes for the nonpayment of which the land had been sold. They had been paid. The demand was due to the tax purchaser, who was under no duty, statutory or otherwise, to receive anything except- lawful money; indeed, § 10,100, Crawford & Moses’ Digest, recognizes this right of the purchaser and gives its- sanction to be paid in money. When the sale is to the State, it is for the benefit of all the taxing agencies entitled to portions of the taxes, and the redemption is also for their benefit. It is, at last and in effect, a delayed payment of the taxes, which the law has permitted to be made, and the county then has no more right to refuse to accept its warrants in payment of its taxes than it originally had. It was still a demand due the county which the Constitution and the statutes of the State provide may be paid in the warrants of the county.

There is involved in this case no construction of Amendment to the Constitution No. 17 authorizing the levy and collection of a construction and building tax for purposes authorized by that amendment.

The writ of mandamus was therefore properly awarded, and the judgment of the circuit court will be affirmed.


author: Humphreys, J.

text:
    Sides v. Janes.
    4-3226
    Opinion delivered December 11, 1933.

      O. T. Ward and Basil Baker, for appellant.

      Harrison, Smith Taylor, Holifield & Upton and Dudley & Barrett, for appellee.
   Humphreys, J.

This is a suit in equity by appellees against appellants to enjoin the administration of the estate of C. L. Sides, deceased, by J. B. Blakemore, as administrator, with the will annexed, and to recover from said administrator the assets of said estate in his possession for the benefit of said estate and themselves, and to recover from Ira Sides, for the benefit of the estate and themselves, the amount of $8,650 that belonged to deceased, which he obtained out of a hank lock box which he and deceased had used jointly and for which he did not account in his settlement as administrator before his discharge, and to recover from him and his co-administrator, R. E. French, for the benefit of the estate and themselves, $552 overplus from the sale of cattle belonging to deceased, for which they did not account in their settlement before being discharged, and to recover from said original administrators, for the benefit of Linnie Janes, the sum of $581.62, which they collected and for which they took credit in their settlement before being discharged; and to recover, for the benefit of the estate and themselves, $2,148.50 from Mamie French, which she received from said original administrators under the erroneous belief that- deceased had given said money to her in his lifetime.

The grounds upon which appellees sought relief were that the will of deceased was annulled by a family agreement which could not be interposed as a defense in the probation of the will and the administration of the estate thereunder; and that the original administrators should return to the estate such amounts as either or both retained and for which they did not account in their settlement before being discharged; and that they erroneously took credit for rents in their settlement of the estate which belonged to Linnie Janes; and that Mamie French should return to the estate the amount she received from the original administrators under the belief that it had been given to her' by the deceased in his lifetime.

Appellants interposed the defenses that the chancery court was without jurisdiction to entertain the suit for the reason that the probate court had original and exclusive jurisdiction of the cause of action, and that all funds belonging to the estate had been properly inventoried and accounted for in the settlement by the original administrators before their discharge, and that the money turned over to Mamie French by them had been given to her by the deceased in his lifetime.

Upon a hearing of the cause, the chancellor found that in 1905 deceased executed a will giving- and devising his estate to four of his children, to the exclusion of his daughter Linnie Janes, to whom he gave only $5, and that all five of his children knew of the execution of the will; that, shortly after the death of O. L. Sides, in February, 1929, all the heirs, disregarding the contents of the will, entered, into a family settlement or agreement by which all were to share equally in the estate, and, in order to effectuate that purpose, Ira Sides and E. E. French were selected to administer the estate through the probate court without charge for their services and, after paying the indebtedness, to divide the estate between the heirs, share and share alike.; that, pursuant to the agreement, each of the five heirs received about two hundred acres of land, which was conveyed to them by properly executed deeds; that, in further consummation of the family settlement, Ira Sides and E. E. French proceeded to administer upon the personal estate, and, in the course of about two and one-half years, paid all the indebtedness and paid to each heir $2,000; that on. April 23, 1931, Ira Sides, disregarding the family agreement, filed the will which deceased had executed in 1905 with the probate clerk for the Eastern District of Clay County, and, on October 12, 1931, the administrators filed an inventory of the estate and their final settlement thereof; that exceptions to the inventory and settlement and to the probation of the will were filed by Linnie Janes and Anna French, two of the heirs and appellees herein; that on a hearing of the exceptions by the probate court, the inventory and settlement were approved and the will admitted to probate; that the original administrators were, thereupon discharged and J. B. Blakemore was appointed administrator with the will annexed; that the judgment probating the will and approving the settlement of the original administrators were appealed from by three of the heirs, Linnie Janes, Anna French and Earl Sides; that on November 2, 1932, while the appeal was pending in the circuit court, this suit in equity was instituted, to which a demurrer was filed raising the jurisdiction of the chancery court to try the cause, which demurrer was overruled, over appellants’ objection; that appellants then filed an answer to the complaint denying the allegations thereof; that subsequently the appeals to the circuit court from the orders of the probate court approving the settlement of the original administrators and the probation of the will were transferred to the chancery court and consolidated with this suit, over the objection of appellants herein; that Ira Sides found in a lock box $8,650 in currency belonging to the estate, which he failed to include in the inventory and account for in his final settlement; that the original administrators collected rents in the sum of $581.60, -which they failed to pay her; that Ira Sides retained $522 from the sale of cattle belonging to the estate, for which he did not account in his final settlement; that the administrators turned over to Mamie French $2,148.50 found in fruit jars on the premises occupied by C. L. Sides prior to his death under a claim that it was given to her by her father in his lifetime and that she now has the money in her possession; that the testimony failed to show that it was given to her by her father.

Based upon these findings, a decree was rendered, as follows:

“ (1) That the appellants, and each of them, be and they are perpetually enjoined from asserting any rights under the alleged mil of the said C. L. Sides, deceased, and J. B. Blakemore, as administrator with said will annexed, be and is hereby discharged.
“ (2) That appellees have and receive of and from the appellant, Ira Sides, for the benefit of themselves and for the estate of C. L. Sides, the sum of $8,650, together with six per cent, interest thereon from August 15, 1929, until paid.
“(3') That the administrators have no right to claim $581.62 rents belonging to appellee Linnie Janes, and credit for said rent should not 'be 'given them in their final accounting as hereinafter directed.
‘ ‘ (4) That appellees have and recover of and from the appellant, Ira Sides, for the benefit of themselves and the estate of C. L. Sides, the sum of $522, being the amount retained by him as the sale price of cattle as hereinabove set out, together with interest on said sum at the rate of six per cent, per annum from. August 15, 1929, until paid.
“ (5) That appellees have and recover of and from Mamie French, for the benefit of themselves and the estate of C. L. Sides, the sum of $2,192.50, together with interest thereon from 1st day of October, 1931, at the rate of six per cent, per annum.
“(■6)’ That the part of this suit involving the inventory, accounts and final settlements of the administrators be and the same is hereby remanded to the circuit court for final disposition, with directions to said court in stating said account to charge the administrators and individuals in accordance with, this opinion in so far as this decree determines title, and to order a distribution of said estate, among the five heirs thereto, or their representatives in equal portions in accordance with the final settlement agreed upon, and that no compensation be allowed said administrators for their services.
“ (7) That the appellants, Ira Sides, Mamie French and E. E. French, will pay all costs of this proceeding, and that appellees may have execution on this judgment.”

Appellants prayed and have duly prosecuted an appeal to the Supreme Court from the decree thus rendered, and appellees have prayed and duly prosecuted a cross-appeal from the decree remanding the inventory, accounts, and final settlements of the administrators to the circuit court for final disposition.

The testimony is voluminous, and no useful purpose could be served by setting it out in this opinion. Suffice it to say that, after a careful reading thereof, we are of opinion that the findings of fact by the chancellor are sustained by a preponderance of the evidence.

It is contended that the decree should be reversed because the probate court had exclusive original jurisdiction over the will and administration of the estate of deceased, C. L. Sides. It is true that, under the Constitution of this State, article 7, § 34, exclusive original jurisdiction was conferred on probate courts in matters relative to the probate of wills and to administration of estates of deceased persons, but no authority is conferred upon probate courts by this provision of the Constitution to cancel or annul wills or to settle the title to property where the title thereto is in question. This court said in the case of Moss v. Moose, 184 Ark. 802, 44 S. W. (2d) 825, that “it has been repeatedly held that it was not the purpose of the Constitution and statutory provision to invest the probate court with jurisdiction to contest 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.

The main purpose of the instant suit was to determine the ownership of moneys found in a lock box and upon a farm upon which deceased had resided, and to annul or supersede the. will of deceased sought to be probated, by a family settlement or agreement. These were matters over which the probate court had no jurisdiction, and which might be determined in a court of equity. It was said, in substance, by this court in the case of McCarley v. Carter, 187 Ark. 282, 59 S. W. (2d) 596, that the fact that a will has been admitted to probate does not preclude inquiry by another court having jurisdiction into the rights of the parties under the will and to declare same void for forgery or for other reasons.

The record herein reflects that, at the time of the institution of the suit in the chancery court, the original administrators had paid all the debts of the. deceased out of the assets of the estate and had divided about $10,000 amongst the heirs in addition to the lands received by each pursuant to. the family settlement, at which time Ira Sides sought to have the purported will probated and the estate administered thereunder by another administrator, and that this purpose was effected by procuring the probation of the will and the appointment of J. B. Blakemore as the administrator with the will annexed, and an order of the probate court approving the settlement of the administrators and their discharge, all over the objection and exception of appellees, and from which orders appellees prosecuted appeals to the circuit court.

The record also reflects that these appeals were transferred to the chancery court and consolidated with this suit, over appellants’ objection and exception.

The chancery court had jurisdiction to try and determine the main issues in the case — that is, whether there was a family agreement superseding and annulling the will and whether the moneys found in the lock box and buried on the farm belonged to deceased; and it also became the duty of the chancery court to order the administrator with the will annexed to turn .over the assets he received from the original administrators for a division among the heirs of the estate. All the assets of the estate had been collected, and all the debts had been paid, and no necessity remained for further administration thereof.

The instant case comes within the rule announced in the recent case of United States Fidelity & Guaranty Company v. Edmondson, 187 Ark. 257, 59 S. W. (2d) 488, and is not governed by the rule announced in the case of Coppege v. Weaver, 90 Ark. 444, 119 S. W. 678, and kindred eases cited by appellants. In the latter cases there was a necessity for remanding them to the probate court in order that the administration might be continued and final settlement made; but, in the instant case, no such necessity existed. We said in the Edmond-son case, supra, that it was a case “in which there is no continuing necessity for a further course of administration, the assets have all been collected, the debts have been ascertained and paid, and nothing remains but to fix the liability of the guardians and executors and to distribute the assets to the persons entitled thereto. We therefore hold that the chancery court, having assumed jurisdiction, should have falsified and surcharged all accounts in their entirety, and should have entered a final decree on such findings without remanding the cause to the probate court for action on the settlements which have not been passed upon. Adams v. Shell, 182 Ark. 959, 33 S. W. (2d) 1107; Beckett v. Whittington, 92 Ark. 230, 122 S. W. 633; Brice v. Taylor, 51 Ark. 75, 9 S. W. 854; Hankins v. Layne, 48 Ark. 544, 3 S. W. 821; Sorrels v. Trantham, 48 Ark. 386, 3 S. W. 198.”

The decree is therefore in all things affirmed except that part thereof remanding the inventory, accounts, and final settlements of the administrators to the circuit court for final disposition with directions. In that particular, the decree is reversed on cross-appeal with directions to the chancery court to falsify and surcharge all accounts in their entirety and to enter a final decree dividing the property among the heirs according to their several interests.

Mr. Justice Btjtler dissents.


text:
    Cook v. Dobbs.
    4-3237
    Opinion delivered December 11, 1933.

      R. L. Derryberry and J. Loyd Shouse, for appellant,

      J. H. Black, for appellee.
   Humphreys, J.

This is an appeal from a decree rendered by special chancellor Berry Floyd, in the- chancery court óf Marión County, in favor of W. H. Dobbs, on motion filed in an original attachment proceeding for a judgment against the intervener, G-. E. Roberts, and Ms bondsmen, J. B. Cook, N. A. Lowery and W. F. Butler, for the value of certain property not returned by them in the attachment proceeding in the same court, wherein W. H. Dobbs was plaintiff and Paul Stone defendant. Tbe attachment proceeding was tried by the regular chancellor, Judge Sam Williams, at a prior term of court, and a decree rendered therein.

It was alleged in the motion that - the intervener, G-. E. Roberts, obtained the release of 1,400 railroad ties which had been attached in the attachment proceeding by filing a bond conditioned for their return; and, in the decree sustaining the attachment, the intervener was ordered to return or deliver them to the sheriff, which he failed to do; and that his bondsmen, J. B. Cook, N. A. Lowery and W. F. Butler, are liable therefor.

J. B. Cook and Floyd Butler denied the execution of the bond or that the intervener, J. B. Roberts, failed to return or deliver any of the property ordered to be returned or delivered in said decree. This answer was sworn to before the clerk of the court.

When the motion was called for trial, appellants herein objected to the trial thereof on oral evidence, and requested that same be heard on depositions, which request was refused, over their objection and exception.

Appellants contend that this ruling by the court constituted prejudicial, and therefore reversible-, error. We do not understand that the statute allowing the use of depositions in equitable proceedings is mandatory. The language of the statute is that “depositions may be used on the trial of all issues, and upon all motions in actions by equitable proceedings.” Even though the request to do so was made by appellants, and refused by the court, no showing is made that the action of the court prejudiced them in any way. No reversible error was committed by allowing the motion to be tried on oral evidence.

The next contention of appellants for a reversal of the decree finding that they executed the intervener’s bond is that there is no evidence whatever to support it. They call attention to the fact that they verified the response denying the execution of the bond, and to the recital in the decree that the issues joined by the motion and response were tried upon the evidence of certain witnesses and certain excerpts from the witnesses who testified in the attachment proceeding, and that none of said witnesses testified that the intervener’s bond was given. The decree did not recite specifically that all the pleadings and proceedings in the attachment suit were before the special chancellor, but, of course, they were, as this motion was filed in that case. The transcript herein shows that the clerk read the original decree in the attachment proceeding to the special chancellor, yet no mention was made of it in the decree rendered by the chancellor. It appears that, in the original decree the intervener’s bond called in question was referred to. In the decree sought to be reversed on this appeal, the special chancellor specifically found “from the record in this case that, J. B. Cook, Floyd Butler and N. A. Lowery are the bondsmen of the intervener, Gr. E. Roberts,” meaning, of course, that the record in the attachment proceeding before him, and subject to his inspection, showed that they had executed the bond. This proceeding, by motion in the attachment suit, was a continuation thereof for the purpose of obtaining the property, or its value, from the intervener and his bondsmen, who failed to return the attached property to the sheriff in accordance with the original decree. The record in the entire proceeding was necessarily before the special chancellor, and we must presume from his finding that the intervener’s bond, signed by appellants, was in the files and inspected by him.

Appellants also contend for a reversal of the decree on the ground that the evidence fails to show that the 1,400 railroad ties attached by the sheriff were delivered to the intervener on his cross-bond. The evidence was conflicting in this particular, and we cannot say, after a careful reading thereof, that the finding of the special chancellor was contrary to a clear preponderance of the evidence.

No error appearing, the decree is. in all things affirmed.


author: Kirby, J.,

text:
    Brockman v. Board of Directors of Jefferson County Bridge District.
    4-3238
    Opinion delivered December 11, 1933.

      E. W. Brockman, for appellant.

      Bridges, McGaughy & Bridges, for appellee.
   Kirby, J.,

(after stating the facts). The appellant seeks to collect fees against certain delinquent lands of the district embraced in this suit and have them, taxed against each particular tract described therein as costs for his compensation for the collection of the delinquent taxes for 1929 and 1930 as provided in said act 121 of 1921.

He alleged that said act making provision for the collection of delinquent taxes ivas enacted long prior to the adoption of amendment No. 12 to the Constitution, prohibiting the passage of local acts by the Legislature, and that by its terms he was entitled to have the court fix a reasonable sum to be taxed as attorney’s fees against each tract of land set out in the complaint; and that said act of the Legislature, No. 274 of 1933, entitled: “An Act to Amend § 1 of act 121 of the Special Acts of the General Assembly of the State of Arkansas, approved February 1, 1921,” left out of the provisions of said act all reference to the collection fees for the service, and instead provided: “And it shall be the duty of said attorney to do and perform all and singular the duties incumbent on the attorney for the Jefferson County Bridge District, and said service shall be performed by the prosecuting attorney of said county without additional salary to that now provided by law for the prosecuting attorney of Jefferson County.”

It is insisted that said § 1 of act 274 of 1933, is void as being in conflict with article 19, § 11, of the Constitution in that it endeavors to diminish the salary of the prosecuting attorney during his term of office, and further is in conflict with Amendment No. 12 of the Constitution, attempting to amend a special act of the Legislature.

The court made the following declaration of law: “The intervention in this case as presented by E. W. Brockman, as prosecuting attorney of Jefferson County and made attorney for the Jefferson County Bridge District under act No. 121 of the General Assembly for the year 1921, presents the issue as to whether act .No. 274 of the Acts of the General Assembly for the year 1933, amended or repealed said act No. 121 for the year 1921. This court is not passing on any phase of the case as to the justness of the act, the amount of work to be done, or fees fixed therefor, but solely on the question of the constitutionality of act No. 274 of the Acts of 1933. Since the adoption of the constitutional amendment which prohibits the Legislature from passing a local or special act, the Legislature cannot amend a local act, but it can repeal a local act, either entirely or only some particular part of it.”

Article 19, § 11, of the Constitution provides that prosecuting attorneys, with other specified State officials, “shall each receive a salary, to be established by law, which shall not be increased or diminished during their respective terms, nor shall any of them, except the prosecuting attorneys, * * * receive to his own use any fees, etc.” Under the statute a salary is provided for prosecuting attorneys which can be said within the meaning of the above section to be established by law, and said section also prohibits the increasing or diminishing of the salary during the respective terms of office. The prohibition, however, is to the salary only, and does not affect one whose compensation is not definite and fixed, but is uncertain in amount and consists in fees or percentages. 46 C. J. 1024, and cases cited in footnote 55. See also, State v. Grimes, 7 Wash. 445, 35 Pac. 361, where a like provision of the Constitution of Washington received such construction. No compensation had been fixed for the services herein before the act of 1933' reduced the compensation, and: “A constitutional provision prohibiting a change, of compensation after an election or appointment during’ the term of an office does not apply where, prior to such time, no salary or compensation had been fixed for the office. ’ ’ 46 C. J. 1025.

Said act 274 of 1933 is not in conflict with article 19, § 11, of the Constitution. It is obvious that the framers of the Constitution had in mind only the stipulated salaries of the public officials mentioned, prohibiting their being increased or decreased during their respective terms of office, and not the addition or deduction of some fee allowed for a particular service. Purnell v. Mann, 105 Ky. 87, 48 S. W. 407.

Neither does said act 274 of 1933, conflict with said Amendment No. 12 to the Constitution, which reads as follows: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” Said amendment expressly provides that it shall not prohibit the repeal of local or special acts.

“There are two ways of repealing a statute or part thereof; one is by express terms, the other by necessary implication. The question of repeal is one of intent, and must be solved by determining as near as may be the intent of the Legislature.

“An express repeal is the abrogation or annulment of a previously existing law by the enactment of a subsequent statute which declared that the former law shall be revoked or abrogated.” 59 C. J., § 502.

The Constitution provides the method for amending a law and requires that whatever part thereof is to be retained “shall be re-enacted and published at length.” Article 5, § 23. It is invariably held all of the section or law that is omitted and not re-enacted in the provisions of the amendatory act as proposed, is repealed. Apple-gate’s Constitution of Arkansas Annotated, article 5, § 23, p. 47, and cases cited'.

This court has already held, construing Amendment No. 12 to the Constitution, that the Legislature has the right to repeal a local act entirely or only some particular part of it. Gregory v. Cockrell, 179 Ark. 719, 18 S. W. (2d) 362.

The method adopted here by re-enacting the particular part of the act proposed to be retained, effected only the repeal of that part omitted, and was within the competency of the Legislature, as correctly held by the chancellor herein.

If an additional duty is prescribed or imposed upon a public official without any provision for any further salary or compensation paid, it does not relieve him from the performance of such duty, it being presumed that the Legislature concluded that his salary or fees already provided are sufficient for the additional service required to be rendered.

"We find no error in the record, and the decree is affirmed.


text:
    Arkansas Power & Light Company v. Dillinger.
    4-3209
    Opinion delivered December 11, 1933.

      Rose, Hemingway, Cantrell & Loughborough and J. W. Barron, for appellant.

      M. B. Norfleet, L. A. Hardin and C. W. Garner, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that said instruction No. 1, given for appellee, is erroneous in that it required a higher degree of care to be exercised by the motorman in proportion to the greater danger to be avoided than the law warrants. Said instruction reads as follows: ‘ ‘ The court instructs the jury that the defendant in the operation of its street cars in the city of Little Bock over and across streets that people are constantly traveling over, it is the duty of the operatives of the said street car to exercise due care. The operators must be governed to some extent by the circumstances that surround them at the various street crossing’s along their line. And, if you find from the evidence that- there was a building on the east side of said street ear track and south of 23d Street, and was built and situated so that the view to said 23d Street was cut off and obstructed, so that the operatives of said street car could not see an automobile approaching said ear line from the east until said automobile was near or upon said tracks, then the operatives of said street cars traveling north and approaching said 23d Street crossing would be required to exercise a higher degree of care in proportion to the greater danger; and the operatives of said street car should reduce the speed of said street car or take other precaution, so as to have their street car under such control as would enable them to avoid dangers and injuries to others using or traveling over said tracks at said crossing. ’ ’

The instruction is not open to the objection made against it, and only tells the jury that the care necessary to be exercised would increase with the apparent dangers to be avoided, which, under the circumstances, would only be ordinary care, or that care which a reasonably prudent and cautious person would exercise under similar circumstances, and it was not meant to, and did not, require the exercise of a greater degree of care than ordinary care. In St. Louis, I. M. & S. R. Co. v. Chamberlain, 105 Ark. 180, 190, 150 S. W. 157, it is said: “The degree of care varies with the circumstances of each ease, and necessarily depends upon the hazard or danger. It would not he improper to say that a greater degree of care should be exercised when the situation or circumstances is more dangerous or hazardous. Under such circumstances, a reasonably prudent and cautious person would exercise greater care than when the situation involved less or no danger. The exercise of the greater care, under more dangerous and hazardous circumstances, would therefore only be the exercise of that care which a reasonably prudent and cautious person would exercise under similar circumstances, and would therefore be at last only ordinary care. And this, we think, is but the meaning and effect of the instruction given.” See also Bona v. Thomas Auto Co., 137 Ark. 224, 208 S. W. 306; Carter v. Brown, 136 Ark. 23, 206 S. W. 71; and Minor v. Mapes, 102 Ark. 351-54, 144 S. W. 219.

Appellant next complains that appellee’s requested instruction No. 3, stating that appellee relied upon the doctrine of discovered peril or last clear chance for recovery, etc., is erroneous, and that said doctrine has no application whatever in this case. Appellant, however, asked instructions on the same point, and the instruction complained of is not out of harmony with this court’s former declarations upon such doctrine: Pankey v. L. R. Ry. & Elec. Co., 117 Ark. 337, 174 S. W. 1170; Hot Springs St. Ry. Co. v. Hildreth, 72 Ark. 572, 82 S. W. 245; Citizens’ St. Ry. Co. v. Steen, 42 Ark. 321; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522, 102 S. W. 369; St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 46.

In St. Louis S. W. R. Co. v. Simpson, 184 Ark. 638, 43 S. W. (2d) 251, the court said: “The discovered peril doctrine, or the doctrine of the last clear chance, as it is sometimes called, constitutes an exception to the rule that the contributory negligence of the plaintiff is a bar to this action. Under this doctrine, where one discovers the perilous situation of another in time, by the exercise of ordinary care, to prevent injury to him, it is his duty to do so, and lie is guilty of negligence if lie fails to do so, which is regarded in law as the proximate cause of the injury, and this, too, regardless of the contributory negligence of the injured person. Such a person is regarded in law as having the last clear chance to prevent injury or death to another, and it is his duty to do so. ’ ’

Although this case was reversed by the United States Supreme Court, 286 U. S. 346, on the facts, the rule of law appears not to have been affected thereby. See also Mo. Pac. Ry. Co. v. Skipper, 174 Ark. 1096, 298 S. W. 849.

Appellant, by its instructions asked for and granted by the court, had the issues submitted to the jury on the doctrine of last clear chance, and the jury found against appellant on conflicting testimony.

Appellant malees a strong determined assault upon the rule of the last clear chance doctrine as announced by our decisions and cites cases from most of the other jurisdictions in favor of its contention; but the matter has long been settled here, and we do not regard that there exists any necessity for additions or amendments to this doctrine as already announced.

We do not set out any further instructions complained of, but, after a careful examination of them all, we believe appellant had the benefit of several instructions that were more favorable to its contention than the law warrants.

A careful examination of the whole record discloses that no prejudicial error was committed in the trial of this case. The judgment is affirmed.


author: Kirby, J.

text:
    Armstrong v. McCluskey.
    4-3183
    Opinion delivered December 11, 1933.

      H. L. Ponder, for appellant.

      W. P. Smith and O. C. Blackford, for appellee.
   Kirby, J.

The appellant, J. W. Armstrong, as receiver of the Planters’ National 'Bank of Walnut Ridge, brought this suit in the Lawrence Chancery Court for the Eastern District against the appellees on the following promissory note:

“Principal Date 10-28-1931 Paid $1.54 Bal. $498.40
t ‘ tj;goo
“Walnut Ridge, Ark., 1-15-27.
“Six months after date, for value received, we or either of us promise to pay to the order of J. M. Whit-low five hundred and no/100 dollars at the Lawrence County Bank, Walnut Ridge, Ark., with interest at the rate of 10 per cent, per annum from date until paid. The makers and indorsers of this note hereby severally waive presentment of payment, notice of nonpayment, protest and consent that time of payment may be extended without notice thereof. If interest is not paid when due, same shall then become as principal, and bear interest at the same rate until paid.
[Signed] “ J. A. MeCluskey,
“D. D. Allison,
“W. II. Broadway.
“Notice 1-28-31.
“Indorsed:
“'2-1-28 pd. $38.00
“2-6-28 pd. 8.10
“2-15-28 11.45 2-16-28 6.70 18.15
“3-10-28 “ 42.00
“3-17-28 “ 2.10
“3-20-28 “ 59.50
“1-22-28 J. M. Whitlow.
“Indorsed to Clarence Whitlow without recourse, Clarence Whitlow.”

The appellee, Allison, filed a separate answer and cross-complaint, in which he alleged as one of his defenses that the note was void for usury. He alleged that J. M. Whitlow, acting through his son and general agent, Clarence Whitlow, had unlawfully and fraudulently conspired with his son, together with the defendant, Davis, to make a usurious loan on the said note'to the said Davis by writing on the face of the note the name of J. M. Whit-low as payee, without the authority or knowledge of the defendant, Allison, and loaned to Judson Davis the sum of $400 only, taking his note in the sum of $500 and charging an extra $100 by reserving the same; that the said loan and transaction was, and is, usurious and void.

McCluskey, Clarence Whitlow and Judson Davis, who were also made parties to the suit, filed no answer, but the defendant, J. M. Whitlow, filed a separate unverified answer denying that he was the principal, and that Clarence "Whitlow was his agent, and alleging that, as soon as-he learned of the transaction, he immediately and before maturity repudiated the transaction, and thereupon the said Clarence Whitlow paid him the face value of said note, and he in turn indorsed the same to Clarence Whitlow without recourse on him; that Clarence Whit-low was not his general agent, and had no authority to make the transaction for him in matters of taking notes or in any other matters, and realleged that he repudiated his son’s acts within a few days after his son took the note.

On the evidence adduced, the trial court found: “That this is a suit upon a promissory note dated January 15, 1927, for the sum of five hundred dollars, payable to the order of J. M. Whitlow, with ten per cent, per annum interest from date until paid, signed by J. A. McCluskey, D. D. Allison and W. EL Broadway; the court further finds that Clarence Whitlow, acting as the agent of his father and co-defendant, J. M. Whitlow, made the loan represented by the note sued on herein, as agent for his father and co-defendant, J. M. Whitlow, and, as such charged the sum of one hundred dollars, as a bonus, paying over only the sum of $400, accepting a note for the sum of five hundred dollars, bearing ten per cent, interest per annum from date until paid.

‘‘ That said loan was usurious, and that the reservation of said one hundred dollars, together with the ten per cent, interest charged, was a greater sum for the loan and forbearance of money [than] allowed by law, so as to render said loan and note sued on void; that the defendant, J. M. Whitlow, knew at the time of the reservation of said one hundred dollars at the time his agent made said loan, and ratified his actions as his agent by accepting said note and the benefits thereunder, and did not attempt to escape his liability on account of said usury until more than one year after making said loan, when he attempted to escape liability by indorsing said note to his son without recourse on. January 22, 1928.

“The court further finds that Clarence Whitlow, after said note had been indorsed to him by his father and co-defendant, J. M. Whitlow, his principal, without recourse, indorsed the note and placed the same as collateral for another note he owed Planters ’ National iBank of Walnut Ridge, the said bank accepting said note as additional collateral to an old note already, due said bank by said Clarence Whitlow, after maturity, without consideration and with the indorsement of J. M. Whitlow without recourse, and for that reason should not recover as against J. M. Whitlow. ’ ’

The court then entered a decree by default against McCluskey, Judson Davis and Clarence Whitlow in the sum sued for, and decreed that the plaintiff take nothing as against Allison and J. M. Whitlow, and canceled the note as to the defendant, D. D. Allison.

The appellant, receiver, first contends that the evidence adduced to establish usury fails to meet the requirements of the rule announced in Holt v. Kirby, 57 Ark. 256, 21 S. W. 432, and Briggs v. Steel, 91 Ark. 458, 121 S. W. 754, and approved in many subsequent decisions. That rule may be thus stated: To establish usury there must be shown an agreement by which the borrower agrees to pay and the lender knowingly receives a higher rate of interest than is allowable by law for the loan or forbearance for money, and that the same was actually taken or received. Usury will not be inferred where an opposite conclusion can be fairly reached and the burden rests upon the one pleading it to establish his plea by a fair preponderance of testimony.

The appellant next contends that, since the testimony shows that the loan was negotiated and the transaction completed by an agent of J. M. Whitlow, it was necessary to establish the awareness of the principal of the-usurious agreement, or of facts from which his knowledge may be inferred, (Van Deventer v. Smith, 123 Ark. 612, 186 S. W. 59), and that in these particulars the evidence fails. We agree with counsel on the principles of law announced, but think he errs when he contends that under the evidence their application acquits the lender, J. M. Whitlow, of the charge of usury and establishes the validity of the note and the appellee, Allison’s, liability.

The evidence relating to the fact of usury, and the knowledge of J. M. Whitlow of the unlawful dealing of his agent in effecting the loan, is so connected that both contentions may be disposed of in a single discussion. In considering the testimony on these related subjects, we bear in mind the principle that there can be no device or trickery on the part of the lender to evade the statute against usury under, or behind which, the law will not look in order to learn the real nature of the transaction, and that any given facts may be established by the proof of circumstances surrounding the transaction, as well as by direct evidence. There were only two persons present when the loan was made and the note delivered, Clarence Whitlow, the son of J. M. Whitlow, and Judson Davis, for the benefit of whom and of Davis’ partner, McCluskey, the note was signed by Allison. Clarence Whitlow testified in positive terms that the full $500 was paid over to Judson Davis, and there was nothing retained or reserved in addition to the lawful rate of interest charged. But there was brought out in his examination, and from other evidence in the case, proof of circumstances which tended to contradict his direct testimony. He also testified that he was the general agent of J. M. Whitlow, and was authorized to, and did frequently, sign his father’s name to checks, draw money of his father, make loans for him, take notes and sign his father’s name to indorsements thereon. J. M. Whitlow except by his unverified answer, made no denial of this part of the testimony of his son, Clarence Whitlow. Clarence Whitlow further testified that, in dealing with the transaction with Davis, he acted for his father as he was authorized to do, put his father’s name in the blank left for the payee, collected the payments which Davis would make from time to time, and finally wrote the indorsement “without recourse” to himself, to which he signed his father’s name.

Judson Davis, the other party having direct knowledge of the transaction, stated that Clarence Whitlow g’ave him only $400 and reserved $100 in addition to the 10 per cent, interest for making the loan; that, just before the trial, Clarence Whitlow came to him in an endeavor to influence him to testify “in line” with the testimony that he (Clarence) would give relative to the amount of money he received as the proceeds of the note; that he wanted him to say that it was $500. This part of Davis ’ testimony was not disputed by Whitlow. In Clarence Whitlow’s testimony, no reason was given as to why the transaction did not meet with his father’s approval, and it is certain, from the date appearing on the note and from Clarence’s testimony, that it was not indorsed to him without recourse until the 22d of January, 1928, a year after the date of the note and six months beyond its maturity.

In determining the questions presented, the court had for its consideration, not only the direct evidence, but the peculiar circumstances surrounding the transaction, to narrate all of which would unduly extend this opinion, and which we think was sufficient to support the court’s finding of fact.

The trial court was of the opinion that, because of J. M. Whitlow’s indorsement on the note without recourse, coupled with the fact that the appellant accepted the same as collateral for a past-due note of Clarence Whitlow, he was not liable therefore for its payment. In this the court was mistaken. An assignment of a note without recourse is equivalent to a mere sale without an express warranty, but there remains the implied warranty, among others, that there is no legal defense growing out of the assignor’s own connection with its origin (Smith v. Corege, 53 Ark. 295, 14 S. W. 93), and that the assignor has no knowledge which would impair the validity of the instrument or render it valueless. Crawford & Moses’ Digest, § 7831. Therefore, since the validity of the note is warranted by the indorser where the note is not valid because of usury, because of the implied warranty, the indorser becomes liable for its payment. 8 C. J., pages 369 and 392; Challis v. McCrum, 22 Kan. 157, 31 Am. Rep. 181.

It follows that J. M. Whitlow is liable for the payment of the note by reason of the implied warranty contained in his indorsement, and that the court erred in contrary judgment.

The decree of the trial court is correct, and will be affirmed except as to the appellee, J. M. Whitlow. As to him, it is reversed, and the cause remanded with directions to enter judgment against him in favor of the appellant for the amount due on the note according to its tenor and effect.