author: Humphreys, J.

text:
    Fore v. Chenault.
    Opinion delivered April 27, 1925.
    1 Judgment — COLLATERAL attack. — A defendant aggrieved toy a judgment rendered against him without summons and in his absence is not entitled to have it vacated where he knew of the pendency of the action and of the proceedings thereunder in time to make a defense, and did not appeal from the judgment or use any diligence in seeking to vacate it.
    2. Judgment — collateral attack. — An error in the form of a judgment may be corrected on appeal, but not on collateral attack.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      John D. DeBois and John E. Miller, for appellent.

      J. N. Rachels, for appellee.
   Humphreys, J.

Appellant herein and Harry Collins were defendants in a replevin suit brought by appellees herein on April 27, 1921, in the Circuit Court of White County, to recover one Cole Eight automobile car No. 61816, which was in said appellant’s possession, at Bald Knob, in said county. It was alleged in the complaint and affidavit for the order of delivery in the replevin suit that appellees herein sold said automobile to Harry Collins, and, for the balance of the purchase money, amounting to $3,125, took his promissory notes, and to secure same a mortgage upon said automobile, which was recorded in Wilbarger County, Texas, where the sale was made and car delivered; that said automobile was removed to Bald Knob, Arkansas, by said appellant and Harry-Collins, through some arrangement between them, without the knowledge or consent of appellees, in violation of the terms of the mortgage-; that default was made in the payment of the notes, and that said appellant was in the unlawful possession thereof under a false claim of ownership. On Monday, Julv 8,1921, the following judgment was rendered by default in said replevin suit.

“Now on this day this cause coming on to be heard, and the plaintiffs armearing by their attornev, J. N. Rachels, and the defendants having been called three times before tbe bar of tbe court and failing to answer; and it appearing that the defendants have been served with process as required by law, and that the writ of replevin heretofore issued herein has been served and the property hereinafter described has been delivered to the plaintiffs; it is therefore considered, ordered and adjudged by the court that the plaintiff herein, Chenault & Wheat, are the owners of and are entitled to retain possession of the said 1920' model Cole Eight automobile, car No. 61816, and that they have judgment against the defendant, R. M. Fore and Harry Collins, for all their costs in and about this suit in their behalf expended, for which execution may issue. ’ ’

On July 27, 1922, this suit was brought by appellant against appellees in the same court to set aside and vacate the judgment in the replevin suit, upon the alleged ground that it was rendered without service upon said appellant and his codefendant, Harry Collins. It was also set forth in the complaint that said appellant had a meritorious defense to the replevin suit. The substance of the alleged meritorious defense was that appel-lees executed an outright bill of sale for the automobile to Harry Collins in Dallas, Texas, and placed said bill of sale on record in Dallas County, Texas, and then permitted Harry Collins to sell the car to appellant for cash, without informing appellant that they held or claimed a mortgage thereon.

The cause was submitted upon the pleadings and testimony, at the conclusion of which the court, over the objection and exception of appellant, instructed a verdict for appellee, and^rendered a judgment dismissing appellant’s complaint, from which is this appeal.

The evidence showed that appellant was out of the State at the time the summons and order of delivery in the replevin suit was issued and placed in the hands of the sheriff, and that the delivery of the order and summons by the sheriff of White County to appellant, and the statutory period allowed appellant in which to make bond to retain the automobile, was waived in writing by . Cnl L. Pearce, who, at the time, was under the impression that he represented appellant, growing out of a conversation over the telephone with appellant’s wife. Pursuant to this waiver the sheriff made the following return upon the order and summons, to-wit: “I have served the within order of delivery and summons by delivering*a copy thereof to Cul L. Pearce, attorney, o,f Bald Knob, who represents to me that he is counsellor and attorney for defendant, R. M. Fore. This April 27, 1921. Ben Allen, sheriff. ”

Appellant testified that Pearce had no authority to represent him or waive service for him in the replevin suit, but admitted that he knew of the pendency of the suit and of the seizure of the automobile under the order in time to have made a defense before the judgment was rendered in said suit.

It will be observed that this suit is a collateral attack upon the judgment rendered in the replevin suit. This court is committed to the rule that ‘ ‘ one who is aggrieved by a judgment rendered in his absence must show not-only that he was not summoned, but also that he did not know of the proceedings in time to make a defense,” in order to obtain relief. State v. Hill, 50 Ark. 458; Moon v. Price, 101 Ark. 142; Quigley v. Hamilton, 104 Ark. 449; First National Bank v. Dalsheimer, 157 Ark. 464. In the instant ease it affirmatively appears that appellant knew of the pendency of the replevin suit and of the proceedings thereunder in time to have made a defense before the judgment was rendered. He did not appeal from the judgment, and used no diligence in seeking to vacate the judgment. Appellant also contends that the judgment in the replevin suit is also void and should be vacated because it did not follow the form prescribed in § 8654a of Crawford & Moses’ Digest, which is as follows :

“In any action in a justice court or circuit court of this State, where it is attempted to foreclose any mortgage, deed of trust, or to replevy, under such mortgage, deed of trust or other instrument, any personal property, the defendant or defendants in said action shall have the right to prove or show any payment or payments or set-off nnder such said mortgage, deed of trust or other instrument, and judgment shall be rendered for property or the balance due thereon, and the defendant may pay the judgment for the balance due and costs within ten days, and satisfy the judgment and retain the property.”

The judgment did not specify the amount due upon the mortgage nor adjudge the possession of the automobile to appellees in case the amount due should not be paid in ten days. On the contrary, immediate possession of the automobile was adjudged to appellees, regardless of what amount was due or when it should be paid. Appellant cited the case of Shoffstall v. Downey, 87 Ark. 5, in support of his contention that the judgment is void. The case does not go to the extent claimed for it by appellant. In that case an appeal was prosecuted to this court to correct errors committed in the trial of the cause. This court held that the trial court erred in the form of the judgment, and reversed same in order for a judgment to be rendered in accordance with the provisions of § 8654a of Crawford & Moses’ Digest. The.rendition of the judgment in the wrong form was treated by the court as an error which could be corrected on appeal, but not on collateral attack.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    Cain v. Robertson.
    Opinion delivered April 27, 1925.
    1. Courts — special term. — primary election contest. — Crawford & Moses’ Dig., § 3773, requiring the calling of a special term for the trial of a primary election contest, applies not .only to the first trial after the contest is filed, tout also to a trial after appeal and reversal, and it is immaterial that the general election had passed and the contestes had ¡been elected to office.
    2. Courts — special term — discretion as to time. — While Crawford & Moses’ Dig., § 3773, providing for calling a special term for the trial of primary election contests is mandatory, it does not deprive the circuit judge of discretion in determining the date on which the special term shall be held, and the Supreme Court will not control his action in calling a special term for trial of such contests, in the absence of apparent abuse of discretion.
    3. Mandamus — order to call special term of court. — Mandamus will Me to compel a circuit judge to call a special term for the trial of a primary election contest on his refusal to do so.
    Mandamus to Woodruff Circuit Court; E. D. Robertson, Judge;
    writ awarded.

      Roy D. Campbell, for appellant.
   Per Curiam:

Tlie petitioner, W. R. Cain, was a candidate in the Democratic primary election on August 12, 1924, for the office of county .judge of Woodruff County, and E. M. Carl-Lee and J. L. Bronte were his opponents. Carl-Lee was returned by the canvassing-board as the successful candidate, and the petitioner received the next highest number of votes. Petitioner filed his contest against Carl-Lee in the circuit court, and, at a special term of the court, held on October 2, 1924, there was a trial of the contest, which resulted in a judgment against petitioner. He prosecuted an appeal to this court, and the judgment of the circuit court was reversed on account of erroneous rulings of the trial court, and the cause was remanded for a new trial. As soon as the judgment of reversal became final, petitioner caused the mandate of this court to be filed in the circuit court on March 18, 1925, the regular term of the circuit court having adjourned on March 7, 1925. Petitioner then presented to respondent circnit judge his petition praying that a special term of the court be called to trjr the cause, in view of the fact that the next regular term of the court would not be convened until the first Monday in September. The petition was heal’d by the circuit judge, and the prayer thereof was denied, and there was an express refusal to call a special term of the court. Appellant now has presented his petition to this court for a mandamus to require the circuit judge to call a special term of the court.

Petitioner bases his right to relief by mandamus on a section of the primary election law which reads, in part, as follows:

“Section 3773. If the complaint is sufficiently definite to make a prima facie case, the judge shall, unless the circuit court in which it is filed is in session or is to convene within thirtv 'days, call a special term, which shall possess the powers of a court convened in regular term:, and shall proceed at once to hear the case. If the case comes in regular term, it shall be given precedence and be speedily determined. The judg'e mav adjourn other courts in order to hear such cases, and may call another iudge in exchange to sit in other courts, or vacate the bench in other courts and cause a special iudge to be elected to hold the same: and the session of the special term to hear such cases shall not interfere with the valid-itv of other courts proceedin'.»: at the «ame time in said circuit. * * Crawford & Moses’ Digest.

The circuit iudge filed a response to the petition, stating, as justification for his refusal to call a special term of court to try the contest, that, “in the event the petitioner should prevail in the new trial, the office would be declared vacant,” and that “the general election having been held, the reason for calling a special tei’m no longer exists.” The auestion that first arises is, w° think, whether the section ouoted above applies to any trial of the ronteat or merely to the first, trial after the contest is filed. We find nothing in the statute which would justify the interpretation that it was intended to apply only to the first trial, but, on the contrary, it was the manifest purpose of the statute to hasten the trial of a contested election case whenever the time for the trial arrives, whether originally or after an appeal and reversal. The fact that the case has been once tried and the .judgment reversed does not lessen the importance of expedition in disposing of the case. It is a matter of public concern as well as one of private right, and the policy of the law is to hasten those trials, and this is done by a mandatory provision for the calling' of a special term. Nor does the fact that the general election has passed and the contestee has been elected to the office afford any reason why the statute is not applicable. Another section of the primary election law (Crawford & Moses’ Digest, § 3776) provides that, If a contest for office shall not be finally determined until after the election, and results in a judgment in favor of the contestant, such judgment shall operate as an ouster of the contestee from office, and that “the vacancy in it shall be filled as provided by law for filling vacancies in such office in case of death or resignation.” It is thus seen that the lawmakers provided for just such a situation as may be presented if the petitioner is successful in the contest and the necessity of calling a special term to try the case still continues. The statute is, as before stated, mandatory, but it does not deprive a circuit judge of discretion in determining the particular date on which the special term shall be held. The statute contemplates reasonable expedition, and, unless there is an apparent abuse of discretion, this court will not control the action of the circuit judge. However, where, as in the present case, there has been a refusal to call a special term, the petitioner has the right to apply to this court for mandamus to compel action in that regard.

The writ of mandamus will therefore be awarded directing the circuit judge to call a special term of the court to frv the contest between petitioner and contestee. It is so ordered.


author: McCulloch, C. J.

text:
    Bank of Eudora v. Ross.
    Opinion delivered May 4, 1925.
    1. Appeal and error — order dismissing garnishment final. — An order dismissing writs of garnishment terminatss the proceedings as to the garnishees and is final and .appealable.
    2. Vendor and purchaser — lien—right to personal judgment. — A vendor foreclosing his lien for the purchase money is entitled to personal judgment against the .purchaser in the first instance and not merely after report of sale, and may have an ancillary remedy, such, as garnishment, without waiting to exhaust his security.
    3. Garnishment — liability,of garnishee. — Final judgment should not be rendered against a garnishee until plaintiff’s right to recover from the defendant is established.
    Appeal from Chicot Chancery Court; E. G. Hammock; Chancellor;
    reversed.

      W. W. Grubbs, for appellant.

      Cook é Trice, for appellee.
   McCulloch, C. J.

T. E. Ray conveyed certain lands in Chicot County to S. A. Wilson by warranty deed, which recited notes executed by Wilson to Ray for unpaid purchase money. These notes were assigned by Ray to appellant, and Wilson subsequently conveyed the land to appellee Ross and one Van Ness, the grantees expressly assuming payment of said purchase money notes. The notes were not paid, and appellant instituted this action against Van Ness and appellee Ross to recover the amount of the notes and to enforce the vendor’s lien. At the commencement of the action appellant filed allegations and interrogatories to the Monroe County Bank and the First National Bank of Fort Smith, respectively, as garnishees, and writs of garnishment were duly issued and served, and each of the garnishees reported that it had funds in its hands belonging to appellee Ross. Ross appeared by attorneys and filed an answer on the merits, denying the allegations of the complaint with respect to his having assumed the payment of the notes held by appellant, and also filed a motion to quash the garnishments. The court sustained the motion and dismissed the garnishments, and an appeal has been prosecuted to this court.

The effect of the dismissal of the garnishments was to end the proceedings as to those parties, and was a final order, and appealable. Helton v. Howe, 162 Ark. 243.

Appellee relies on the rule in some jurisdictions, and the one said to prevail generally in the absence of statute, that a personal judgment should not be rendered in a suit to foreclose a mortgage or other lien except for the deficiency after the report of the sale of the property showing that the amount realized from the sale was not sufficiént to pay the debt. Cases in support of that contention are cited in the brief of counsel. Conceding that such is the general rule, it is changed by the statutes of this State. Crawford & Moses’ Digest, §§ 6240, 6242, 6244. The first section mentioned above provides that it. shall not be necessary in such proceeding to enter an interlocutory judgment, “but final judgment may in such cases be given in the first instance. ’ ’ Section 6242 reads as follows: “In an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally.” Section 6244 provides that, if the mortgaged property “does not sell for a sum sufficient to satisfy the amount due, an execution may be issued against the defendant, as on ordinary judgments.” The purpose of the latter provision was to continue the right to have process as to any deficiency, but it does not bar any other available remedy.

In the recent case of McCormick v. Daggett, 162 Ark. 16, we recognized the right of the plaintiff in a lien foreclosure to have personal judgment in the first instance. There is no reason why this should not be so, for the remedies are not inconsistent. A plaintiff is entitled to only one satisfaction, but he is entitled to pursue all available concurrent remedies not inconsistent with each other. There is no reason for holding that the plaintiff in a foreclosure suit is not entitled to ancillary remedies, such as attachment and garnishment. The statutes conferring these remedies are each emphatic, and contain no exceptions. The garnishment statute (§ 4906) in express language extends the remedy to “all cases where any plaintiff may begin an action in any court of record.”

There is no principle of equity which requires the holder of a security to exhaust his security before resorting to other remedies for the enforcement of personal liability of the debtor. Final judgment should not be rendered against the garnishee and in favor of the plaintiff until the latter’s right to recover from the defendant is established. Norman v. Poole, 70 Ark. 128; St. L. I. M. & S. Ry. Co. v. McDermitt, 91 Ark. 112; Smith v. Spinenwebber, 114 Ark. 384; Smith v. Bank of Higden, 115 Ark. 216. But the garnishee is held bound from the time of the service of the writ, and this remedy is available in a foreclosure proceeding as well as in any other action for debt.

The decree of the chancery court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.


text:
    Shreve Chair Company v. Manufacturers’ Furniture Company.
    Opinion delivered May 4, 1925.
    1. CORPORATIONS — EFFECT OF dissolution. — At common law the dissolution of a corporation operated as an abatement of actions pending against it, .and judgments thereafter rendered against it were nullities, and that rule applied to a foreign corporation ■after its dissolution brought about in accordance with the laws of the State which created it.
    2. Corporations — judgment against dissolved corporation.— The State in which a judgment is rendered against a foreign corporation may provide by statute for the continuation of the life of such corporation until its assets in such State have been administered, Ihut a judgment rendered after dissolution of the corporation has no extra-territorial effect.

      3. Abatement and Revival — dissolution op corporation. — Crawford & Moses’ Dig., § 1819 et seq., held not to abrogate the common-law rule as to the abatement of actions pending in foreign jurisdictions against dissolved corporations of this State, nor does comity or the full faith and credit clause require that the validity of a foreign judgment against such corporations be recognized.
    4. Pleading — amendment—new cause of action. — A judgment obtained by plaintiff against defendant in a foreign State, after commencement of an action in this State, cannot be brought into the ease by amendment as an additional cause of action.
    5. Sales — breach dp condition. — A breach of condition as to the time for delivery of goods ordered absolves the buyer from performance and entitles him to cancel the order, unless the breach was waived.
    6. Sales — revocation op order — evidence.—The chancellor’s finding that the buyer canceled orders before shipment after breach of condition as to time of delivery held not against preponderance of the evidence.
    7. Principal and agent — authority op agent. — Where a buyer was entitled to cancel orders because of seller’s breach of condition, notice of cancellation to the seller’s authorized sales agent, in charge of seller’s business and receiving orders for goods, was binding on the seller, whether the agent had authority to, and did, accept the cancellation or not.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Rogers, Barber S Henry, for appellant.

      Abner McGehee and John- F. Clifford, for appellee.
   McCulloch, C. J.

Manufacturers’ Furniture Company (hereinafter referred to as the old corporation) was a domestic corporation, domiciled at the city of Little Rock and engaged in the mercantile business there. This corporation was dissolved on November 1, 1922, by voluntary resolution adopted by the majority in value of the holders of stock, as prescribed by statute. Crawford & Moses’ Digest, § 1823. Prior to the dissolution, this corporation sold all of its assets to a new domestic corporation called The Manufacturers’ Furniture Company (hereinafter referred to as the new corporation), composed of the same managing officers and some of the same stockholders as the old corporation.

Appellant is a foreign. corporation, and instituted the present action ag’ainst the old corporation in the Pulaski Circuit Court, on November 1, 1922, to recover the sum of $10,810.58, alleged to be due on account for three carloads of chairs shipped by appellant to the old corporation on March 25,1920, March 26,1920, and April 26, 1920, on orders previously given by the old corporation to appellant’s salesman. Summons was served on the president of the old corporation on the day the suit was commenced, but there is a controversy as to whether or not the service was before or after the filing with the Secretary of State of the resolution dissolving the corporation. The conclusion we have reached in the case, as will be seen later on, renders it unnecessary to decide the controversy as to when the summons was served. Later the new corporation was brought in as garnishee, and afterwards was treated as a defendant in the action. The president of the old corporation, who was likewise the president of the new one, appeared in behalf of the old corporation, and, without entering appearance, filed a motion to quash the service on the ground that the service was had after the dissolution of the old corporation had been perfected. The circuit court overruled that motion, and both corporations answered. The cause was transferred to the chancery court, and proceeded to a final decree, which was in favor of appellees (both of the corporations), dismissing appellant’s complaint for want of equity.

The effort in the litigation against the new corporation is to hold it liable for the debts of the old corporation on various grounds; first, that the new corporation was organized merely as a successor of the old one; next, that there was an agreement, either expressed or implied, that the new corporation should pay the debts of the old one; and finally, that there was a violation of the statute known as the bulk sales law. Appellees defended on the ground that there was no liability on the part of the old corporation, for the reason that the order for the three carloads of chairs was canceled before shipment, on account of violation of the condition upon which the order was given, and that the shipments were refused on arrival of the cars at destination. It is also denied that the new corporation either expressly or impliedly agreed to pay all the debts of the old corporation, and it was also denied that there was any failure to comply with the terms of the bulk sales law.

In July, 1920, appellant instituted an action in the circuit court of Cook County, Illinois, against the old corporation ón the same account which is the basis of the present action, and there was service of summons on Mr. T. B. Jacobs, the president of the corporation, who was at that time visiting in Chicago, according to the undisputed evidence, on private business or pleasure. Judgment was rendered in that case in favor of appellant against the old corporation on December 18, 1922, for the full amount of the account. Appellant then filed, in the present action, a duly authenticated copy of the above-mentioned proceedings in the circuit court of Cook County, Illinois, and pleaded the same as conclusive of its rights to recover against the old corporation. Appel-lees filed a motion to strike out the record of the Illinois judgment on the ground that, if it was a valid adjudication at all, it was rendered after the institution of the present action. There is a controversy as to whether or not the old corporation authorized entry of its appearance in the Illinois court, but we deem it unnecessary to pass upon that controversy, for the reason that we find that, on other grounds, the judgment is not conclusive of the rights of the parties.

The first question to be considered is the effect of the Illinois judgment. It will be observed, from the recital of facts, that the action was commenced in the Illinois court long before the dissolution of the old corporation, but the judgment was not rendered until after the dissolution of the old corporation in the manner prescribed by the statutes of this State. The rule at common law was that the dissolution of a corporation operated as abatement of actions pending against it, and judgments thereafter rendered were nullities (State v. Arkansas Cotton Oil Co., 116 Ark 74), and that rule applied to a foreign, corporation after its dissolution brought about in accordance with the laws of the State which created it. 34 C. J. 1149; 5 Thompson on Corporations, § 6563; Rodgers v. Adriatic Fire Ins. Co., 87 Hun (N. Y.) 384, 42 N. E. 515; 2 Morawetz on Private Corporations, 1031; Marion Phosphate Co. v. Perry, 74 Fed. 425, 33 L. R. A. 252. The State in which the judgment is rendered against a foreign corporation can provide by statute for a continuation of the life of the corporations doing business there until the assets in that State are administered, but a judgment rendered after the dissolution of a corporation has no extraterritorial effect. Rodgers v. Adriatic Fire Ins. Co., supra.

By operation of the statutes of this State (Crawford & Moses’ Digest, § 1819 et seq.) the common-law rule is abrogated so as to prevent the abatement of an action against a domestic corporation in the courts of this State. Des Arc Oil Mill v. McLeod, 141 Ark. 332. The statute does not, however, avert the effect of the dissolution further than to provide against abatement and for the distribution of the assets of the corporation. Therefore the common-law rule as to abatement still applies to actions pending in foreign jurisdictions. "We are not required by any rule of comity or by the requirement to give full faith and credit to judicial proceedings of other States to recognize the validity of a judgment rendered in another State against a dissolved corporation of this State. Rodgers v. Adriatic Fire Ins. Co. supra; People v. Knickerbocker Life Ins. Co., 106 N. Y. 619; Marion Phosphate Co. v. Perry, supra; Sewing Machine Co. v. Radcliffe, 137 U. S. 287.

It follows that the Illinois judgment was a nullity and had no binding force upon the rights of the parties. Even if it had been valid, it could not have have been brought into this case by amendment as ail additional right of action, for the reason that it was not mature at the time of the commencement of this action. Hornor v. Hanks, 22 Ark. 572.

Appellant’s right to recover in this action against either of the appellee corporations depends upon the existence of the alleged debt of the old corporation, and the remaining features of the case may be disposed of in deciding the fact whether or not appellant had a valid claim against the old corporation.

There is a conflict in the testimony upon a vital point in the case, but some of the material facts are undisputed. The orders for the three carloads of chairs which were shipped by appellant to the old corporation were given in July, 1919, by Mr. Jacobs, the president and manager of the corporation, to one of appellant’s salesmen. The order was verbal, but subsequent correspondence between the parties was sufficient to take it out of the operation of the statute of frauds. It is claimed by appellees that these orders were given to appellant on condition that they would be filled in time for the succeeding Christmas holiday trade. There is very little, if any, dispute on that point, and the evidence abundantly warrants a finding that the orders were given upon that condition. It is undisputed that the condition was not performed, for the shipments by appellant did not begin until the latter part of March, 1920. There was no waiver of this condition, if, as claimed by appellees, the orders were canceled after the condition was broken. In fact, the breach of the condition on the part of appellant absolved the other party, under -well-settled principles of law, from performance, and, unless the breach was waived, the purchaser under the contract had the right to cancel. Keith v. Herschberg, 48 Ark. 138; Sunshine Cloak & Suit Co. v. Roquette, L. R. A. 1916, E. 932. There is a conflict in the testimony as to whether or not the old corporation actually canceled the orders before shipment, or whether it acquiesced in the shipments, but we think that the finding of the chancery court on that issue is not against the preponderance of the evidence. Jacobs testified positively and directly that he met one of appellant’s agents in charge of one of its places of bnsiness in Chicago in January, 1920, and directed the cancellation of the orders, and that the agent acquiesced in the cancellation, and at the same time accepted an order from the old corporation for a carload of stuff of a different quality. This is denied by appellant’s agent, who testified that nothing was said about cancellation of the old order. The cancellation was oral, and no one heard the conversation between the two men, but Marshall, another witness, testified that he was present with Jacobs when the latter claims this conversation took place, and that he did not remember the conversation, or was not close enough to hear it. Hubbell, appellant’s agent, testified that Marshall was not present at the time. So there is a slight contradiction of Hubbell’s testimony, which is not without some force in determining where the preponderance of the testimony lies. '

It is further contended, however, by appellant that Hubbell had no authority to accept a cancellation, and it was therefore ineffectual against appellant. We are of the opinion that the evidence was sufficient to show that Hubbell was clothed with authority in that respect, or at least there is enough to show prima facie authority, and this has not been overcome. It appears from the testimony affirmatively that Hubbell was an authorized sales agent of appellant, and was in charge of certain space in Chicago where appellant was publicly exhibiting its manufactured articles. It is not essential to the effectiveness of the cancellation that appellant or its' authorized agent should have accepted it, for, as we have already seen, the old corporation had the absolute right at that time to cancel the orders on account of appellant’s failure to perform the condition. So it is not a question whether Hubbell had authority to affirmatively accept the cancellation, but whether or not the notice of cancellation to him was sufficient to bind appellant. We think that the evidence shows that Hubbell at least had authority to receive the notice of cancellation, and that it was his duty to communicate it to his principal. At the time the cancellation was made as claimed by Jacobs, Hubbell was in charge of the business of appellant, and was actually receiving orders for goods, and did at that time accept another order from Jacobs. There having been a cancellation of the order and a refusal thereafter to accept the shipments, it follows that there wa§ no liability on the part of the old corporation, and, there being no liability on that score, none can be asserted against the new corporation on any grounds whatever.

The decree of the chancery court is therefore-affirmed.


text:
    Scott v. Stephenson.
    Opinion delivered May 4, 1925.
    1. Appeal and error — cross-appeal against dependant not appealing. — A cross-.appeal is not available, under Crawford & Moses’ Dig., § 2166, against a defendant who is neither appellant nor eoappellee; and, where such cross-appeal is asked more than six months after the d-ate of the decree, it could not be treated as an orginal appeal.
    2. Insane persons — suits on behalf of. — Under Crawford & Moses’ Dig., § 1116, relating to suits on behalf of persons of unsound mind, even if the appointment of a guardian for an insane person ¡by the probate court was void for want of jurisdiction, the chancery court had power to allow .a suit ¡by next friend of insane person against one receiving property from such incompetent under power of attorney.
    3. Insane persons — validity op decree in suit for accounting.— In a suit by a guardian of an insane person for an accounting against one receiving -an incompetent’s property, the fact that the court did not appoint a next friend of ^such person o-r otherwise disturb the status of the guardian, whose appointment was claimed to be illegal for lack of jurisdiction of the probate court, did not affect the validity of the decree.
    4. Insane persons — authority op guardian. — While the power of an alleged guardian of an insane person 'to enforce a decree in favor of his ward is affected by a question as to the validity of his appointment, such question became moot upon his being subsequently appointed guardian by a valid order.

      5. Principal and agent — accounting.—An agent should be required to account for the difference in amount collected on an endowment policy at maturity and the amount for which it was charged to her, for money received from timber sold, for excess in value over amount charged to her for stock sold, and for revenues received from the principal’s estate.
    6. Principal and agent — accounting—interest.—Where an agent made no investments of principal’s property other than in worthless stock, he should account for interest at the highest legal rate on amount found to- be due in her hand®.
    7. Principal and agent — accounting.—An agent should not be charged for an automobile worn out in the service of the principal, where it was necessary for the latter’s comfort.
    8. Principal and agent — accounting.—An agent receiving‘credit for the price paid for an automobile cannot include it in the list of property turned over.
    9. Principal and agent — accounting.—The -fact that an agent, who had received credit for price paid for an automobile for use of the principal, turned it over to- the principal’s guardian, from whom she bought it second-hand for less than 'the original cost, did not justify excluding the full purchase price from the amount credited to such agent.
    10. Principal and agent — accounting.—In a suit against an agent for an accounting, she is not entitled to list, at more than par value, stock turned over to her at pax value.
    11. Principal and agent — accounting.—In a suit against an agent for an accounting, she may be allowed credit for worthless securities bought in good faith where many people of the community made similar investments.
    12. Principal and agent — accounting.—In a suit against an agent for an accounting, she is entitled to credit for the price paid for tracts of land purchased for and turned over to her principal.
    13. Principal and agent — accounting.—In a suit against an agent for an accounting, she is not entitled to credit for rent notes for which there was no corresponding charge against -her.
    14. Principal and agent — right to compensation. — An agent who made no proper use of her principal’s estate, and who did not invest personal property except in worthless stocks, was not entitled to compensation.
    15. Mandamus — -discretion op court to set case for trial. — On failure to show that the circuit judge refused to hear a proceeding by certiorari to quash an order of the probate court, man--damus will not issue, since the matter of setting a case down for trial is a matter of discretion, which will not be controlled by the court.
    Appeal from Drew Chancery Court; E. G. Hammock, Chancellor;
    reversed in part.

      Wilson <& Norrell, for appellant.

      Williamson, & Williamson, for appellee.
   McCulloch, C. J.

Ruth Harris, an adult female residing in Drew County, Arkansas, was, on March 5, 1923, adjudged by the probate court to be a person of unsound mind, unable to conduct her own business affairs, and Guy Stephenson was appointed by said court as the guardian of her estate. On April 25, 1923, the Drew Probate Court adjudged, from testimony of physicians adduced before it, that it was best for tlie physical and mental welfare of Ruth Harris that she be placed in .a sanatorium kept for the treatment of mental diseases, and, pursuant to that order, she was taken to a sanatorium in Cincinnati, Ohio, where she remained up to the time of the decree in this case and since.

The present action was instituted in the chancery court of Drew County on behalf of Ruth Harris, by Stephenson, as her guardian, against appellant, Mrs. Della Scott, to require her to account for the property of the ward received by appellant under power of attorney. In the complaint it was charged that there was mismanagement and negligence on the part of appellant in the management, as well as a willful failure to account for the whole of the estate. Appellant answered denying the charges of negligence and mismanagement, and alleged that she had turned over to the guardian the remainder of all the .property which belonged to Miss Harris and which had come into her hands and control. Later, P. H. Scott, the husband of appellant, was made a party defendant on allegations that, among the assets of .the estate of Miss Harris, there had been a mortgage executed by him to secure a debt for borrowed money and that his wife, the appellant, had wrongfully and without consideration released the mortgage.

. A final decree was rendered in the case on December 11,1923, in favor of appellee against appellant, Mrs. Scott, for the recovery of the sum of $14,674.40 and all costs of the action. Mrs. Scott appealed from that decree, and appellee has cross-appealed. There is nothing in the record to show that the effort to secure relief against’ F. H. Scott was pressed before- the court, and nothing is said in the decree on that feature of the case’. Appellee requested and obtained a cross-appeal against F. H. Scott, but, as Scott was neither an appellant nor a co-appelle’e, a cross-appeal, against him was not available under the statute. Crawford & Moses’ Digest, § 2166. The cross-appeal was asked for too late (more than 'sis months after the date of the decree) to be treated as an original appeal. Hence the only questions to be determined on the appeal and cross-appeal relate to the right of recovery against appellant, Mrs. Scott.'

After the rendition of the decree against appellant, but at the same term of court, appellant filed in the lower court a motion to vacate the decree on the ground that the order of the probate court adjudging Euth Harris to be insane and appointing Stephenson as guardian was void and of no effect. Before the court passed upon this motion the probate court of’Drew County made another adjudication to the effect that Euth Harris was a person of unsound mind, then being confined in a sanatorium in Cincinnati, Ohio, and Guy Stephenson was reappointed as her guardian. The record of that additional proceeding in the probate court was filed in response to. appellant’s motion to vacate the decree, and the court overruled the motion to vacate the decree, and there has been an appeal from that order or decree.

It is insisted by counsel for appellant that the decree should be reversed and the cause dismissed on the ground that the record of the probate court adjudging the insanity of Ruth Harris and appointing the guardian was void for want of jurisdiction in that court. Counsel rely upon the decision of this court in Monks v. Duffle, 163 Ark. 118, holding that an adjudication of insanity by the probate court without having the person before the court is void. We deem it unnecessary, however, to enter upon a discussion of the question of the validity or invalidity of the original order of the probate court, for the validity of the decree of the chancery court could not be assailed on the ground that the order appointing the guardian was void. The invalidity of the order did not affect the jurisdiction of the chancery court. An action brought by a guardian or a next friend of a person under disability, is, in effect, a suit by such person under disability, and a change in. the character of the representative does not operate as a change of parties, for, as before stated, the person under disability is the real party, and not the representative. Our statute provides that an action on behalf of .a person judicially found to be of unsound mind must be brought by his guardian, or, if he has none, by his next friend, and that, when the action is brought by the next friend, it is subject to the power of the court. Crawford & Moses’ Digest, § 1116. The jurisdiction of the chancery court over the subject-matter of litigation and of the persons of the respective parties draws to it jurisdiction to inquire into the status of the parties and of the representatives who appear for them. Hence it follows that, if there was no legally appointed guardian, or, in other words, if the appointment of the guardian was void for want of jurisdiction of the probate court, it was within the jurisdiction and power of the chancery court to permit the action to be prosecuted by a next friend. Peters v. Townsend, 93 Ark. 103. If the question had been raised before decree, and the invalidity of the appointment shown, it would have been the duty of the court to inquire into the fact whether or not the plaintiff was a person of unsound mind, and, if found so to bo, to permit the action to continue in the name of some person as next friend. The fact that the court did not appoint a next friend or otherwise disturb the status of Stephenson as guardian does not affect the validity of the decree. It would have constituted no encroachment upon the jurisdiction of the probate court for the chancery court to inquire into the status of the plaintiff, Ruth Harris, to determine whether or not the action in her behalf could be prosecuted by a representative instead of in her own name. Peters v. Townsend, supra. Of course, the right to enforce the decree in the name of the guardian is affected by the question of the validity of his appointment, but the question of the enforcement of the decree is not involved in this appeal, and, besides that, it has become entirely moot, for the reason that, since the question was raised by a motion to vacate the decree below, there has been a valid adjudication of the insanity of Ruth Harris and another appointment as guardian. One of the sections of the statute regulating the appointment of guardians for insane persons reads as follows: “Section 5837. Whenever any insane person is confined in the insane asylum, of this State or in any institution or asylum for the insane outside of the State, the probate court of the county of which such person is a citizen and resident shall have power to appoint a guardian for such person, without requiring the presence of such person before the court.” Crawford & Moses’ Digest.

When the last order was made reappointing the guardian for Ruth Harris, she was, according to the undisputed proof, in an asylum or sanatorium for the care and treatment of insane persons outside of the State, and the presentation of a petition to the court conferred jurisdiction to hear, and determine the .question of insanity. If there was any fraud practiced upon the court or upon the insane person by causing her to be removed from the State, so that the court could acquire jurisdiction without her presence in open court, that could be shown in a direct attack to set aside the judgment of the probate court or by an appeal in apt time from the order. There is, however, no intimation in the present record of such a state of facts. There is no suggestion anywhere in the record that the conduct o,f the guardian towards Miss Harris, or of her kindred ■ who instituted the proceedings, was prompted by other than a purpose to best serve her interests. The last order is therefore valid.

There remains yet to consider the merits of the litigation. Appellant is the mother of Ruth Harris. She was formerly the wife of A. E. Harris, who died in the year 1892, shortly after the birth of his daughter Ruth. G. T. Harris, a brother of A. E. Harris, became the guardian of the infant Ruth by appointment from the probate court, and he continued to be her guardian until she became of age, and he made his final settlement in the year 1910. A. E. Harris left considerable property, of which Ruth inherited her portion, consisting mostly of land. The settlement1 accounts of A. E. Harris show that, when the guardianship -began, he had in his possession, in addition to the real estate of his ward, personal property of the value of $2,790.94, and that, by careful attention and judicious management, he turned over to his ward at the end of his guardianship the sum of $38,357.51.

Ruth Harris, upon coming of age and receiving from her guardian her inheritance, executed to her former guardian, C. T. Harris, a power of attorney authorizing him to manage her property, which he continued to do until March 11, 1918. Miss Harris' and her mother, the appellant, joined in an action in the chancery court to cancel the power of attorney formerly executed by Ruth to her former guardian, and the chancery court granted the prayer of the complaint, and canceled the instrument. At that time Miss Harris- had executed another power of attorney to her mother, the appellant, revoking the former power to her uncle and authorizing her mother to receive and manage her estate. Upon the rendition of the decree of the chancery court canceling the power of attorney to Mr. Harris, he turned over all the property to appellant as the agent and attorney in fact of his former ward. In addition to the real estate turned over to appellant, Mr. Harris delivered to her personal property to the amount of $40,420.05. This consisted of the sum' of $12,679.25, money deposited in bank, and the remainder in hank stock, an endowment insurance policy, and notes for money loaned and secured by mortgages on real estate. The whole estate was of unquestioned value of the amount named and all consisted of what, in banking circles, would be termed liquid assets, except an item of $1,000 for an automobile. Part of the assets consisted of forty shares of preferred stock in a corporation known as the Monticello Cotton Mills, of par value of $1,100, and also eighty shares of the Union Bank & Trust Company, of a par value of $4,000. These two items are specially mentioned because they have been subsequently returned by appellant to the guardian of Miss Harris.

Appellant, upon receiving the property of her daughter from C. T. Harris on March 11, 1918, began the management of the estate, and continued to manage it until the probate court of D>rew County made the first order adjudging Miss Harris to be insane, and appointing her guardian, when, in compliance with the order of the probate court, she delivered to the guardian the property which she conceded that she had in her hands belonging to Miss Harris.

Appellant had, during her stewardship, purchased two additional tracts of land for Miss Harris, situated in Drew County, near Monticello, and these were turned over to the guardian, and appellant, of course, claimed credit in her settlement for the amount paid for those tracts of land. She also turned over to the guardian bank stock and cotton oil stock of the par value of $5,100, as hereinbefore stated, and also corporation stock of the par value of $4,687.50, conceded to be worthless. These were oil and gas stocks, with the exception of $350 in a defunct grocery company, and $1,000 in a defunct lumber company. , She claimed credit also for a new automobile recently purchased for Miss Harris at the price of $1,900. There were several other items, consisting of rent notes and a few other notes. The aggregate amount of the personal property thus turned over, as estimated by appellant herself, was $14,720.50. This included the worthless oil stock at its par-value. Appellant also rendered an account showing that she had received during the five years of her stewardship gross revenues to the amount of $7,022.50, which included all rents received and dividends on stock. She also accounted for amounts received on the various securities originally delivered to her by C. T. Harris. She claimed credit for amounts expended for the use of Miss Harris, showing a total expenditure of $27,953.29 for the five years, including $500 a year as compensation for her own services.

The evidence shows that Miss Harris spent most of her time at sanatoriuims and. other institutions for treatment of those who are physically and mentally ill, and the account rendered by appellant, if correct, shows that all the places were very expensive. For instance, there is an item of expense of $1,000 for a trip of Miss Harris and a nurse from Monticello to Memphis and from Memphis to Baltimore, including railroad fare, hotel bills, doctors’ fees and hospital fees. There is an item of $2,300 for about six months’ treatment at Flint, Michigan. The account contains credit also for taxes and insurance and for certain improvements made on a store building in Monticello and the cost of building a new house on one of the farms owned by Miss Harris.

An attack is made by appellee on the accounts of appellant, both as to the amount of revenues received and also the expenditures made on behalf of the ward; The proof shows on the part of appellee and the direct testimony of Mr. C. T. Harris that, for several years before: he turned over the property and estate to appellant, it had been yielding a net reyenue of about $6,000 a, year, and, that he had paid lavish expenses for Miss Harris out of the revenues, and still the personal estate had increased from year to year,, .The showing made by appellant for the five, years is an average of about $1,400 a year revenue, and this consists, of rents on store, building, $600. a year, and the farms and dividends on-corporation stock which had been turned over to her by Miss Harris.. There is no account of revenues from investments made of the other personal estate, particularly money turned over to her by Miss Harris.

The proof on the part of appellee shows that the expenses of Miss Harris were .much less under the management ■ of her uncle, the. former guardian, who allowed, her , to spend money- lavishly, and everything reasonable was,provided,for.her comfort and luxury. .

The evidence shows very clearly, we think, -poor management on the part - of appellant. She .could have realized more from .the estate if she had exercised proper care.- It would serve no useful purpose and would extend this opinion too far to discuss all the, items in the various accounts, so we devote the discussion to the parties ular items, which we- think, must be controlled by the decision. , ,- , , .

Appellant must, of course, be charged with the gross amount of personalty- which she received from' C. T.Harris, conceded to be the total sum of $40,32.7.50. This included an endowment policy in one of the standard life insurance companies, and was listed in, the above valúa- , tion at $2,472, whereas the proof shows' that appellant collected on this policy at its maturity the sum of $4,200. She should be chargeable with the difference of $1,728 not included in the amount turned over to her by Mr. Harris. It is undisputed that she sold timber on the lands of the ward, receiving, in cash the sum of $2,700. She, of course,, must be. charged with that amount, which,; is not included in the list of personal items turned over to her by C. T. Harris. . The proof shows that she sold stock in a certain bank in Little Bock, which had been turned over to her, for the sum of $750 in excess of the par value at which it was listed in-the inventory made . to her by Mr. Harris. ’She should be charged with that item. The revenues received by her in the. sum of . $7,022.50, as shown by her own account, should of course be charged to her. These items aggregate the.sum of $52,528. The question whether or not she should be charged with additional revenues which she ought to have received from the estate is a difficult one. The proof is not especially directed to the question whether or not she could have received more rent on the farm lands or on the store building in Monticello. There is no effort made on the part of appellee to prove that she could, have received more rent, and all that the proof shows and all that was attempted to be shown is that appellant had secured no returns from investments other' than on the stocks which had been turned over to her by Mr. Harris, and that she made no use of the available cash on deposit which was turned over to her, and the collections on outstanding mortgages. All the investments that she made were in worthless stocks, which yielded no return. Wie have concluded that there is no proof which would justify us in finding- any specific amount which should have been received on investments, but we are of the opinion that because of the fact, that appellant made no investments other than, in worthless stocks, she should account for interest at the highest rate on the amount found to be due in her hands at th.e time of the decree. That amount will be stated at the conclusion of the discussion when arriving at the amount due.

The next thing .to be considered is the amount of credits which should be allowed appellant. She is charged in the account with $1,000 for an automobile, turned over by the former guardian for the use of Miss Harris. It is shown that Miss Harris was provided with automobiles, both by Mr. Harris and by appellant, and that no question was raised as to their being a proper item of charge. It is conceded that it Avas necessary for Miss Harris’ comfort to have an automobile. This one which was turned over by the former guardian to appellant was used and worn out in the service of Miss Harris, and it should not be charged to appellant in the account.

Shortly before appellant surrendered the estate to the guardian she purchased a new automobile at a cost of $1,900, and this was part of the estate that she turned over to the guardian. She claimed credit for the full amount of the price of the automobile, and, of course, it should not be again included in the list of property turned over to the guardian, as the effect of that would be to give her credit for the amount twice. It is contended 'by counsel for appellee that she should not receive credit for the full price of the automobile, for the reason that she purchased it back from the guardian for the sum of $750. That is a matter between appellant and the guardian and the probate court.’ The fact that she bought the car back from the guardian, after it had been used, for a price less than the original cost does not justify excluding the full purchase price from the amount to be credited to appellant.

• Appellant in her account puts in the bank stock and the cotton mill stock which was returned to the guardian at a higher par Amlue than that listed in the inventory of the property turned over to her by the former guardian and with Avhieh she stands charged. In order to balance the account, her credit must be simply' for the amount of the original par valué, $5,100. ■

The question of allowance of credit for the worthless stock is a matter which gives us much concern. It is conceded that the stocks are worthless, but the' proof shows that many 'people, including business men of that community, made similar investments. From the present vieAvpoint, investments in that character of securities were obviously improvident, but, considering all tbe circumstances of the case, we find nothing that will justify the conclusion that appellant’s conduct was in bad faith, and we have concluded that she should be allowed credit for the amount paid for these stocks, notwithstanding the fact that they proved worthless.

She is also entitled to credit for the price paid for the additional tracts of land which she purchased for Miss Harris and turned over to the guardian.

Appellant is not entitled to credit for rent notes' for the year 1923, for there was no corresponding charge against her for those items, and they were not collectable until after her stewardship ended.

Notwithstanding many of the apparently exorbitant items in appellant’s account for living expenses and traveling expenses and expenses of medical treatment for Miss Harris, we have concluded to let the account stand as rendered, with the exception of the item of $500 for each year’s compensation to appellant for her services. The chancellor took this view of the account, and we accept his finding as not against the preponderance of the evidence. Appellant made no proper use of the estate of her principal, she made no investment of the personal property except in worthless stocks, as before stated, and she earned no compensation, and is entitled to none. Greer v. Craig, 165 Ark. 209. It is an elemental principle of law that an unfaithful agent is entitled to no compensation for services rendered. The deduction of $2,500 reduces appellant’s account to the sum of $'25,453.29 and makes the total credits, aggregate the sum of $39,990.79. Deducting this from the amount of total debits against appellant, $52,528, leaves a balance unaccounted for of $12,537.21. Interest on this sum at ten per cent, per annum from March 11, 1918, to the date of the decree on December 11, 1923, makes $7,209.04, and, adding, this to the amount found to be in the hands of appellant, it makes an aggregate of $19,747.25. A statement of the account is tabulated as follows:

Debits AgaiNSt AppeulaNt.'
Personalty delivered'to Mrs. Scott by guardian .-.$40,327.50
Additional amount collected on life policy .... 1,728.00
Amount collected on sales of timber 2,700.00
Additional amount collected on sale Of bank stock_:... 750.00
Receipts 1918-1922 ..... 7,022.50. $52,528.00
CREDITS.
Inventory price of old automobile.$ 1,000.00
Bank stock and mill stock returned to guardian.. 5,100.00
Worthless stock returned to guardian . 4,687:50
Price 2 tracts of land bought for ward .:. 3,750.00
Account against ward for 1918-1923, less claimed compensation. 25,453.29 39,990.79
Balance due ward.. 12,537.21
Add interest from Mar. 11, 1918, to Dec. 11, 1923, at 10 per cent, 5 yrs. 9 mos.:.. 7,209.04
$19,746.25

The decree will therefore be reversed on the cross-appeal of appellee, and judgment will be entered here in favor of appellee against appellant for the sum mentioned above ($19,746.25) with interest at the legal rate (6 per cent.'per annum) from the date of the decree below:

Appellant has also filed a petition here for a mandamus against the circuit judge to compel him to hear a proceeding instituted in that court by writ of certiorari, to quash the order of the probate court. It appears from appellant’s petition for mandamus and the statements of counsel here, that the circuit judge acted under the conception that the question of the validity of the probate proceedings was involved in the present appeal from the decree in the civil case, and, for that, reason, postponed any hearing in the circuit court until this court could reach and dispose of the civil case. There is no showing that he has absolutely refused to hear the proceedings in his court. Counsel rely on the decision, of this court in Road Improvement District v. Henderson, 155 Ark. 488, as supporting their contention that the circuit judge should be compelled to give an immediate hearing of the proceedings in his court. That case has no application, as is shown by the decision in the more recent case of Village Greek Drainage District v. Ivie, ante p. 523. The question of setting a time for trial is a matter of discretion, and such discretion will not be controlled by this court by mandamus. The prayer of the petition is therefore denied.


author: McCulloch, C. J. Hart, J.,

text:
    Cumnock v. Little Rock.
    Opinion delivered May 4, 1925.
    1. Constitutional law — issuance of bonds — self-executing amendment. — ¡Constitutional ¡amendment No. 11, authorizing counties, cities and towns to issue bonds to pay outstanding debts, and providing for a tax levy not exceeding .three mills until the indebtedness is paid, held to be self-executing.
    2. Constitutional law — issuance of bondsi — validity of ordinance. — Where an ordinance was passed providing for the issuance of bonds by a - city to pay outstanding indebtedness, as authorized under amendment No. 11, which was self-executing, it was immaterial whether the enabling act of March 30, 1925, was in force.
    3. Municipal corporations — proceeding for sale of bonds. — A proceeding by a city to sell bonds to pay outstanding indebtedness under amendment No 11 held not in conflict with the provisions of the enabling act of March 30, 1925.
    4. Municipal corporations. — In proceedings by a city for issuance of bonds to pay outstanding indebtedness, a- taxpayer may not complain that bids for súch bonds were received on the day following the day advertised for such .purpose.
    Appeal from Pulasld Chancery Court; JohnE.' Martineau, Chancellor;
    affirmed.

      Isgrig & Dillon, for appellant.

      A. Boyd Cypert, and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   McCulloch, C. J.

Proposed amendment No. ll, prohibiting counties, cities and towns from making contracts or allowances in excess of the revenues for the current fiscal year, was declared adopted under the decision of this court in Brickhouse v. Hill, 167 Ark. 513, and it contains a proviso authorizing counties, cities and towns to issue bonds for funds to pay debts outstanding at the time of the adoption of the amendment. The proviso reads as follows:

“Provided, however, to.secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax, in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid.”' '

Pursuant to this amendment, the city council of Little Rock passed an ordinance authorizing the mayor, city clerk and board of public affairs to contract for the sale of bonds to secure funds with which to pay existing indebtedness. After the passage of the ordinance, notice was given for receiving competitive bids on March 31, 1925, for the issuance of bonds. Bids were received on the day mentioned, but there was an adjournment over to the next day and additional' bids were received, and a contract was entered into for the sale of bonds. Appellant, as a citizen and taxpayer, instituted this action in the chancery court, to restrain the performance of the contract by the issuance Of bonds.

The General Assembly enacted, an enabling statute putting the amendment into force, in “any city of the first class which has taken proceedings and published notice of sale to issue bonds.” Act 292, session 1925. This statute contains what purports to be an emergency clause and was approved by the Governor on March 30, 1925, which, it will be observed, was after the passage of the ordinance by the city council authorizing the issuance of bonds and one day before the advertised day for receiving 'bids. The contention of appellant is that amendment No. 11 is not self-executing*, that the emergency clause was not properly attached to the bill, and that an emergency was not sufficiently expressed in the clause, and that, even if the statute went into full force and effect on the day it was approved by the Governor, the proceedings of the city council prior thereto were void..

The first question presented, and the one which we think is determinative of the present case, is whether or not the proviso in the amendment relating to the issuance of bonds by counties and municipalities is self-executing. We therefore confine the decision, so far as concerns the effect of the amendment, to that question

The case of Griffin v. Rhoton, 85 Ark. 89, we quoted fronrfpage Cooley the following test: “A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.” Cooley’s Const. Lim. (7th. ed.) p. 121. We decided in that case, in an analysis of a certain provision of the Constitution in regard to limitation upon salaries of public officers, that it was not self-executing. In the case of Arkansas Tax Commission v. Moore, 103 Ark. 48, we held that the initiative and referendum amendment adopted in 1910 was self-executing,' and in reaching that conclusion the opinion quoted with approval Judge Cooley’s test, the same as in Griffin v. Rhoton, supra. In addition to that, we quoted with approval the following language from the Supreme Court of Minnesota in Willis v. Mabon, 48 Minn. 140:

“The question in every case is whether the language of a constitutional provision is addressed to the courts or the Legislature — does it indicaté that it was •intended as a present enactment, complete in itself as definitive legislation, or does it contemplate subsequent legislation to carry it into effect? ' This is to he determined from a consideration both of the language used and the intrinsic nature of the provisión itself. If the nature and extent of the right conferred and of the liability imposed are fixed by the provision itself, so that they can be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the Legislature for action, then the provision should be construed as self-executing'*

Applying those tests to the present case, we are of the opinion that the proviso in amendment'No. 11 is self-executing. Its language satisfies eacJajbf the above tests prescribed for a self-executing prc^Son. It “supplies a sufficient rule by means of whiehnSie right given may be enjoyed and protected,” and it does not merely indicate principles “without laying down rules by means of which those principles may be given the force of law.” The ^proviso, in unmistakable terms, confers powers upon counties, cities and incorporated towns, power to issue “interest-bearing certificates of indebtedness or bonds with interest coupons” to secure funds to pay indebtedness outstanding at the time of the adoption of the amendment, and it also authorizes an additional levy of taxes not exceeding three mills, “until such indebtedness is paid.” The limitation upon the power to issue bonds is fully stated in the proviso itself, and the power is completely conferred without any additional legislation. The county courts and municipal authorities were already clothed with complete authority over the levying of taxes and" the control of their financial affairs with the constitutional prohibition against the issuance of interest-hearing evidences of indebtedness and levying a tax in excess of five mills. So the effect of this proviso was to remove those restrictions to a ’ certain extent and to permit counties and municipalities to exercise those powers for the purpose of raising funds to pay indebtedness outstanding at ' the time of the adoption of the amendment. The words, “as provided by law,” refer to levying of; additional taxes and not to the exercise of the power of Issuing bonds. The power to' levy 'taxes was already provided for, and the authority to levy additional taxes being conferred, the language just quoted had reference to the method of levying taxes.

Our conclusion is that the proviso is self-executing and that additionl legislation is unnecessary, and it is therefore unimportant to inquire whether or not the enabling act passed by the Legislature was in force at the time, unless it is found that the proceedings for the sale of the bonds are in conflict with some provision of the statute. We do not find any such conflict.

It-is contended that the statute requires1 an advertisement for bids, and that this necessarily implies that the bids must be received on that day and negatives any authority to adjourn over to another day. This argument is, we think, unsound, even- if it be .conceded that the statute requires advertisement for the receipt of bids on a particular day. There is certainly nothing in the statute which, expressly or by implication, prohibits adjournment from the advertised day over to the. next day for the purpose of receiving bids. Such á postponement would not, in any event, affect the validity of a bond issue, and a taxpayer would have no right to intervene for the purpose of preventing the issuance of bonds on that ground unless it be shown that an actual loss may result.

The decree of the chancery court was correct, and the same is affirmed.

Hart, J.,

(dissenting) I agree to the general rule of law that a constitutional provision may he said to be self-executing when it takes immediate effect, and ancillary legislation is not necessary to the enjoyment of the rights given. The reason is that, if a constitutional provision is complete in itself, it executes itself.

Tested by this rule, the proviso of section one of amendment No. 11 is not in my opinion self-executing. The proviso is in effect an independent provision of the section and necessarily requires legislation of some sort to put it into effect. iWhen it comes to issuing bonds under the proviso, legislation is required to provide what length of time they shall run, what rate of interest they shall bear, who is to execute them, whether they shall be sold privately or at public auction, in what denominations they shall be issued for, and whether they shall be sold below par, etc.

It is claimed ¡that these matters are provided for by existing acts of the Legislature- and ordinances of the city. The fact that it is necessary to supplement the proviso by acts of the Legislature -or ordinances of the city council in order to carry it into effect shows -that the proviso in question is not -self-executing. Lanigan v. Gallup, 17 N. Mex. 627, 131 Pac. 997.

It is well settled in this State that counties, cities and towns or municipal corporations are created by the Legislature and derive all their powers from it unless otherwise provided by the State Constitution. Eagle v. Beard, 33 Ark. 497, Harrison v. Campbell, 160 Ark. 88.

Having reached the conclusion that the proviso is not self-executing, it becomes necessary for me to pass upon the validity of'the -act of the Legislature of 1925 attempting -to put proviso in question in operation. Section six provides that the act is immediately necessary for the preservation of the public peace, health and safety and that the same shall fake effect and be in force upon its passage.

The reason given that it is declared an emergency is that by reason of the heavy indebtedness hanging over many cities of the first class, they mil be unable to procure proper facilities for the extinction of fires, proper police protection, and proper safeguards for the public health. This declaration on the part of the Legislature is a mere conclusion on its part. By an amendment to the Constitution of the State adopted on the 11th day of November, 1920, the limitation upon the legislative power in declaring an emergency to exist is made. The section specifically provides that it shall be necessary to state the facts which constitute the emergency allowing the Legislature to put an act into immediate effect. The mere fact that cities and towns are largely in debt contains no statement of the facts of an emergency.

I do not think that the legislative declaration of an emergency is final under the provision of the Constitution referred to and am of the opinion that its action is subject to judicial review. The authorities on both sides of the question are cited in a case note to Payne v. Graham, 118 Me. 251, 7 A. L. R. 516.

The public importance of the question prompts me to voice my dissent in writing.


author: Woon, J. Wood, J.,

text:
    Sisson v. State.
    Opinion delivered May 4, 1925.
    1. Witnesses — impeachment — testimony before grand jury.— Testimony of a witness before the grand jury is admissible on the trial of a criminal case only to contradict his testimony at the trial.
    2. Criminal law — harmless error. — Any prejudice by reading to the jury the statements of a witness before the grand jury was removed by an instruction that such statements were not substantive evidence and could not be considered by the jury.

      3. Witnesses — impeachment as to character. — A witness may not be impeached by testimony as to his character, based on what the impeaching witness knew and wihat everybody said about him, as the test is what is his general reputation in the community where he lives, under Crawford & Moses’ Dig. § 4187.
    4. Criminal law — change op venue. — Where, on application for ■ ia change of venue in a liquor prosecution, a supporting affiant testified that, he based his .opinion that .defendant could not obtain an impartial trial in the county upon the fact that defendant’s case had been widely discussed all over the county by the candidate for sheriff, who was th'ereaftér elected and who stated that he was “going to send defendant to hell or to the penitentiary,” such statement being prejudicial and justifying affiant in (believing that the minds of the inhabitants had been prejudiced, held that the court abused its discretion in denying a change of venue.
    Appeal from Randolph Circuit, Court; J ohn G. Ashley, Judge;
    reversed.

      Schoonover & Jackson and Smith & Blackford, for appellant.

      E. W. Applegate, Attorney General, and -Barden Moose, Assistant, for appellee.
   Woon, J.

B. F. Sisson was. convicted in the Randolph. Circuit Court of the crime of selling intoxicating liquor, and sentenced by judgment of the court to imprisonment in the State Penitentiary’ for a period of one year, from which judgment he appeals.

When the case was called for trial the appellant moved for a change of venue, setting up in his motion that the minds of the inhabitants of Randolph County were so prejudiced against him that he could not obtain a fair and impartial trial therein. The motion was supported by the affidavits of two'persons. The prosecuting attorney resisted the motion, and.had one of its supporting 'affiants called to testify.. The witness was asked:

“Q. Do you know of any person in Richardson Township, the township in which Maynard is situated, who is so prejudiced against Mr. Sisson that he would not give him a fair and impartial trial? A. No sir. I will say that I have not talked to all the people all over Randolph County, and'I do not mean to say that he cannot get a fair and impartial trial in Randolph County, hut I do mean to say. that this matter lias been, discussed largely, and much of the discussion' in regard to this case has been detrimental to the rights of Mr. Sisson.. One of the things that prompted -me to sign that -affidavit was that I have been informed that the present- sheriff, Mr. Perrin, and at that time chief deputy under Mr. G-ullett, stated at various times, on the stump, when he was making his canvass for the office of sheriff, that he was going to send B. P. Sisson to hell or the penitentiary one, if he was elected sheriff. I was told by a number of different persons that Mr. Perrin stated repeatedly, and publicly, that he was going to send Mr. Sisson to hell or the penitentiary one. I knew that the sheriff’s office had a vast influence, and, if it were I going to trial, I would not want to be tried ih a county where such statements as that had gone out from the sheriff’s office. And I have heard since then that Mr. Perrin threatened to do Mr. Sisson violence. Mr. Perrin approached' me this morning about this, and I do not know whether he wanted to provoke a difficulty or not, but he stated something about this party not being able to get a fair and impartial trial in this county, and I told him that I had heard that he stated he would send him to hell or the1 penitentiary -one. Q. Do you now say that he cannot get a fair and impartial trial in Randolph County? A. I would say this,- that I would not want the present sheriff to summon the jury to try me, if it were I being tried under the same circumstances. If the present sheriff . should summon the jury to try him, I do not believe then that he could. * * * Q. You are- not acquainted with the sentiment of the people over the county generally regarding this .case? A. I 'will not. Isay .that I am acquainted with the sentiment of the people in all parts of the county, but I will say it is my information that this case has been widely discussed in all townships.in. the county. Q. You base your opinion that he could not obtain a fair and impartial trial in Randolph County upon the fact that the sheriff has taken an interest in this case? A. Yes sir, and partly what I have heard the sheriff state himself, and his speeches he made over the county in his campaign. Q. You did not hear those statements? A. No sir. * * * Q. And you have heard this discussed generally by people from all points in the county? A. I will say that it has been widely discussed. Q. Do you believe that, in view of the statements of Mr. Perrin publicly, on the stump, and because of his being sheriff of the county at this time, it would have a tendency to prejudice the people of the county against Mr. Sisson ? A. I would feel that it was hazardous for me, and I would not want to be tried in the county, if he selected the jury. ’ ’

Witness was then asked about the various townships in the county specifically, and named two townships in which he said he thought he had heard it talked, but could not name the parties that he had heard talking. lie stated, “I know that this matter has been widely talked, but I could not name the parties that I have heard discuss it.” The defendant thereupon offered the testimony of the other affiant to the effect that he was one of the defendant’s lawyers; that he had heard the present sheriff, while he was a candidate for sheriff, make a public speech in every township in the county except two, and that on every stump in the county Mr. Perrin, who is now sheriff, told about Mr. Sisson having been indicted twice as an accessory to (witness) having been shot, and that he was then having Sisson indicted by the grand jury of Randolph County, then in session, seven or eight times for peddling whiskey, and that he was going to send Sisson to the penitentiary before he quit, and that the people of the entire county of the class from which juries are made attended these public speaking’s and heard these statements.

The trial court refused to hear the offered testimony, and stated that the other affiant had shown that he did not know the condition of the minds of the people of the county with, regard to the case, and that, inasmuch as the law required the motion for change of venue to be supported by two witnesses, the offered testimony would only show that the motion was supported by the testimony of one affiant. The appellant excepted to the ruling of the court in excluding the offered testimony. The court thereupon overruled the motion for a change of venue.

One witness, Bob Lynch, testified to the effect that he and one "William Junkersfield went to the house of Sisson to get some liquor. It was dark when they got there. Junkersfield was talking to some one that witness took to be Sisson. When Junkersfield came back to the car, they drove up the road about half a mile and stopped, and Junkersfield asked the witness if he wanted a drink. He had what they call “white mule” whiskey. Witness did not see Junkersfield get any whiskey from the appellant.

Junkersfield testified that he and Bob Lynch went to Ben Sisson’s house, and stopped; that a fellow out in the yard asked witness what he wanted, and witness replied that he wanted a half gallon of whiskey, and the man said “All right,” and witness gave him $6. Witness didn’t know whether the man was Ben Sisson or not— could not say. The record shows that the following then occurred:

“Q. You swore before the grand jury? A. I said I bought it at Mr. Sisson’s house. The witness was shown his statement before the grand jury and was asked: Is that your signature? and answered, Yes sir. Q. I will ask you, if you did not state— By the court: You need not answer that question. Let the witness look at his statement. The statement was then delivered to witness. By the prosecuting attorney: Look at those last few lines. Defendant objects. The court then remarked: Let the witness read his whole statement, if he wishes to. The prosecuting attorney then asked the witness: Did yon not testify before the grand jury that this was the man that yon bought that liquor from? By the <jo'nrt: Don’t answer that question. Q. Was it not a man that yon have becomé acquainted with siiice that time, as Ben Sisson, that yon bought the liquor from? A. I could not say. It was dark, and the man that I bought the whiskey from was bareheaded, in the yard, carrying in wood. I do not know who he was. Q. You are unwilling to say at this time that this is the ínan? (The defendant objected to 'the question, which was by the court overruled, to which exceptions were saved), A. I could not say. Q. You are unwilling at'this time to say that the man that you have since become acquainted .with as Ben Sisson was the man you bought the liquor from? A. I could not say.”

The prosecuting attorney then asked - the witness . several times if lie did not make the statement before the grand jury that he was not acquainted with the appellant at the time he bought the liquor, but had met him a number of times since, and was sure that it was Sisson that he bought the liquor from. The witness, over the objection of appellant, was permitted to answer that he told the grand jury that it must have been Sisson, as it was at his house. The witness was handed his testimony before the grand jury, and was asked if he. signed that statement, and he answered that he did. Witness was finally asked by the court the following question:

‘ ‘ Q. Did you make that statement before the grand jury?, A. Yes sir. Q. Is that true? . A- Yes sir.”

Counsel for appellant ■moved to exclude all the testimony of the witness before the grand jury and his signed statement as incompetent. -The court ruled that whatever'statement the witness made before the grand jury was not evidence before the jury; that his statement made before-the grand jury should not be considered by them; that the jury must take his evidence from his statements on the witness stand at that time.

A witness by the name of Clarence Bagan testified for the State that he purchased whiskey from the appellant in the fall of 1923, in Bandolph County, Arkansas, and paid him $10 for same. Several witnesses were called for appellant, who testified to the effect that the reputation of Bagan was bad. One of these witnesses, John Clark, after testifying that he was acquainted with the general reputation of Eagan for truth and morality and that such reputation was bad, was asked this question: ‘ ‘ Based upon what you -know yourself and what' all the people say about him, would you believe him on oath?” The State objected to the question, and the objection was sustained. The defendant did not except to the ruling of the court.

The appellant contends that the judgment should be reversed (1), because the court erred in refusing to grant his motion for a change of venue,- (2), that the court allowed incompetent and prejudicial evidence to be forced from the prosecuting witness in the presence and hearing of the jury; (3), that the witness John Clark should have been permitted to answer the question asked him.

One of the supporting affiants to appellant’s motion for a change of venue testified that his statement to the effect that the minds of the inhabitants' of Ban-dolph County were so prejudiced against the appellant that a fair and impartial trial could not be had therein was grounded upon Bis belief from what he had heard that one Perrin had said at various times on the stump when he was canvassing the county of Bandolph as a candidate for the office of sheriff. The affiant had heard that Perrin stated repeatedly and publicly that he “was going to send Mr. Sisson to hell or the penitentiary one.” The affiant concluded from this that the minds of the inhabitants of Bandolph County would be prejudiced against the appellant, and that appellant could not obtain a fair and impartial trial in that county if Perrin summoned the jury. But it was shown that, after Perrin was elected sheriff, he was, on application of the appellant, disqualified, and did not summon the jury by which appellant was tried. The testimony of this supporting affiant was to the effect that he was not acquainted with the sentiment of the people in all parts of Randolph County, but his information was that appellant’s, case had been widely discussed, and that much of the discussion had been detrimental to the rights of the appellant. Witness did not mean to say that appellant could not get a fair and impartial trial in Randolph County, but he knew that the sheriff’s office had a vast influence, and he would not want to be tried in the county where such statements as that had gone out from the sheriff’s office. The witness didn’t testify that he heard any one from any part of the county say that he had been prejudiced against the appellant by reason of what Perrin had'said in his speeches while canvassing the county. The testimony of the affiant, taken as a whole, therefore, was to the effect that, in his opinion, from what he had been informed by others that Perrin had said in his campaign speeches concerning, the appellant, appellant could not obtain an impartial trial in Randolph County. The testimony of the affiant does not show that he had any personal and direct knowledge of the sentiment of the people of Randolph County towards the appellant from having heard any one express a sentiment that was prejudicial or derogatory to appellant. The affiant himself did not testify that he had heard Perrin or any one else express a sentiment that was prejudicial or derogatory to the appellant. The court therefore did not abuse its discretion in overruling the motion for a change of- venue.

In Dewine v. State, 120 Ark. 302-309, we said: “Upon the whole we cannot say, from a perusal of the testimony, that the court erred in finding that the supporting witnesses to the petition for a change of venue were lacking in sufficient knowledge, and rested their conclusions upon erroneous premises to the extent that they would not be deemed credible persons within the meaning of the statute. In passing upon a question of this ki&d, much is left to the fair discretion and judgment of the trial court, and each case must be determined by its own particular facts.” See also Spear v. State, 130 Ark. 457.

We have often ruled “that it is not proper to admit as substantive testimony at the trial evidence heard before the grand jury. In other words, one cannot be convicted upon evidence heard only by the grand jury, such evidence being admissible for the purpose only of contradicting the conflicting testimony given by the witnesses at the trial.” Minor v. State, 162 Ark. 136-139, and authorities there cited. See also Lind v. State, 137 Ark. 92-106. But the instruction of the court to the jury in the case at bar to the effect that, whatever statement the witness made before the grand .jury was not evidence before them, and could not be considered by them, was sufficient to remove any prejudice that might have otherwise been created in the minds of the jury by the statements read in their presence from the testimony of the witness taken before the grand jury.

The court did not err in refusing to allow the witness Clark to testify concerning the character of the witness Bagan, based upon what Clark knew himself and upon what all the people said about him. Such is not the proper method for impeaching the testimony of a witness. The standard is the general reputation of the witness sought to be impeached in the community where he lives. . Section 4187, C. & M. Digest; Dean v. State, 130 Ark. 322-325; Cole v. State, 59 Ark. 50.

There is no reversible error in the record, and the judgment is therefore affirmed.

Wood, J.,

(on rehearing) : We have concluded upon reconsideration of the testimony that the trial court erred in holding that the affiant, whose testimony is set forth in the original opinion, is not a credible person. The testimony of this supporting witness showed that he based his opinion that the appellant conld. not obtain a fair and impartial trial in Randolph County upojL the fact that he had been informed that the appellant’s case • — -the charge of selling* intoxicating liquors — had. been widely discussed all over the county by one Perrin, who was then a candidate for sheriff, to the effect that he was “going to send Mr. Sisson to hell or the penitentiary one.”

The-testimony is undisputed that Perrin had made the above, announcement generally and all over the county. Perrin was elected sheriff. The statement was certainly extremely prejudicial to the appellant, and was calculated to arouse in the minds of the inhabitants of Randolph County who heard the same a prejudice against 'Sisson. Even though the -affiant did- not himself hear Perrin make -such a statement and did not hear any one else express a sentiment that was prejudicial or derogatory to the appellant, nevertheless the fact remains that-such-a derogatory statement to appellant’s cause.by one who was aspiring to the sheriff’s office in the county and who was thereafter elected to that office was calculated, as we have stated, to create a prejudice ■ in the minds of the voters against the appellant; arid it furnished a foundation which fully justified the affiant im his belief that the minds of-the inhabitants of the county had been prejudiced against the appellant.

The trial court erred 'and abused its discretion in holding that the affiant, Judge Meeks, Was not a credible person in the meaning of the change of venue law. While much is left to the fair discretion and judgment of the trial court in determining* the credibility of supporting witnesses to a petition for a change of venue, nevertheless the court may abuse its discretion in passing upon particular facts and we are convinced that such is the case here. See Mills v. State, 1005. The motion for rehearing is therefore granted, and the .judgment, for the error in holding that one of the affiants to the affidavit supporting the petition for la change- of venue wavs not a credible person, is reversed, and the cause is remanded for a new trial.

McCulloch, C. J., dissents.


author: Wood, J.

text:
    Logi v. State.
    Opinion delivered May 4, 1925.
    Criminal law — improper argument. — In a prosecution for manufacturing liquor, a statement of the prosecuting attorney that accused was a foreigner and had lived in the county 22 years without becoming naturalized was prejudicial error and was not cured by an instruction that it was not to be considered as evidence of guilt, but was permitted in reply to defendant’s attorney’s reference to his 'being a foreigner, where it does not appear that defendant’s attorney made any such reference.
    Appeal from ■Sebastian Circuit Court, Greenwood District; J ohn E. Tatum, Judge;
    reversed.

      Cravens & Cravens, for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

Tony Logi ivas convicted in the circuit court of the Greenwood'District of Sebastian County of the crime of manufacturing intoxicating liquor- and sentenced by judgment of the court to imprisonment in the State Penitentiary for a period of one year, from which is this appeal.

One of the grounds of the motion for a new trial is that the court erred in permitting the prosecuting attorney, over the objections' of the defendant, to argue that the defendant was a foreigner, and had lived in this country twenty-two years and had never seen fit to become a citizen of this country. The bill of exceptions recites as follows: ‘‘The prosecuting attorney, in his argument to the jury, stated that the defendant had lived here twenty-two years and had never been naturalized.” The defendant objected to this, and the court stated: ‘ That cannot be considered as showing his guilt, but the fact that the attorney for the defendant asked about his being a foreigner brought the question out in his argument, the State’s attorney will be permitted to make the argument in reply to the argument of the defendant’s attorney. That cannot be considered as showing the guilt or innocence of the defendant, and we instruct the jury not to consider it.”

The statement of the prosecuting attorney in argument was obviously for the purpose of prejudicing the minds of the jury against the appellant because of the fact that he had not been naturalized. There is nothing in the record to justify the district attorney in his argument in alluding to the fact that the appellant was not an American citizen. The only purpose of such argument could have been to take into consideration that fact in determining whether or not the appellant was guilty of the crime charged. There is nothing in the bill of exceptions to show that the attorney for the appellant, in his examination of the appellant on the witness stand, had asked the appellant “about his being a foreigner.” Therefore there is nothing in the record to have justified the court in the statement that the prosecuting attorney was allowed to make the statement in his argument to the jury because of the fact that the attorney for the defendant had asked appellant about his being a foreigner. Nor is there anything in the record to show that the defendant’s attorney in his argument before the jury had referred to the fact that appellant was a foreigner.

The court should have removed the prejudicial argument of the prosecuting attorney that the appellant had lived in this country twenty-two years and had never been naturalized by excluding such argument, at the request of appellant’s counsel, by a clear and emphatic statement to the .jury to the effect that the argument was improper, that it was excluded, and that they should not consider it for any purpose. Instead of doing this, the charge of the court to the jury concerning the improper argument of the district attorney was tantamount to saying the argument of the State’s attorney is proper, and he will he permitted to make it, but then you cannot consider it in determining the guilt or innocence of the defendant. This halting and ambiguous endeavor of the trial court to remove an argument that is wholly improper and highly prejudicial to the rights of the accused cannot be sanctioned. The improper argument was not so flagrant, perhaps, that it could not have been removed by an unmistakable announcement by the trial court that the argument was excluded from the jury and an emphatic direction to them not to consider it. But such was not the case here.

We find no other reversible error in the record, but, for the error above indicated, the judgment is reversed and the cause remanded for a new trial.