text:
    McKenzie v. Rumph.
    Opinion delivered September 27, 1926.
    1. Homestead — abandonment.—While a husband cannot convey the homestead unless his wife joins in executing the conveyance, as required by § 5542, C. & M. Dig., it is within his power; when he has not deserted his wife and abandoned his family, to abandon his homestead, without obtaining his wife’s consent.
    2. Homestead — abandonment.—Where the owner of a homestead verbally agreed to convey it to another, and delivered possession of a portion of the house to his grantee, but became'ill and died before executing a deed, he will be held to have abandoned his possession as homesteader.
    3. Frauds, statute op — oral sale op land — part , performance.— A parol agreement to convey land is valid against the statute of frauds, where the grantor surrendered possession, but died before making a deed.
    4. Equity — laches.—Where a son, having the legal title' to land, orally agreed to convey the land to his mother, but died before executing a conveyance, and his heirs conveyed the land to defendants, heirs of the mother relying upon sueh verbal sale, who waited 15 years after their rights as heirs had accrued, and nearly seven years after defendants’ deed was on record, will be held guilty of such laches as barred them from asserting title.

      5. Vendor and purchaser — imputed knowledge. — The knowledge of one of two jointly interested purchasers as to the condition of the title to land is imputed to the other.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Judge;
    affirmed.

      Saxon, Davidson & Wade, for appellant.

      Gaughan & Sifford and Harry Meek, for appellee.
   Smith, J.

On the 13th day of June, 1889, Mrs. Ely M. Neeley obtained patent from the United States to two eighty-acre tracts of land in Ouachita County, and thereafter occupied the land as her home until March 1, 1891, at which time she conveyed it to her son, James T. Neeley, for the consideration of $450, of which $25 was paid in cash, and a lien was retained to secure the balance of the unpaid purchase money. This deed was duly recorded.

Mrs. Neeley was the mother of four children, to-wit: James T. Neeley, Mary Neeley Haines, Mattie Neeley McKenzie, and Nannie Neeley Powell.

On January 27, 1917, the widow and heirs of J. T. Neeley, who had died February 23, 1898, conveyed the land, by warranty deed, to G. S. Humph and George Williams, and later Mrs. Nannie Neeley Powell executed to Humph and Williams a quitclaim deed for her interest in the land. Thereafter Tom Jinks was constituted attorney-in-fact for the heirs of Mary Neeley Haines and Mattie Neeley McKenzie, both of whom had died, and on June 6, 1923, Jinks, as attorney-in-fact, brought this suit to recover an undivided half interest in the land, and to require an accounting of the rents and profits. The heirs of Mary Neeley Haines and Mattie Neeley McKenzie were made parties plaintiff.

It was alleged in their complaint, and testimony was offered tending to show, that J. T. Neeley was unable to pay the balance of the purchase money, and proposed to reconvey the land to his mother, Mrs. E. M. Neeley, and it was agreed that J. T. Neeley should move off the land and that Ben Powell, who was the husband of Nannie Neeley Powell, should move in the house which was occupied by Mrs. E. M. Neeley and the family of J. .T. Neeley. This was the only house on the land. This agreement was consummated, but the deed from J. T. Neeley to his mother was never executed, for the reason that J. T. Neeley became ill about a week after the contract to reconvey was made, and, after an illness of two weeks, died without ever having executed the deed as agreed. Pursuant to this agreement, however, J. T. Neeley actually vacated two of the rooms in the house, and these were occupied by Ben Powell and his family. Immediately after the death of J. T. Neeley, his. wife and family left the place, pursuant.to the agreement J. T. Neeley had made with his mother. .

After the death of J. T. Neeley in 1898, Mrs. E. M. Neeley remained in possession of the land until her death, .which occurred March 11,1908, sharing the only residence on the land with her sonTin-law, Powell, who was her tenant. The taxes on the land were paid by Mrs. E. M. Neeley in her own name until the time of her death.

After the death of Mrs. E. M. Neeley, her son-in-law, Powell, remained in possession until his death, which occurred January 27, 1909, and thereafter his widow, Mrs. Annie Neeley Powell, remained in possession of the land until it was conveyed, as hereinbefore stated, to Rumph and Williams. Only a. small portion of the land was'in cultivation when Mrs. E. M. Neeley died,'and Mrs. Powell continued in the exclusive and sole possession of the land until she and the J. T. Neeley heirs conveyed to Rumph and Williams, and paid the taxes thereon' in her individual name. The other heirs of Mrs. E. M. Neeley received-nothing from the. land during Mrs. Powell’s occupancy,'and paid nothing on the taxes, their testimony being that the use of the land equaled in value the amount of the taxes.

The testimony was devoted chiefly to establishing the fact that.there was an oral sale of the land by J. T. Neeley to his mother, under which the possession was surrendered to and retained by Mrs. Neeley until the time of her death. In opposition to this" contention it is insisted that there conld have been no valid oral sale of the land for the reason that it was the homestead of J. T. Neeley, and it was therefore essential to a valid conveyance of it that his wife should have joined in'the execution of the deed conveying it, and, inasmuch as it is conceded that Mrs. J. T. Neeley did not join in the execution of a deed, there was no valid conveyance.

By § 5542, C. & M. Digest, it is provided that 'no conveyance,’mortgage or other instrument affecting the' homestead of any married man shall be of any validity, except for taxes, certain liens, and unpaid purchase money, unless the wife joins in the execution of such instrument, and acknowledges the same.

"We will not review the testimony tending to show that there was an'oral sale of the land to Mrs. Neeley by J. T. Neeley in satisfaction of the debt for the unpaid purchase money. ' We think the testimony establishes the fact that there was such a sale, and that it was valid, notwithstanding the statute referred to.

While a husband cannot convey the homestead unless the wife joins in the execution of the conveyance, it is in his power, when he has not deserted his wife and abandoned his family (Montgomery v. Dane, 81 Ark. 154, 98 S. W. 715), to abandon his homestead. This results from the fact that, as head of the family, he has the right to determine where his home shall be. That the husband has the right to abandon his homestead without obtaining the consent of his wife is settled by the decisions of this court in the cases of Newman v. Jacobson, 108 Ark. 297, 158 S. W. 134; Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433; Brown v. Brown, 104 Ark. 313, 149 S. W. 330; Stewart v. Pritchard, 101 Ark. 101, 101. S. W. 505; Farmers’ Bldg. & Loan Assn. v. Jones, 68 Ark. 76, 56 S. W. 1062; Vestal v. Vestal, 137 Ark. 309, 209 S. W. 273; Brignardello v. Cooper, 116 Ark. 103, 172 S. W. 1030; Mason v. Dierks Lbr. & Coal Co., 94 Ark. 107, 125 S. W. 656; Newton v. Russian, 74 Ark. 88, 85 S. W. 407.

When the homestead has been abandoned, it becomes subject to execution and the right to convey, as if it had never been the homestead. Pipkin v. Williams, supra; Stewart v. Pritchard, supra.

We think the homestead had been abandoned as such by J. T. Neeley before his death, although he was residing there at the time of his death. The testimony shows that most of his household effects had been packed up, preparatory to moving, when he became ill, and that he actually vacated two rooms of the small house in which he resided, and that Powell had moved into these rooms, and had taken possession of the place in the lifetime of J. T. Neeley. In other words, Neeley had surrendered possession, and Powell had occupied and taken possession.

The converse of the proposition here stated was declared in the case of Gill v. Gill, 69 Ark. 596, 65 S. W. 112. The syllabus in that case reads as follows: “Where the owner of a house, being a resident of this State' and a married man, moved part of his furniture into it, with intention to occupy it as a homestead, but was taken sick and died before the moving was completed, and before any of his family had actually resided therein, and after his death his wife completed the moving and took up her residence there, the house was ‘occupied as a residence’, within art. 9, § 5, of the Constitution, so as, to entitle his wife and minor children to claim the same as a homestead. ’ ’

In the case of Steimrt v. Pritchard, supra, Mr. Justice Feauenthal said that “the abandonment of a homestead is almost, if not entirely, a question of intent."

There was a clear intent here on the part of J. T. Neeley to abandon his homestead, and this intent was so far executed that his brother-in-law, with his consent, had taken possession of the home.

The land having ceased to be the homestead of J. T. Neeley, was therefore subject to conveyance as if it had never been a homestead, and the widow of J. T. Neeley testified that she assented to its reconveyance to Mrs. E. M. Neeley and was a party to that agreement.

The statute of frauds is pleaded to defeat this reconveyance. But we think the statute was met by the actual surrender of possession under the parol agreement to reconvey. That agreement was fully consummated by the surrender of possession, and the conveyance was therefore valid. Phillips v. Jones, 79 Ark. 100, 95 S. W. 164; Bostleman v. Henkel, 152 Ark. 628, 239 Ark. 30; Freer v. Less, 159 Ark. 509, 252 S. W. 354.

Another disputed question of f&ct is whether Kumph and Williams were innocent purchasers of the land. But assuming, without deciding, that they were not, we think plaintiffs cannot recover, .notwithstanding we have also concluded that the reconveyance of the land to Mrs. E. M. Neeley was valid, for the reason that we think they have been guilty of laches which bars this right.

It will be remembered that the plaintiffs are seeking to enforce an equitable title, for Kumph and Williams have the legal title to the land through a chain of conveyances which includes only a patent from the United States to Mrs. Neeley and her deed to J.' T. Neeley and the deed from the widow and heirs of J. T. Neeley to Kumph and Williams.

Plaintiffs rely on a verbal resale of the land made in 1898, and the suit brought to establish and assert that title was not filed until the 6th day of June, 1923. It is true that Mrs. Neeley did not die until 1908, but this last date was fifteen years before the institution of this suit. It is true that Mrs. Powell, who remained in possession, was a daughter of Mrs. B. M. Neeley, and had the right to remain in possession as an heir-at-law; and it is also true that there was a presumption .that her possession was not adverse to her cotenants, the other heirs-at-law of Mrs. E. M. Neeley, but the inaction of these plaintiffs under'the facts of this case is a proper circumstance to consider in determining whether they were guilty, of laches in asserting their title after the land had been conveyed to Kumph- and Williams by the heirs of J. T. Neeley and by Mrs. Powell.

Such knowledge as Rumph had of the interest of the plaintiffs in this land is imputed to him through the knowledge of "Williams, who was jointly interested with him in the purchase of the land, and who became, after its purchase, his cotenant. Krow & Neumann v. Bernard, 152 Ark. 99, 238 S. W. 19; Neff v. Elder, 84 Ark. 277, 105 S. W. 260; Steele v. Robertson, 75 Ark. 228, 87 S. W. 117.

Williams testified that he applied to Rumph to assist him in the purchase of the land. He knew the different heirs of Mrs. Neeley, and supposed they were the owners of the land, and he negotiated with them for its purchase, and had agreed on the price to be paid, but, when an abstract of the title was made, it appeared that the title was in the heirs of J. T. Neeley, and the deed was taken only from those heirs. This deed purported to convey the entire title, and Williams testified that he paid the J. T. Neeley heirs the full purchase price for the land. Later he and Rumph took a quitclaim deed from Mrs. Powell, because she was in possession, and paid her $5 for the deed.

The Haines and the McKenzie- heirs knew that Rumph and-Williams had declined and failed to consummate the agreement to purchase the land from them, and yet they took no action in the matter until plaintiff Jinks became- their attorney-in-fact and instituted this suit. It is true this suit was brought within seven years of the date-of the deed to Rumph and Williams, but only a short time less than the seven years, and during all this time there was on record a-deed which apparently vested the title in J. T. Neeley. Rumph testified that, when it came to closing up. the trade, he was advised by his attorney that it was only necessary to secure a deed from the heirs of J. T. Neeley, and that he paid these heirs the full- value of the land on the assumption that he would acquire what the deed purported to convey, the entire title. Acting upon this assumption, he,- two years later, bought from Williams the half interest which Williams owned, he -kept the taxes down, and, shortly before the institution of this suit, sold an oil lease on the land.

Under these circumstances we think the plaintiffs are barred by laches. If they had taken any interest in the land, or had made any inquiry about it, they would have learned that, in 1891, their ancestor had deeded .the land to their uncle, and, although they-may have relied upon an oral reconveyance of the land .and the possession of their ancestor, and, after her'death, the-possession of Mrs. Powell as being that of á tenant in common, the fact remains that for thirty-two years the legal title was in J. T. Neeley and his heirs, and was allowed to so remain without question until the institution of this suit, and that nearly seven years of this time was allowed to so expire after they knew that Rumph and Williams had not purchased from them. Their negligent delay resulted in Rumph paying Williams full value for an undivided half interest in the land and later executing an oil ease. The complaint does not even allege that the Haines and McKenzie heirs, who are all sui'juris, were ignorant of the purchase of Rumph and Williams.

The inaction of these heirs was such as to lead Rumph to believe, and he testified that he did believe, that he and Williams acquired the whole title under the deed from the’J. T. Nee'ley heirs, and, thus believing, to pay full value for the half interest which he supposed Williams owned,- and, still later, to-execute an oil-lease, which evidently was the'circumstance which enlisted the interest of Jinks, an entire stranger to the title, and who brought this suit for them and for himself.

In the very recent case of Avera v. Banks, 168 Ark. 718, 271 S. W. 970, we said: “If a party, knowing his rights, unreasonably delays in asserting them and suffers his adversary to' enter into-obligations, or in any. way by inaction lulls suspicion of his demand, to the harm' of the other, then equity will ordinarily refuse to aid him in the establishment of his claim. It would be Contrary to equity and good conscience to enforce such rights when a defendant has been led to believe, by the silence or conduct of the plaintiff, that there would be no assertion of title in’opposition to his claim.”

The doctrine of that case is applicable here, and we hold that appellants-áre barred by laches, and the decree of the court below dismissing their complaint. as being without equity is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Sims v. State.
    Opinion delivered September 27, 1926.
    1. Homicide — sufficiency of evidence. — In a prosecution for murder, evidence held to sustain a conviction for murder in the second degree.
    2. Homicide — exclusion of evidence — harmless error. — In ¿ prosecution for murder, the error of excluding evidence of prior difficulties between deceased and defendant,was cured by the subsequent admission of such testimony.
    3. Homicide — evidence—general reputation of dependant. — In a prosecution for. murder involving self-defense, exclusion of evi- . dence of defendant’s reputation for truth and honesty was not ;error, as the proper inquiry was as to his reputation for peace and quiet.
    4. Criminal law — instructions.—Refusal of instructions that were either abstract or covered by others given was not error.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Sheffield & Coates, for appellant.
    ■ H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted and tried in the circuit court of Phillips County for the crime of murder in the first degree. He was convicted of murder in the second degree and adjudged to serve-a term.of twelve years in-the State Penitentiary-as a punishment therefor,- from which is this appeal.

The first and second assignments of error urged for a reversal of the judgment are that the verdict is contrary to the law and the evidence. These assignments- of error will be considered together.

The testimony introduced by the State was, in short, as follows: Appellant and deceased resided with their respective families near each other, either upon the same or adjoining plantations south of Helena, in Phillips County. They had known each other over eighteen months before the tragedy occurred. Julia Graham, the widow of the deceased, William Graham, testified that appellant and her husband had never had a fuss or squabble, to her knowledge, and that their relationship had been friendly until Thursday, April 6, 1926, before the tragedy, at which time deceased ordered appellant to leave their home because he had asked her to be his sweetheart. William Graham left home, unarmed, about 8 o ’clock a. m. on the day of the killing, to plant corn for his father-in-law upon another place. Upon his return he met appellant in the public road near their respective homes. They talked awhile, and, during the time thus engaged, deceased pointed his finger at appellant. They then separated and walked in different directions for about fifteen feet, then turned and went toward each other again. Deceased had his hand up, and lowered it to his side, but did not move it backward toward his hip pocket. He had nothing in his hands. At this juncture appellant pulled his pistol and shot deceased twice, whereupon deceased ran a little piece- across the field and fell. The shots were fired pretty close together. Immediately afterward appellant left the scene. An examination of the dead body disclosed that deceased was unarmed and in his shirtsleeves when shot. Also that both shots had entered the body, one passing through the heart, and that a gash had been inflicted upon his head, apparently by a lick with the pistol.

Jess Smith, one of appellant’s witnesses, testified, on cross-examination, that he told him that he and the deceased had some words, and that, the very next time they got into it, he, appellant, was going to kill him.

Appellant testified in his own behalf to the effect that the deceased initiated four quarrels with him during their acquaintanceship, and had threatened to kill him more than once, and on one occasion had drawn a Winchester on him. On cross-examination-he admitted that deceased conld have killed him at that- time if he had wanted to, and that deceased had had opportunities after that to kill him but did not do it.

Several witnesses were introduced by appellant, who testified that the general reputation of the deceased was bad,- and that he was a violent and'turbulent man.

Appellant was the only witness who testified that deceased made a hip-pocket play at the time he shot him. The eye-witnesses for the State testified that deceased had nothing in his hand, had thrown his hand to his side but not- toward his hip pocket, When appellant shot him. The verdict in the case indicates that the jury did not believe the testimony of the appellant to'the effect that he shot deceased in necesshry self-defense, but; on the contrary, believed the testimony of the State ’s- witnesses to the effect that he killed deceased without justification.

An analysis of the testimony fails to disclose the elemente necessary to reduce the homicide to manslaughter. The homicide was not the result of a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible. It follows that the admitted intentional homicide must have been murder in the first or second degree. Appellant was extremely fortunate in being convicted of murder in the second degree instead of the first degree, for, upon appeal, the evidence is sufficient to sustain a conviction for either. The verdict was not contrary to the evidence and law.

The third assignment of error urged for a reversal of the judgment is that the court erred in refusing to permit Frank Smith to testify to a difficulty over fruit, between appellant and deceased, in a certain peach orchard. Although this testimony was excluded when first offered, it was subsequently admitted, which cured the error, if any.

The fourth assignment of error urged for a reversal of the judgment is that the court erroneously refused to admit Eobinson to testify as to a certain threat made by deceased against appellant.. This piece of testimony was first excluded, but subsequently admitted, which cured the error, if any.

The fifth assignment of error urged for a reversal of. the judgment is that the court erred in refusing to admit the testimony of witnesses Robinson and Pillow, who testified to the general reputation of appellant, in the community where he lived, for truth and honesty. Appellant’s truth and honesty were not an issue in the case. Inquiry should have been directed to appellant’s reputation for peace and quiet. The testimony was properly excluded.

The other assignments of error urged for a reversal of the judgment consist in the refusal of .the court to give his requested instructions numbers 4, 6, 7, 8, 9, 12,15, 16, 19, 20 and 21. Instructions numbers 16 and 19 were properly refused on account of being abstract. We have carefully examined the other instructions and compared them with the instructions given, and find that they are virtually covered 'by the instructions which were given by the court.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Adams v. Subdrainage District No. 3, etc.
    Opinion delivered October 4, 1926.
    1. Drains — jurisdiction op county courts over assessments.— Since the county court of the Osceola District of Mississippi • County has jurisdiction to organize a drainage district situated in both the Osceola and Chickasawba districts, it likewise has jurisdiction over the matter of assessments on all lands in the , district, whether situated in the Osceola or the Chickasawba district.
    2. Certiorari — scope op remedy. — Certiorari cannot he used as a substitute for appeal.
    Appeal from Mississippi Circuit Court, Osceola District; G. E. Keck, Judge;
    affirmed.

      Davis •& Gosten, for appellant.

      J. T. Goston, for appellee.
   McCulloch, C. J.

The district involved in this controversy comprises lands in Mississippi County, situated both in the Osceola District and the Chickasawba District, It was organized by order of the county court of the Osceola District, and all the proceedings have been had in that court. The validity of the district and the proceedings thereunder have been under review by this court in two other eases. Mahan v. Wilson, 169 Ark. 117, 273 S. W. 383; Hudson v. Simonson, 170 Ark. 243, 279 S. w. 780.

After the .adoption of plans, the assessment of benefits was completed and filed in the county court, and notice was given to property owners. The county cburt made an order changing the plans by striking therefrom several of the lateral ditches,' and the assessments were adjusted and approved by the court. The assessments bn some of the lands, including lands 'df appellants, were materially reduced, presumably on account of the exclusion of la'teials. No appeal was prosecuted from the order of - the county court with respect to change in plans or to the adjustment of assessments, but appellant, who separately owned lands in the Chickasawba District, brought the proceedings up for review by the circuit court on’ certiorari, and, on hearing the cause in the circuit court; a judgment' was rendered quashing that part of the order of the county cburt which changed the plans by striking out laterals, but refusing to quash the order with respect to the adjustment' of the assessments. At the hearing in the circuit court, appellees (the sub'drainage district itsélf and the commissioners) conceded that' that part of the order of the county court which sought to change the plans was without jurisdiction and void, and there was no contest in the circuit cburt on that question. Appellants have prosecuted- their'appeal to this court for a review of the circuit Court’s judgment in refusing to quash the assessments.

It is also contended, in the first place, that the whole proceedings with respect to the assessment of benefits in the county court at Osceola on lands in the Chickasawba District were void — that the Osceola court had no jurisdiction over lands in the Chickasawba District. That contention, however, has been settled against appellant by the decision of this court in Mahan v. Wilson, supra. It is true that the decision in that case related to the jurisdiction of the Osceola court to organize the district, but it necessarily follows that, if the Osceola court possessed jurisdiction for that purpose, it also had jurisdiction over the matter of the assessments on all the lands in the district, whether situated in the Osceola District or the Chickasawba District.

The principal contention is that.the circuit court erred in refusing to quash the whole of the order of the county court with respect to the assessment- of benefits as well as.to the change-in-the-plans. Counsel for appellant invoke the, rule .announced by some • of the courts that, on .review by certiorari, “where, the several parts of the proceedings .are so connected and dependent on each other that one -part cannot be quashed without leaving the other incomplete or more extensive than it should be, the whole of the proceedings in all its separate parts must be set aside.” 11 C. J. 210. The answer to this contention is that, ,in this instance, the separate- orders of the county coqrt are not necessarily interdependent one upon the other,-with respect to their .validity, and correctness. The two orders might, not, according to the facts presented to the county court, have been so connected and dependent upon each other that they stood or fell together. But, in these, proceedings,- the facts upon which the order of the county court is based are not before us and we are not-at liberty to consider them. Certiorari cannot.be used as. a substitute for appeal (Hudson v. Simonson, supra), and the orders are not brought up on appeal for- correction of error. If it had been desired that the court’s order upon the facts adduced be reviewed, the remedy was by appeal to the circuit court, so that any error in the different parts of the proceedings could be corrected.

ffihe circuit court did not err in refusing to quash the assessment list,’and the judgment of that court is therefore affirmed.


author: Wood, J.

text:
    Bland v. Benton.
    Opinion delivered October 4, 1926.
    1. Elections — primary election contest — conditions precedent. —'Under Crawford & Moses’ Digest, § 3772, a contest of a primary election must be instituted within the time fixed and be prosecuted without unnecessary delay, and a complaint setting forth a prima, facie case, supported by an affidavit of at least 10 reputable citizens, is a prerequisite.
    2. Elections — primary election contest — amendment of complaint. — Where the complaint in a Democratic primary election contest alleged that persons not entitled to vote in such primary were permitted to cast their votes for contestee, it was not an abuse of discretion to refuse to permit the complaint to be amended at the' trial to allege mistakes of the election officers in the count and tabulation of votes and to ask for a recount-; such amendment stating a new cause of action, and not being filed within the time fixed iby Crawford & Moses’ Dig., § 3772, nor supported -by the affidavits of 10 reputable citizens.
    Appeal from Dallas Circuit Court; Turner Butler, Judge;
    affirmed.

      George Brown, J. H. Davis and R. W. Wilson, for appellant.

      T. D. Wynne, for appellee.
   Wood, J.

This action was instituted by the appellant against the appellee on the tenth day of August,-1926. The appellant alleged, in substance, that he and the appellee were rival candidates for the nomination of sheriff and collector of Dallas County, Arkansas, on the Democratic ticket, at the primary election held in that county on Tuesday, August 10, 1926; that, upon the face of the returns made by the election officers, the appellant received 959 votes and the appelleé 1,250; that of this number 600 were illegal votes, which -should be cast out and deducted from the vote received by the appellee, and that when this is done the appellant will have a majority of the legal votes cast. The appellant alleged that he filed a petition with the Democratic central committee on the 14th of August, asking the committee to cast out all illegal votes, which petition the committee refused, and accepted the vote as returned by the election officers, and thereupon certified the appellee as the nominee of the Democratic Party for sheriff and collector of Dallas County. The appellant alleged that, at the various voting precincts where the primary election was held, many persons were permitted to vote for the appellee and against the appellant who had not assessed a poll-tax for the year 1925, and whose names were not included on the list of poll-tax payers filed by the clerk of Dallas County on the second Monday of September, 1925, and whose names were not added to the assessment list for the year 1925. A list of these alleged illegal votes was attached to the complaint and marked Exhibit A. The- complaint further alleged that the election officers permitted many persons to east their votes for appellee and against the appellant whose names did not appear on the certified list of legal voters of Dallas County. The names of these alleged illegal voters were attached to the complaint and marked Exhibit B. The complaint alleged that the .election officers permitted many persons who were nonresidents to cast'their ballots for the appellee and against the appellant. A list of these alleged illegal voters was attached to the complaint, marked Exhibit C. The complaint further alleged that the election officers permitted persons who were not qualified to vote to cast ballots for the appellee and against the appellant. A list- of these was attached to the complaint, and marked Exhibit D. It was further alleged that the election officers permitted various persons who were Republicans and not affiliated with the Democratic Party to vote for the appellee and against the appellant. A list of these was attached to the complaint, and marked Exhibit E. The complaint alleged that, if all of these alleged illegal votes had not been cast or counted for the appellee and included in the returns of the. election officers, the Democratic central committee would have issued the certificate of nomination to the appellant instead of the appellee. The prayer of the complaint was in part as follows: “That the court proceed at once to hear testimony as to fraudulent votes and ballots cast in said election at each and every precinct in said county, in so far as same were cast for either defendant or plaintiff for the nomination of the office of sheriff and collector, and that the court cast out all votes or ballots cast by persons who are not qualified to vote for any reason above set out and whose names are mentioned in any of the exhibits attached; that it then count the true and legal votes and find the number cast for the plaintiff and for the defendant for the nomination of sheriff and collector of Dallas County, and if it be found that the plaintiff has a majority over the defendant, W. R. Benton, for such nomination, the plaintiff then prays that this court make an order canceling the certificate of nomination issued to the defendant, W. R. Benton, and that an order be made declaring plaintiff the Democratic nominee for the office of sheriff and collector of Dallas County, and that he be so certified and his name so placed on the ticket to be voted on at the general election to be held in October, 1926.”

The answer specifically denied ail the allegations of the complaint as to the alleged illegal votes cast for the appellee. The appellee alleged that the Democratic central committee of Dallas County accepted the returns of election officers of the primary election held on August 10, 1926, and, according to these returns, certified the appellee as the nominee fo.r the office of sheriff and collector of Dallas County, and concluded with a prayer asking that the appellant’s petition be denied.

The judgment of the trial court recites, among other things, that the circuit court convened in special session on September 6, 1926, pursuant to the order of the circuit judge in vacation: that the court heard the cause upon the complaint and the exhibits thereto and the answer of the defendant and the exhibits thereto; that the court, upon convening in the forenoon of September 6, 1926, prescribed the manner and method of examining the election returns for ascertaining the illegal ballots cast in said election and for determining the true number of illegal votes cast for the parties, as follows: “The plaintiff shall select one person to act as clerk, whose duty it shall be to keep count of each ballot cast for the plaintiff and each ballot cast for the defendant, •and shall select one other person whose duty it shall be to examine each ballot and ascertain from inspection thereof for whom said ballot was cast and to declare the same. The defendant shall in like manner select two persons to act for him in the same manner as those selected by the plaintiff. When the number of illegal votes that have been cast in any box or voting precinct under examination shall have been ascertained, the clerk shall open the ballots of said precinct and deliver them to the representatives of the plaintiff and defendant as aforesaid, who shall, in open court and in the presence of the judge and the parties, examine each of the illegal ballots and count said ballots for the party for whom said ballot was east, and, when all of the illegal ballots shall have been examined, the number of such illegal ballots that were voted for the plaintiff shall be deducted from the total number of votes certified by the county central committee as cast for him, and the number of votes remaining shall be deemed to be the true number of legal votes cast for the plaintiff at said election. And in like manner when all of the illegal ballots shall have been examined, the number of such illegal votes as were cast for the defendant shall be deducted from the total number of votes certified by the county central committee as cast for him, and the number of votes remaining shall be deemed to be the true number of legal votes cast for the defendant at said election. And that, after said illegal votes shall have been ascertained and deducted as aforesaid, then the person receiving the majority of the legal votes cast shall be deemed to be the' nominee of the Democratic Party for the office of sheriff' and collector of said county.”

Before prescribing the above mentioned method.for ascertaining the legal votes, the court declared the law to govern the representatives of the respective parties-as above selected in determining who had received a • majority of the legal votes cast. The court thereupon adjourned until September 7, at-nine o’clock a. m., for the purpose of ascertaining who had received a majority of the legal votes' cast, according to the above prescribed method. The court reconvened at nine o’clock, September 7, 1926, at which time the parties had not completed the list of votes to be counted, and the court took a recess until three o’clock p. m., in order to -give them further time. Upon the reconvening of the court in the afternoon, and immediately before the count of the ballots and their examination began, the appellant-offered to file the following amendment to his complaint:

“Comes J. A. Bland, and states that he is informed, has reason to believe, and therefore alleges that there-were mistakes in addilion of the votes, that many votes were miscalled, and mistakes in the tabulation of the votes as cast for the nomination of sheriff of Dallas County, and that said mistakes in addition, in the miscalling of the votes, and in the tabulation of the votes, were in favor of the defendant and against this plaintiff, and' that a recount of the following boxes will show that he received more votes than were credited him, and' that his opponent, W. R. Benton, received a far less number than were given him by the counting, calling, addition and tabulation, and that a recount will change -the result at said precincts. Plaintiff prays as in his original complaint for a count of the ballots, the true and legal ballots after all illegal ballots have been cast out, as to all precincts, and now especially asks for a recount, readdition and retabulation of the vote as cast at box No. 1, town of Fordyee; box or ward No. 2, Fordyee; precinct or box No. 3, town of Fordyee; Fordyee box, Fordyee Township; Ivan precinct, Southall Township; Manchester Township; Dalark precinct, Sisson precinct, Jackson Township; and Eaglette precinct, Holly Spring's Township.”

The court refused to allow the amendment to he filed, holding that “said amendment was another and different cause of action to that stated in the complaint filed, which was the basis of this proceeding and upon which the parties had prepared their case. ’ ’ The court thereupon proceeded to the trial of the cause.upon the original complaint and answer and the exhibits attached thereto and the amended and additional exhibits filed, and permitted both parties, during the hearing of said cause, to further amend their exhibits and lists by the addition of names of other persons than those already named whose voteá they might desire to challenge as illegal. The court thereupon found as follows: “That the total number of illegal bállots cast at said election was 728, of which the plaintiff, J. A. Bland, received 248, and the defendant, W. R. Benton, received 480; that, after deducting the number of illegal votes received by plaintiff from the total number certified as cast for him, there remained 711 legal votes cast at said election for said J. A. Bland, and after deducting the number of illegal votes received by W. R. Benton from the total number of votes certified as cast for him, there remained 771 legal votes cast for the said W. R. Benton; that the majority of the defendant W. R. Benton was sixty legal votes.” At this juncture the appellant reoffered the amendment to his complaint as above set forth, and prayed the court to proceed further with the examination in accordance with the allegations and prayer of such amendment. The court again refused to consider the amendment. The court thereupon entered a judgment declaring that the appellee was the nominee of the Democratic Party for the- office of sheriff and collector of Dallas County, to be voted on at the next general election, and declared that his certificate of nomination by the Democratic central committee was valid and in full force and effect.- The appellant duly excepted to the findings of law and fact by the court, and duly prosecutes this appeal from the judgment as above rendered.-

1. This action to contest .the certification of nomination and the certification of votes as made by the county central committee was instituted under . § 3772, C. & M. Digest. That section, among other things, provides: “The complaint shall be supported by the affidavits of at least ten reputable citizens, and shall be filed within ten days of the certification complained of. * # * The complaint shall be answered within ten days.” The provisions of the above and of the two following.sections show that it was the intention of the lawmakers, if an election contest were contemplated, that same should be instituted and prosecuted without unnecessary delay. It was the purpose of the lawmakers to require the party who instituted the contest to file a complaint in which a prima facie case should be set forth and that the cause of action or grounds of contest set forth in the complaint should be supported by the affidavits of at least ten reputable -citizens as a prerequisite to the jurisdiction.of the court to entertain the contest. Logan v. Russell, 136 Ark. 217-221. This court, in the above and other cases therein cited, holds that contest proceedings under the statute are not civil actions within the meaning of our Code of Civil Practice, but are special proceedings governed by the statute authorizing and. regulating them.

Now, the allegations of the original complaint show that the appellant predicated his right to contest upon the following grounds:

(a). Because the election officers did. not comply with the provisions of the law concerning the assessment, listing, and payment of poll taxes. See §§ 3738-3741 inclusive, C. & M. Digest.

(b). Because persons were permitted to cast their ballots for appellee whose names did not, appear upon the official list of legal voters of Dallas 'County filed by the collector. -Section 3742, C. & M. Digest.

(c). Because persons were permitted to cast their ballots for the appellee who were nonresidents of Dallas County.

(d). Because persons were permitted to cast their ballots for appellee who were minors.

(e).. Because persons were permitted to vote for the appellee who were Bepublicans and not affiliated with the Democratic Party.

The answer was filed to this complaint within ten days, and specifically denied that illegal votes were permitted as alleged. The answer and the complaint raised the issue that illegal votes were cast at the election, and upon this issue the court declared the law as to what constituted a legal voter, and directed the parties and their representatives to proceed to count the ballots cast at the election, eliminating such votes as were found to be illegal under the law as declared by the court. The court permitted the respective parties, while thus canvassing the ballots, to add any names other than those already mentioned to the exhibits which the parties might desire to challenge as being illegal voters. Before the count was completed and the result announced under the issue tlius. joined, the appellant, at this juncture, asked to amend his complaint by setting up that the election officers had made mistakes in addition of the votes, in miscalling-'of the votes, and in the tabulation of same, and asked for a recount, readdition and retabulation of certain boxes andprecincis, naming them.

The trial court was correct in holding that the proffered amendment stated a cause of action different from that set up in the original complaint and upon which the parties had' prepared their case and proceeded with - the hearing, and did not abuse its discretion in refusing to allow the amendment to be filed. Indeed, an examination of the proffered amendment will discover that its allegations are entirely too general to form the basis of a contest. It alleges that there were mistakes 'in addition of the votes, that many votes were miscalled, and mistakes were made in the tabulation of the votes in four different wards of the town of Ford'yce and in four voting precincts in rural townships. The amendment, in this form, is aptly characterized by the counsel for the appel-lees as an effort on the part of the appellant “to do- a little fishing,” to have the results as; shown-by the certified returns of the-election officials reviewed in orderto-ascertain whether they had made some mistakes'-in the addition,-, calling, and tabulation of the votes that would-perchance-result in appellant’s favor. The amendment,-in this-form, was-not sufficiently definite ’to 'state- a’ -prima fácie - cause of action; and, if it Were, the circuit judge, in limine, would have been justified in refusing to convene a'special term of the-court for the purpose of hearing, an-'election contest.-. The amendment was not supported-by the-’affidavits of ten reputable citizens, and, as it' states entirely different grounds for" Contest from’ that of the original complaint, the court’ was warranted in treating it as demurrable for that reason-as well as for its general indefiniteness. - The appellant does not’ lay his finger upon any specific mistake in any particular precinct in the counting, calling, adding and tabulating of the votes. The proposed amendment was only .tantamount to a sweeping allegation that there.were irregularities and derelictions on the part of the. election officers, but it’ does not specify any particulars.

In’ the case of Ferguson v. Montgomery, 148 Ark. 83, the charge was made by the contestant that certain illegal votes had.been cast- for the contestee in certain townships; The contestee'answered' that certain illegal votes had likewise been east for'the contestant in'certain other townships. - It developed at the -hearing that ‘certain illegal, votes wére cast in- other- townships than those named-either in the complaint ór answer, and the contestant was allowed to amend his complaint so as-to -embrace the illegal-votes in other townships. . The court, in the case..at-bar, permitted both parties,’during the hearing, to further- amend their exhibits and lists’by the addition .of names of other persons-than-those already named whose votes they might desire to challenge as illegal. The court therefore, in the present case, as in the case of Ferguson v. Montgomery supra, permitted amendments that did not change the grounds of contest. In the case of Ferguson v. Montgomery supra, we stated the rule as to amendments as follows: “It is impossible to state with precision the rule with regard to amendments of the pleadings. Much must be left to the discretion of the court, or the very object of the statute will be defeated. On the other hand, the contestant should not be allowed.to make amendments which would necessarily unduly delay the trial of the. contest, and, on the other hand, he should be allowed to make amendments, in all cases where no such delay would result and where the amendment was made for the purpose of presenting the issues with due diligence.” And we quoted from Mann v. Cassidy, 1 Brewster (Pa.) 11, as follows: “The rule must not be held so strict as to afford protection to fraud, by which the will of the people is set at naught; nor'so loose as to permit, the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well-defined cause.”

In the case, at bar it will be seen that the court permitted the returns of the election officers in all the voting precincts of the county to be reviewed for the purpose of eliminating therefrom any illegal votes that might have been cast for either party. But the court refused to allow the election returns challenged upon the other general and independent grounds alleged in the-proposed amendment. In this ruling the court was correct. In Cain v. CarlLee, 169 Ark. 887-900, we said': “The presumption is that election officers have done their duty and obeyed the provisions of the Constitution and statutes in holding an election. Hence the returns made by them showing the result of an election are prima facie correct, and are not to be overturned except by proof to the contrary. Thus it is that in all election contests the returns of the election officers in the various precincts challenged will not be set aside as a whole except upon proof tending to show a course of. conduct upon the part of the election officers, or some of them, indicating that they were guilty of such fraud in conducting the election as to make it impossible to fairly ascertain who received the majority of the votes cast. * * * But, unless such fraud is shown upon the part of the election officers, the returns should only be purged of illegal ballots, and the remainder counted as shown by these returns. ’ ’

2. Furthermore, the trial court did not abuse its discretion in refusing to allow the proposed amendment because it was not presented in apt time. As already stated, the amendment proposed different grounds of contest from those made by the complaint and answer which raised the issue of contest within the time prescribed by § 3772, C., & M. Digest. The amendment, if allowed, would have injected into the cause independent grounds of contest after the time limit for a contest prescribed by statute had expired. In McCrary on Elections, at § 443, p. 321, the author says: “As we have already seen, there are strong reasons for requiring the parties to an election contest to use great diligence in preparing for an early trial. In accordance with, this rule, it is held that an amended pleading setting up new facts Will only be allowed where it affirmatively appears that such facts are new; that they were first discovered after the service of the original notice; and that by the use of due diligence they could not have been discovered before such service.”

In Harmon v. Tyler, 112 Tenn. 8-24, the Supreme Court of Tennessee, in an exhaustive opinion in which numerous authorities are cited, passing upon a similar question, among other things said: “The evident purpose of the Legislature in creating a special tribunal, with no other jurisdiction, to try these contests, and requiring them to be promptly instituted and speedily heard and determined, was to prevent the strife and animosities which necessarily attend public elections from being continued in the courts, and to prevent those whom the people have elected to the offices from being deprived of their possession, and denied the right to exercise the functions and enjoy the emoluments of the office, and from being harassed and disturbed in the discharge of their public duties, by prolonged litigation. These wholesome and just purposes would be entirely defeated under any other construction. If the original contest, or a new one by an amended or supplemental pleading, could be commenced a month after the expiration of the time prescribed, it could be done at any later period, and the litigation in this way prolonged, in many instances, until the term of office had expired.”

In 20 Corpus Juris, Elections, at § 310, under the title of “New Matter” it is said: “Except in jurisdictions where election contests are governed by the general rules of chancery practice, the general rule is that the notice.or pleadings cannot be amended so as to introduce new parties or new grounds of contest, at least after the time for filing the original pleading or notice has expired, and it. is especially true where no good reason is given for not presenting the new matter in the original pleading. ’ ’ Cases to sustain the text are cited in note. . ,

We conclude therefore that the. trial court, did not abuse its discretion, and did not err in refusing to allow the proposed amendment to appellant’s complaint, and did not err in the methods pursued by it to determine the result of the primary election for the nomination for the office of sheriff and collector of Dallas County,-and in declaring that the appellee was the nominee of the Democratic Party, and that his certificate of nomination was valid, and in entering a judgment dismissing appellant’s complaint, and for costs against him.

The judgment is therefore affirmed.


text:
    Crow Oil & Gas Company v. Drain.
    Opinion delivered October 4, 1926.
    1. Assignments — evidence.—In an action on defendant’s acceptance of an order of a drilling company to pay to plaintiff $300 for each well drilled, it was not error to admit in evidence the note and mortgage given by the drilling company to plaintiff, as such testimony tended to prove that there was a consideration for such acceptance.
    2. Assignments — conditions.—-Where defendant accepted an order of a drilling company, obligating it to pay to plaintiff $300 upon - the drilling of each well for defendants, upon condition that the money should be earned by the drilling company, defendant cannot escape liability, in case the drilling company earned that amount, because liens against the drilling company for labor and materials had been enforced against all money in defendant’s hands belonging to the drilling company.
    3. Corporations — capacity to contract. — Whether a corporation’s contract is ultra vires will not be considered on appeal, in absence of evidence of its charter powers.
    4. Judgment — res judicata. — In a suit to recover $300 on an -accepted order, a former judgment for the same amount in a suit between the plaintiff’s assignor and the defendant will not be res judicata where the pleadings in the former suit are not set forth and it does not appear that plaintiff was a party thereto, or that the same issues were involved or might have been determined in that case.
    5. Judgment — res judicata — burden op proof. — The burden is on the defendant to sustain his plea of res judicata.

    6. . Appeal and error — presumptions.—The Supreme Court cannot - set aside a finding of the trial court on the issue of res judicata -by mere implications and intendments.
    • Appeal from Crawford Circuit Court; Jaynes H. Cochran, Judge;
    affirmed.

      E. L. Matlock, for appellant.

      Cravens $ Cravens, for appellee.
   Wood, J.

This action was instituted by the appellee against the appellant on the following instrument:

“Fort Smith, Ark., March 20, 1923.
“Crow Oil & Gas Company, Fort 'Smith, Arkansas.
“Gentlemen: The Fort Smith -Drilling Company is indebted to Mrs. D. S. Drain in the sum of $3,500, evideuced by three notes, dated February 23, 1922, the first for $1,000, due in six months, the second for- $1,000, due in twelve months, and the third for $1,500, due in eighteen months, all bearing interest from date at the rate of eight per cent, per annum, and you are' hereby authorized and directed to pay to Cravens & Cravens, attorneys for Mrs. D. S. Drain, at t'he. completion • of each well drilled for you, the sum of three hundred dollars- ($300), until the full amount of these notes, together with-interest, is paid.
“Yours truly,
“H. L.,Thompson.”
' “We hereby accept the above order, and agree with Mrs. D. S. Drain to pay to her or her attorneys, upon the' completion of each well for us by the Fort Smith Drilling Company, the sum of three hundred dollars ($300), in accordance with the above order, provided we do not bind ourselves to pay any amounts not earned by the Fort Smith Drilling Company under its present agreement or future agreements.
“Crow Oil & Gas Company.”

The appellant denied liability. The cause, by consent of parties, was tried by the court sitting- as a jury.

The appellee testified, and introduced in evidence the instrument set out above. -She further introduced in evidence, over the objection of appellant, three notes dated February 23, 1922, in the aggregate sum of $3,500, purporting to have been executed by the Fort Smith Drilling Company to the appellee; also a mortgage of same date to secure these notes on certain oil well drilling machinery. The appellant also introduced in evidence certain correspondence between the appellant and Cravens & Cravens, attorneys for the appellee. One of the letters was dated February 12,1923, in which the appellee stated that it was its intention to drill approximately a dozen wells in the Alma field during the following spring and summer; that it expected to give the majority of the work to the Fort Smith Drilling Company, and that it was willing to make the payments for' complete wells as directed by that company. Further : correspondence shows that .the Crow Oil & Cas Company paid to Cravens & Cravens the. sum.of $300 on the accepted order, and had failed to make any other payments upon demand-of Cravens & Cravens. The correspondence concluded with a letter from. Cravens & Cravens of November 16, 1923, notifying the appellant that they considered it liable on the order and.its acceptance.

Ben Cravens testified, identifying the above correspondence. He identified and introduced in evidence a memorandum which reads as follows:. “This check is-to be given to Mrs. D. S. Drain, and is fin accordance'with a.letter dated March 20, 1923, from H. L. Thompson, ordering the -Crow Oil & Cas Company to pay to Mrs, D.- S. Drain the above amount upon the completion of each well drilled by Mr. Thompson for this company.” The witness further stated that this memorandum was attached to a check seht him by the appellant for. $300. The appellee made further demand on- the appellant for $300, which was refused. The witness did not know which wells the above correspondence referred to, but stated that he received $300 for the drilling of the first well. -Witness did not know;.-whether-the drilling company-had completed any well.

Witness-C. B. - Jones testified for the appellant .that he was-its secretary and treasurer at. the time the transactions mentioned were had-with the Fort Smith Drilling Company.- At the time the order in controversy- was accepted by the appellant, the -Fort Smith. Drilling Company was drilling, or preparing to drill for' the appellant. The drilling company had a contract to drill three wells. It completed the Boren well, and. Mrs. Drain was paid $300. The drilling company did not complete the Wood well, and no money was paid Mrs. Drain because that well-was lost.- The Byars well was not-completed, but the appellant would have paid for.it if it had been, permitted to do so by the chancery court. - A suit wás filed by various parties against the .drilling company and the. appellant, claiming liens on the Byars well, and the appellant paid the amount earned by the drilling- company, to-wit, $4,555.85, into the chancery court in that suit. The appellant finished the well. The appellant had- orders from the drilling company for four or five times as much money as was coming to it. It accepted these orders conditionally just the same as the Drain orders. Suit was brought by Pugh and others against the drilling company and others before the Byars well was completed and was shut down.-by attachment, and the parties bringing that suit afterwards received their money under the order of the chancery court.' The appellant received no benefit from the giving of the order by the drilling company to the appellee and its conditional acceptance by the appellant. There was no resolution of the board of directors authorizing the witness' to accept the order. The conditional acceptance was just an effort to help persons with whom appellant had dealings in a business matter between themselves. The appellant paid into court, in the case mentioned, all the money due the drilling company on the Byars well. The witness did not know that the drilling company was indebted to the appellee until the order was brought to witness. Thompson told the witness that Mrs. D. S. Drain was pressing the drilling company for payment. If .Mrs. Drain had taken possession of the outfit, - the drilling company could not have drilled the wells. The appellant could have got fifty other contractors to drill .the wells, but wanted to help the drilling company. The appellant advanced to the drilling company $1,000 before it did anything, and it advanced it in all the sum of $2,200 between June 14 and November 28,1923, inclusive. This amount, with the amount paid into court, made the sum of $6,738 due' the drilling company for footage. . The appellant paid the City National Bank the sum of $500 as an accommodation to the drilling company. Witness did not know whether this was for material used, -in drilling the well- or not. Witness would have paid Mrs. Drain out of the $4,555.85 due on the Byars well,- but was prevented by the suit of laborers and materialmen for prior liens. The order of the drilling, company accepted by the appellant was given before the drilling company had any contract to drill for the appellant. The materials paid for by the appellant. were added to the drilling company’s rig used in drilling the Byars well, on which machinery Mrs. Drain had a mortgage. The appellant put. in evidence a certified copy of a decree of the Crawford Chancery Court, which decree recites, as follows:

“On this day this cause comes on-to be heard, the plaintiffs appearing in person and by their respective attorneys, the defendant, Fort Smith Drilling Company, appearing by its attorneys, Warner, Hardin & Warner, the defendants, Industrial Oil & Gas Company and Crow Oil &-Gas Company, appearing by their attorney, E. L. Matlock,-and the issues are presented to the court at chambers by consent of all the parties, it being agreéd that the findings and orders of the court may, be on this day made with the same effect as if heard at Van Bnren in term time, and that said order may this day be entered with that force and effect. ,;
“The court finds, the parties consenting thereto, that the defendant Crow Oil & Gas Company is indebted to the defendant Fort Smith Drilling Company upon . a contract for the drilling of a well known as the Byars No. 3 in the sum of $4,555.85, which sum said Crow.Oil & Gas Company tenders into court. And the court finds, all parties consenting thereto, that the defendant, Fort Smith Drilling Company, is indebted to the following persons in the sum set opposite their names, respectively, to-wit: (Here follow certain names and’ amounts due certain parties for labor and material furnished).’
“And the court further finds, all the parties hereto consenting thereto, that the said F-ort Smith Drilling Company is indebted to the following named persons in the amounts set opposite their respective names: (Among the list of names here following appears that of D. S. Drain with the amount of $300 opposite).
“It is therefore by the court considered, ordered and adjudged and decreed that each of said persons above mentioned do have and recover of and from the Fort Smith Drilling Company, defendant herein, the amount herein above found to be due them, respectively.
“It is further ordered that the said sum of $4,555.85 tendered into court by the defendant, Crow Oil & Gas Company, be paid by said company into the treasury of the court and to "W. A. Bushmaier, clerk of said court. It is further ordered that the persons referred to as having liens for labor done hereinabove be and they are hereby declared to have first or prior liens paramount and superior to all other liens of persons on the fund so paid into court, and it is ordered that said clerk pay first to such persons said amounts respectively, and accept their receipts therefor, and that said receipts be filed with the papers in the case.”-

The decree further ordered that the clerk pay out of the sum of $4,555.85 in his hands,' first, the parties who had been adjudged liens for labor and materials furnished,- and that the remainder be held in his hands to await further orders of the court.

Ben Cravens was recalled, and testified that, at the time the order in controversy was given and accepted, his firm had the notes given by' the drilling company to the appellee for collection, and the appellee had been threatening to foreclose the mortgage given by the drilling company to secure the same.

Upon the above facts, the court rendered judgment in favor of the appellee in the sum of $300, with interest at -the rate of six per cent, from Nov. 1, 1923, from which judgment is this appeal.

The court did not err in permitting the appellee, over the objection of appellant, to introduce in evidence the notes and mortgage given by the Fort Smith Drilling Company to the appellee. This testimony was relevant. The appellant had made itself a party to the order which is the foundation of this action by accepting the same. The notes and mortgage tended to prove the transaction between the drilling company and the appellee upon which the order was based, and the consideration moving from the appellee to the drilling company for such order. This testimony was likewise relevant to the issue raised by the appellant in its answer, to the effect that the appellant received no benefit from the giving of the order, and the acceptance thereof was without any consideration moving from either of the parties to the appellant, and purely for the accommodation of the appellee and the drilling company.

The appellant’s secretary testified, among other things, that the representative of the drilling company told him that the appellee was pressing the drilling company for payment, and that if the appellee had taken possession of the outfit of the drilling company 'it'could not have drilled the wells. One of the attorneys for the appellee testified that his firm had been threatening to foreclose the mortgage on the machinery of the drilling company. The secretary "of the appellant further testified that, at the time the order was given, the appellant had a contract with the drilling company to drill three wells.

It occurs to us that the introduction of the notes and mortgages was pertinent to the issues raised by the pleadings and the testimony of appellant’s secretary. This testimony tended to prove that the appellant, did not accept the order purely for accommodation, but that there was a consideration moving from the drilling company and the appellee to the appellant for the order and its acceptance. The court had a right to conclude from this testimony that the appellant accepted the order for the reason that it was interested in having the drilling, company perform its contract in the drilling of the wells, which the testimony of appellant’s own secretary shows could not have been done if the machinery of the drilling company had been taken over by the appellee finder its mortgage.

The contention of learned counsel for appellant that the acceptance of the order by the appelldnt was conditional, and that the- condition upon which the order was accepted had failed or had not arisen, cannot be sustained. The only condition in the order and acceptance was that the money should be paid by the appellant when the same was earned by the drilling company in the drill- - ing of the wells for the appellant. The testimony of' appellant’s secretary shows that the drilling company had complied with this condition by the drilling of a well, on which there was due the drilling company by the-appellant, at the time this action was instituted, the sum of $4,555.85. True the appellant secretary stated that, the .well at that time had not been completed, -but that the appellant did not object to the payment on that, ground, and would have paid the amount to the appellee under its acceptance “if it had been permitted to do so by the chancery court.” The undisputed testimony of appellant’s secretary proves that, as between the appellant and the drilling company, the latter had earned, by the drilling of wells for the appellant, far more than was called for by the acceptance, and that the appellant, at the time the $300 in controversy was demanded, had waived the noncompletion of the well by the drilling company. It thus appears that the appellant would have paid the appellee the $300 in controversy under its acceptance had it not been directed by order of the cháneery court to pay into the registry of that court the sum which had been earned by the drilling company in the drilling’ of the second or Byars well for the appellant. Coúnsél for; appellant contends that, although the drilling company had drilled the weils and earned thereby the sum' of $4,555.85,' nevertheless the condition specified in the order and acceptance had not been met, for the reason that the drilling company had not paid those who had furnished labor and material for the drilling of the wells; that the drilling company had not earned the amount called for by the acceptance of the order until these claims, which were prior liens, had been paid and discharged. We cannot agree with counsel upon this construction of the acceptance of the order. The drilling company which had the contract with the appellant for the drilling of the wells had complied with the condition of the acceptance on its part hy drilling a well, and had earned, as the appellant’s secretary concedes, the money as between it and the appellant. The fact that suit had been brought by laborers and materialmen against the appellant and the drilling company for labor and materials furnished, cannot avail the appellant as a defense in appellee’s action against it, for the reason that the payment of these claims by the drilling company was not made a condition to the acceptance of the order in controversy by the appellant. So far as the appellant and the drilling company and the appellee are concerned, the only condition of the acceptance was that the money should be earned by the drilling company, which the undisputed testimony proves was the fact.

In the recent case of Oliver Construction Co. v. Union Trust Co., ante, p. 482, we said: “The undisputed evidence shows that the sum due Stehbins from appellant under his contract with it amounted to more than the face of the order on October 12, 1923, unless appellant had the right to deduct the amount it had paid the laborers employed.by Stehbins before paying anything on the order and acceptance. The language of the order and acceptance is unambiguous, and means that appellant will pay appellee the sum of $1,000 out of the estimate to be. rendered on October 12, 1923, if it should amount to that much or more. The order and acceptance did not provide for payment out of any balance which might be due Stehbins on that date, but for payment out of the estimate which would be due. on that date. There being no ambiguity in the order and acceptance, which imported absolute liability upon the sole contingency of the estimate being sufficient to cover the order, the court properly excluded the testimony of Oliver tending to contradict the written contract.”

The above case is applicable to the facts here, because, under the terms of the order and the acceptance thereof, the payment of the amounts due by the drilling company to the laborers and material furnishers was not made a condition upon which the order was accepted. Therefore we conclude that the only condition or requirement specified in the order and the acceptance thereof upon which payment to the appellee was to be made, had been fully met and complied with.

The contention that the signing of the acceptance by the' appellant, through its secretary, was an ultra vires act, cannot be sustained, for the reason that there is no testimony in the record to show that the execution of such an acceptance was beyond the charter powers of the appellant. The appellant’s charter was not in evidence, and, as we have already shown, the trial court was warranted in holding that the acceptance of this order was for the benefit of the appellant, and that it enabled the drilling company, with whom the appellant had the contract to drill wells, to proceed in the performance of that contract, and, for aught the record shows to the contrary, this was an act pursuant to the appellant’s charter powers.

The proceedings of the Crawford Chancery Court in evidence in this record do not prove that the decree of the court in that action was res judicata of the present action, as contended by counsel for appellant. The recitals of that decree only show that D. S. Drain had a claim allowed in that action in the sum of $300 against the drilling company. The pleadings in that case are not set forth, .and it cannot be determined from the mere recitals of the decree that the same issues were involved, or might have been determined in that case, between the appellant and the appellee, as were raised and determined between them in the present action. The recitals of the decree of the Crawford Chancery Court in evidence here do not show that the appellee intervened in that cause and asked judgment against the drilling company. The only recital as affecting the appellee is as follows: “All the parties hereto consenting thereto, that the said Fort Smith Drilling Company is indebted to the following persons in the amounts set opposite their respective names. (Here, among others, naming D. S. Drain and setting opposite the name the sum of $300). “It is therefore by the court considered,' ordered, adjudged and decreed that each of said persons above mentioned do have and recover of and from the Fort Smith Drilling Company, defendant herein, the amounts herein above found to be due them, respectively.”

In the absence of the pleading filed by the appellee in that cause, it cannot be said that the trial court erred in finding that the proceedings of the chancery court were not res judicata of appellee’s present action. For it cannot be said that the mere recitals of the decree prove that the appellee did ask, or could have properly asked, for judgment against the appellant in that action. The recitals are sufficient to show that D. S. Drain presented, and was allowed, a claim against the drilling company in the sum of $300, but that is far from proving that Mrs. D. S. Drain, the appellee, filed in that suit a claim for $300 against the appellant, or that she, under the pleadings in that case, could have presented a claim against the appellant for the amount which she here seeks to recover. The appellee has proved her claim and right to recover against the appellant in the present action. The burden of proof was upon the appellant to sustain its plea of res judicata. In the absence of any showing in the record to the contrary, every presumption must be indulged in favor of the findings of the trial court. On the issue of res judicata raised by the appellant, we do not find any testimony in the bill of exceptions except the recitals of the decree of the Crawford Chancery Court, as above set forth, and these recitals are not sufficient to overturn the finding of the trial court on that issue. This court cannot set aside the finding of the trial court on the issue of res judicata by mere implication and intendments. Tbe record wholly fails, as we view it, to sustain the appellant’s plea of res judicata.

The judgment of the trial court is therefore correct, and it is affirmed.


author: Hart, J.,

text:
    Pennington v. Karcher.
    Opinion delivered October 4, 1926.
    1. Appeal and error — harmless error — parties.—That several plaintiffs improperly joined in a suit to enforce contribution from defendant was not ground for reversal of the decree, since, under the- Civil Code, the court might have consolidated actions separately brought by them. , . ,
    2. Principal and surety — right to contribution. — The reciprocal obligations of sureties to contribute proportionately to the principal debt does not depend upon the express contract between them, bixt is founded- upon the principles of equity, as a liability growing out of their mutual relationship.-
    3. Limitation of actions — suit for contribution. — A -suit between sureties to compel contribution is governed by the three-year statute of limitations (Crawford & Moses’ Dig., § 6950).
    4. Limitations of actions — contribution—when action accrues. —As affects limitations, a right of action for contribution accrues when one surety pays more than his share of the common liability.
    5. Principal and surety — right to contribution. — Where plaintiffs as sureties executed their note in satisfaction of their principal’s indebtedness, and same was accepted by the- creditor, this constituted a payment by plaintiff's, entitling them to recover his proportionate share of the liability from a cosurety who refused to sign the note.
    Appeal from Pulaski Chancery -Court; John E. Martineau, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    Appellees brought this suit in equity against appellant for contribution. The facts are substantially as follows:
    Appellant and appellees were directors of a building and loan association in the city of Little Rock, and L. E. Walther, who died some months prior to the rendition- of the decree in this case, was its secretary. • An audit of the hooks of the association in 1918 showed a shortage in the secretary’s accounts of $20,663.69, which was caused by the payment of building association stock before it had fully matured. The directors, believing themselves to be liable for the amount of the shortage, borrowed the amount thereof from the Southern Trust Company of Little Rock, Arkansas, and delivered to said bank their note for $20,663.69, dated February 3, 1918, payable six months after date.
    L. E. Walther did not sign the note, but paid the interest at its maturity. A renewal note was executed by L. E. Walther and by appellant and appellees. Walther paid the interest on this note when it matured, and a new note for the principal was executed February 3, 1919, by Walther, and by appellant and appellees.
    On the 4th day of August, 1919, when this note, matured,' Walther paid the interest and $63.69 on the principal. On August 4, 1919, Walther, appellees and appellant, all signed a new note for $20,600, payable six months after date to the Southern Trust Company. Walther paid nothing further on the indebtedness except $588.72, realized from the proceeds of a bauxite lease owned by him.
    Appellees continued to reduce the' principal of the indebtedness to the Southern Trust Company and to-pay the interest on the renewal notes until the 12th day of September, 1921, when the indebtedness was reduced to $10,600.
    During all this time appellant had signed the renewal notes, but did not pay any part of the principal or interest. On September 12, 1921, appellant refused to sign a renewal note for the balance of the indebtedness, due the Southern Trust Company. Appellees paid the balance of the indebtedness, and brought this suit in the Pulaski Chancery Court against the appellant on the 26th day of March, 1924, to enforce contribution.

      L. E. Waltlier was not made a party to the suit because he was regarded as insolvent. The evidence shows that L. E. Walther was insolvent at the time the' first note was executed, and continued to be insolvent until his death.
    The chancellor found the issues in favor of appellees, and it was decreed that appellant should pay them his proportionate part of the indebtedness for which the original note and the renewal notes were executed.
    The case is here on appeal.

      Mehaffy & Mehaffy, for appellant.

      Buzbee, Pugh S Harrison, for appellee.
   Hart, J.,

(after stating the facts). The first ground •relied upon for a reversal of the decree is that appellees could not join-in one suit to recover the amount alleged to be due them by appellant, for contribution. Assuming counsel for appellant are right in this contention, it does not call for a reversal of the decree, since, under our Civil Code, the trial court might have consolidated the actions if they had been brought separately. Earl v. Ellison, 138 Ark. 166, 210 S. W. 346.

It is next contended by counsel for appellant that the court .erred in refusing to sustain their plea.of. the statute of limitations. The reciprocal obligations of surer ties to contribute proportionately to the principal debt does not depend upon the express contract between them, but is founded upon the principles of equity, as a liability growing out of their mutual relationship. Weaver-Dowdy v. Brewer, 127 Ark. 462, 192 S. W. 902; Reed v. Rogers, 134 Ark. 528, 204 S. W. 903; and Bank of Searcy v. Baldock, 153 Ark. 308, 240 S. W. 399.

It is contended that the three-year statute of limitations, applicable to implied contracts not in writing, rules the present case, and such is. our holding in Cooper v. Rush, 138 Ark. 602. It was also expressly held in that case that the right of action for contribution accrues when one surety pays more than his share of the common liability. This is in accordance with the general rule, that a party acquires the right of contribution as soon as he pays more than his share, hut not until then,'and consequently the statute of limitations does not begin to run until then. Richter v. Blassingame, 110 Cal. 530, 42 Pac. 1077; Durbin v. Kuney, 19 Ore. 71, 23 Pac. 661, and 13 C. J. 833.

When the appellees executed the note for $10,600, on the. 12th day of September, 1921, which appellant refused' to sign, and the Southern Trust Company accepted the note of appellees, this constituted a payment by appellees, and is equivalent in law to a payment in cash. Green v. Anderson, 102 Ky. 216, 43 S. W. 195; and 13 C. J. 823, and cases cited.

The present suit was commenced on the -26th day of March, 1924, which was less than three years from September 12,1921, when the .note by appellees was executed and accepted by the bank in full satisfaction of the demand due by the obligors. It is obvious that the statute did not begin to run.until September 12,1921, because the payments made by the appellees prior to that time did not amount to as much as their proportionate part of the indebtedness. The record shows that, each time a payment was made,-each appellee paid his own proportion ate part .thereof, and these sums did not amount to-as much as his proportionate share of the liability.

Hence the chancellor properly held that the action of appellees against the appellant for -contribution was not barred by the statute of limitations. Therefore the decree is affirmed.


author: Smith, J.

text:
    Fee-Crayton Hardwood Lumber Company v. Fee-Crayton Hardwood Company.
    Opinion delivered October 4, 1926.
    1. Partnership — participation in profits. — Mere participation in the profits of a business will not make the participant -a -partner, as the question whether a partnership exists depends upon the . intention of the parties, to be gathered from the contract construed in the light of all the facts and circumstances.
    2. Trade-marks — property rights. — A trade-mark or trade emblem is property, and may have value.

      3. Trade-marks — abandonment.—Abandonment of a trade-mark and emblem. held not proved, and a suit to restrain defendants from using same was improperly dismissed.
    Appeal from Pulaski Chancery Court; John 'E. Martineau, Chancellor;
    reversed.

      Méhaffy é Méhaffy, for appellant.
   Smith, J.

This suit was -brought by appellants'for the purpose of preventing the appropriation and use of a certain trade-mark and trade emblem by appellee.

One F. F. Fee was engaged for many years' in exporting lumber, and employed in this connection a certain trade-mark and a trade emblem. His business was finally incorporated under the- name of the Fee-Crayton Hardwood Lumber Company. Fee owned 75 per cent, of the capital stock of the corporation, less two shares, one of which was owned by B. S. Nixon and the other by W.' A. Kone. The remaining 25 per cent, of the stock was acquired from another owner by Mrs. Mamie Fee, the wife of F. F. Fee, so that Fee and his wife owned all the stock except two shares, and the stock was thus owned at the time of Fee’s death, which occurred on the -14th day of January, 1923.

Nixon and Kone were valued employees of the corporation, and were given an interest of one-fourth each in the net earnings of the corporation, in addition to a monthly salary. Fee’s health failed, and, for the last year or two of his life, the business was conducted by Nixon and Kone. The corporation ceased to file reports, and the last report which it was required to file with the clerk of the county court of the county of its situs was filed in 1921. After the death of Fee, his wife took as dower one-third of the stock which he had owned, thus mailing her the owner of half the stock, and, on the final settlement of the estate, she took the remaining half of the stock, less the two shares mentioned, in- part satisfaction of her dower claim.

At Fee’s death he was survived by his widow and several children, all of whom were minors, including the eldest son, whose initials were F. F. F., these being the initials of his father, and these initials were part of the trade emblem which the corporation had used.

After the death of Mr. Fee, the business was wound up by Nixon and Kone, who alleged in their answer that the corporation had ceased to function as such, and its assets and affairs had been acquired and taken over by a copartnership composed of themselves and Mr. Fee, and that, as surviving partners, they had disposed of the partnership assets. It was denied in their answer that the trade-mark or trade emblem possessed- any value, and were'treated -as being without value in winding up the copartnership affairs.

■In August, 1923, following Fee’s death -in-January of thát year, a corporation known as- the Fee-Crayton Hardwood Company was organized,- and both Nixon and Kone were ■ stockholders and -officers in that corporation. There was testimony that Mrs. Fee was desirous of having this last corporation organized, although she owned ■no stock in it, as a useful instrumentality in winding up the affairs of the original corporation, which was succeeded by the copartnership, which had operated under the name-of the original corporation, and upon the organization of the last corporation it had adopted the trade name and trade.emblem of the original corporation as things without value to any one and which no one was then using. .

The principal question in the case is one of Tact, .whether the assets .and - affairs of the FeerCrayton Hardwood Lumber Company had been .acquired by a partnership which operated under what had been the. corporate name.

We do,not set out the.testimony oh this subject, as it would.serve no useful purpose to do so, but announce our conclusion, after . carefully considering the testimony, to be that. thére was never any partnership between Fee and Nixon and Kone. A partnership was proposed, but declined by Fee. It is true Nixon and Kone were given a half interest in the profits made, but they did not testify that they were to become responsible for any losses sustained. They advanced no money or property, and put into the business only their services, but for these .services, they were to be paid a salary and a per cent, of the profits.

In the case of Wilson v. Todhunter, 137 Ark. 80, it was held (to quote a head-note) that “mere participation in the profits and losses of the business alone will not make the participant a partner. ’ ’

Here we have a participation in profits alone, arid we think this was merely a plan devised to compénsale Nixon and Kone for their services.

It may be said that the conduct of the business after Fee’s health failed was such as to make all the participants in the business liable as partners to a third person who had dealt with them as a copartnership. ..But that question is not in this case. The question is, whether there was in fact a copartnership, and upon this question we quote another head-note in the case of Wilson v. Todhwüer, supra, which reads as follows; “"Whether a partnership exists depends , on the intention of the parties, to be gathered from the contract construed in the light of all the facts and circumstances. ’ ’

That a trade-mark or a trade. emblem may have value- and become a property right is settled' by all the cases on the subject, and that the trade-mark and trade emblem here in litigation have -value is shown 4>y the fact that the parties have .litigated the right to use. them. Indeed, the undisputed testimony shows that they have large value.

Mrs. Fee testified that, although she was not in .the export business 'and- did not intend to re-enter it, she desired to preserve the trade-mark and trade -emblem under which lier husband-had operated for many years, and which had -been used by the original corporation, for the use of her son when he attained his majority. Since the institution of this suit her son, F. F. Fee, has attained his-majority and has been made a party plaintiff, and has entered the same business in which the original corporation was engaged, and his testimony shows the subject-matter of this litigation is very valuable.

The court below dismissed the complaint as being without equity, and we think this was error. We do not think there was any abandonment of the trade name and trade emblem; on the contrary, we think the ownership thereof continued in the original corporation, which does not appear even yet .to be dissolved, and the trade name and trade emblem belong to it, and the plaintiffs in the case had the right to maintain this suit.to prevent the use of the trade name and trade emblem by the defendant.

The decree of the court below is therefore reversed, and the cause will be remanded with directions, to grant the injunction prayed for.

Humphreys,, J., not participating.


text:
    Stocks v. State.
    Opinion delivered October 4, 1926.
    1. .Criminal law — execution of sentence. — The expiration of a period of time greater than the length of a sentence does not expiate it. '
    2. . Criminal law — execution of sentence. — A sentence of imprisonment is satisfied, not by lapse of time after:it is pronounced', but by actual imprisonment, because the .time' in which a sentence shall be'carried into execution is not provided by statute.an! forms no part of the judgment of the: court.
    3. Criminal law — execution of sentence — limitation.—Where a sentence of imprisonment was suspended in 1910 with defendant’s consent, and was imposed in .1926, held that the sentence was not barred by the statute of limitations.
    4. Criminal law — limitation.—Crawford & Moses’ Dig., § 6959, relating to actions on judgments, and § 6960, limiting time of all actions not included in the preceding sections, have no application to' criminal proceedings.
    5.- Criminal law — suspension of sentence — right to complain.— Where a sentence of imprisonment was suspended during good behavior by defendant’s consent, he is in no position to complain of its subsequent enforcement upon his violating the condition of the suspension.

      Appeal from Conway Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Edward Gordon, for appellant.

      H. W. Applegate, Attorney General, and' Darden Moose, Assistant, for appellee.
   Smith, J.

Appellant was indicted at the October,. 1909, term of the Conway Circuit Court for the crime of grand larceny, and at the ensuing March, 1910, term of the court entered a plea .of guilty, and was sentenced to a term of one year in the penitentiary. . After being so sentenced, the judgment further recited that, by consent, the sentence was suspended and the cause continued until the following October term of the court, and appellant was allowed to stand on his bond. At the October, 1910, term, a judgment against appellant was rendered, which recited that he appeared in open court and pleaded guilty to the indictment against him, and, upon this plea, he was given a sentence of one year in the penitentiary. At a later day of the same term it is recited that appellant appeared and moved the court to set aside the judgment of the court sentencing him to a term in the penitentiary and to suspend and postpone sentence for and during his good behavior. The prayer of this motion was granted, and it was ordered that the sentence be set aside, and the cause was continued, and appellant was permitted to remain, at large on his own recognizance for and during his good.behavior, “the'right and judgment of the court herein being hereby expressly retained to pass sentence herein and commit said defendant at any succeeding term, should he again violate any of the criminal laws of this State.”

In March, 1926, appellant entered a plea of guilty in a court of a justice of the peace to a charge of possessing intoxicating liquors, and on May 24, 1926, an adjourned .day of the March term of the circuit court, appellant was cited to show cause why sentence should not be pronounced on him pursuant to the judgment above mentioned, and, upon a hearing then had, the court adjudged that appellant had violated the condition on which the sentence had been suspended, and sentenced him to a term of one year in the penitentiary, and this appeal is from that judgment.

It may be first said that the plea of guilty entered by appellant was not a conditional plea, and therefore does not fall within the case of Wolf v. State, 102 Ark. 295, 144 S. W. 208. It was such a plea as was entered in the case of joiner v. State, 94 Ark. 198, 126 S. W. 723.

Appellant insists, however, that, when the court sentenced him at the March, 1910, term’ of the court, and later suspended the sentence and continued the cause until the October, 1910, term, the court lost jurisdiction to subsequently impose sentence, as the order of suspension of the March term was void.

In support of this contention it is argued that, at the time the sentence was imposed upon appellant, circuit courts did not have authority even to continue causes for judgment, and, as this sentence was therefore in effect, appellant is now entitled to his discharge, as a much greater period of time has since elapsed than the term of the sentence. It also insisted that the right now to impose this sentence is barred by the statute of limitations.

The case of Davis v. State, 169 Ark. 932, 277 S. W. 5, and the more recent case of Ketchum v. Vansickle, ante p. 784, 286 S. W. 948, are against the contention that the expiration of a period of time greater than the length of the sentence expiates it. In the case of Ketchum v. Van-sickle, supra, we quoted from the case of Davis v. State, supra, the following statement of the law: “It does not make any difference that more than a year has elapsed since the sentence of one year’s imprisonment in the penitentiary was imposed. While at large under the void orders of the circuit court, to which he assented, the defendant was in the same situation that he would have been had he escaped from custody. A sentence of imprisonment is satisfied, not by lapse of time after it is pronounced, but by the actual suffering of the imprisonment imposed by it. The reason is that the time at which a sentence shall be carried into execution is not provided by statute and forms no part of the judgment of the court. Massey v. Cunningham, ante p. 410.”

Nor do we think the right of the court to impose sentence is barred by any statute of limitations. Section 6959, C. & M. Digest, is cited. This section provides that “actions on all judgments and decrees shall be commenced within ten years after cause of action shall accrue, and not afterwards. ’ ’ Section 6960, C. _ & M. Digest, is also cited. This is a section which follows other sections prescribing various periods of limitation for different causes of action, and provides that “all actions not included in the foregoing provisions shall be commenced within five years after the cause of action shall have accrued.” It is sufficient to say that both of these sections relate exclusively to civil actions, and have no application to criminal proceedings.

In the case of Barwick v. State, 107 Ark. 115, 153 S. W. 1106, a plea of guilty was entered at one term and the sentence was pronounced at a subsequent term, and it was there contended that the case had been abandoned and that the prosecution was barred by lapse of time. This contention was there answered as follows: “As before stated, no judgment was rendered, and the court continued the case for further proceedings. It was not abandoned, and no statute is brought to our attention which would operate as a bar, on account of lapse • of time, to the exercise of the court’s power to render judgment after lapse of several terms.”

An unusually long period of time elapsed here between the entry of the plea of guilty and the final pronouncement of sentence. But there was no showing that this was not done with appellant’s consent and for his benefit. On the contrary, the judgment complained of recites that, after the sentence had been pronounced, the sentence was, with appellant’s consent and on his motion, suspended during his good behavior. He is therefore in no position to complain.

No error was committed, so the judgment must be affirmed.

Hart, J., dissents.