author: Kirby, J.,

text:
    Missouri Pacific Railroad Company v. Treece.
    4-3115
    Opinion delivered October 30, 1933.

      Thos. B. Pryor and W. L. Curtis, for appellant.

      Partain & Agee, for appellee.
   Kirby, J.,

(after stating the facts). It is contended for reversal that the testimony was not sufficient to support the verdict, and that the court erred in not sustaining appellant’s demurrer to the evidence at the time the appellee rested his case.

The complaint alleged, and it’ was conceded, that appellee at the time of his injury was working upon one of appellant’s bridges upon which was laid its railroad track-used in interstate commerce, and that the case falls within the provisions of the Federal Employer’s Liability Act.

Appellee was working with an extra gang on one of appellant’s bridges near Cenneseo, Kansas, and had been engaged in flagging trains during the morning. He was called in by his foreman and given a ratchet wrench and directed to set the screws in the guard rail on the bridge. He called the foreman’s attention at the time to the apparent defective condition of the wrench handed -him, it being dented as though mashed and very rusty near the ratchet. The foreman told him that he had ordered some new wrenches, that they would arrive soon, and to go ahead with the work with the wrench furnished, assuring him that it could safely be done. He proceeded to the work with the wrench supplied and within 20 or 30 minutes the mechanism of the wrench inside the ratchet slipped, releasing its hold on the screw and causing him to lose his balance and fall from the platform to the ground, 18 or 20 feet below. Both bones in the left ankle were broken, the bones coming through the flesh, and his foot at the heel was turned around at least 3 inches.

The court did not err in refusing to instruct the jury that appellee was barred from recovery for his- injury because of assumption of risk, that being a question properly submitted to the jury under the circumstances. Appellee complained to his foreman about the apparent de fective condition of the ratchet wrench furnished him, and was told that it could he safely used and to go ahead and use it until it could be replaced with one of the new wrenches ordered and agreed to be supplied shortly, and, such being the case, it was properly a question for the jury. The rule of assumption of risk in using defective appliances applies only where the appliance is used without objection. Erie R. Co. v. Steel, 286 U. S. 546, 52 S. Ct. 395; Ry. Co. v. Vizvari, 210 Fed. 118, L. R. A. 1915 C, 9; Lehigh Valley R. Co. v. Skoczyla, 278 Fed. 378; Id. 258 U. S. 631, 42 Sup. Ct. 463.

The chief contention for reversal urgently insisted upon is to the effect that, before bringing the suit, appellee had made a settlement with the railroad company and released it from all further liability, and that it was entitled to a directed verdict oh that account. It is true appellee did sign a release and did agree to accept the sum of $900 in settlement of his claim and cashed the draft therefor, but the jury found from the testimony that this was done upon the positive assurance of the physicians of the railroad company and its general claim agent, that he would be completely recovered from his injuries within 8 or 9 months — be as well as he ever was, and could go back to work.

The release was executed upon these representations, and, at the expiration of the 8 or 9 months, his condition as shown by the proof had improved but little. He was injured on May 7, 1931, was given treatment by physicians of the railroad company, confined in the Missouri Pacific Hospital at St. Louis, and the purported settlement was made on November 16, 1931, after he had been called to St. Louis by the appellant. He saw the claim agent after he had been examined by Dr. Stewart at the hospital the last time and made a settlement with him that day and was paid the money immediately. Before the settlement was made, Dr. Stewart, who had attended him during his stay at the hospital, made the following-statement, according to appellee:

“Q. Did Dr. Stewart make any statement to you about your leg? A. Yes, sir, he said: '‘Your leg is getting-along all right.’ He said: ‘In eight or nine months your leg will be as good as it ever was, and you can go back to work on the job just as well as you ever could.’ That is what he told me. ’ ’

After appellee talked with the doctor, the claim agent called the doctor on the ’phone about it and he reported to appellee as follows:

“Q. When you talked with Mr. Bailey, did he talk Avith Dr. Stewart? A. Yes. sir. When I got there he called Dr. Stewart, and he said the doctor said I would be all right in 8 or 9 months and be able to go back to work in that time, and my leg would be as good as it ever was. ’ ’

Appellee knew he had a bad leg Avhen the release, was signed, 'but “I thought the doctor knew what he Avas talking about when he said it would be all right. * * * I was depending on what the doctor told me. ’ ’

Witness had not recovered at the time of the trial, and still appeared to be permanently injured. He testified about the pain and suffering endured; said his ankle was still stiff, his foot hurts, his leg swells, bleeds and still pains him, and that he wears a bandage on it all the time. The doctors testified that he was not getting well, and it depended on what was done with him whether he would get well, and one doctor recommended another operation and said that he might anticipate the loss of a portion of the leg; that he could not do heavy work; that the condition of his leg at the time of the trial was painful and would continue so so long as it was allowed to remain in its present condition.

Dr. Stewart denied that he told appellee what he testified the doctor had said about the condition of his leg, and also that he had told the claim agent what he Avas reported to have said to him. over the ’phone. Stewart also said he did not know horv soon appellee would be well, or at the time he was reported to have made the-statement about the condition of the leg, that “he would; ever be able to return to work.”

The testimony discloses that, if the statements made * by the doctor and the claim agent were their honest opinions about the condition Avith which they were dealing in making the release, then said release was secured under a mutual mistake of fact; and, if such opinions Avere not honestly entertained, then the release was procured through fraudulent representations of the physician and claim agent, and in either event its effect could be avoided by the appellee. Steel v. Erie R. Co., 54 Fed. (2d) 690; Id. 285 U. S. 546, 52 S. Ct. 395; Lion Oil Ref. Co. v. Albritton, 21 Fed. (2d) 280; Great Northern Ry. v. Fowler, 136 Fed. 118; Id. 197 U. S. 624, 25 S. Ct. 800; Keich Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 24; Phoenix Utility Co. v. Smith, 185 Ark. 587, 48 S. W. (2d) 238.

This was not a case to cancel and set aside a release as fraudulently obtained by mutual mistake, as was that of Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913, relied upon by appellant, and the rule of evidence for the determination of issues is not the same. Our rule in equity cases where fraud or mistake is pleaded and affirmative relief sought is the same as announced in the case above. In K. C. S. Ry. Co. v. Sanford, 182 Ark. 484, 31 S. W. (2d) 963, it was said, after approving the rule in the Wilcox case: “'But the instant case is a suit at law and the allegation of fraud or mistake is defensive only, no cancellation of the written instrument being asked, but its consequence merely sought to be avoided.”

Little contention is made that the verdict is excessive, and under the circumstances of the case and the nature of the extended injury it does not appear to us to be so;

Several of the instructions given for appellee • are objected to, but there were nine instructions declaring the law given on the part of appellee, none of which are set out in the abstract, .and the presumptions are all in favor of such instructions declaring the law correctly, and the contention as to error in giving the instructions complainéd of will be overruled on that account.

Upon'the Whole case we do not find any substantial éfror in the record, and the judgment must be affirmed. It is so ordered.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Blakeley v. Ballard.
    4-3177
    Opinion delivered October 30, 1933.

      John D. Shackleford, for appellant.

      Alonzo D. Camp, for appellee.
   McHaney, J.

Appellee and appellant were formerly husband and wife, having been married on April 21, 1930. Appellee is 82 years of age, and appellant is 49. Prior to their marriage in September, 1929, appellee received approximately $10,000 from the Federal Government as compensation for the death of his son, a World War veteran. With $1,500 of this money he purchased a home in Little Bock and, a short time prior to their marriage,' he engaged appellant as his housekeeper. In August,; 1930, they entered into a contract dividing all of appellee’s property equally between them. -By virtue of this contract appellant received an automobile and $1,425.95 in cash. Shortly thereafter they ’ separated, and he brought a suit to annul the contract and another, to replevin the automobile. Thereafter they went back together-¿gaim' Appellant in the meantime had purchased a piece of property at Mabelvale with a portion 'of the money she had gotten from appellee, where they lived together for a-time.' On October-6, 1930, the suits above mentioned’were’dismissed. On March-12, 1931, after another separation,' appellee' filed a "suit for divorce against appellant, and obtained a decree of divorce on October 1,1931, nothing being said about property rights in that decree. This action was commenced November 12,1932, which prayed for a cancellation of the settlement agreement, heretofore mentioned, and for a recovery of the property which she had obtained from him, including the real estate described in the complaint, at Mabelvale, and for judgment for $375.95. The ground alleged as a basis for cancellation of the settlement agreement was that fraud, deception, and undue influence were practiced upon appellee, and that he was not mentally capable of making the contract. A trial of the action resulted in a •decree canceling the contract, requiring appellant to restore to him all property she had obtained from him by reason of said settlement and divesting the Mabelvale property out of her and vesting it in him.

For a reversal of the judgment, appellant first contends that the decree is not supported by the preponderance of the testimony. Without reviewing the evidence in detail, as we think it would serve no useful purpose to do so, we are unwilling to say that the evidence is not sufficient to support the decree. It is conceded that the settled rule of this court is that we will not reverse the 'findings of the chancery court unless against the clear preponderance of the testimony. Appellee is very much older than appellant, being 82 at the time of the trial, and she freely admitted that she did not marry him because she loved him, but because she expected to take care of him in his old age and have his property to take care of her in her old age; that he had promised to will her everything he had at his death. The testimony shows that appellee is a man of weak and vascillating mind, and some of the witnesses testified that in their opinion he ■ was mentally incompetent. Without reviewing the testimony further, we are of the opinion that the findings-of the court are not clearly against the preponderance of the evidence.

Appellant, for the first time in this court, attempts to plead the statute of limitations, § 6969, Crawford & Moses \ Digest, relating to the time in which a new suit must be filed after nonsuit taken, and estoppel in obtaining a decree for divorce without mentioning a settlement of the property rights between them. A sufficient answer to these contentions is that they were not pleaded or relied upon in the trial court. 'Both are defenses that must be pleaded and relied upon in the trial court in order to be available in this court.

We do sustain the contention of appellant that the judgment rendered against her for $375.95 is without substantial evidence to support it. The proof shows that of the cash received by appellant from appellee in the property settlement, $1,050 was spent for the Mabelvale property, and, in addition, she spent the remainder of the cash in building a house thereon. The decree of the court divests this property out of appellant and vests it in appellee, which carries with it the, improvements thereon.

The decree of the court will be modified in this respect by reversing and dismissing the judgment against her for $375.95, and in all other respects the decree will be affirmed.


author: Butler, J.

text:
    West Twelfth Street Improvement District No. 30 v. Kinstley.
    4-3178

      John D. Shackleford, for appellant,

      Carl E. Bailey and Fred A. Donham, for appellee.
   Butler, J.

This is an appeal from the order of the circuit court sustaining a demurrer to a petition of the appellants seeking to require the treasurer of Pulaski County to pay over to the appellants certain sums claimed to be due and payable under orders of the county court previously made.

'It is impracticable to set out the petition in its unabridged form, nor does this seem necessary. The facts pleaded as a basis of the relief sought may be thus summarized: The appellant, West Twelfth Street Road Improvement District No. 30, was organized for the purpose of building a road with its necessary bridges, and appellant, Road Improvement District Annex No. 1 to West Twelfth • Street Road Improvement No. 30, was formed for the purpose of building a connecting road with other improved highways. District No. 30 first issued bonds of the face value of $93,000 to complete the improvement and realized, from the sale of these bonds, $85,000. Pulaski County agreed to do the work with the machinery it had on hand to be paid out of the $85,000 at the rate of $7,000 per mile, payment to be made as the work progressed. Under this contract a. part of the road was completed, and the county was paid $72,000, which was $16,000 more than it was entitled to for the work performed. The highway was not completed, and it became necessary for the district to issue additional bonds in the sum of $66,000. In order to relievé itself of its obligation to complete the construction of the road, the county entered into an agreement by which it pledged one-fourth of its road funds to the district to be applied in aid of the payment of the bonds issued by the district, and -also, in aid of the payment of a $15,000 bond’issue of district annex No. 1, aforesaid. • Of the said one-fourth of its road funds the sum of $1,837,50 was pledged annually in aid of the payment of the $93,000 bond issue, $1,700 per annum on the $66,000 bond issue, and a sum sufficient to pay one-fourth of the bond issue of district annex No. 1.

To carry into effect these agreements, the Pulaski County court, on the 18th day of May, 1931, made and entered an order relating to its agreement as to annex No. 1, and on the 15th day of June, 1931, made and entered two orders, one relating to its agreement with respect to its aid in payment of the bond issue of $93,000 and the other relating to its agreement as to the $66,000 bond issue. In all of these orders the county treasurer was directed to set aside out of the funds coming into his hands for county road purposes the sums agreed upon, and further, to honor the requisition of the treasurers of the said districts for the amount of said aid on the first day of October of each year, beginning with 1932 and continuing through the period of bond payments and that the treasurer of Pulaski County should pay each year to the treasurers of the improvement districts the said sums and charge the amounts paid against the road revenues of Pulaski County for that year. In the orders there was direction that certified copies of the same be furnished the county treasurer, and that the same should be his authority for obeying the judgment and orders of the court.

At a succeeding term of the Pulaski County court an order was made revoking the orders of May 18 and June 15, 1931, from which last-mentioned order an appeal was taken to the circuit court where the action and order last taken and made by the county court were held to be invalid, and the first mentioned order adjudged to be unaffected by the attempted order of revocation.

It was alleged that at the time of the filing of the petition there was in the hands of the treasurer of Pulaski County the sum of $4,388 which had been allocated to the said improvement districts by virtue of the orders of the county court aforesaid, for which requisition had been made by the treasurers of the said improvement districts and which the county treasurer had refused to honor and to pay said sum as directed by the order of the county court. ' The prayer was that a writ of man-damns be issued requiring the county treasurer to comply with the aforesaid orders. The county treasurer demurred to the petition on the ground that the facts stated therein did not entitle the petitioner to the relief práyecl.

In support of the action of the circuit court sustaining the demurrer, the appellee contends that the orders of the county court upon which the petition was based were void for the reason that such orders were made without any appropriation having been made by the county levying court. It is argued that the petition of appellant does not show that there was ever an appropriation made by the quorum court for the county court to enter into any kind of contract with the appellant district by which the county should assume the payment of 25 per cent, of the outstanding bonds of the district.

The county court is a court of superior jurisdiction, and, in making the orders, was dealing with a subject-matter over which it was given jurisdiction by the Constitution, and it must be presumed that all necessary steps were taken in the absence of a showing to the contrary, and, if it was necessary that an appropriation be first made by the levying court, that this was ■ done. It further appears from the allegations of the petition that these questions have been settled by a final judgment of the Pulaski Circuit Court.

It is next argued that, if the orders were valid in so far as they bound the county to pay 25 per cent, of maturities on the outstanding bonds of appellant districts, that portion of said orders which directed the treasurer io set aside and pay said funds to such districts upon the requisition of the treasurers of the districts is Amid because not in accordance-with the procedure set forth in §§ 1914-25 and 2029 of Crawford & Moses’ Digest, which provide for disbursement by the county -treasurer of money in the treasury on warrants drawn by order of the county court, and that all claims against the county be presented to the county court for alloAvance or rejection after verification in the manner prescribed. These sections deal with those classes of demands which are for materials furnished, or service rendered, and are for the purpose of ascertaining whether they are valid claims which should be paid. The orders of the county court under consideration were equivalent to an allowance of the claim and sufficiently direct the manner in which they are to be paid, and there would seem to be no necessity for the procedure under the sections mentioned.

It is argued lastly that the appellants are indebted to the county in a sum in excess of that claimed in the instant proceeding, and reference is made to an exhibit filed with the petition of the appellants in support of this contention. That exhibit is a decree of the Pulaski Chancery Court rendered on the 30th day of October, 1931, in which, among other things, it is adjudged that the State of Arkansas have judgment, for the use of Pulaski County, against the plaintiff in the sum of $17,-750. This judgment is only conclusive of the fact that on that date the appellant district was indebted to the county in that sum, but it is not sufficient to sustain the contention of the appellee that the said indebtedness still exists. This is a question to be determined by proof.

We are of the opinion that the complaint states a cause of action, and that the court erred in sustaining the demurrer. The judgment of the trial court is therefore reversed with directions to overrule the demurrer, and for further proceedings according to law.


author: Johnson, C. J.

text:
    Bankers’ Reserve Life Company v. Harper.
    4-3102
    Opinion delivered November 6, 1933.

      Dudley & Barrett, for appellant.

      Oliver & Oliver, for appellee.
   Johnson, C. J.

On former appeal in this case, 185 Ark. 1082, 51 S. W. (2d) 526, we held that the testimony introduced in said cause made a question of fact for a jury to determine whether or not the release was procured by fraud or coercion. That opinion is the law of this case on that question, the testimony here presented being substantially the same as on the former appeal. Therefore, we conclude that the trial court was correct in submitting the question of the validity or invalidity of the release to the jury, and the jury’s finding that the. release was procured by fraud and coercion is supported by the evidence.

Appellant insists that the trial court erred in refusing the introduction of a letter written by appellee’s sister to appellant in reference to the release. The uncontradicted testimony in this record reflects that this letter was written by appellee’s sister to appellant without the knowledge or consent of appellee. The burden was upon appellant to show that the letter was authorized by appellee, and this it wholly failed to do. The trial court was correct in refusing to admit this letter in evidence.

Next, it is said that error was committed in permitting the witness Arnold to express his opinion in reference to the demeanor of Mr. Dow, the ag'ent of appellant who procured the release. Under settled principles of this court, a lay-witness may express an opinion after detailing the facts and circumstances upon which the- opinion is based. Pacific Mutual Life Insurance Company v. McCombs, ante p..............

It is said that error was committed by the trial court in refusing to admit in evidence certain records of the hospital, wherein the deceased, Samuel Harper, was confined just prior to his death. Admittedly, these records were not made by the offered witness, neither were they made in his presence or hearing. Therefore the authenticity of these records was not established by any testimony. The trial court therefore did not err in so holding.

It is next complained that the trial court erred in giving and- refusing to give certain instructions. It suffices to say that we have carefully read the instructions given and refused by the trial court, and we think they conform to previous decisions of this court.

It is here argued that the case should now be dismissed, because appellee did not, prior to the institution of this suit, return or offer to return to appellant the money consideration for the release. This court has many times held that this was not necessary where the release was procured by fraud. Union AAid Life Insurance Company v. Harkey, 187 Ark. 87, 58 S. W. (2d) 422. Industrial Mutual Indemnity Company v. Thompson, 83 Ark. 574, 104 S. W. 200.

Lastly, it is contended that the trial- court erred in allowing an attorney’s fee of $400. The trial court heard testimony on the reasonableness of the fee, and we can not say that- his award is contrary to the testimony.

No- error appearing, the judgment of the trial court is in ¿11 things affirmed.


author: Johnson, C. J.,

text:
    Evans v. Farris.
    4-3187.
    Opinion delivered November 6, 1933.

      Thos. J. Watts and George W. Dodd, for appellant.

      Cochran & Arnett, for appellee.
   Johnson, C. J.,

(after stating the .facts). We halve reached the conclusion that the trial court erred in refusing to direct the jury to return a verdict in favor of intervener for the possession of the car in controversy. Therefore, it will be unnecessary to set out or discuss the instructions given and refused.

There is no testimony in this record contradicting the testimony on behalf of intervener as to ownership of the car save and except the ex parte affidavits of her husband, Will Evans, filed with the Oklahoma State Highway Department in the negotiations for and purchase of license plates for the years 1929, 1930 and 1931. It is the. well-settled law in this State that a husband and wife cannot testify for or against each other except in business transactions wherein the husband or wife acts in the capacity of agent. The third division of § 4146, Crawford & Moses ’ Digest, so provides in plain language. It is practically conceded in briefs that Will Evans would not have been a competent witness to testify against his wife to the effect that he was the owner of the car. Under the law, he should not be permitted to do indirectly that which he is prohibited doing directly by statute. The ex parte affidavits of the husband in reference to his ownership of the car were inadmissible for the reasons aforesaid.

The case of McClintock v. Skinner, 126 Ark. 591, 191 S. W. 230, is cited as sustaining an exception to this general rule. This is not the effect of that opinion. The second headnote to the case referred to reads as follows:

“Where a married woman permits her husband to hold her chattels, and deal with them as his own, she will be estopped as against his creditors to claim them as hers. ’ ’

There is no contention in the instant case that the intervener permitted her husband to use or deal with the automobile in controversy as his property; there is no contention that she permitted her husband to hold this automobile out to creditors as his property. Under the uncontroverted testimony in this case, intervener has done no act which would estop her from asserting title and ownership to the car in controversy.

For the error indicated, the cause is reversed and remanded with directions to proceed according to law and not inconsistent with this opinion.


author: Smith, J.

text:
    General Motors Acceptance Corporation v. Driver.
    4-3173
    Opinion delivered November 6, 1933.

      Charles E. Sullenger and Royden Dixon, for appellant.

      E. S. Driver and Sylvanus W. Polk, for appellee.
   Smith, J.

The question involved in this appeal is whether the estate of Mrs. Mamie B. Driver, deceased, is liable to the General Motors Acceptance Corporation (referred to in the briefs as GMAC) for certain liabilities of the Driver Chevrolet Company, an Arkansas corporation, formerly engaged in the retail automobile business in Osceola, Arkansas.

The Driver Company, referred to in the contracts between the parties as the dealer, sold automobiles to various persons under conditional sales contracts, reserving the title, which contracts were sold and assigned to GMAC, with a guaranty of payment. Various purchasers made default in their payments, and the dealer was required — that event happening — to repossess the cars and pay the unpaid purchase money to GMAC as the holder of the sales contracts evidencing* ownership. This contract or plan was modified to permit the dealer to pay, not upon repossessing the car, but upon the resale thereof, a receipt for the repossessed car being signed by the dealer and delivered to GMAC.

Certain sales of cars were made, the proceeds of which were not delivered to GMAC, Avhereupon, as a condition for the extension of further credit to the dealer by way of purchasing its sales contracts, the GMAC required the execution of the guaranty which forms the basis of this suit. It reads as follows:

“In consideration of General Motors Acceptance Corporation, hereinafter called the ‘Corporation,’ hereafter extending credit at any time and to any extent to Driver Chevrolet Company, hereinafter called the ‘Dealer,’ or to any one else at the request or for the benefit of said Dealer, through issuing, drawing, accepting, indorsing, discounting, purchasing or acquiring any draft, note, acceptance, bill of exchange, letter of credit, or other instrument or obligation, for the account or in the behalf of said Dealer, or hereafter refraining to any extent from inforcing any rights under any contract or arrangement entered into by said Dealer, and of other good and valuable consideration, the undersigned agrees to hold the Corporation harmless from, and does hereby unconditionally at all times guarantee the performance and payment at maturity of, each and all drafts, notes, acceptances, bills of exchange, letters of credit, negotiable instruments, and agreements and other obligations between the Dealer and the Corporation, heretofore or hereafter issued, draAvn, accepted, executed, entered into, indorsed, discounted, purchased, or acquired, by the Corporation, for the account or in behalf of said Dealer, including all costs, expenses, and attorney’s fees, heretofore or hereafter incurred by said Corporation in connection Avith the default of said Dealer.
“This is a contract of continuing guaranty, and, until canceled as hereinafter provided, shall not be limited to any amount, and shall at all times include the full indebtedness of said Dealer to the said Corporation.
“The liability of the undersigned for any unpaid balance shall not lie affected by any indulgence, compromise, settlement, extension of credit, or variation of terms, effected by or with the Dealer or any other person interested, nor 'by the amount of Dealer’s obligations outstanding at any one time, nor by payments previously made by the Dealer or the undersigned, nor shall it be necessary for the Corporation to procure the consent of the undersigned or give any notice in reference thereto.
“The undersigned hereby does expressly waive and dispense with notice of acceptance of this guaranty, notices of nonpayment and nonperformance, notices of amount of indebtedness outstanding at any time, protests, demands, and prosecution of collection, foreclosure and possessory remedies.
“This guarantee is to remain in full force and effect until written notice of the withdrawal of the same has been served by the undersigned upon the Corporation at its principal office at New York City, provided that such withdrawal shall in no case be effective except as to new transactions subsequent to the actual receipt of such notice.
“The obligation of all parties signing this guaranty, where more than one, shall be joint and several.
“The benefits and obligations hereof shall extend to and bind the heirs, administrators, successors and assigns of the respective parties hereto.
“This guaranty and the performance thereunder shall be construed and determined according to the law of the State of New York.”

In March, 1930, the dealer had accumulated many repossessed cars on which balances of purchase money were due, and D. S. Donovan, a representative of the GMAC, was sent to Osceola to dispose of this accumulation. Donovan remained in Osceola about six weeks, during which time twenty-five of the repossessed cars were disposed of, and the controlling question in the case is the one of fact whether these cars were sold for the account and credit of the dealer, or were taken charge of by the GMAC’s representative and sold for its accounts.

The balance of purchase money due on the twenty-five repossessed cars and sold by Donovan is the subject of this litigation. There was a separate contract for each ear executed at the time of its sale by the dealer and transferred to the GMAC. These contracts were filed with and as parts of the demand of the GMAC against the estate of Mrs. Driver as guarantor under the instrument above copied. The probate court disallowed the claim, and so also did the circuit court on the appeal from this probate order.

The circuit court, on the hearing of the appeal from the probate court, made no special finding of fact, and it does not appear that request was made for special findings of fact. There was a general finding for defendant, and judgment accordingly, from which is this appeal.

It appears to be conceded that, under the contract under which the GMAC bought purchase money notes and contracts from the Dealer, the latter was required to repay any unpaid purchase money which could not be collected on any such contract. Usually the repossessed cars were sold and the proceeds of such sale paid to the GMAC, and the deficiency was paid by the Dealer.

The testimony is sharply conflicting as to how the twenty-five cars in question were disposed of, that is, whether Donovan disposed of the cars for the Dealer or for the GMAC; and the testimony is legally sufficient to support a finding either way. There is a presumption that this issue of fact was found in the defendant’s favor, and, as the testimony is sufficient to sustain that finding, this appeal is concluded thereby. It was said, in the case of International Harvester Co. v. Layton, 148 Ark. 156, 229 S. W. 22, (to quote a headnote in that case), that: “A general finding of the trial court, sitting as a jury, in favor of the defendant, will be sustained if there is any substantial evidence to sustain any of the grounds of defense set up in the answer. ’ ’

It is therefore unnecessary to consider or decide the interesting questions of law which opposing counsel have discussed, as the court’s finding upon this question of fact is' decisive of the case.

It is not questioned by either party that under the law the vendor in a conditional sales contract has the option to retake the property sold upon failure of the purchaser to pay the purchase price, in which event the debt is canceled. The vendor may, if he prefers, treat the sale as absolute and sue for the unpaid purchase money. It is not questioned that the twenty-five oars involved in this litigation were taken over from the defaulting purchasers, and this action cancels those debts; These cars were all sold for less than the amount of purchase money then due, and the purpose of this suit is to collect the difference between thé balance due on each car when it was repossessed and the price for which it was sold.

But if the GMAC took possession of these cars as owner, and sold them to whom they pleased and for such price as they saw proper to ask, as the defendant contends and as the court, no doubt, found, such action operated to cancel the debt as to each car so disposed of. Baer v. General Motors Acceptance Corporation, 101 Fla. 913, 132 So. 817; Singer v. Millard, 171 Wis. 637, 177 N. W. 893; Frankel v. Rosenfield, 95 Cal. App. 647, 273 Pac. 122.

Thus viewed, the judgment of the court below is correct, and it must be affirmed. It is so ordered.


text:
    Globe & Rutgers Fire Insurance Company v. Pruitt.
    4-3147
    Opinion delivered November 6, 1933.

      Gaughan, Sifford, Godwin & Gaughan, for appellant.

      Saxon & Warren and H. G. Wade, for appellees.
   Smith, J.

This is a suit to recover the value of an automobile destroyed by fire, the agreed value of which was $475. The case was on trial before a jury, when, at the conclusion of the introduction of testimony, each side requested the court to direct a verdict in its favor, and no other instruction was asked. Thereupon, the court directed the jury to return a verdict for the plaintiffs for $475. Thirteen days later the defendant requested the court to make special findings of fact, which the court declined to do. Judgment was rendered in accordance with the verdict previously directed, and this appeal has been prosecuted to reverse that judgment.

The policy sued on provided that, “if the interest of the assured in the subject of the insurance be or become other than unconditional and sole lawful ownership,” no recovery should be had thereon, and, further, that there should be no liability under the policy if, at the time damage by fire occurred, there should be other outstanding fire insurance. The answer alleged that there was additional insurance, and that plaintiffs were not the sole and unconditional owners of the' car at the time it was destroyed by fire.

It appears from the testimony that Mixon Chevrolet Company sold the car in May, 1931, to Lambert & Miller, who executed a note for unpaid purchase money, in which the title to the car was reserved to secure the payment thereof. The Mixon company transferred the sales contract and note to the General Motors Acceptance Corporation, and liad nothing to do with the collection of the note. On June 26, 1931, Pruitt purchased the car from Miller & Lambert, who took, in payment of the unpaid purchase money, the note of the purchaser, payable to Motor Finance Association, which company carried a blanket policy of insurance with appellant, Globe & Rutgers Fire Insurance Company, covering cars the purchase money notes for which had been assigned to it. This policy is referred to as the master policy, and contemplated insurance on such cars as the Motor Finance Association might become interested in as the owner of purchase-money notes. As insurance on any particular car was desired, the Motor Finance Association gave certain data with reference to the kind of car, motor number, purchaser, cost to purchaser, terms of purchase, and requested insurance on the car to be included in the master policy; whereupon the appellant insurance company, through its local agent, would issue to the Motor Finance Association, and to the purchaser whose note it had acquired, a certificate showing that the car described was insured under the master policy. The' insurance thus effected was payable, first, to the holders and indorsers of any unpaid purchase money notes to the extent of their interest, and the remainder, if any, to the purchaser of the car. The certificate or policy here sued on was payable, first, to- the Motor Finance Association, and, second, to Pruitt in the manner stated, and the judgment rendered so provided.

The General Motors Acceptance Corporation carried similar insurance upon cars in which it was interested through ownership of purchase, money notes, and it had such a policy with the General Exchange Insurance Company based upon the purchase money notes given by Lambert & Miller to the Mixon Chevrolet Company for the car in question.

The insistence is that this policy issued to the General Motors Company and the purchase money note held by it voided the policy sued on.

As tending to prove an outstanding title note owned by the General Motors Company, Mixon, of the Mixon Chevrolet Company, was called as a witness, and testified that he sold the car to Lambert & Miller on May 15, 1931, and took a note for unpaid balance of purchase money. He took out no insurance, and knew nothing about insurance. He assigned the sales contract and note to the General Motors Company. He received notice from that company that the note had been paid, but the notice did not advise when payment had been made, and he did not know whether the note had been paid before December 1, 1931, the date of the fire.

The local agent who issued the policy or certificate sued on testified that no representations were made as to other insurance on the car, and that the only information which he had as the company’s agent in issuing the policy was obtained from the application of the Motor Finance Association, and that he had no contract with Pruitt. Neither the Motor Finance Association nor Pruitt knew there was other insurance on the car, or another title claimant thereto.

The agent of the General Exchange Insurance Company testified that the car was transferred by Lambert & Miller prior to December 12, 1931, and that under the terms of the policy which he had written for his company the transfer automatically voided the policy. A claim was filed under this policy by Miller, but was disallowed for the reason stated, and the claim was abandoned by Miller.

The note executed by Miller & Lambert would not have matured, according to its tenor, until in May, 1932, a date later than the date of the fire, and it is insisted that, the date of payment not having been shown, the presumption arises that the note had not been paid at the date of the fire, and that there was therefore another and a superior claim of title outstanding at the date of -the fire. Mixon testified, however, that the note was returned to him before its maturity marked paid; and, in the absence of proof as to the date of payment, we think there is no presumption that the note had not been paid at the time of the fire.

Miller & Lambert were Chevrolet dealers at Smackover, and they bought the car from the Mixon Chevrolet Company, dealers in Camden. It was a sale by one dealer to another, and was upon the assumption that an unincumbered title was being conveyed, and we think the court was warranted, in the absence of proof to the contrary, in finding that payment had been made before the fire.

If this is true, there was no other title claimant at the time of the fire. In the case of North River Ins. Co. of N. Y. v. Loyd, 180 Ark. 1030, 23 S. W. (2d) 988, we quoted and approved the following statement of the law from the case of Born v. Home Ins. Co., 110 Iowa 379, 81 N. W. 676, which is annotated in 80 A. S. R. 300: “ ‘The general rule to be deduced from the weight of authority is that the violation of a condition in a policy of insurance, which works a forfeiture thereof, merely suspends the insurance during the violation, and that, if such violation is discontinued during the life of the policy, and is nonexistent at the time of loss, the policy revives, the insurance is restored, and the insurer is liable, although he has never consented to a violation of the conditions in the policy, and such violation has been such that the insurer could, had he known of it at the time,* have declared a forfeiture thereof.” See also Merchants’ Ins. Co. v. Barton, 182 Ark. 725, 32 S. W. (2d) 1069; Security Ins. Co. v. Smith, 183 Ark. 254, 35 S. W. (2d) 581.

If, therefore, the purchase money note executed to the Mixon Motor Company, and assigned by it to the General Motors Acceptance Corporation, had been paid prior to the fire — and we think the testimony supports that finding — there was no question about the title.

There appears also to be no question but that the sale by Lambert & Miller prior to the date of the fire avoided the policy in which they were interested, as was testified by the agent who issued that policy; and while it appears that Miller did file a claim under that policy, it appears also that he abandoned his claim, so that there is now a single claim of loss, and that against the appellant only.

It must be remembered that neither Pruitt nor the Motor Finance Association, the beneficiaries in the certificate or policy sued on, was aware of an outstanding policy of insurance, or that there was an adverse claim of title, and neither made any representation as to those facts. It may therefore be well questioned whether their policy would be void on account of the earlier policy. Great Southern Fire Ins. Co. v. Burns, 118 Ark. 22, 175 S. W. 1161.

At volume 3, Cyclopedia of Automobile Law (Blashfield), page 2529, it is said: “Thus, where insured in good faith purchased an automobile, repaired it, furnished new tires, procured insurance against fire and theft for a year, which on expiration was renewed, he' was held warranted in believing that he had sole ownership within the requirements of the policy; the original owner from whom the machine had been stolen having been indemnified by an insurance company, and making no claim thereto, and no one else disputing his possession.”

Section 1309, Crawford & Moses’ Digest, reads as follows: “Upon trials of questions of fact by the court, it shall state in writing the conclusions of fact found separately from the conclusion of law.”

If it be true that this section applies to the trial from which this appeal comes, in view of the fact that the court directed the verdict which the jury returned upon the request of all parties for a directed verdict, without requesting other instructions — which we do not decide — it may be said that the request for special findings of fact was not made in apt time. The statute contemplates that these findings shall be made upon the trial, or during it, and a request made thirteen days after the trial was not in apt time.

Certain other questions are argued in the brief which we do not regard as of sufficient importance to discuss.

Finding no error, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Home Mutual Building & Loan Association v. Brown.
    4-3157
    Opinion delivered November 6, 1933.

      Moore, Daggett & Burke, for appellant.

      Peter A. Diesch, for appellee.
   Humphreys, J.

This suit was instituted on November 3, 1931, by appellants in the chancery court of Phillips County against A. M. Coates and Christine Coates, his wife, to foreclose a mortgage for $3,500 executed by the Coates to it on April 1, 1929, upon lot 7 in block 104 in the city of West Helena, Arkansas.

Mr. and Mrs. Coates made no defense to the action, but on June 14, 1932, the appellee filed an intervention as guardian for her husband, Lawrence Brown, alleging that A. M. Coates acquired title to said lot by purchase on November 6, 1929, at a commissioner’s sale under a decree of the chancery court of said county rendered on November 26, 1928, in a case wherein the Helena Wholesale Grocery Company was plaintiff and Lawrence Brown and Josephine Brown were defendants, which decree was set aside on the 28th day of March, 1932, in a suit filed for that purpose by appellee in her capacity as such guar-. dian for Lawrence Brown against the Helena Wholesale Grocery Company upon the ground that her husband was insane on the date of the rendition of said foreclosure decree in favor of the Helena Wholesale Grocery Company, and was void because no defense was made thereto by the duly appointed guardian.

Upon a hearing of the cause, the court sustained appellee’s intervention and dismissed appellant’s complaint for the want of equity, from which is this appeal.

According to the record, Lawrence Brown received goods, wares and merchandise from the Helena Wholesale Grocery Company in consideration of the mortgage he and his wife executed to it in the year 1925, which was prior to any claim of insanity on his part or in his behalf, and that the amount of $3,500 loaned to A. M. Coates by appellant was paid to the Helena Wholesale Grocery Company in satisfaction of its mortgage and decree against the Browns.

The testimony tends to show that Lawrence Brown subsequently became insane and remained in that condition until after the decree in favor of the Helena Wholesale Grocery Company was rendered against him, and was still insane when A. M. Coates bought the lot at the foreclosure sale, and that Coates knew of his condition.

The testimony also shows that on the date appellant loaned A. M. Coates the money and obtained its mortgage, it had no knowledge of the insanity of Lawrence Brown, and that it parted with its money and took its mortgage in good faith, relying on the confirmation of the sale to A. M. Coates.

The testimony fails to show that appellant had knowledge of any fact or circumstance to put it on inquiry as to the insanity of Lawrence Brown at the time the decree was rendered against him in favor of the Helena Wholesale Grocery Company.

The evidence also shows that the record title in the Coates was regular and free from defects.

Under the law, the burden rested upon appellee to show that appellant either knew or was in the possession of facts or circumstances which required it to investigate the state of mind of Lawrence Brown when the decree in favor of the Helena Wholesale Grocery Company was rendered against him. Scott v. Carnes, 183 Ark. 650, 37 S. W. (2d) 876. The record does not show either actual or constructive notice to appellant that Lawrence Brown was insane at the time, but, on the contrary, the record reflects that Lawrence Brown and his wife were defendants in that case and had been served with process in the foreclosure proceeding, and that they filed answers thereto which had not included the plea of insanity on the part of Lawrence Brown on the date of the rendition of said decree; and also reflects that the sale was made pursuant to and in accordance with the decree and afterwards was confirmed by the court; and also reflects that the decree was in full force and effect when appellant loaned A. M. Coates the money with which to pay the purchase price, and that same was paid over to the Helena "Wholesale Grocery Company in satisfaction of its mortgage and decree against the Browns.

The decree was not void but voidable only. The fact that it was voidable on account of the insanity of Lawrence Brown did and could not affect the rights of an innocent purchaser who acquired the title while the judgment was in full force and effect. Boyd v. Roane, 49 Ark. 397, 5 S. W. 704.

In the purchase of lands, an innocent purchaser, relying upon the record title, occupies high ground in a court of equity. It was said by this court in the case of Rubel v. Parker, 107 Ark. 314, 155 S. W. 114, that: “No one can occupy, in a court of equity, higher ground than the purchaser for value without notice, for, if he can maintain that position, his title is established, and his position impregnable.”

On account of the error indicated, the decree sustaining the intervention is reversed, and the cause is remanded with directions to the trial court to enter a decree of foreclosure in favor of appellants.


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    Lummus Cotton Gin Company v. Taylor.
    4-3189
    Opinion delivered November 6, 1933.

      U. A. Gentry and E. F. McFaddin, for appellant.

      W. S. Atkins, for appellee.
   Humphreys, J.

This suit was brought in the chancery court of Hempstead County on December 8, 1932, to surcharge the account of appellee, State Bank Commissioner, in the liquidation of the assets of the defunct Bank of McCaskell in said county and for the restoration of part of the assets of said bank received by 46 depositors in settlement of their respective claims against said bank on account of deposits they had in the bank at the time of its failure. The appellant was the largest depositor, having in the bank $2,738.83 on the date of its failure. After the claims of the 46 depositors were compounded in exchange for assets, there remained enough cash to pay appellant 25 per cent, of its claim or deposit, which it accepted. It was alleged in appellant’s complaint that the method adopted by the Bank Commissioner and approved and confirmed by the chancery court in liquidating the assets of the bank by exchanging notes and other property owned by it for the claims of said depositors resulted in a preference to some of the depositors to its prejudice, and that the Bank Commissioner and chancery court were without authority under the statute, to administer the assets in the manner set out above. It appears from the complaint that the chancery court made the order approving and confirming the settlement made with each of the 46 depositors and that no appeal was taken from this decree,

A demurrer was filed to the complaint, which was sustained by the chancery court, and, appellant refusing to plead further but standing on its complaint, the court dismissed same for the want of equity, from which is this appeal.

The only question arising on the appeal is whether the Bank Commissioner and chancery court had authority to compound the assets of the bank in the manner aforesaid. The statute in force at the time the settlement and adjustment were made is as follows:

“Upon taking possession of the property and business of any bank, the Commissioner is authorized to collect money due, and do such other acts as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof, as hereinafter provided. The Commissioner shall collect all debts due and claims belonging to it, and for such purposes is authorized tc institute, maintain and defend suits and other proceedings in this State and elsewhere, and, upon the order of the chancery court of the county in which it is doing business, may sell or compound all bad or doubtful debts, and on like order may sell all its real estate and personal property on such terms and at public or private sale, as the court shall direct.”

This statute was construed in the case of Duncan v. Taylor, 185 Ark. 1033, 50 S. W. (2d) 978, as giving authority to the chancery court to impower the Bank Commissioner to sell an insolvent bank’s assets piecemeal at private sale and to compound debts found to be bad or doubtful by accepting deposits on such terms and considerations as should be fair and equitable. In the Duncan case, referred to above, certain depositors of the insolvent bank sought to restrain the Commissioner from accepting deposits in payment of notes and to trade notes and other assets for property instead of money, and the principle involved is the same as the principle involved in the instant case. The only difference between the two cases is that in the Duncan case an order was obtained from the chancery court to compound or settle the claims before the Commissioner compounded or settled them. In the instant case, the chancery court confirmed the settlement of the claims after they were adjusted with the depositors by the Bank Commissioner. The confirmation in the instant case of the several settlements had the same effect as if the settlement had been ordered originally by the chancery court.

Appellant contends that the act quoted above did not confer authority on the chancellor and Bank Commissioner to compound the assets, but simply authority to sell them, because a later act, act 16 of the Acts of 1933, conferred specific authority upon the Commissioner to do so. The original act in general terms conferred the same authority as the later act specifically conferred. It was simply declaratory in more specific terms of the prior act.

No error appearing, the decree is affirmed.


text:
    Brown v. State.
    Crim. 3853
    Opinion delivered November 6, 1933.

      Tom Kahoa, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Kirby, J.,

(after stating the facts). The sufficiency of the evidence to sustain the verdict is challenged here.

Certain harness, definitely described, was stolen from the ice company at Fayetteville. It answered the description of the harness offered for sale by appellant to two different people in Oklahoma, appellant contending that the harness offered for sale belonged to 'Jim Smith, and was taken on the trip by them to Joplin for sale, and later returned and left at Smith’s home. Smith and his son, witnesses for appellant, were shown to have been convicted of accessory after the fact of grand larceny, and appellant himself had twice been convicted of grand larceny.

Appellant’s explanation of his possession of the property offered for sale is very unsatisfactory, and he admitted offering harness for sale shortly after the harness was stolen from the ice company, the description of which closely resembles that stolen from the ice company, but no witness who had seen the harness that belonged to the ice company had examined that offered for sale by appellant. Treating the identification from description as sufficient to warrant the belief that it was the same property, no error was committed in telling the jury that the inference arising from the possession of property recently stolen could be considered by them, it being a question whether the property was in the possession of appellant when discovered.

The evidence is sufficient to support the verdict. It is doubtful from the record whether the court failed and refused to give an instruction on circumstantial evidence, no such instruction being requested that would warrant this objection as an assignment of error in the motion for a new trial. Lowmack v. State, 178 Ark. 928, 12 S. W. (2d) 909.

Moreover, the court gave correct instructions upon the credibility of witnesses, the weight to be given to the testimony, the presumption of innocence and reasonable doubt, and could have refused to give the instruction on circumstantial evidence without committing error. Taylor v. State, ante p. 8.

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


author: Mehaffy, J.

text:
    Mills v. State.
    Crim. 3861
    Opinion delivered November 6, 1933.

      T. J. Watts, Elmer A. Riddle and R. S. Wilson, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Mehaffy, J.

The appellant was indicted by the grand jury of Crawford County for murder in the first degree. The jury found liim guilty of voluntary manslaughter, and fixed his punishment at seven years in the State penitentiary, and judgment was entered accordingly. A motion for new trial was filed and overruled, and the case is here on appeal.

W. S. Bushmiaer, a deputy sheriff, testified that he was called to St. John’s Hospital at Ft. Smith the day that appellant was charged to have shot Tom Williams. He found Williams in the hospital, and he had been shot. He arrested the appellant near the hospital. Appellant had been drinking. Some twenty-four hours before the death of Williams, witness had a conversation with him,* at a time when Williams thought he was going to die. He did die the next day. Witness testified that Williams said Guy shot him; that he had mistreated him the day before; that he had kicked him, and Williams said that he expected the officers to look after it; he said that he knew that he was going to die, and wanted the officers to attend to it. Williams told witness that Guy had told him he asked too damn many questions, and that appellee kicked him around like a dog, and had drawn a gun on him before. Witness later recovered a coat lying on the side of the road, and found in the pocket Williams’ and his wife’s picture. Witness talked to Williams four or five times in all; never heard Williams say it was an accident, Witness called at the hospital about 12:00 Friday night, and Williams died a'bout 12:00 Sunday.

Albert D. Maxey, sheriff of Crawford County, testified that he was called to the hospital and had a conversation with Williams, and Williams did not say it was accidental. Williams did not want to talk much about it. He said that Guy told him to dance or he would shoot him. Williams told witness that Guy pulled his gun and said: “Dance, God damn you!” He said Mills was then going to shoot himself, and that he did not think Guy intended to kill him. He said he did not have any right to shoot him. Williams said he was going to die.

Dr. Fred Krock testified that he knew Tom Williams and treated him for gunshot wounds, and that he died from complications from these wounds. He was in the hospital ten days. There was a bruised area over the right hip. He was conscious until a few minutes before his death. Witness told him he had very little chance to recover. Williams told him two days before his death that he was not going to get well. Witness said that Wib liams told him that Mills tried to kill himself. He also stated that- it was an accident and unintentional. The bruise on his hip could have been caused by his fall to the ground. It could have been caused by having been knocked down on the ground and slid around.

Arch Howell, a deputy sheriff, testified that he “arrested George Sites in April, and Sites made a statement to him. Sites said: “We make whiskey over on our side, and we drink it. ’ ’ Found d card at the still site, and on it was written: “Olí, yon snitclier, yon thought you would run me in, but I ran my beer green, and made forty gallons.” Has seen appellant’s handwriting, and the writing on the card is his. Witness testified that there was no. ill feeling between appellant and himself.

Several witnesses testified for the appellant, practically all of them testifying that the shooting was accidental.

Appellant testified that they were drinking a little, and that he did not intend to discharge the gun; admitted that he drew a gun on Vieory, and told him to dance; had a fight with Bo Montgomery one time.

Appellant contends that the judgment should be reversed because the prbsecuting attorney used the follow-; ing words in his opening statement to the jury: “I think the testimony will show that Guy Mills was engaged ip the manufacturing and selling of liquor — over there with Guy Mills a number of things happened that Tom knew about. The testimony will show that Guy Mills beat Tom with a rubber hose, possibly stomped him. He made the statement another time that Tom knew too damn much.”

The statement of the prosecuting attorney above copied left out a statement which followed immediately after the word “liquor” in the first sentence, and is as follows: “Tom Williams was a man who was homeless. I think the testimony will show that Tom was the sort of a fellow that would take a spell of being good, and he would tell everything he remembered during that time. ’ ’

At the close of the statement the appellant objected to the remarks, and the court said: “That will be sustained so far as the direct charges are concerned; as to the others, it will be overruled,” and the appellant excepted.

Just what part of the statement he excepted to, it N difficult to tell, and it is not shown just what the court meant by the “direct charges.” No suggestion was made by the appellant at that time that the court state particularly what portion of the remarks he meant by “direct charges.” He probably had in mind that charges affecting the credibility of the appellant as a witness were admissible, and that the other part was not admissible, and to that part he sustained the objection.

The evidence that the prosecuting- attorney said in his opening-, statement would be introduced was competent. “It is certainly true as a general rule, both in civil and criminal cases, that the evidence must be confined to the point in issue; and in criminal cases there is perhaps a greater necessity, if possible, than in civil proceeding’s to enforce the rule; but in neither class of cases does- this rule exclude all evidence that does not bear directly upon the issue; on the contrary, all evidence is admissible which tends to prove it, and no facts are forbidden to be shown, except such as are incapable of affording any reasonable presumption or inference in elucidation of the matters involved in the issue.” Stotts v. State, 170 Ark. 188, 279 S. W. 364.

The appellant did not request any instruction with reference to the statement of the prosecuting attorney.

Section 3171 of Crawford & Moses’ Digest is as follows: “The prosecuting attorney may then read to the jury the indictment, and state the defendant’s plea thereto, and the punishment prescribed by the law-for the offense, and may make a brief statement of the evidence on which the State relies. ’ ’

In the instant case the prosecuting attorney was evidently undertaking to make a statement of the evidence upon which the State relied, and we do not think there was any error in the ruling of the court as to the objections made by the appellant.

The appellant also urges that the case be reversed because the prosecuting attorney, in his closing argument, said: “Gentlemen of the jury, I told you in the opening statement that Guy Mills was engaged in the making of liquor and selling it, and we have proved that ; I told you that G;uy Mills had been going around shooting at people, and we proved that; I told you Tom Williams, the' deceased, had learned too damn much about Guy Mills’ business, and I think we have proved that.”

The appellant cites Holder v. State, 58 Ark. 473, 25 S. W. 279, as sustaining his contention. In that case the court held that the action of the attorney for the State was highly reprehensible.

There is nothing reprehensible in the conduct of the prosecuting attorney in this casé. He was merely stating that he had proved the things to which he had called attention in his opening statement, and, when objection was made, the court said: ‘ ‘ The prosecuting attorney may argue his theory of the case,” and the appellant simply said: “Save our exceptions.”

The appellant’s attorney objected on the ground that the argument was not supported by the record in the case. We think the evidence tended to show the facts as stated by the prosecuting attorney, and that there was no error in the court’s permitting the argument. He was simply stating to the jury what the State had proved, and the evidence was admitted without objection.

The evidence, if believed by the jury, was sufficient to justify the verdict, and the case is therefore affirmed.


text:
    Maxwell v. State.
    Crim. 3862
    Opinion delivered November 6, 1933.

      Rains & Rains and R. S. Wilson, for appellant.

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

Appellants were indicted, tried, convicted and sentenced to a term of three years each in the State penitentiary on a charge or robbery. The facts are that on May 28,1933, the appellants robbed a number of people who were on a fishing party on Lee Creek in Crawford County. They first accosted Mr. and Mrs. Harmon, Harmon’s sister, his mother and a little negro boy, and robbed them of certain personal property. All three of them were together at the time of this robbery. They left appellant, Oliver, in charge of these victims while the other two appellants went up the creek a short distance where Henry Geren and Paul Latchley were fishing and robbed Geren of $1.70. Shortly thereafter Oliver came up with the other victims, where they all remained for some forty-five minutes or an hour, when the three appellants left together.

For a reversal of the judgment against them, three grounds are urged as error: (1) That the court erred in permitting the sheriff to sit at counsel table advising with the prosecuting attorney and prompting him as to what questions to ask the witnesses; (2) certain prejudicial statements, actions and attitude of the court toward the defendant’s attorneys, and (3) refusal of the court to instruct a verdict of acquittal as to appellant, Oliver.

1. The record fails to disclose any activity on the part of the sheriff or any participation in the trial, except the remarks of counsel for appellants in making an objection in which he stated: “This morning and this afternoon the sheriff had set by and prompted the prosecuting attorney.” In response to that statement, the court said: “Gentlemen, I do not think that is necessary. We have been two-thirds of the day on this case. You have been prosecuting attorney, Mr. Wilson, and you would not object to the sheriff giving you help. All this spatting is wrong and acting like a bunch of school boys.” To these remarks of the court, appellants’ counsel excepted, and this exception forms the basis of the second assignment of error. We think no error was committed in these regards, and that appellants’ exceptions thereto are not well taken. The record fails to disclose any activity on the part of the sheriff except that counsel stated that the sheriff had sat by and prompted, the prosecuting attorney. The. sheriff is an officer of the court, and his duties no doubt demanded his presence, and we see no objection to his prompting the prosecuting attorney regarding matters within his knowledge when called upon by him. The point was ruled adversely to appellants’ contentions in the recent case of Ridenour v. State, 184 Ark. 475, 43 S. W. (2d) 60.

Regarding the remarks of the court above set out, we think it fairly inferable that the language used was addressed to both the prosecuting attorney and counsel for appellants, was not offensive, and was not intended to be so. It was more an expression of impatience at the delay of both sides in trying the case, and was an attempt merely to hasten the trial. Nothing was said or done by the court pertaining to the merits of the cause. The remarks wore provoked by an objection made by the prosecuting attorney to the examination of a witness by counsel for appellants wherein the latter made the objection first above quoted. We think there was nothing in the remarks calculated to prejudice the jury against counsel for appellants any more than against the prosecuting attorney or to convey to them the suggestion that one Avas making frivolous objections and saving captious exceptions any more than the other. Vasser v. State, 75. Ark. 373, 87 S. W. 635.

3. The court correctly refused to direct a verdict for appellant, Oliver, for the reason assigned that he was not present when the other two robbed Geren. It is true that Oliver was some distance away guarding the other victims, but it is also true that they were all three participating in the same common purpose, all being conspirators, having the common purpose of committing the crime of robbery. In such case the act of one would be the act of all, and the crime was not completed until their purpose had been accomplished and they had left the scene of their crime. Moreover, the act of Oliver in guarding the first victims was in aid of the other two in robbing Geren, for, if they had been left to themselves, they might have spread an alarm and the robbers been captured. He was therefore equally guilty with the one who actually took the money from Geren.

Affirmed.


text:
    Martin v. Taylor.
    4-3184
    Opinion delivered November 6, 1933.

      J. B. Milham, C. T. Cotham and Tom W. Campbell, for appellant.

      John L. McClellan, A. C. Thomas, McDaniel & Nall, Robinson, House & Moses and W. R. Donham, for appellee.
   McHaney, J.

Appellant and four others organized the Benton Trust Company as a banking corporation on December 4, 1930, showing a paid-up capital of $50,000 and surplus of $5,000, they owning all the stock and all being officers "and directors, appellant being the president. On the same day they borrowed from the Union Trust Company of Little Bock $39,500, executing their demand note therefor signed by the five of them, which, together with $15,450 in sundry checks, making a total of $55,000, was deposited in said Union Trust Company to the credit of the Benton Trust Company, hereinafter called the new bank, for which a duplicate deposit slip was delivered to them showing such deposit. On the same day said parties called on the Bank Commissioner, presented their articles of incorporation, exhibited to him said duplicate deposit slip and represented to him that the.named capital and surplus in the new bank had been fully paid in cash by them. Thereupon, the Bank Commissioner issued and delivered to them a charter for the new bank. On the same day the new bank entered into a written contract with the Bank Commissioner to purchase the assets of the insolvent Benton Bank & Trust Company, then in the hands of the commissioner for liquidation, in which it was stated that the capital and surplus of $55,000 had been fully paid in cash. This contract was presented to and approved by the Saline Chancery Court oh the petition of the commissioner December 5, 1930, and said new bank thereupon opened for business. On the same day an entry was made in the books of the new bank showing it had on deposit in the Union Trust Company $55,000. Three days thereafter, December 8, one of the organizers took the duplicate deposit slip back to the Union Trust Company, surrendered it, and received in exchange therefor said note for $39,550 and a new duplicate deposit slip for $15,450 to the credit of the new bank. Up to thaJ date, December 8, no entry had been made on the books of the Union Trust Company showing the original transaction. On the same day, December 8, entries were made on the books of the new bank, one crediting the Union Trust Company with $55,000, and another charging it with $15,450. The new bank continued in business less than one year, was found to be insolvent and was taken over for liquidation by the Bank Commissioner. On discovery of the facts by the commissioner, he brought this action against appellant and the other organizers to recover the sum of $39,550, alleging that they were jointly and severally liable to him as commissioner in charge of the new bank, “said indebtedness being for money had and received by the defendants and unlawfully and without right appropriated by them for the purpose of paying their individual note as aforesaid.”

Trial resulted in a decree against appellant and the four others for the amount claimed. In its finding’s of fact the court was of the opinion that the $39,550 trans ' action with the Union Trust Company was a “paper’ transaction; “that said sum of $39,550 is an unpaid stock subscription on the part of the defendants herein for which they are jointly liable and that judgment should be entered against them for such sum, together with the cost of this action.” Appellant alone has appealed.

The language last above quoted forms the basis of the principal attack on the decree, it being contended that the decree is at variance with the pleading’s and proof; that the action was one for conversion of the funds of the new bank, but that the trial court, without any evidence, treated it as one for stock subscriptions. Assuming without deciding that appellant is correct in this contention, still it can avail him nothing if the decree of the court is right. There is no rule better settled in this court than that appeals in equity cases are tried here de novo and that a correct decree based on an incorrect reason is no ground for reversal. In other words, if the decree is right, it will be affirmed, even though the trial court reached its conclusion by an erroneous route, as said in Gage v. Ark. Central Rd. Co., 160 Ark. 402, 254 S. W. 665.

The evidence in this case is undisputed. Neither appellant nor the other organizers testified, nor did they offer any testimony in their behalf. It is not denied that they deposited the $39,550 in the Union Trust Company to the credit of the new bank. This represented the value of so much stock issued to them. They represented to the Commissioner that they had paid for their stock in full and in cash, exhibiting the duplicate deposit slip. The Commissioner issued a charter to them in good faith, believing they had paid for their stock, which in fact had been paid for. The deposit in the Union Trust Company was the property of the new bank, and it could not lawfully be used to pay their individual debt. The course pursued amounted to a fraud on the bank, the commissioner and all of its creditors who became such on the faith of its capital and surplus having been fully paid: By the entries made on December 8, 1930, the.capital stock of the new bank was impaired to the extent of $39,-550 and the bank was then insolvent under the definition of insolvency in § 717, Crawford & Moses’ Digest, subdivision 4.

The net result of the whole transaction with the Union Trust Company was that appellant and the other organizers paid their individual debt with the funds of the new bank, and thereby became indebted to it in said sum. No effort was made to show that they had paid the new bank said sum or had in any manner discharged same. The decree of the court adjudging them to be so indebted is therefore correct, no matter what reason was given therefor.

Affirmed.


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    Louisiana Oil Refining Corporation v. Haltom.
    4-3186
    Opinion delivered November 6, 1933.

      Jeff Davis, for appellant.

      Powell, Smead & Knox and Gaughan, Sifford, Godwin & Gaughan, for appellee.
   Butler, J.

Appellant corporation in January, 1930, completed a small oil well on a certain forty acres of land in Ouachita County, Arkansas, and operated the same until about April 15, 1931. At that time it made an arrangement with one Whittaker to operate the well for the company, which he did until about June 1,1931, when the well was closed down and its operation abandoned. On August 16,1932, the appellant entered upon the property to remove the oil well equipment when appellee, G-. W. Haltom, forbade it to move the same, claiming it as his own. Appellant thereupon brought this action in replevin to recover the possession of the said equipment, executed its bond, and the property was delivered to it and removed from the premises.

Appellee Haltom filed answer to the complaint denying that the appellant was the owner of the properties mentioned in the complaint, admitted the possession of the same in himself and denied that he unlawfully detained the same. On a trial of the cause there was a judgment in favor of the defendant for the return of the property, or for its value in the sum of $1,435.50, from which judgment is this appeal.

At the conclusion of the testimony in the court below the appellant moved for a directed verdict, and now on appeal insists that the verdict should have been directed in its favor for two reasons.

It is insisted first that the appellant proved that in 1926 it acquired an oil and gas lease on the property upon which the oil well in controversy was later drilled. It placed the material in the well and installed the proper pumping equipment, all of which was the property of the appellant at the time, and it was the same property that it demanded of the appellee, permission to remove which was refused, and the same' that is involved in this lawsuit, and therefore, in order for the appellee to be entitled to a money judgment against the appellant for the value of the property it obtained under the writ of replevin, it was necessary for him to affirmatively show himself to be the owner of the fee simple title to the land on which the property was located. It is further contended that in neither the pleadings nor proof is there any claim' or showing made of such title. It is therefore argued that the property taken may have been handled in such a manner that its identity may have been lost, and, if it should subsequently appear that some other person than appellee was the owner of the fee, appellant might have to pay for the property twice.

There were some others joining in the lease with Hal-tom to the appellant’s predecessor in title. Just what their interest was does not appear from the record, but it seems plain that the title of Haltom was not placed in issue in any way, but that it was conceded that he was the owner. While reference to the ownership of the land in the record is slight, the inference to be drawn from what does appear is that it was Haltom’s property upon which the well was located, and in the affidavit made by the appellant to obtain the writ of replevin it was affirmed that “the property was placed upon the premises of G. W. Haltom where the same is now located. ’ ’ It might be also said, in answer to the argument that appellant might have to pay twice for the property, that, the judgment being in the alternative, all that would be necessary for it to avoid the contingency feared would be to rd urn the property, in which event the judgment would be satisfied. The appellant should have anticipated that the judgment might be adverse to it, and therefore, if the identity of the property has been lost so that it cannot be returned, that is to be attributed, to the acts of appellant of which it ought not to-complain.

The second and serious ground for reversal of the case is “that under the circumstances as disclosed by the testimony the appellant’s delay in going upon the leased premises to remove the equipment which constituted its oil well was so clearly not an unreasonable delay that the learned trial court should have so found as a matter of law.” That part of the lease under which the appellant claims the right to remove the oil equipment reads as follows: “Lessee shall have the right at any time to remove all machinery and fixtures placed upon said premises including the right to draw and remove casings.” It seems to be the rule, supported by authority and reason, that this clause should be construed so'as not to give the lessee an indefinite length of time to remove his equipment after expiration or abandonment of his lease, but that the right reserved to move the equipment must be exercised within a reasonable time, and a failure to do so would result in the forfeiture of the lessee’s right in the property which would thereafter be considered as a part of the realty and title thereto vested in the lessor. Midland Oil Co., (1924) C. C. A., 3 Fed. (2d) 112; Michaels v. Pontius, 83 Ind. App. 66, 137 N. E. 579; Standard Oil Co. v. Barlow, 141 La. 52, 44 So. 627; Shellar v. Shivers, 171 Pa. 569, 33 Atl. 95; Terry v. Crosswy, (Tex.) 264 S. W. 718; Gartlan v. Hickman, 56 W. Va. 75, 49 S. E. 14, 67 L. R. A. 694; Bache v. Central C. & C. Co., 127 Ark. 397, 192 S. W. 225; Heim v. Brock, 133 Ark. 593; 202 S. W. 36.

As to whether the appellant after June 1, 1931, did any act on or about the oil well to indicate that it had not abandoned the lease, the testimony is in conflict. This question was presented to the jury by appropriate instructions, and learned counsel for the appellant recognizes the rule that where there is substantial testimony to support the finding of the jury it is conclusive on this court. He assumes, and justly so, that under the finding of the jury the lease terminated on the first of June, 1931, and that the appellant did no further act relating to its dominion over- the lease, or right thereunder, until August 16, 1932, a period of about fourteen and a half months, but earnestly insists that, under the circumstances disclosed by the testimony, the trial court erred in refusing to hold as a matter of law that the appellant was justified in the delay in removing the equipment from the well on appellee’s land.

It was shown that at the time the appellant ceased to operate the well it was making seven barrels per day of the market price of twenty cents per barrel, giving a gross monthly income for all of the oil produced in the amount of $42, while the operating expenses were greatly in excess of that amount. During the entire year of 1931 and 1932 the business of producing oil, in common with all other interests, was laboring under severe economic depression and at no time after June 1, 1931, until the beginning of this suit, did the price of oil improve in the Union 'County oil field, of which the well in question may be deemed a part, and at the time of the trial in one of the important oil fields of the county all of the wells were shut down because no one would buy the oil and all the storage tanks were filled to capacity. Counsel insist that the appellant did. not intend to abandon the lease on June 1, 1931, and that in November, 1931, it obtained permission from the Conservation Department of the State of Arkansas to cement the well at the bottom for the purpose of 'excluding water from it and for increasing its production of oil. It is pointed out that the well is located in the middle of a cotton field and that the equipment left upon it occupies only a small space of ground so that it could not have been any inconvenience or expense to the appellee, and that to remove the equipment would have been very much more expensive to it than the fair rental value of the small portion of appellee’s cotton farm which was occupied, or the damage which might have been sustained to it during the fourteen and a half months of the delay, and, as for the authority for the position taken, we are referred to the cases of LeCroy v. Barney, 12 Fed. (2d) 363; Standard Oil Co. v. Barlow, 114 La. 52, 74 So. 627, and Collins v. Mt. Pleasant Oil & Gas Co., 85 Kan. 483, 118 Pac. 54. In LeCroy v. Barney, it was held that a delay of nine or ten months, as a matter of law, was not an unreasonable, length of time in which to exercise the privilege under lease for the removal of the equipment. The reason given by the court for its holding was that the petition did not claim nor did the agreed statement of facts disclose that any injury to the plaintiff accrued, from his delay.

Standard Oil Co. v. Barlow, supra, was a suit to enjoin the oil company from removing- a casing- from a well drilled for oil which proved unprofitable and was abandoned. Eight months later the company was preparing- to remove the casing from the well when the action was begun, praying for an injunction to prevent the removal and for damages to the lands of the lessor alleged to have been caused by the drilling and attempted operation of the well. The case was tried by the district judge who awarded the petitioner damages for injury to his land but denied the prayer for an injunction. In affirming the .judgment, the Supreme Court adoptéd the reasoning of the trial judge by which it reached the conclusion that the facts did not justify a finding that the company had abandoned its property and that it had not delayed beyond a reasonable time in which to exercise the right of removal reserved in its lease.

Collins v. Mt. Pleasant O. & G. Co., supra, was an action to cancel an oil and gas lease. The answer alleged facts by which the company sought to justify its delay in the operation of the well and to avoid the cancellation of its lease, praying that, in the event the lease should^be canceled, it be allowed to remove the casing- from the well. An interval of four years elapsed after the completion of the well, and it had been discovered that it was unprofitable to operate. The Supreme Court held upon appeal that the facts proved were sufficient to avoid the lease but not to vest title in the lessor to the easing remaining in the well. There was no evidence of any injury resulting by reason of the delay in removing the casing.

In the first case the decision of the court was grounded, among other things, on the fact that a delay of eight months was not unreasonable when no circumstances were alleged or proved from- which any inference of injury caused by the delay could arise. In the last' two cases relied upon both appear to have been equitable proceedings, and the appellate courts were not circumscribed, as is this court, where a case comes on appeal based on a determination by a jury of a question properly for its decision and where there is any substantial evidence Avhich warrants the submission of the question to the jury.

In the instant case we are unwilling to hold, as a matter of law, that the leaving of the derrick and other equipment standing in appellee’s cotton field, or the cessation of the well’s operation, resulted in no injury or inconvenience to him. Something more than the actual ground occupied must be taken into consideration — the right of ingress and egress to and from the well over the cultivated lands of the appellee. Then, too, there is evidence that just off the lands of the appellee and nearby the Avell operated by the appellant an oil well Avas drilled and operated by the Magnolia Petroleum Company which had the effect of draining away a part of the oil from the lands of appellee, so that it was the duty of the appellant to either operate the well itself or to procure its operation for the purpose of protecting the lessor’s lands from drainage from the off-set well. Therefore, we are unable to say that no injury was sustained by the appellee because of the actual occupancy of the land and of the continuous operation of the off-set well which, it was shown, had been operated during all the time the appellant’s oil well was shut down, and was in operation when this cause Avas tried. The general rule is that it is a question for the jury to determine from all the facts and circumstances in the case what is a reasonable time in Avhich any act may or may not be done, and therefore, in this case, it was a question for the .jury to answer whether the appellant exercised its rights under the lease within a reasonable time. The trial court did not err in so holding, and its judgment must therefore be affirmed.


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    Shepard v. McDonald.
    4-3181
    Opinion delivered November 13, 1933.

      Lee Miles and Trieber & Lasley, for petitioner.

      Hal L. Norwood, Attorney General, Robert F. Smith, Assistant, and Owens Ehrman, for respondent.
   Johnson, C. J.

Seeking judicial review of the acts of Ed F. McDonald, Secretary of State, approving a referendum petition upon act 78 of the General Acts of 1933, this suit Avas instituted by petitioner in this court as an original proceeding. In substance, the petition alleged: That on June 10, 1933, respondent, Ed F. McDonald, Secretary of State, filed and approAmd an insufficient referendum petition against act 78 of the Acts of 1933 and issued his certificate suspending the effectiveness of said act until voted upon and approA^ed by the people of the State of Arkansas at the general elections to be held in 1934; that said petition for referendum, filed and approved as aforesaid, was insufficient, in that the ballot title required to be submitted therewith Avas defective and misleading; that the action of the defendant in approving said petition and in issuing such certificate was unauthorized, unlawful and void. The prayer was that said petition he judicially determined insufficient, and that the certificate issued suspending and referring said act number 78 of 1933 he declared null and void.

The respondent filed his demurrer to said petition as follows:

First, the court is without original jurisdiction to determine the sufficiency of the referendum petition and defective ballot title; second, that the petition was not filed Avithin the time required by law; third, that the complaint states no cause of action against the Secretary of State.

There are four questions presented for determination, namely: First, is the ballot title a part of the referendum petition? Second, does this court have original jurisdiction to determine the sufficiency of a referendum petition? Third, the time when such suit must be filed. Fourth, is the Secretary of State a necessary and indispensable party to such proceeding?

Adverting to the first issue raised, is the ballot title a part of the referendum petition? We think this question was definitely decided in Westbrook v. McDonald, 184 Ark. 740, 43 S. W. (2d) 356, Avherein this court said: “As the ballot title here submitted might mislead, we haAm concluded that it was defective and insufficient and that the amendment was not sufficiently complied AAÚth in this respect.”

The fact is, this is the exact point which was decided by this court in the Westbrook case for the folloAving reasons: The Initiative and Referendum Amendment, commonly knoAvn as Amendment 13 to the Constitution of 1874, proAÚdes: “The sufficiency of all state-wide petitions shall he decided in the first instance by the Secretary of State, subject to revieAV by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such cases. The sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk, as the case may be, subject to reAÚeAV by the chancery court.”

From the language used in the amendment, it is perfectly apparent that there could he no serious question raised in reference to the original jurisdiction of this court in a suit wherein the contention was that the petition for referendum, standing alone, was insufficient.- It was insisted by respondent in the Westbrook case that the ballot title was apart of the referendum petition, and that his acts in refusing to file said petition, because of an insufficient title, should be sustained. This court sustained the Secretary of State’s position for this reason. Since this court has definitely determined this question in the Westbrook case and cited eminent authority in support of it, we shall refrain from discussing the question further. We do announce, however, that the ballot title submitted on a referendum petition is a part and parcel thereof and must be so considered.

The second question presented, to-wit, the original jurisdiction of this court to judicially determine the sufficiency of a referendum petition, is decided 'by the amendment when thus construed. If the paragraph of the amendment heretofore cited has any meaning, it is that the. Supreme Court “shall have original and exclusive jurisdiction” over all questions in which the sufficiency of a State-wide petition shall be involved. We have no hesitancy in saying that, under the plain language of the amendment itself, this court does have original and exclusive jurisdiction to determine the sufficiency of the referendum petition against act 78 of 1933.

As to the third question presented, that is to say, the time in which petitions should be filed in this court bringing in question the sufficiency of a referendum petition, but little need be said. The amendment places no limitation upon the time in which such suits shall be brought; neither have we any statute placing a limitation thereon. Therefore we announce the rule in the language of the Supreme Court of North Dakota in Preckel v. Byrne, 62 N. Dak. 356, 213 N. W. 823, which State has an initiative and referendum amendment not dissimilar from our own.

“The action of the Secretary in passing upon the sufficiency of a petition may be reviewed at any time, ‘but if the sufficiency of sucli petition is being reviewed at the time the ballot is prepared, the Secretary of State shall place the measure on the ballot, and no subsequent decision shall invalidate such measure if it is at such election approved by a majority of the votes cast thereon.’ That is, no subsequent decision of the court reviewing the action of the Secretary in passing upon the sufficiency of the petition shall invalidate the measure. When approved by the electors, it becomes a law, subject to the same rules of construction and interpretation as an act of the Legislature, and its constitutionality may be determined in the same way.”

The complaint in the instant case was filed within thirty days after the filing of the petition for referendum with the Secretary of State. The Initiative and Referendum Amendment grants the petitioners for referendum thirty days in which to amend their petition. Certainly a citizen and taxpayer should not be limited to less than thirty days in which to file his suit, provided, it does not interfere with the submission to the voters at a general election.

The fourth question presented, is the Secretary of State a necessary and indispensable party in all such proceedings? This court so decided in the Westbrook case, cited supra. However, it is now insisted that, since the initiative and referendum provides:

“At the time of filing petitions the exact title to be used on the ballot shall by the petitioners be submitted with the petition and on state-wide measures shall be submitted to the State Board of Election Commissioners who shall certify such title to the Secretary of State to be placed upon the ballot.” That we were in error in so deciding.

If it be granted that the Secretary of State has nothing to do, in the first instance, with the sufficiency of the ballot title, he certainly has the duty of certifying the ballot title to the election officials of the several counties of the State. Therefore, when it is determined that such petition and ballot title are insufficient, he may be restrained from certifying out to the election officials of the several counties of the State such defective ballot title. In other words, as the law now is, the Secretary of State has the imperative duty of certifying out to the election officials of the several counties of the State the ballot title as it appears on file in his office, and when it is determined, if it is so determined, that such ballot title is insufficient, then he should be restrained and enjoined from so doing.

It has been specifically agreed between counsel for petitioner and respondent that the question of the sufficiency of the ballot title in the instant case be reserved for decision until the jurisdictional questions have been determined. Therefore we do not here decide or discuss the sufficiency of the ballot title in the instant case.

For the reasons aforesaid, respondent’s demurrer to the petition is overruled.

Mehaffy and McHaney, JJ., dissent.